State v. Hraha

193 N.W.2d 484, 1972 Iowa Sup. LEXIS 749
CourtSupreme Court of Iowa
DecidedJanuary 14, 1972
Docket54786
StatusPublished
Cited by36 cases

This text of 193 N.W.2d 484 (State v. Hraha) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hraha, 193 N.W.2d 484, 1972 Iowa Sup. LEXIS 749 (iowa 1972).

Opinions

MASON, Justice.

George William Hraha was charged by county attorney’s information filed December 21, 1970, with the offense of operating a motor vehicle while under the influence of an alcoholic beverage contrary to section 321.281, The Code 1966.

Following his plea of not guilty the matter proceeded to trial by jury. Defendant’s motion for mistrial at the close of the State’s evidence and renewed with motion for directed verdict at the close of all evidence was overruled and the matter submitted to the jury which returned a verdict convicting defendant of the offense charged.

The court overruled defendant’s motion for new trial and sentenced him to pay a fine of $300 and costs of prosecution. The court provided in its judgment that in the event of nonpayment of the fine, defendant was to be confined in the Warren county jail for a period of 60 days.

Defendant appeals from this judgment assigning two errors relied on for reversal. He asserts the court erred in overruling objection: (1) to testimony regarding a breath test administered to him by an Indi-anola police officer and (2) to certain of the court’s instructions as being incorrect statements of the * law applicable to the case.

We consider the assignments in reverse order.

I. Defendant questions correctness of instructions 15, 16 and 17 in his second assigned error. The State argues this assignment presents nothing for review in this court since defendant did not properly preserve in the trial court any claimed error as to the instructions.

The record discloses that before argument to the jury began, the court furnished counsel with a preliminary draft of the instructions. Before reading them to the jury, the court submitted to counsel its instructions in their final form and granted time for counsel to make objections and take exceptions before the instructions were read to the jury. At this point defendant objected to the instructions mentioned as being incorrect statements of the law as applicable to the case under consideration. The objection to instruction 16 was more specific as will be pointed out later.

In motion for new trial defendant alleged “7. that the court erred in failing to sustain defendant’s objections to instructions 15, 16 and 17,” without stating the grounds upon which he concluded error had been predicated.

The trial court fully complied with rule 196, Rules of Civil Procedure, which is applicable to instructions of juries in trials of criminal prosecutions. Section 780.35, The Code 1966. State v. Schmidt, 259 Iowa 972, 979, 145 N.W.2d 631, 636, certiorari denied 386 U.S. 965, 87 S.Ct. 1046, 18 L.Ed.2d 115. Although the problem considered in the cited case dealt with defendant’s failure to specifically object to the court’s refusal to give his requested instruction, the opinion points out that rule 196, R.C.P., directs, in part, all objections to instructions must specify the objectionable matter, on what grounds and none other will thereafter be considered. It is also made clear in the Schmidt decision that compliance with rule 196, R.C.P., is made mandatory by section 780.35, The Code 1966, in criminal prosecutions.

The problem of preserving for review error based upon an attack of the court’s instructions or failure to instruct is dis[486]*486cussed at length in State v. Franklin, 163 N.W.2d 437, 440-442, (Iowa 1968); State v. Brown, 172 N.W.2d 152, 157-160, (Iowa 1969); and State v. Gilmore, 181 N.W.2d 145, (Iowa 1970).

Defendant’s assertion the instructions under attack were incorrect statements of law applicable to the facts, fails to qualify as a specific objection required under rule 196, R.C.P., as it does not alert the trial court to any particular claimed error to be corrected. State v. Brandt, 182 N.W.2d 916, 918, (Iowa 1971). In Briney v. Tri-State Mutual Etc. Ins. Co., 254 Iowa 673, 689, 117 N.W.2d 889, 898, this court held an objection to an instruction on the ground it is not a correct statement of the law was not sufficiently definite under the rule where it did not point out wherein it was wrong so that the trial court might correct it.

In objecting to instruction 16 defendant added the contention the instruction attempted to limit the jury in its consideration of matters in evidence but did not request additional or more explicit instruction. Where the instruction is correct as given but not as explicit as a party may desire, he must request an additional instruction before the jury is charged in order to preserve any claimed error as a basis for appeal. State v. Brown, 172 N.W. 2d at 157-160, and authorities cited.

Since defendant did not preserve any claimed error at trial or in motion for new trial, his second assignment presents nothing for review in this court.

II. Defendant’s other assignment concerns admissibility of testimony of Cleo Aldridge, an Indianola police sergeant, and Lynn Calkins, head chemist of the State Hygienic Laboratory in Des Moines, relating to a breath test taken and analyzed for the equivalent blood-alcohol concentration.

Aldridge testified he stopped defendant’s automobile the night of December 15, 1970, after having followed it two and a half blocks. After some investigation at the scene the officer, suspecting defendant of intoxication, placed him under arrest for operating a motor vehicle while under the influence of an alcoholic beverage. Defendant was taken to the Indianola police station where Aldridge orally, requested that defendant submit to a breath test. Aldridge personally administered the test.

It was brought out on cross-examination of Aldridge that he did not explain the Implied Consent Law (Uniform Chemical Test for Intoxication Act, chapter 321B, The Code) to defendant as, he (Aldridge) had no authority to do so. He further testified his only prior experience with breath test equipment resulted from a one-day training session at the Highway Patrol Headquarters.

At that point defendant, in the absence of the jury, moved to strike Aldridge’s testimony regarding the breath analysis test for the reason the officer was not authorized to administer the test under the Implied Consent Law and no written request was given pursuant to this statute. The court overruled defendant’s motion stating:

“ * * * This is a separate proceeding, a criminal case, and the evidence, the court thinks, should be admitted here of any chemical test which appears * * * to have been taken under reasonable, proper circumstances. * * *.

“If we were dealing with a matter of taking the license for a refusal to take it, that would be another matter and the court would feel, probably, the objection would be good at this point.”

Lynn Calkins was permitted to testify over objection that the breath sample showed an alcoholic concentration of 0.233 percent.

The court’s ruling on defendant’s objections to testimony of these witnesses was the basis for his motions for mistrial and for directed verdict previously mentioned.

Concerning the legitimacy of the breath test as administered here, defendant [487]

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Bluebook (online)
193 N.W.2d 484, 1972 Iowa Sup. LEXIS 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hraha-iowa-1972.