STATE of Iowa, Appellant, v. Robert Charles STEADMAN, Appellee.
No. 84-03.
Supreme Court of Iowa.
June 6, 1984.
172
Ted V. Ruffin and E. David Wright, Cedar Rapids, for appellee.
McCORMICK, Justice.
We granted discretionary review of a trial court order suppressing the results of a breath-alcohol test administered to defendant Robert Charles Steadman pursuant to the implied consent procedures in
The charges arose from an accident that occurred in Cedar Rapids on December 29, 1982, when an automobile driven by defendant struck and killed a pedestrian. An investigating police officer put defendant through several field sobriety tests. Defendant performed poorly on those tests and also flunked a field alcosensor test. The officer arrested him for OWI and transported him to the county jail.
At the jail, the officer invoked implied consent procedures. Defendant consented to furnish a breath specimen, and a deputy sheriff administered a breath test using an Intoxilyzer Model 4011A. The intoxilyzer records the alcohol content of deep lung air and purges the sample into the atmosphere at the completion of a three-stage testing cycle. The device performs a calculation based on a fixed ratio of alcohol in lung air to alcohol in the blood and reports the result as a blood alcohol reading. In this case the test showed a blood alcohol level of .143 percent by weight. Defendant was nоt advised of his right to have an independent chemical test, and he did not notify the officers of his desire to have one.
The General Assembly has expressly provided for admissibility of chapter 321B test results in any civil or criminal action “arising out of acts alleged to have been committed by any person while operating a motor vehicle in violation of
The person may have an independent chemical test or tests administered in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission in evidence of the results of the test or tests taken at the direction of thе peace officer.
The Brown case, relied on by the trial court in suppressing the test result, was an involuntary manslaughter prosecution in which suppression of blood alcohol test results was upheld on due process grounds because of the State‘s failure to preserve a blood specimen in unusual circumstances. Implied consent procedures were not employed in Brown. The defendant had not been placed under arrest, and the officer did not believe he had probable cause to charge the defendant with OMVUI. 337 N.W.2d at 508. The officer requested a blood sample for аlleged “medical” rather than “legal” purposes, and the rigorous foundational requirements of chapter 321B were not followed. Id. By obtaining the evidence outside chapter 321B, the State deprived the defendant of the protections afforded by the adversary implied consent procedures.
Undergirding Brown was a recognition of the built-in safeguards in chapter 321B. In imposing the duty to preserve a sample for indeрendent testing in the circumstances disclosed by the record in that case, the
The chapter 321B procedures were adopted to protect the integrity of the enforcement process and the interests of the State and defendant. While we find no evidence of manipulation in this instance, it would be imprudent to open the door to wholesale frustration of the legislature‘s intent.
This court comparеd and contrasted the foundational requirements of chapter 321B with general foundational requirements for admissibility of intoxication test results in Henkel v. Heri, 274 N.W.2d 317, 319-22 (Iowa 1979). The court has recognized that an important purpose of the stringent chapter 321B requirements is to guarantee the reliability and accuracy of test results. See State v. Schlemme, 301 N.W.2d 721, 723 (Iowa 1981). Exclusion of test results has been mandated when chapter 321B requirements affecting test reliability and accurаcy have not been satisfied. See, e.g., State v. DeBerg, 288 N.W.2d 348, 350 (Iowa 1980) (failure to show syringes and needles were factory wrapped and disposable); State v. Smith, 272 N.W.2d 859, 860-62 (Iowa 1978) (absence of testimony showing effect of anti-coagulant); State v. Richards, 229 N.W.2d 229, 233-34 (Iowa 1975) (absence of showing of timely written request of defendant); State v. Wallin, 195 N.W.2d 95, 98 (Iowa 1972) (absence of written request and failure of syringe and needle to meet statutory requirements); State v. Shelton, 176 N.W.2d 159, 161 (Iowa 1970) (failure to show nurse had been designated by licensed physician to withdraw blood and to establish use of syringe required by statute).
In addition to imposing unique foundation requirements in implied consent cases by statute, the legislature has delegated to the commissioner of public safety the responsibility to approve devices and methods used to obtain a specimen of breath or urine.
The test result in Brown was not accompanied by the assurances of reliability and accuracy provided when implied consent procedures are used. This did not alone make the evidence inadmissible because chapter 321B authorizes the introduction of evidence of intoxication from sources other than tests conducted pursuant to chapter 321B. See
Under Brown a defendant establishes a due process violation based on the State‘s failure to preserve a sample for testing when the defendant shows (1) a proper request for the evidence, (2) its materiality in the constitutional sense, and (3) an unavoidable possibility the destroyed evidence would be favorable to the defendant. See 337 N.W.2d at 509. The second and third prongs of the Brown inquiry are inapposite in the context of chapter 321B tests.
Our conclusion is like that of the Kansas court in State v. Young, 228 Kan. 355, 362-63, 614 P.2d 441, 446-47 (1980):
In Kansas we believe the statutes . . . provide proper safeguards to assure reasonably accurate test results and to enablе the accused, on request, to secure any additional chemical test by a physician of his or her own choosing, which the accused may desire....
Under the safeguards built into [the Kansas implied consent statute], the failure of the State to automatically furnish an accused with a sample of his own breath for independent testing is not a denial of due process.
Lack of an independent test does not leave a defendant defenseless. Drunk driving cases have been defended successfully for years through use of traditional trial resources including cross-examination and extrinsic evidence that cast doubt on the reliability and accuracy of particular test results. Extrinsic evidence on the issue was adduced in the suppression hearing in this case. Machine accuracy, testing procedures and complianсe with foundational requirements are always open to question. See generally Imwinkelried, A New Era in the Evolution of Scientific Evidence—a Primer on Evaluating the Weight of Scientific Evidence, 23 Wm. & Mary L.Rev. 261 (1981). The evidence is powerful but not conclusive.
We hold that the due process clauses of the state and federal constitutions do not require suppression of blood alcohol test results obtained through chaрter 321B implied consent procedures for failure of a peace officer to preserve a sample of the specimen tested when the defendant did not notify the officer of a desire for an independent test.
In the present case, no suggestion exists that chapter 321B procedures were not satisfied, and no due process violation under the Brady standard has been established. Suppressiоn was ordered solely on the theory that the State is required under Brown to preserve a sample for independent testing in all cases. Because Brown does not apply in implied consent cases and no other basis for suppression has been demonstrated, the suppression order is reversed and the case remanded for further proceedings.
REVERSED AND REMANDED.
All Justices concur except SCHULTZ, J., and REYNOLDSON, C.J., who concur specially and CARTER and WOLLE, JJ., who dissent.
SCHULTZ, Justice (concurring specially).
Although I agree with the majority that Steadman‘s test results should not have been suppressed, I reach this result after applying the legal test announced in Brown. Id. at 511. I do not agree that Brown is inapplicable in implied consent cases. Rather, I conclude Brown applies in any case where the acquisition and preservation of a sample for independent testing by a defendant is material to his defense and there is a reаsonable probability it would be favorable to him.
Conversely, the department only requires the intoxilyzer to be calibrated annually, does not provide for any quality control in each testing event and does not even require more than one sampling and testing of a defendant‘s breath. Additionally, the testing device is nonspecific for alcohol raising the possibility that the test results сould be erroneously inflated by contamination from other hydrocarbons that absorb light at the wavelength used to detect alcohol. Finally, potential errors may also result from the internal computation process. Although the instrument measures the amount of alcohol in deep-lung air, the result is converted to blood alcohol content by multiplying the breath result by 2100 (this calculation is based on a fixed ratio of alcohol in lung air to that in blood). Thus, any slight contamination or error in the breath analysis would be considerably magnified by the subsequent computation.
The seriousness of these problems is compounded by the fact that a blood alcohol of .13 standing alone is sufficient for conviction under
For all these reasons, I cannot join the majority‘s reasoning that compliance with Chapter 321B procedures adequately protects a defendant in every case and effectively forecloses a due process challenge to the results of a state-administered test.
Contrary to the holding of the trial court, I would hold that Steadman‘s due process rights were not violated. Under the record, there was not an unavoidable possibility that the acquisition and preservation of a sample for later testing by Steadman would have been favorable to him. Thus, I join the result reached by the majority.
REYNOLDSON, C.J., joins this special concurrence.
CARTER, Justice (dissenting).
I dissent. I beliеve the district court‘s order suppressing the chemical test results in the present case is consistent with the result which we approved in State v. Brown, 337 N.W.2d 507 (Iowa 1983). The same features of fundamental fairness in the adversary process are involved in both cases.
In arriving at our result in Brown, we relied, in part, on decisions of courts in other states which have refused to allow evidence of chemical tests for blood alcohol conducted by law enforсement officers who have merely recorded the test results and failed to preserve the specimens which had been tested. It has been observed that this procedure has the effect of forcing the defendant and the courts and juries who are charged with deciding the cases to accept the prosecution‘s analysis at face value without any means of independent verification. At least three of the cases condemning this practice which were relied on in Brown are decisions involving failure to preserve breath samples. These include: Lauderdale v. State, 548 P.2d 376, 382 (Alaska 1976); People v. Hitch, 12 Cal.3d 641, 649-51, 527 P.2d 361, 367-69, 117 Cal. Rptr. 9, 14-16 (1974); and Garcia v. District Court, Twenty-First Judicial District, 197 Colo. 38, 46-47, 589 P.2d 924, 929-30 (1979).
A review of our decision in Brown leads to the conclusion that the holding of the case is derived from principles of fundamental fairness which we independently concluded were required to satisfy due process. Although federal court decisions
Similarly, I believe those state court decisions1 which have suppressed evidence of chemical blood alcohol tests when the authorities have failed to preserve the specimen have also been prompted by these same principles of fundamental fairness rather than an applied analysis of federal law under Brady.
As a point of beginning, it must be noted that the State seeks to use the intoxilyzer results as scientific evidence. This is a misrepresentation of its real character. In the present case, a biochemist testified that verifiability of the results of a chemical test is a condition precedent to scientific acceptance of the test results.2
The State seeks to deal with this problem by asserting that tests conducted on an Intoxilyzer Model 4011A have proven to be accurate when the devices have been tested by analyzing samples of known chemical composition. This argument completely misses the point. What is at issue in these cases is not the accuracy of the Intoxilyzer Model 4011A generally, or in selected cases, but the accused‘s entitlement to check upon the accuracy of the analysis in his or her own particular case. Defendant‘s expert witness indicated that testing the machine with samples of known blood alcohol content only establishes the accuracy of the unit in testing that sample. In contrast, the accuracy of an analysis of a sample of breath where the blood alcohol content is unknown can only be assured by a second testing of the same sample or a contemporaneously conducted chemical test of another typе on the same subject. Under the procedure which the majority approves, there is no way in which this can be done.
In cases where the issue of whether an accused was driving is not an issue, this circumstance will permit the ultimate determination of guilt to be made by a machine conducted by an operator trained only in the mechanical requirements of its use and unfamiliar with the scientific principles underlying its operation. I submit that such a procedure is fundamentally unfair, and the State should not be permitted to use the test results.
Contrary to the position adopted by the majority, there are no guarantees of reliability and accuracy contained in the State‘s procedure which overcomes the unfairness of the foregoing procedure. Nor does an accused have a meaningful opportunity to securе an independent test on his own initiative. When pressed in oral argument to delineate the extent of the State‘s obligation to aid an arrested person in securing an independent chemical test, counsel for the State in the present case responded that the State‘s obligation is merely not to interfere with the person‘s efforts to secure such a test.
At the suppression hearing in the present casе, a deputy sheriff testified that the policy at the jail where defendant was incarcerated at the time the chapter 321B procedures were invoked was to advise persons who requested an independent test
The chapter 321B procedures in the present case were conducted at 3:00 a.m. I believe we mаy take judicial notice of the fact that most arrests for operating under the influence take place when medical facilities are either closed or operated with skeleton staffs. The defendant in the present case had no reasonable likelihood at the time indicated of securing a licensed physician or physician‘s assistant to come to the county jail within the limited time a meаningful test sample could be obtained.
If the extent of the State‘s obligation is as it contends, merely not to interfere with a defendant‘s efforts, this case is no different from Brown. Surely, the State had no right to interfere with the defendant in Brown had he asked the hospital personnel to perform a second blood test. The only meaningful distinction is that had both the defendant in Brown and the defendant in the present case sought to obtain indepеndent chemical tests, only the defendant in Brown would have had any meaningful opportunity to obtain one. I would affirm the district court.
WOLLE, J., joins this dissent.
MCCORMICK
JUSTICE, SUPREME COURT OF IOWA