Sunday, November 26, 2006

You've Read About Allsup, Now Read About His Buddy

In State v. Kalbach, o5-1176 (November 16, 2006) Kalbach and Allsup were racing their pickup trucks when a train unaccountably intervened by occupying the space they intended to use. Kalbach was life flighted to the hospital.

Kalbach consented to give a urine sample at the hospital which showed that his BAC was 0.111.
Kalbach attempted to exclude the test results based in an incapacity to consent and a margin of error argument based on the lack of testimony on that point.

As to his incapacity the Court of Appeals held that Iowa Code 321J.7 provides that if a person is in a condition that renders them incapable of consent, if a licensed physician, physician assistant or advance registered nurse practitioner so certifies, the person is deemed not to have withdrawn the consent provided by 321J.6. In this particular case Kalbach was deemed to have been capable of consenting because he was alert and responding to law enforcement and that he was capable of understanding the consequences of a refusal to test.

As to his margin of error argument, the Court of Appeals determined that because Iowa Code 691.2 allows all DCI crime lab reports to be admissible, the 'margin of error' argument went to the weight of the evidence and not its admissibility.


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