Opinion
No. 6-089 / 05-0969
Filed March 15, 2006
Appeal from the Iowa District Court for Washington County, Lucy J. Gamon, District Associate Judge.
Defendant appeals his conviction for operating while intoxicated. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Julie Johnson, County Attorney, and Eric R. Goers, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Eisenhauer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On May 28, 2004, park ranger Jeff Hildebrand saw a vehicle driving in Lake Darling State Park at 10:45 p.m., after the park's official closing time of 10:30 p.m. Hildebrand stopped the vehicle to remind the occupants that the park was closed. He immediately noticed that the driver, Keith Lyon, had a strong odor of an alcoholic beverage about his person and had red and bloodshot eyes. Hildebrand also saw that the driver had an open can in a coozie between his legs. The can had condensation on top, as if the can were cold. Hildebrand asked for the beverage, which he could smell was beer. A seasonal officer, Steven Steele, dumped the contents on the ground, where it foamed and gave off an odor of beer.
Hildebrand asked Lyon to come back to his vehicle. Lyon stumbled on the way. Lyon admitted he had four beers over the past three hours. Lyon failed the horizontal gaze nystagmus test. Hildebrand then took Lyon to the park office, where he again administered the horizontal gaze nystagmus test, and Lyon again failed the test. Lyon also failed the walk-and-turn test and the one-foot stand test.
Hildebrand contacted the Washington County Law Center, and deputy Ray Atkins arrived at the scene. Deputy Atkins noticed Lyon had a strong odor of alcoholic beverages, his eyes were bloodshot and watery, and he mumbled. He asked Lyon to recite the alphabet, but Lyon got some letters out of order. Lyon also failed a finger-counting test. He was able to successfully count backwards. Deputy Atkins took Lyon to the law center, where he requested a breath test. Deputy Atkins stated he had no indication Lyon had anything in his mouth. The breath test showed an alcohol level of .098. Lyon was charged with operating a motor vehicle while under the influence of an alcoholic beverage or while having an alcohol concentration of .08 or more, in violation of Iowa Code section 321J.2 (2003).
At the trial, Lyon testified that he regularly chewed tobacco, and that the can he had in the car was his spit can. He stated that it was probably spit and not condensation on the top of the can. Lyon stated that he was unable to pass the field sobriety tests due to old injuries to his back, leg, and ankle. He also stated that he had been wearing flip-flops, which had affected his balance. Lyon testified he had chew in his mouth when he gave the breath test, and he argued that the test results were unreliable for this reason. A friend, Cyndi Christensen, testified that Lyon was "probably one of the most discreetest, neatest chewers that I see."
In rebuttal, deputy Atkins testified that he did not notice that Lyon smelled of chewing tobacco. On the issue of the reliability of the test results, at one point deputy Atkins was questioned as follows:
Q. My question to you is based on your training and experience, have you spoken with D.C.I. lab personnel to get a specific answer about whether tobacco will interfere with the test results? A. Yes, I have.
Q. And what is your training on that point?
MR. TINDAL: Objection. I know the question is training, but what he's really asking for is hearsay. Object to the hearsay.
THE COURT: Go ahead and answer with respect to your training.
A. The instruction and training that I received was that tobacco would not interfere with the test results.
A jury found Lyon guilty of operating while intoxicated. Lyon filed a combined motion for new trial and motion in arrest of judgment, claiming the district court improperly permitted the hearsay testimony of deputy Atkins during rebuttal. The district court ruled that deputy Atkins was testifying as an expert, and under Iowa Rule of Evidence 5.703, he could rely on hearsay evidence if it was of a type reasonably relied upon by experts. The court determined deputy Atkins could testify as to his training, and the evidence was not inadmissible hearsay. The court overruled the post-trial motions. Lyon appeals.
The jury verdict did not specify whether Lyon was found guilty under the alternative of driving under the influence, or driving while having an alcohol level greater than .08, or both. If a general verdict of guilty is rendered where alternative theories of committing the crime are submitted, each theory must be supported by substantial competent evidence. State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004). For this reason, we must address Lyon's arguments regarding the test results, even though there was sufficient evidence to find him guilty based on driving while under the influence.
II. Standard of Review
Generally, hearsay rulings are reviewed for errors at law. See State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). "However, when the basis for admission of hearsay evidence is the expert opinion rule, which provides no hard and fast rule regarding admissibility, we will employ an abuse of discretion standard." Kurth v. Iowa Dep't of Transp., 628 N.W.2d 1, 5 (Iowa 2001). We review the district court's decision under the assumption it was correct, and find an abuse of discretion only where we are unable to find support for the decision in the evidence. In re Estate of Kelly, 558 N.W.2d 719, 722 (Iowa Ct.App. 1996).
III. Hearsay Evidence
Iowa Rule of Evidence 5.703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the trial or hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Under rule 5.703, experts may base their opinions on hearsay evidence, if it is of a type reasonably relied upon by other experts. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182 (Iowa 2004). Whether the underlying evidence is "reasonably relied upon" for purposes of rule 5.703 is an issue for the district court to decide. Brunner v. Brown, 480 N.W.2d 33, 35 (Iowa 1992). Rule 5.703 permits hearsay evidence to be admitted, not as substantive evidence, but to explain the basis for an expert's opinion. Id. at 37; C.S.I. Chem. Sales, Inc. v. Mapco Gas Prods., Inc., 557 N.W.2d 528, 532 (Iowa Ct.App. 1996).
Lyon does not dispute that deputy Atkins may be considered an expert regarding his breath test testimony. Also, the State does not dispute that deputy Atkins relied upon hearsay evidence in giving the opinion that chewing tobacco would not interfere with the results of a breath test. The only question before us is whether the hearsay evidence was "of a type reasonably relied upon by experts. . . ." Deputy Atkins stated that he had spoken to lab personnel from the Division of Criminal Investigation (DCI) on the issue of whether tobacco would interfere with test results. The district court determined deputy Atkins was entitled to testify as to his training. By implication the court found information deputy Atkins received in his training was the type of information reasonably relied upon by experts. As noted above, whether the underlying evidence was reasonably relied upon by the expert is an issue for the district court. Brunner, 480 N.W.2d at 35.
Whether reliance is reasonable in a particular case includes a determination that the hearsay evidence relied on by the witness is credible. See In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, 1245 (S.D.N.Y. 1985) (Weinstein, C.J.) (requiring that courts determine whether hearsay underlying the expert's opinion satisfies "minimum standards of reliability"), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988); Brunner, 480 N.W.2d at 35; 7 James A. Adams Joseph P. Weeg, Iowa Practice, Evidence § 5.703.3, at 604-05 (2005). Lyon claims the evidence provided by the DCI lab personnel was biased and therefore not trustworthy. If the underlying evidence is furnished by a biased witness, it will probably be excluded. Brunner, 480 N.W.2d at 35 (citing Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619, 622-24 (8th Cir. 1986)).
In Faries, 797 F.2d at 624, the Eighth Circuit found the hearsay evidence of an interested witness to an automobile accident was not the type of evidence reasonably relied upon by experts. A police officer's opinion which was based on this unreliable hearsay evidence was not admissible under the federal version of rule 5.703. Faries, 797 F.2d at 624. Here, however, lab personnel from DCI were not parties to the case, and no information was provided showing they had any interest or bias in the case.
The record supports the trial court's conclusion that the information supplied by the DCI to deputy Atkins was reliable. A representative of the DCI lab with twenty-six years experience earlier testified his duties included "to basically run the breath alcohol program for the State; make sure that the instruments are certified, working in proper order; answering questions for the judicial system, for the prosecutors, defense, and so forth; testifying in court." Thus the court could easily find that advice emanating from the DCI lab concerning the breath test protocol would be trustworthy and of a kind accepted by those who administer breath tests as reliable. We conclude the district court did not abuse its discretion in determining that deputy Atkins could reasonably rely upon information he received in his training from DCI lab personnel. We conclude deputy Atkins's testimony was admissible under rule 5.703.
IV. Prejudice
The State also contends Lyon was not prejudiced by the challenged testimony. We agree. First, the same testimony by deputy Atkins regarding the DCI advice as to the effect of chewing tobacco came into the record earlier without objection. See City of Dubuque v. Fancher, 590 N.W.2d 493, 496 (Iowa 1999) (finding a defendant was not prejudiced by the admission of evidence that was cumulative to evidence properly admitted at the trial). Second, no objection was made to admitting the results of the breath test. The jury was free to consider the result as it deemed appropriate. The challenge to the testimony only goes to its weight in these circumstances. See State v. Stratmeier, 672 N.W.2d 817, 821 (Iowa 2003) (holding unless evidence establishes that improper procedures invalidate the test, "any challenge to the procedures used in obtaining the chemical test goes to the weight of the evidence rather than its admissibility").
There was substantial evidence to support both alternatives for committing the impaired driving offense of which Lyon was convicted. We affirm Lyon's conviction for operating while intoxicated.