STATE OF IOWA, Plaintiff-Appellee, vs. JAMES DONALD KALBACH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-808 / 05-1176
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES DONALD KALBACH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, William H. Joy and
John Lloyd, Judges.
James Kalbach appeals from the judgment and sentence entered upon his
conviction of operating while intoxicated. AFFIRMED.
Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Wayne M. Reisetter, County Attorney, and Jeannine Gilmore, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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EISENHAUER, J.
James Kalbach appeals from the judgment and sentence entered upon his
conviction of operating while intoxicated, first offense, in violation of Iowa Code
section 321J.2 (2003).
He contends the district court erred in overruling his
objections to the admission of his urine test. We review his claim for correction
of errors at law. Iowa R. App. P. 6.4.
In the early morning hours of September 15, 2004, Kalbach and David
Allsup were drag racing their pickup trucks when they crashed into a parked
train. Deputy Sheriff Ryan Bowers smelled the odor of an alcoholic beverage on
Kalbach and noticed his eyes were bloodshot and watery. Kalbach stated he
had consumed “enough” alcohol. Kalbach refused to submit to a preliminary
breath test.
Kalbach was transported to the hospital by helicopter. Deputy Bowers
read Kalbach the implied consent advisory and requested a urine sample for
analysis. He described Kalbach as conscious and alert. Kalbach spoke with the
deputy about his injuries and asked questions regarding the time period for
consenting and refusing to submit to the chemical test.
Kalbach signed the
consent form for the urine test, and testing revealed his blood alcohol
concentration was .111.
Prior to and during trial, Kalbach sought to exclude the results of the urine
test on several grounds. On appeal, he claims he was incapable of consenting to
or refusing a chemical test and there was no evidence presented regarding how
the margin of error for urine tests is established. We reject both claims.
Iowa Code section 321J.7 states:
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A person who is dead, unconscious, or otherwise in a condition
rendering the person incapable of consent or refusal is deemed not
to have withdrawn the consent provided by section 321J.6, and the
test may be given if a licensed physician, physician assistant, or
advanced registered nurse practitioner certifies in advance of the
test that the person is unconscious or otherwise in a condition
rendering that person incapable of consent or refusal. If the
certification is oral, a written certification shall be completed by the
physician, physician assistant, or advanced registered nurse
practitioner within a reasonable time of the test.
The district court concluded Kalbach was not incapable of consent or refusal:
In this case, the defendant was not dead or unconscious.
So the issue is whether he was “in a condition rendering (him)
incapable of consent of refusal.” A consideration of the totality of all
the circumstances surrounding the defendant demonstrates that he
was not rendered incapable of consent when he in fact did consent
to the withdrawal of a urine specimen for testing. He was alert and
responded to the requests made of him by law enforcement. He
even inquired as to the adverse effects if he refused to consent.
His condition was such that he was able to understand the choices
given by him by law enforcement and to evaluate those choices so
that he could select one.
Kalbach offered evidence that he could not remember what occurred in the
emergency room and the opinion of his wife, a nurse, that he was not capable of
giving consent. The trial court concluded he was capable and because these
fact findings are supported by substantial evidence, we are bound by them.
State v. Finn, 469 N.W.2d 692, 693 (Iowa 1991). The evidence supports the
district court’s determination that Kalbach was able to give consent to the
chemical test.
Kalbach also argues the test results should be excluded because the
State failed to present evidence showing how the Department of Criminal
Investigations (DCI) established the margin or error in testing urine for blood
alcohol concentration. Iowa Code section 691.2 states:
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Any report, or copy of a report, or the findings of the criminalistics
laboratory shall be received in evidence, if determined to be
relevant, in any court, preliminary hearing, grand jury proceeding,
civil proceeding, administrative hearing, and forfeiture proceeding in
the same manner and with the same force and effect as if the
employee or technician of the criminalistics laboratory who
accomplished the requested analysis, comparison, or identification
had testified in person.
Accordingly, the DCI lab report containing the analysis of Kalbach’s urine was
admissible.
Kalbach’s claim goes to the weight of the evidence, not its
admissibility.
Because the results of the urine test were properly admitted, we affirm.
AFFIRMED.
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