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People v. Smith7/16/1973
Donald Earl Smith (defendant) was convicted by a jury in the Arapahoe County district court of two counts of inflicting bodily injury by operating an automobile while under the influence of intoxicating liquor, in violation of C.R.S. 1963, 40-2-11. We find no prejudicial error and therefore affirm the judgment of conviction.
In the early morning of August 8, 1970, defendant Smith was speeding north on Windermere Boulevard in Littleton, with five passengers in his sports model Camaro Z-28. He was observed by a patrolman, who estimated defendant's speed in excess of eighty miles per hour. The patrolman gave chase but was unable to overtake the defendant. He lost sight of the Camaro but shortly thereafter came upon the scene of an accident at the intersection of Ridge Road and Windermere, where defendant's vehicle had collided with a 1961 Ford. As a result of this collision, Mrs. Patricia Ann Jones, a passenger in the Ford, and Patti Ann Jozwick, a passenger in the Camaro, were injured. The investigating patrolman found a partially empty jug of wine near the Camaro and smelled the odor of alcohol in and about the automobile and on the breath of several of the passengers. Defendant, his five passengers, and Mrs. Jones were taken to Swedish Hospital in Englewood for treatment and observation. There, a blood sample was drawn from the defendant, over his protest, for a laboratory analysis to determine its alcohol content. The test showed a blood-alcohol of 0.15%.
At a pretrial hearing the court denied defendant's motion to suppress as evidence the result of the alcohol analysis as it related to the two felony charges. However, it granted the motion as it related to the misdemeanor count of driving under the influence . 1967 Perm. Supp., C.R.S. 1963, 13-5-30(3)(c). On interlocutory appeal we affirmed the trial court ruling, in People v. Smith, 175 Colo. 212, 486 P.2d 8.
After the jury was impaneled and sworn, the district attorney moved the court to dismiss the misdemeanor count of driving under the influence . This motion was granted and the trial proceeded on the two felony counts. At trial, the result of the blood-alcohol test was admitted into evidence. Expert witnesses -- a toxicologist and a medical doctor specializing in toxicology -- testified concerning intoxication standards as measured by blood-alcohol tests. They described the customary procedures involved in the taking of blood and its analysis, and expressed their expert opinions concerning the validity of the procedures followed in this particular case.
Other evidence of intoxication was presented which consisted of extrajudicial statements by prosecution witnesses to the investigating officers of the drinking and intoxication of the defendant and his passengers earlier in the evening. However, at trial those witnesses uniformly disclaimed any knowledge that the defendant was drinking or had become intoxicated prior to the accident.
No factual issue was raised concerning defendant's operation of the Camaro or the obviously reckless manner in which he was driving the vehicle at the time of the accident.
I.
Defendant's first ground for reversal asserts that the chain of custody of the evidence regarding the blood-alcohol test was broken and, therefore, the result of the test should not have been admitted into evidence. We find no merit to this argument.
From the record we perceive no break in the chain of custody of the blood sample. It was drawn from the defendant by the hospital technician and immediately inserted into a
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