State v. Sloan
203 N.W.2d 225
Iowa
1972
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*1 jury may dence that such was then under consider other evidence beverage, permissive influence with the of an alcoholic inference. by foregoing “The rule established permits to infer

statute influence defendant was under the of an it is found beverage, alcoholic if join in JJT-, this dissent. jury that at the defendant was driv- ing public highway an automobile on the

his blood than contained more ten one- by weight percentum

hundredths of one

of alcohol.

“However, such inference is not con-

clusive, may but is It rebuttable.

overcome or rebutted evidence

contrary.” Appellee,

STATE merely states rule of This instruction as created the statute. It evidence Joseph SLOAN, Jr., Appellant. proof. burden of no reference to the makes 54748. No. duty imposes no on defendant It burden or statutory merely because rule evidence Supreme of Iowa. Court play. into fail to see come wherein presumes guilt defendant’s Instruction to prove relieves State of its burden beyond guilt a reasonable doubt. Such by defendant are untenable.

contentions necessity the instruction states

Of

inference which drawn not

clusive but is rebuttable. Somehow interprets the instruction as mak-

ing permissive inference conclusive. specifically so read

do not it. It states

“such inference is not conclusive.” It does require anything. defendant to do 14 simply states such evi-

dence referred in the statute

permits the infer defendant

under the alcoholic influence of an bever-

age may be overcome rebutted evi-

dence to the contrary. The State’s evi-

dence contains per- much rebuttal

missive It includes the inference. arrest-

ing testimony officer’s that defendant difficulty

without produced his li- driver’s

cense, readily he responded questions, he

performed the breath test without difficul-

ty cooperative. and was at all times Cer-

tainly it is not error to tell the *2 Moines, Trumbower, Des L.

Stanford appellant. Turner, Atty. Gen., and Richard C. Jo- Coleman, Gen., Atty. seph Asst. and James Waltz, County Atty., appellee. F. LeGRAND, Justice.

Defendant was convicted of the offense operating a motor vehicle while under intoxicating beverage. the influence of an appeal His entered on issues, presents that verdict two each of which defendant asserts entitles him to a new trial. He claims (1) the instruc- tions under which his case was submitted violated his constitutional rights that the trial court erro- neously admitted into evidence the results following of a blood test taken his arrest. We reverse and remand for a new trial. first, plaintiff’s claim consider, I. We charge the court’s prejudicially again erroneous. This raises question portion of the effect of that 321.281, Code, of section which makes alcoholic content in exceeding the blood percentum by weight ten hundredths of one presumptive evidence that defendant was under the influence of an alcoholic bever- age. objections

Defendant made to the in filing structions until a motion for newa following proce his conviction. This 787.3(5), dure is authorized under section Brown, The Code. State v. 172 N.W.2d (Iowa 1969); v. Wisniew ski, 1969); 886 (Iowa N.W.2d Schmidt, State v. 631, 636(1966). disagree argu State’s excep

ment that the case falls within the tions to this rule as set out in State v. Brown, 1969). (Iowa 172 N.W.2d here for We hold the matter review. sentative, acting at written error assignment raises officer such today decided which we issue

the same body substances in sec- Hansen, listed Instruc [which 203 N.W.2d 216. 321B.3 and includes in all case is identical tion blood] *3 14, purpose for the determining of the alco- respects material person’s holic content of the blood. prejudicial to be in held Hansen we which n * * error. sample this In case the blood was with- in repeat we said what We need request drawn at the written of of- be a it to believe Hansen. We by Mary Dorgan, registered ficer a here, and the reasons there trolling Jo hospital. nurse employed at the a remand for new reverse and stated we trial. designated by She was Dr. L. Beat- tie, a physician licensed and a member of must, however, the discuss matter We Hospi- the staff of the Community Greater ruling on further because of the defend tal, samples take representa- blood as his trial. trial ant’s motion for a new tive request police at the officer when court held Instruction 7 erroneously general occasion arose. This was a given but concluded the error was harm authorization executed the doctor on a refused for less. A new trial was prior date of date defendant’s arrest. agree. We have reason. We unablé instructing pre in said error words, prejudicial contrary In to be unless other

sumed avoid the neces sity appears giving specific from a of the whole case. a review on each occasion, Barton, designated nurse, N. v. doctor 886, as well as hospital, and citations. other nurses at W.2d prejudice, persuaded representative are not there was blood as his as, particularly Chapman requested since v. Califor were to do so. 18, 824, nia, 17 L.Ed.2d 386 U.S. 87 S.Ct. We hold compliance is substantial reach such a 705, (1967), we must con with section The purpose 321B.4. of the beyond a reasonable doubt. clusion See protect statute is to the health party of the California, Harrington v. also U.S. whose blood is taken and guarantee its (1969). 23 L.Ed.2d 284 89 S.Ct. accuracy judicial proceed- in later for use do, we cannot and the case must Wallin, ings. State therefore be re-tried. (Iowa 1972). require, It does not either expressly impliedly, that again, be tried authorization II. the case is to Since given in each instance at the time the we should also consider defendant’s second practice test tois be made. a would assignment of It deals with the ad- Such inpractical. long mission of the results his blood test. burdensome and As as registered blood is a nurse withdrawn objects solely Defendant on basis designated by phy- has who been licensed sample who took blood representative, sician to the stat- act as his Community Hospi- him at the from Greater ute has and defendant been observed tal in was not authorized to Crestón do so complaint. no er- no cause There was physician required by a licensed sec- in the of this evidence. ror admission 32IB.4, provides pertinent part III. For the reasons stated Division as follows: hereof, of the we reverse “Only physician, a licensed or a medical for a court and remand new trial. technologist registered nurse designat- Reversed remanded. physician

ed a licensed repre- as his RAWLINGS, MASON, REYNOLD- McCORMICK, JJ., concur.

SON J., and UHLEN-

MOORE, C. HARRIS, JJ., dissent.

HOPP and

MOORE, (dissenting). Chief Justice interpre- respectfully dissent in Division I of

tation Instruction 7 opinion and of de- reversal

fendant’s conviction. in- is the uniform same 14 in Dan-

struction as Instruction opinion in Jasper

iel Hansen. The Han-

sen, dissent, my being simultaneously

filed herewith. That dis- applicable

áent is here and need not be re-

peated.

I find no

JJ., join in this dissent. Appellant, BENNETT,

Blanche Stafferan, COUNTY, Harold

IDA Appellees.

No. 55121.

Supreme Court of Iowa.