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State v. Johnson2/11/2004
We must determine whether the district court abused its discretion in admitting testimony of a six-year-old Breathalyzer test in a trial for operating while intoxicated. We conclude the evidence was irrelevant but its admission harmless.
I. Background Facts and Proceedings
In 2002, the State charged Tracy Johnson with operating while intoxicated (sixth offense) (OWI). [FN1] Iowa Code § 321J.2 (2001). During trial, a sergeant with the Sioux City Police Department testified that Johnson refused to submit to a Breathalyzer test. In response, Johnson explained that he indeed refused to take the Breathalyzer test in the absence of other testing, because he didn't believe it was reliable. He stated he told the officer that he would take the test if it was given along with blood and urinalysis tests. On cross-examination by the prosecutor, Johnson then testified as follows:
FN1. Johnson was also charged with and pled guilty to possession of a controlled substance and driving while revoked. He does not appeal his judgment and sentences on these counts.
Q. Why do you think the Breathalyzer is unreliable? A. I just heard a lot of misconceptions about it, a lot of people that have bad experiences over the years about it, but I've heard that blood analysis and U/As are almost a hundred percent.
At this juncture, the prosecutor asked the court if she could cross-examine Johnson about his reservations by pointing out that he took a Breathalyzer test in 1996 which registered breath alcohol content over the legal limit, resulting in an OWI conviction. The district court responded,
You can ask him about whether or not there was an incident in 1996 where he did consent to a breath test and the result indicated that he was over the legal limit, and you can ask him about that and see what his response is.
The State questioned Johnson as follows:
Q: Mr. Johnson, back in 1996, were you asked to submit to a breath test? A: Yes, ma'am.
Q: And did you submit to that breath test? A: Yes, ma'am.
Q: And did that test indicate that you were over the legal limit? A: Yes, ma'am.
At the close of trial, the district court gave the jury the following limiting instruction:
Information related to the defendant taking a breath test in 1996 may be considered by you only in relation to a possible motive for refusing to take a breath test in this case. It may not be considered by you for any other purpose.
A jury found Johnson guilty of OWI. [FN2]
FN2. Following entry of the jury verdict, Johnson admitted the existence of a factual basis for the five prior OWI convictions.
II. Admissibility of Evidence
On appeal, Johnson contends the district court should not have admitted evidence of the 1996 Breathalyzer test because it was irrelevant. The State responds that error was not "adequately preserved" on the relevancy question. We disagree. At trial, defense counsel stated, "we don't see what relevance that he's taken a test before [has]...." He went on to state, "[h]ow does that have to do anything with whether or not the test is reliable or not." This general relevancy objection was sufficient to preserve error. See State v. Sallis, 574 N.W.2d 15, 17 (Iowa 1998); State v. Slayton, 417 N.W.2d 432, 436 (Iowa 1987).
**2 Evidence is relevant when 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. 5.401. The evidence must be "relevant and material to some legitimate issue other than a general propensity to commit wrongful acts." See State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001) (citing State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987)) (Mitchell I). Our review of evidentiary issue
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