*1 in thе counterclaim. acquiescence on first was based boundary ten-year period provided for a as 650.1, 650.5, 650.6, 650.14, of the Code. The second claimed title by possession. against adverse court trial found eounterelaimant on possession the adverse count but made no ruling Appellant only on the first count. now on the first relies findings count. As acquiescence, there are no on the issue there is nothing review, appeal us if we treat the сounterclaim action we, at law. If we review novo de course, can make our own findings. type judg
This as at law and the action is triable ment jury verdict and of the trial court has the effect support will if be affirmed there is substantial evidence it. Melson, Allen v. As it is parties agreed try not clear the counterclaim as equity appellant and as appeal law, seems to treat the as one we reverse and remand Count I of the counterclaim for new trial. error when the trial court did not decide issues raised this count. appellant’s trial court on
We therefore reverse the appeal right-of-way and reverse and remand for on the issue new trial re on Count I counterclaim. —Reversed and manded.
All except Rawlings, J., part. Justices concur who takes no Danny Charlson, appellant. Iowa, appellee, Earl State of No. 52721. (Reported 829) 154 N.W.2d *2 December *3 Nutty,
John Ames, appellаnt. E. for Turner, Attorney C. General, Richard Elderkin, David A. Attorney Assistant General, Vanderbur, Story and Charles E. County Attorney, appellee. of Ames, for upon C. J. Defendant was convicted trial of
Garfield, operating a motor vehicle (OMVI) while intoxicated in viola- tion of 321.281, Upon section Code, appeal he as- signs error in the denial of suppress motion to his evidence of sámple request the result of a test a blood, of his taken at his with his consent. Mary Greeley in sample The Hos- was withdrawn pital City registered designated by Ames nurse physician. a licensed The nurse testified she withdrew it request Keig- the oral the defendant and Ames Police Officer There was no written l'ey. sample officer that the be withdrawn. factory originally “new,
Further, syringe used “kept however, was, disposable.” It wrapped, [or] words quoted strictly The sanitary and sterile conditions.” 321B, com- 321B.4, part section are found in Code monly Law. called the sterilе. syringe was
The assured the nurse testified she was the auto- comes opened myself package. “I it It from from the * * * paper, sterilized supply wrapped clave at central consistency steam it indicates right and when it reaches the changed it color and package or is marked on the have would use syringes “we did also change color.” The nurse said the pro- glass resterilized,” are sure of and are she was not through they go storage cedure at “but most of the time central put sterilized, they are at least two to three solutions before paper into individual containers and autoclaved.” sample sealed, and de- of defendant’s blood was labeled experienced pharmacologist livered who had tested several samples such The test hundred alcoholic content. milligrams revealed 248 of blood per of alcohol 100 milliliters percent. expert testimony or .248 substance sample alcoholic milligrams content excess of 150 of such a proof of blood is definite intoxication and committee on alcoholism of the American Medical Association has recom- mended mil- measure of intoxication reduced to ligrams. suppress the of alcoholic motion evidence
Defendant’s syringe content of his on the facts the blood was based disposable (2) new, originаlly factory wrapped sample the blood was not withdrawn and the administered peace at the written is said that because officer. *4 Law, mainly these two facts the 321B.4, trial of a 321B.3 and renders inadmissible charge of evidence of the result the blood test. OMYI with argument compliance that strict implicit in this is withdrawing for procedural provisions of these sections requests thereto, or consents testing blood, even of one who admissibility on trial preсedent a condition is argument charge criminal cannot of evidence of the test. accepted. necessary. I. No detailed review of the evidence We may observe, however, ample there evidence of defendant’s guilt aside from relating to the blood test. University. age junior, 21, at Iowa State
Defendant was a upon him and p.m. About Ames OfficerBird came 6:45 Police ear left the his automobile Street. The had traveled nеar Sixth badly rest, way, dam- light pole knocked down and come to aged park adjacent inoperable, on a road to the street. attempting kneeling tire, Defendant was a rear beside change hubcap nuts it. and some or all the wheel had lying feet be- jack been removed but the auto to five two conflicting hind the car. Officer gave Defendant versions to Keigley, Bird and also scene, Officer who arrived cause of the accident tavern and the where he had been drink- ing finally hurriedly beer. He said had 62- he consumed a pitcher percent ounce Lounge. Sportsmen’s five beer at the Keigley Both Bird and observed several familiar indications of completing report. intoxication defendant’s while the accident Keigley police Officer took defendant to the Ames station to be booked for OMNI. Since were de- there some indications may fendant injured have been accident, Keigley in the Lang, officer, a third him Mary were Greeley ordered to take Hospital by physician. to be examined Prior the examina- placed he tion was arrest OMYI.
At the scene the accident Keigley Officer asked defend- ant if taking he would consent to the of a blood test and replied hospital defendant “Yes.” way On the to the defendant compelled was told was undergo he not At a blood test. hospital, pеrhaps prior (the entirely thereto record is not clear) taking explained such a test was to him. sample Before the nurse, blood was withdrawn previously related, again gave defendant his consent to the officer and the doctor who him examined to the withdrawal of sample. And, a blood indicated, as before the nurse testified sample was request. withdrawn at defendant’s This was disputed. *5 502 testimony. made of some other
Mention is later interpretation assigned calls error II. Dеfendant’s 321B, 1966. Defend- Implied Law, chapter Code of onr Consent 321B.4 upon 321B.3 and thereof. ant’s main reliance is arriving cor at the However, it fundamental is provisions Act and interpretation any particular rect courts expressed therein legislature as the intention of the interpret possible, and, Act so far as should consider the entire to whole. light relation provisions its various of their 231, 283 Supvrs., 229, 226 Iowa N.W. Ahrweiler v. Board 747, 889; 743, 76 Everding Education, 247 Iowa v. Board of Co., citations; Packing 257 208 Rath v. Rath 205, N.W.2d 1277, 1284, 410, 414. 1285, Iowa 136 N.W.2d Community 251 Halverson, Iowa Manilla School District v. points 496, 705, 708, permis- 101 501, 502, out is not N.W.2d it upon any interpretation legislative one sible to Act rest part give or to undue effect thereto. Sueppel, 1169, 1174, 152
Severson interpretation Law, involves 321B.2(4) particularly “peace officer” definition section including “Regular deputy formal sheriffs who have had police training.” rejecting rather narrow construction language, оpinion states: object interpreting
“In a statute look we to to accomplished, sought remedied, purpose be the evils to be or the place be subserved and a reasonable liberal construc purpose tion which will its best effect rather which than one will it. Im defeat obvious [citations] plied highways Consent Law is reduce the holocaust on our part of freely which due the driver who of in imbibes too toxicating liquor.” 656, 661, 112 S.E.2d Commonwealth, Va.
Bowman v. provisions points of a somewhat procedural out “are to construed in nature and be are remedial similar statute remedy advance the liberally mischief and so as to avoid the (citation) suppressed.” sought (cid:127)the evils Code section 4.2. also Iowa See chapter 321B properly Going III. now the *6 appeal, to on this 321B.1 considered “Declara- section states: policy. general assembly hereby tion of and dе- determines provisions chapter necessary clares that of this in order to are beverages pro- control alcoholic and aid the enforcement of laws hibiting operation of a in an motor vehicle while intoxicated con- dition.” chapter interpret provisions
To as limitations prosecution admissibility OMVI, as de- of evidence a for us, handicap law fendant would have create new to the would a designed enforcement to aid. is clear evi- relating voluntarily dence to the test defendant’s blood taken of request, and at his would have been admissible at the time the law provision We find it evi- took effect. no in which renders the dence inadmissible now. It is fair to the Act have assume would provided legislature so if the change pro- intended such a vital province cedure. Of provision course is not our to write such a into the Sueppel, statute. Gottschalk See 2d N.W. pertinent provisions of 321B.3, .4 and follow: .6 Any person operates “321B.3 consent to who a test. 45# * motor vehicle in under such this state circumstances as to give grounds person oper reasonable to believe the to have been ating a motor while condition, vehicle intoxicated shall be given deemed have the withdrawal from body consent to his * * * specimens of and to a his chemical or there tests of, purpo.se determining for the the alcoholic content of his blood, subject the provisions hereinafter out. The withdraw set body substances, and al of such the test or thereof, tests shall be peace at the written of a having administered officer rea grounds person sonable to believe the operating have been a ** '* while in an condition, motor vehicle intoxicated only af peace placed person has ter such officer under аrrest for the person [OMVI], requests If such specimen offense a withdrawn, specimen not be then his blood breath, his saliva, or urine shall be withdrawn at the written peace officer; provided, however, such if person such any testing, to submit chemical refuses no test shall be “ (cid:127)# * given, section 321B.7 apply. shall Taking sample Only “321B.4 for test. physician, licensed by a li- technologist registered designated or or a medical nnrse re- acting physician representаtive, at the written censed as his body quest peace may such substances of a officer withdraw person’s determining alcoholic content of disposable syringes originally factory wrapped, Only new, blood. sanitary needles, kept strictly conditions and sterile map an in- person have drawing Such shall be used for blood. any dependent administered addition chemical test tests * * peace (Emphasis administered the direction aof officer. added.) peace A officer shall advise
“321B.6 Statement officer. requested any that a re- any person chemical test who is to take *7 in to to such test will result revocation fusal submit ** vehicle; operate person’s privilege a motor license or to although conclusive, of evidence substantial, There is indicated, provision. Indeed, compliance with as before this last compliance only with the entire Act assertеd lack of strict a undergo to blood test is that to defendant the officer’s syringe new, than written and the was oral rather strictly disposable, although kept factory wrapped sani- or tary and conditions. sterile provides that if a motorist under arrest
Section 321B.7 re- given no testing, to the chemical test be but fuses submit shall public safety operator’s of shall revoke his li- the commissioner upon hearing 321B.8 an cense. Section authorizes administrative prоvides 321B.9 appeals revocation court from the such administrative orders. and, .11 321B.10, especially, to have
We .12 deem bearing appeal important upon this out: set them any Upon any in trial “321B.10 Evidence action. arising alleged proceeding out of civil or criminal action acts any operating person a motor by committed while ve- been have * * * condition, in the amount an intoxicated evidence of hicle alleged person’s in at the time of act as alcohol * ** analysis is by of his blood admissible.” a chemical shown quoted a just does not the result of The section state of an accused taken with consent of blood upon for OMYI unless sam- in evidence trial is not receivable pro- compliance procedural ple in strict with the is withdrawn chapter visions 321B.3 and 321B We note .4. too the entire requirement contains no anal- how or whom “a chemical ysis of performed. provide his blood” Nor be does our law designated percentage presump- alcohol the blood thus, tive of intoxication, effect, evidence under the view of courts, redefining some respects the offenseof OMYI. these our Implied Consent Law differs from some other those states.
Section “321B.11 Proof of per- refusal If the admissible. son under arrest tests, proof refuses to submit to the test or of re- fusal shall any be pro- аdmissible civil or criminal action or ceeding arising alleged out acts to have been committed while ** * person operating a motor vehicle while an intox- icated condition.” provisions Section “321B.12 Other evidence. The chapter limiting shall not any he construed as introduction competent
other hearing question evidence whether the person was in an (Emphasis intoxicated condition.” added.) sought suppressed The evidencе fairly here falls “any within competent the term other evidence”, etc. to which Further, expresses 321B.12 legislative refers. this section in tent the is not to be as limiting construed the introduc competent tion of bearing evidence on whether an accused was intoxicated.
IV. We
herein to the
have referred
of sec
complied
321B.3 and
defendant contends were not
tions
.4
with
*8
procedural,
as
in
pre
rather than substantive
character. We have
viously referred
them in this
Findlay,
to
maimer. State v.
259
733,
designation
a
Iowa
It is not manner, hospital in reasonable a or tested environ- withdrawn accepted practices. according ment, Beliability to medical of a open question. Such tests is not to are so taken now com- quantity of blood withdrawn is minimal monplace, the and for virtually procedure risk, no involves people the most trauma or 733, 259 supra, Findlay, 145 pain. 650, State v. 435, 352 Abram, 436, U.S. Breithaupt 77 654; v. S.Ct. 1 n 448; S.Ct. California,
L.Ed.2d Schmerber U.S. 1826, 16 L.Ed.2d position good
Y. There is to hold not reason defendant suppressed of' should have been 'contend the evidence the test ground the his at the writ- on blood was not withdrawn tested request peace to consent ten of a officer. When saw fit defendant request the to the officer’s oral and himself withdrawal by sample for testing, the nurse thе he should complain granted delay his the incident that was without making request. by Applicable here, analogy, are written many precedents" right holding the is violated no- constitutional n by a "a search without warrant to which the owner consents. withdrawal test of his
By his consent actual the un- of his- license defendant avoided revocation driver’s blood by per- prescribed Further procedure der the 321B. haps procedure per- important,- he motion to obtain more set proof (the test) the result of the he was innocent of suasive (cid:127) n criminal charge, hoped if such were the fact as he doubtless it was. 50, 55; 196 A.2d Auger, 124 Vt.
Quite- point is State v. in evidence was 562, 565, 566, -it claimed blood test where was blood withdrawn upon because the was admissible trial OMVI by required said not under arrest as to be when defendant was rejecting Law, and for other reasons. opinion this claim the states: respondent in this undisputed case was not
“It sample time was is also under arrest at the the blood taken. taking. respondent undisputed -to the consented Ball, supra, 123 A.2d case of State v. Vt. [179 466] failure of the State obtain the consent turned respondent taking sample. pointed the blood before As there statutory design sample, involuntar out, that a blood is such ily against respondent given, objection. cannot his- over here, respondent where, consents to
“However, statutory requirements arrest, without testing of her custody’ otherwise taken into lose their speaking of -‘arrest or respondent ways A cannot have both significance. binding taking the blood test to avoid the consenting license sus- *9 yet and have the provision V.S.A. admission pension §1191, 23 carry the out very test tarred because State failed is statute superfluous. The arrest which consent made consent, suggested looking is a lack actual in the direction of by added.) implied (Emphasis its consent.” reference 324, State 58, 326, Brown, State 209 A.2d follows v. Vt. 656, Commonwealth, supra, 201 Va. supra. v. Bowman Auger, v. 661, 112 887, holding where blood S.E.2d a similar pro sample was not under arrest as taken while the accused was by opinion: vided from statute. This is “Bowman, having right have a exercised determination his alleged of the amount of alcohol blood at the time of the his by analysis, effect, offense as a chemical shown demanded such statute, thereby any а determination under waived neces- sity request he be first arrested and for such determina- tion be Any made within two of his other conclusion hours arrest. is, think, contrary we to reason and inconsistent with both the action of plain the defendant and intent the statute to make available as evidence the ascertainment the amount of alcohol in person blood of a at the offense, his time purposes would defeat the for which the statute was enacted.” provide VI. Our Law does request written of the officerfor a chemical be handed test to the Sueppel, him motorist for supra, read. Gottschalk 1173, 1182, 1183, view this upon the previous hereof, considerations divisions stated we hold the fact not withdrawn ad defendant’s peace ministered at a officer’swritten was not a substan departure tial from the .4, assuming terms of sections 321B.3 and applicable these proceeding sections аre to such as this. We fur compliance ther hold procedural provisions substantial with the proceeding 321B.3 and in.4 such a Nor sufficient. do we see how prejudiced, defendant could been have under the facts here, lack of a written from the officer.
YII. also hold that under this record the of a We use glass syringe, wrapped paper, customarily sterilized and by registered surgeons nurses the direction of in the hos departure pital procedural pro substantial from suppression visions 321B and of evidence of the test *10 was de- required in this Nor based on this fact case. compliance the with by lack strict prejudiced fendant factory “new, originally provision syringe be that the used wrapped, disposable.” [and] to quoted provision,
It the purpose is obvious the 321B.4, strict gether language “kept with under the further ly sanitary conditions”, assure, far reason and sterile is to so as minimize ably possible, accuracy reliability and and of the test here, person undergoing danger Where, as of infection to the it. purpose undisputed proof syringe the used is this there sterile fully equipment if new and to be served as as were seems factory perhaps even wrapped, more so. oper- knowledge surgical numerous delicate is common previously and ster- performed with used instruments
ations are hospitals. hospitals It would seem should ilized use for futurе factory syringes fully supply does. sterile as able .be Norton, 261 Iowa Lessenhop v. VIII. admissibility of fully blood test evidence 111, 112, considers Nothing anything in civil said herein conflicts with
in a case. opinion. complies received here with the cited evidence pronouncement Lessenhop: this any analysis result be ad of a blood test can
“Before party in any case, seeking mitted civil or criminal intro proper lay first ad such evidence must foundation for its duce waived, Unless this foundation must mission. show person specimen duly using proper taken authorized was equipment, properly that it preserved, sterile labeled and transportation proper, identity care and were and its also persons processing give opposing it so as to party oppor procedure tunity to cross-examine as and care used (Citations) test.”
Upon presented of all contentions full consideration we be should and judgment hold is—Affirmed. Mason, JJ., and concur. Snell, Moore,
Larson, Stuart J., concurs result. LeGrand, Rawlings JJ., dissent. Becker, I respectfully J. dissent. There is no need to Rawlings, pertinent portion repeat of that all of Code section 321B.4. uOnly new, factory wrapped, dis provides: originally statute posable needles, strictly sanitary syringes kept drawing sterile conditions shall blood.” my statutory opinion humble mandate has a self- meaning clearly expressed. evident with a Assembly If the glass General had intended to make reusable syringes legally acceptable taking and needles for the of blood to *11 content, easily alcoholic it could have so declared. That it did not regard do. 344(f) See rule (13), Suep- R.C.P. Also pel City v. Council of City, 1350, Iowa 1354, Iowa 523, N.W.2d and citations. appear
It would maxim, “expressio unius est exclusio al- terius” degree has relevancy some in this case. State See v. Flack, 251 529, Iowa 533, 534, 101 N.W.2d and citations. impossible addition it is agree for me to the evidence here challenged falls within category competent “other evi- dence”, to which reference is made in Code section 321B.12. fact may
Furthermore the defendant have consented to or requested even a blood test should not deemed a waiver specific statutory protection afforded section 321B.4 Ellingson, Code. See Grandon v. 144 N.W.2d 898, 903, citations, v. Karston, State 247 Iowa 38, 72 N.W.2d 463.
I would reverse and remand for a new trial. joins
Becker, J., in this dissent. Iowa, appellee, Compiano, appellant. State of John
No. (Reported in 154 845)