Defendant was arrested following some erratic driving on I-35 near the Cumming interchange on January 1, 1971. He was later convicted by a jury of driving a motor vehicle while under the influence of intoxicating liquor in violation of section 321.281, The Code. He appeals from the judgment imposing sentence on that conviction. We reverse and remand for a new trial.
(1) The court erred in giving Instruction 14 dealing with the statutory presumption arising from the presence of a specified percentage of alcohol in defendant's blood; and
(2) The court erred in receiving the results of defendant's breath test made under section 321B.4, The Code, because no proper foundation for its admission was laid.
I. Instruction 14 is here set out:
The statute referred to in this instruction is section 321.281, The Code, which provides in part that "evidence that there was * * * more than ten hundredths of one percentum by weight of alcohol in his blood shall be admitted as presumptive evidence that the defendant was under the influence of an alcoholic beverage."
Defendant objected to the instruction at trial and again in his motion for new trial, each time without success. He claimed then, and argues now, that the instruction is bad because (1) it deprives him of due process and destroys his presumption of innocence; (2) it shifts to him the burden both of going forward with the evidence and of persuasion by requiring the production of evidence to rebut the presumption arising from the presence of a stated amount of alcohol in his blood; (3) it is irreconcilably in conflict with Instruction 7 dealing with the presumption of innocence and results in a confusing and conflicting charge to the jury; and (4) it compelled him to take the stand in his own defense in violation of his 5th Amendment right to remain silent.
The right of the legislature to create evidentiary presumptions in criminal cases is no longer seriously challenged. Such laws are generally upheld as long as two conditions are satisfied: Such presumptions may not be conclusive of the issue and there must be a rational relationship between the fact sought to be established and the one presumed. Jones on Evidence, page 134, section 3:5, (Sixth Ed. 1972); 3 Underhill's Criminal Evidence, page 1954, section 874, (Fifth Ed. 1957); Annot. 46 A.L.R.2d 1176 (1956); State v. Van Voltenburg, 260 Iowa 200, 206, 147 N.W.2d 869, 871 (1967); State v. Kelly, 218 Minn. 247, 15 N.W.2d 554, 557 (1944); Tot v. United States, 319 U.S. 463, 466, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519, 1524 (1943).
In State v. Van Voltenburg, supra, we discussed an analogous statute—section 708.7 making possession of burglar tools presumptive evidence of intent to commit burglary—and held that statute to be constitutional. What was said there is equally applicable here, as are the authorities cited in support of that conclusion. We find the portion of section 321.281 dealing with the effect of blood alcohol tests is constitutional; but we must also determine whether the manner in which the presumption arising from the test was presented to the jury is constitutionally proper.
The subject of presumptions and inferences is one which has long been troublesome
Most states have statutes attaching, in one way or another, particular significance to the results of chemical tests which disclose more than the stated amount of alcohol in a defendant's blood.
Some laws provide, where the statutory percentage is exceeded, it "shall be presumed that the defendant was under the influence of intoxicating liquor." State v. Childress, 78 Ariz. 1, 274 P.2d 333 (1954); State v. Myers, 26 Ohio St.2d 190, 271 N.E.2d 245 (1971); State v. Protokowicz, 55 N.J.Super. 598, 151 A.2d 396 (1959). Others recite that such a test result is prima facie evidence the defendant was then under the influence of intoxicating liquor. State v. Corsiglia, Mo.App., 435 S.W.2d 430 (1968); State v. Larrabee, 156 Me. 115, 161 A.2d 855 (1960).
Our statute (section 321.281) makes the existence of more than ten hundredths of one percentum by weight of alcohol in the defendant's blood "presumptive evidence" that he was under the influence of an intoxicating beverage.
We believe this language is analogous to the prima facie approach rather than that which specifically creates a presumption of intoxication. We believe, too, our statute raises an inference (sometimes called a "presumption of fact") and not a presumption at all, even though we have often referred to it as a presumption.
On this matter we said in Stenberg v. Buckley, 245 Iowa 622, 626, 61 N.W.2d 452, 454 (1953):
This was quoted approvingly in part as recently as 1971 in State v. Boner, Iowa, 186 N.W.2d 161, 166. There, incidentally, the objectionable part of Instruction 14 was omitted from the charge to the jury. Cf. State v. Van Voltenburg, supra, 260 Iowa at page 206, 147 N.W.2d at page 871.
With this as a backdrop, we now view Instruction 14 as it relates to the constitutional objections raised. The issue is a narrow one. We find nothing prejudicial
The case comes close to the circumstances in Barrett v. United States, 5 Cir., (1963), 322 F.2d 292, 295, where the court struck down a federal statute making certain evidence concerning the operation of a still sufficient to justify a conviction "unless the defendant explains [the matter] to the satisfaction of the jury."
The court said:
We recognize the instruction now under attack does not specifically require defendant to produce rebutting testimony; but it does demand that someone—either defendant or the State—do so when it tells the jury the blood test results "may be overcome or rebutted by evidence to the contrary."
This is the same as instructing the jury that the presumption is conclusive unless rebutted by evidence to the contrary; and we say this is error. The blood test results do not become a verity simply because they go unchallenged. Like all evidence, this "presumptive evidence" may be accepted or rejected by the jury. Defendant's silence on the subject lends no added strength to the State's proof nor does it ease the burden of establishing guilt beyond a reasonable doubt. Yet that is what instruction 14 permits.
In discussing a somewhat similar problem in State v. Larrabee (1960), 156 Me. 115, 161 A.2d 855, 859, the Supreme Court of that state said:
Several North Carolina cases also support our conclusion. A statute of that state makes blood test results meeting certain standards admissible as prima facie evidence. In State v. Bryant (1957), 245 N.C. 645, 97 S.E.2d 264, 267, the Supreme
The court said:
Several later cases—State v. Cooke, (1967), 270 N.C. 644, 155 S.E.2d 165 and State v. Jent (1967), 270 N.C. 652, 155 S.E.2d 171—reiterate the rule of State v. Bryant, supra. Additional support is found in State v. Cuevas (Haw.1971), 488 P.2d 322, 325. See also the annotation dealing with this subject at 16 A.L.R.3d 748 (1967).
The problem is well stated in State v. Kelly, 218 Minn. 247, 15 N.W.2d 554, 560 (1944), where the court said:
The issue arises here for the first time because of a 1969 amendment to section 321.281 by which the Sixty-third General Assembly added the "presumptive evidence" rule to that statute. Although we have not yet passed on its application and effect, we have rather broadly hinted at today's decision on several occasions.
In State v. Van Voltenburg, supra, 260 Iowa at page 206, 147 N.W.2d at page 872, in considering a similar statute, we made this pertinent statement:
In an earlier case involving a burglary charge, we considered the effect of defendant's possession of recently stolen goods and said: (State v. Brady, 121 Iowa 561, 567, 97 N.W. 62, 64 )
Instruction 14 does just what State v. Brady feared—conveys to the jury the notion that the unrebutted "presumptive evidence" required, rather than permitted, a finding defendant was under the influence of an alcoholic beverage.
An instruction on this issue should set out the fact that the test is presumptive evidence and charge the jury to determine under all the facts and circumstances in the case whether defendant was under the influence of an intoxicating beverage. It should not place significance on the failure to produce rebutting evidence. We hold Instruction 14 was reversibly erroneous for the reasons already stated and that defendant is entitled to a new trial. While the statute (section 321.281) is itself constitutional, the instruction here represents an unconstitutional application of its provisions. Even after considering the instructions as a whole, which we are obliged to do, we are satisfied Instruction 14 cannot be approved.
II. The second error concerns the admission of the results of the so-called breathalyzer test. Objection was made at trial concerning the sufficiency of the foundation. The dispute centered around the provisions of section 321B.4, which provides in material part as follows:
Defendant objected there was no showing that the devices or methods used had been approved by the commissioner of public safety. All the objections were lodged during the testimony of the police officer who took the test.
We doubt if this error is properly here for review, but we pass that question since the matter will necessarily arise on re-trial.
In order to comply with this section, two conditions must be satisfied. First, it must appear that the commissioner of public safety has approved "devices and methods" for administering tests under section 321B.4, The Code; and second, the evidence must show those devices were used and those methods were followed in giving the test. The officer's bare conclusion that he did so is insufficient. There is no showing any standards were adopted by the commissioner; nor, if adopted, what they were.
For purposes of cross-examination, if for no other reason, a defendant is entitled to know what devices and methods have been approved. The trial court, too, should be advised on this matter in order to rule on the admissibility of the offered evidence. Cf. Davis, Administrative Law Text, Third Ed. (1972), pages 36-41, section 2.06 and pages 140-142, section 6.02. We have recently emphasized the necessity for following statutory procedure in giving tests authorized under chapter 321B, The Code. These pronouncements apply with equal force to administrative rules adopted pursuant to the authority granted to the Commissioner of Public Safety. State v. Wallin, 195 N.W.2d 95, 98 (Iowa 1972); State v. Boner, 186 N.W.2d 161, 165 Iowa 1971).
On re-trial of this case, assuming proper objection is made, the results of the breathalyzer test administered to defendant should be admitted only upon a showing (1) of the devices and methods approved by the Commissioner of Public Safety for the taking of such tests as provided in section 321B.4 and (2) proof that the test was given by use of the approved devices and methods.
III. Because we hold there was reversible error in Instruction 14, we reverse the trial court and remand for new trial.
Reversed and remanded.
MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ., concur.
MOORE, C. J., and REES, UHLENHOPP and HARRIS, JJ., dissent.
MOORE, Chief Justice (dissenting).
I respectfully dissent from the interpretation given Instruction 14 in Division I of the majority opinion and reversal of defendant's conviction.
As pointed out by the majority the right of the legislature to enact properly drawn statutes creating evidentiary presumptions in criminal cases is now well established. To pass constitutional muster they must not be made conclusive of the issue involved and must have a rational relationship between the fact sought to be established and the one presumed.
The fundamental law in this area is thus stated in 29 Am.Jur.2d section 126, page 159:
Statutes creating a presumption or inference of intoxication from specific percentages of alcohol in a person's system must be made rebuttable. See Annot., 16 A.L. R.3d, p. 748, section 5.
Instruction 14 is Iowa Uniform Instruction 520.8. It was prepared and adopted by an able committee of the Iowa State Bar Association. We disagree with these
Throughout the instructions the trial court put the burden on the State to prove defendant's guilt beyond a reasonable doubt.
Instruction 1 includes:
Instruction 4 states:
Instruction 7 states:
Instruction 9 states:
The first sentence of Instruction 12 states: "The burden is on the State to prove the defendant guilty beyond a reasonable doubt." It is followed by a definition of "reasonable doubt".
In Instruction 14 the trial court instructed on the evidentiary presumption or inference authorized by Code section 321.281. It states:
This instruction merely states a rule of evidence as created by the statute. It makes no reference to the burden of proof. It imposes no burden or duty on defendant merely because a statutory rule of evidence has come into play. I fail to see wherein Instruction 14 presumes defendant's guilt or relieves the State of its burden to prove guilt beyond a reasonable doubt. Such contentions by defendant are untenable.
Of necessity the instruction states any inference which may be drawn is not conclusive but is rebuttable. Somehow the majority interprets the instruction as making the permissive inference conclusive. I do not so read it. It specifically states "such inference is not conclusive." It does not require defendant to do anything.
Instruction 14 simply states such evidence as referred to in the statute which permits the jury to infer defendant was under the influence of an alcoholic beverage may be overcome or rebutted by evidence to the contrary. The State's evidence contains much rebuttal to the permissive inference. It includes the arresting officer's testimony that defendant without difficulty produced his driver's license, he readily responded to questions, he performed the breath test without difficulty and was at all times cooperative. Certainly it is not reversible error to tell the jury they may consider this other evidence together with the permissive inference.
I would affirm.
REES, UHLENHOPP and HARRIS, JJ., join in this dissent.