State v. Williams

¶1Defendant appeals from his conviction for operating a motor vehicle while intoxicated in violation of Iowa Code section 321.-281 (1983).

¶2At defendant’s jury trial a police officer testified that on the night of his arrest defendant refused to take a breath test. On cross-examination the officer was prevented from testifying that defendant had offered to take a blood or urine test. In his case-in-chief defendant attempted to testify that he repeatedly offered to take a blood or urine test, but refused a breath test because of doubts as to its reliability. An expert witness testifying on defendant’s behalf was not allowed to give an opinion that the blood test is a more reliable indication of the blood alcohol level than is a breath test.

¶3On appeal defendant challenges the exclusion of this evidence and in addition argues that he was denied due process of law because Iowa Code section 321B.4(2) did not allow him to choose the test which could later be used against him.

¶4*312Our review of criminal proceedings is ordinarily on assigned error. We make an independent evaluation of the totality of the circumstances, however, on issues involving the violation of basic constitutional guarantees. State v. Cuevas, 322 N.W.2d 910, 911 (Iowa Ct.App.1982).

¶5I. Exclusion of Evidence. It is within the trial court’s discretion to admit or exclude evidence. State v. Ellis, 350 N.W.2d 178, 180 (Iowa 1984). We will only interfere if there has been an abuse of that discretion.

¶6In the present case, the trial court excluded the evidence concerning defendant’s offer to take other tests, his reason for refusing a breath test, and an expert opinion on the relative reliability of each test on the ground that it was irrelevant. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R.Evid. 401. Irrelevant evidence is not admissible. Iowa R.Evid. 402. Evidence may be relevant for one purpose but not for another.

¶7Defendant concedes that he refused to take a breath test and that this refusal is admissible as a matter of law. See Iowa Code § 321B.29.1 Defendant does not argue that the excluded evidence is relevant to show that his refusal was excused or that the implied consent law should not apply in this situation. For this reason cases cited in the State’s brief are distinguishable. See e.g., Morgan v. Iowa Department of Public Safety, 227 N.W.2d 155, 156-57 (Iowa 1975) (defendant’s refusal to submit to blood test at one hospital for personal reason but willingness to undergo it at another hospital constituted a refusal for purposes of the implied consent law); Janson v. Fulton, 162 N.W.2d 438, 439-41 (Iowa 1968) (defendant’s refusal to submit to a urine test not excused by his belief that the container furnished him was contaminated). Defendant does contend, however, that the evidence was relevant to rebut the inference that his refusal to take a breath test was due to his fear that the results would show he was intoxicated.

¶8Although closing arguments in this case were not reported, it is clear from the record made at the hearing on defendant’s motion for a new trial that the State argued that the inference to be drawn by the jury was that defendant refused the breath test because he was afraid of the result. Furthermore, the jury was instructed as follows:

Testimony has been received to the effect that it was suggested to the defendant or requested by a peace officer that the defendant submit to analysis of a breath sample and that it was declined by the defendant.

You are instructed that there is no law requiring any person to submit to such analysis. However, the defendant’s refusal, if any, to submit to such a test may be considered by you, together with all other facts and circumstances, in determining whether the defendant was or was not under the influence at the time in question.

¶9The natural inference for the jury to draw was that defendant refused the test because he was intoxicated.

¶10We find this case to be similar to State v. Tate, 341 N.W.2d 63 (Iowa Ct.App.1983). In Tateat defendant’s trial for theft a paperback book entitled Satan is Alive and Well on Planet Earth was contained in a vinyl bag admitted into evidence. A police officer testified that he talked with defendant about the book and defendant stated he liked the book and agreed with it. Id. at 64. When defendant attempted to explain what he considered the book to be about the trial court sustained the State’s relevancy objection. Id.The jury was not permitted to hear whether the book advocated or opposed satanic worship. We held *313that the defendant in that case was denied a fair trial. Id. at 65. We stated, “Where the State opens the door by presenting evidence unfavorable to the defendant, opportunity must be given to the defendant to comment upon, explain, or rebut the evidence.” Id. at 64.

¶11In this case the State introduced defendant’s failure to consent to a breath test. The jury was instructed that it could consider that evidence in deciding the issue of intoxication. Defendant was not permitted to present evidence that he was willing to take other tests which he considered to be more accurate and was not allowed to show that his opinion about the accuracy of the tests was shared by an expert witness. He was foreclosed, therefore, from rebutting the natural inference from the State’s evidence that his refusal was an attempt to conceal his level of intoxication. We find this to be reversible error. We note that in Wessels v. State, 169 Ga.App. 246, 312 S.E.2d 361, 363 (1983), the Court of Appeals of Georgia, in holding that evidence of refusal to take a chemical test is admissible in a trial for driving under the influence of alcohol, noted, “Further, the defendant may in the course of trial offer explanation for such refusal.”

¶12Defendant should have been allowed to present the prof erred evidence. We reverse his conviction and remand the case for a new trial.

¶13II. Due Process. We do not consider defendant’s argument that Iowa Code section 321B.4(2) denies him due process since it was not raised before the trial court.

¶14REVERSED AND REMANDED.