[75 Ariz. 124] Herbert Mallamo, Phoenix, Leslie Parry, Phoenix, of counsel, for appellant.
Fred O. Wilson, Atty. Gen., Robert K. Park, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment convicting the defendant of operating an automobile while under the influence of intoxicating liquor with prior conviction and from the order denying defendant's motion for a mistrial or in the alternative, for a new trial, or in arrest of judgment.
The facts are that on the evening of September 20, 1951, the defendant had been celebrating a birthday and according to his testimony, had drunk four split bottles of beer (two more than is customary) at the Top Hat on the corner of Central Avenue and Roosevelt Street; that he thereafter started home and traveled along West Roosevelt Street until he reached 19th Avenue at which point he failed to make the turn south and his car ran into an irrigation ditch about 12 feet west of the west line of 19th Avenue and turned over
on its side in the ditch, striking a water [75 Ariz. 125] hydrant located between 19th Avenue and the irrigation ditch. The accident occurred at approximately 12:45 a. m., to 1:00 a. m. in the morning of September 21, 1951.
A Mr. Kugel, Sun Valley patrolman, was the first person at the scene of the accident but his presence was unobtainable at the trial of the cause. The defendant was next seen by Mr. Arthur Tobiason, juvenile officer, at the intersection of West Van Buren and 19th Avenue. He was then at the middle of the intersection, staggering and placing himself in danger of oncoming traffic when Mr. Tobiason succeeded in getting him out of danger. He took him back to the scene of the accident and found Mr. Paul Blubaum, police officer of the city, at the scene. Mr. Tobiason turned the defendant over to him. Defendant was afterwards picked up by a police car operated by Melvin Weil and William R. Gragg. All of these witnesses who testified at the trial stated that the defendant was unsteady on his feet, that his tongue was thick, that his breath smelled heavily of alcohol and one witness definitely stated that he was drunk. The others testified to the same facts upon which the opinion of intoxication rests. One of the witnesses said he was unable to tell them how old he was or upon what date he was born although he was then celebrating his birthday. Exhibit B in Evidence shows the following notations made by officer Blubaum when he booked defendant at the police station: Odor of alcohol, strong; face flushed; clothes orderly; mental state, talkative; eyes bloodshot, dialated, glassy; walking, swaying; speech fair; effects of alcohol, obvious; ability to drive, greatly impaired.
Defendant was taken to the police station where he was subjected to a drunkometer test which showed a alcoholic content by weight in the blood of .23% plus.
Counsel for defendant has presented to the court a great number of assignments of error as grounds for reversing the case, many of which have no merit whatever. In short, the only assignment which appears to the court to have any merit is the alleged manner in which the drunkometer test was conducted. Testimony of the witnesses concerning the actions and conduct of the defendant is amply sufficient to have warranted the conviction of drunk driving without the aid of the drunkometer test. Counsel even contends that there is no proof that defendant drove the car. Defendant admitted to all the officers that he was driving the car and admitted on the witness stand that he drove the car from Central to 19th Avenue and that he was driving it when it ran into the irrigation ditch at Roosevelt and 19th Avenue. The admission that he was driving the car is not circumstantial evidence as claimed by counsel for defendant. It is direct and positive evidence.
One of defendant's main objections to the drunkometer test is that the chemicals used in conducting the test were not under [75 Ariz. 126] the exclusive control of one person nor had they been so safeguarded that any particular person could say with certainty that their contents had not been changed after being placed there by Mr. Roy Jones, city bacteriologist and graduate chemist.
The drunkometer test used by the police department is an invention of Dr. R. N. Harger, professor of biochemistry and toxicology at the Indiana University School of Medicine and is in use in a number of states in the Union. Its use has been upheld in practically all of the states where it is in use, if properly used. The following are some of the cases upholding its constitutionality and the conviction of the defendant based upon the test: Toms v. State, Okl.Cr.App., 239 P.2d 812; McKay v. State, Tex.Cr.App., 235 S.W.2d 173; People v. Bobczyk, 343 Ill.App. 504, 99 N.E.2d 567. Dr. Harger testified in the latter case and stated that he had conducted thousands of breath tests and had found that by means of the breath method he can accurately predict the percentage of alcohol in the blood and that all persons would be under the influence of alcohol when the alcohol blood content is above .15% by weight. In the case of Toms v. State, supra, Dr. Beddo who was qualified by counsel as a physician and chemical analyst, testified that the breathometer and urine test would show the alcohol and blood content, if any, in an individual's blood stream. He further
testified that the R. N. Harger drunkometer test had been approved by the American Medical Association, the Commissioner of National Safety, the Federal Bureau of Investigation, by many courts, and by 12 of the states by statutes. The testimony of these experts was quoted with approval by the respective appellate courts in holding that the breath tests are admissible.
The test is made by having the subject blow up an ordinary rubber ballon. The breath impounded in the balloon is run through tubes in the drunkometer, one of which contains 10 cc of 56% sulphuric acid and another 1 cc of potassium permanganate. The record in this case does not disclose the strength of the potassium permanganate but Dr. Harger in his explanation of the alcohol drunkometer found in the American Medical Journal, Vol. 110, p. 780, states that this solution is 20th normal potassium permanganate solution which is prepared by dissolving 1.58 grams of chemically pure potassium permanganate in enough water to make one liter. There is a tube in use in the machine which is known as the ascarite tube by which the percentage of alcohol by weight in the blood is determined. This is ascertained by computing the difference between the weight of the ascarite tube before the experiment and its weight thereafter. In this particular instance the difference between the weight as testified to by the officer conducting the test was .0134. This, when calculated according to the formula [75 Ariz. 127] explained by the witness Roy Jones, chemist, was found to be .23% by weight, of alcohol in the blood.
With reference to the instrument used in weighing this tube the witness Roy Jones testified that it was not strictly a pair of scales but was what would be termed as balances, that the instrument therefore needed no Federal or state inspection, that it had to be balanced each time before it was used. He further testified that he placed the sulphuric acid and potassium permanganate in separate bottles once a week and placed them in the testing room under lock and key, that at least once a week, and more often if necessary after placing them there, he made a recheck of the chemicals to ascertain if any change in their content had been made subsequent to his placing them in the locker; that he had never found any change in the content of the bottles placed there by him. He testified that he made a recheck of these particular bottles from which the chemicals were taken for this test subsequent to such test and that there was no change in their contents. He stated that a number of police officers had taken courses in the manner of conducting this test and that several of them did in fact conduct the test and that they all had access to the cabinet in which the bottles were kept. It would be better, of course, if these tests were assigned to one person who has exclusive access to and control of the chemicals but where, as in this case, the chemicals were rechecked after the test to ascertain if any change in contents had been made and none found, it was not error to admit the testimony relating thereto as tending to establish the admissibility of the drunkometer test in evidence.
The witness Roy Jones, chemist, testified that in previous cases he had checked the results of the test made by the drunkometer with a chemical analysis made by him of the blood of ...