People v. Díaz Just
People v. Díaz Just
Opinion of the Court
delivered the opinion of the Court.
Appellant was accused and convicted of violation of § 5-801, subd. (a) of Act No. 141 of July 20,1960 (9 L.P.R.A. § 1041). On July 4, 1964, at about nine o’clock in the nighttime, he struck with his automobile, the rear part of a vehicle driven by police officer Gerardo Batista. Immediately the police officer went toward defendant’s vehicle. He found him reclined over the steering wheel of the vehicle he was driving. He asked him repeatedly whether something had happened to him and he did not answer. He asked the defendant to alight from the vehicle. He alighted from the vehicle. The officer states that the defendant smelled strongly of liquor. He asked the defendant to walk, and as he was doing it with difficulty and staggering, he decided to call another policeman so that he would investigate. He asked the defendant to show him his driver’s license and he did so. The evidence did not establish that he had any difficulty in finding the license. The police officer testified, on cross-examination, that the defendant behaved as a gentleman at all times. The other policeman testified that when he arrived at the scene of the accident he noticed that the defendant smelled strongly of liquor and that he staggered. He also testified that he spoke incoherently. He asked the defendant to submit to a blood or urine test. He agreed. This witness stated, on cross-examination, that the defendant acted respectfully at all times. He said that to
Appellant assigns two errors: (1) admitting in evidence the chemical analysis of the blood, and (2) finding defendant guilty on the basis of a contradictory and insufficient evidence.
He maintains that the result of the analysis of the blood was vitiated and affected by the use of alcohol as an antiseptic in the arm from where the sample was taken.
It has been held that a blood sample taken under these circumstances discredits and diminishes the value of the analysis, making it inadmissible in evidence. People v. Marlone, 197 N.E.2d 189 (N.Y. 1964); People v. Ward, 178 N.Y.S.2d 708 (N.Y. 1958); People v. Douglas, 183 N.Y.S.2d 945 (1959); People v. Maxwell, 188 N.Y.S.2d 692 (1959); City of Columbus v. Marks, 194 N.E.2d 791 (Ohio 1963); Richardson, Modern Scientific Evidence, § 13.11 (1961); Erwin, Defense of Drunk Driving Cases, § 14.06 (1963); Levin, Blood Alcohol Tests and Drunken Drivers, 1964, Insurance L.J. 453, 456 (1964); Rabinowitch, Medicolegal Aspects of Chemical Tests of Alcoholic Intoxication, 39 J. Crim. &
In an article entitled “Chemical Test for Intoxication Prosecution Viewpoint,” which appears published in I Trauma 3-19-28 (1959 ed.), the procedure for obtaining a blood sample for the purpose of determining if a driver is under the influence of intoxicating liquor is explained. The author sets forth: “Alcohol should not be used to sterilize the skin at the time the sample is withdrawn since this might possibly give a false high reading. The National Safety Council recommends that tincture of iodine, tincture of metha-phen, green soap, roccol, septisol or santomerse be used instead.”
It should be pointed out that in the state of Virginia the law expressly provides that alcohol shall not be used as a dis
“Little comment is needed to commend the legislature’s foresight in prohibiting the use of alcohol as a sterilizer during the administration of a blood test. It has already been established that such procedure may invalidate test results.”
See also, Kyhl v. Commonwealth, 135 S.E.2d 768 (Va. 1964).
For that reason it is necessary that the samples he taken observing every precaution to prevent that any doubt may arise as to the result of the analyses.
Sometimes the doubt which may arise as to the credibility or reliability of the analysis is overcome, when the objective evidence shows that the driver was under the influence of intoxicating liquor. We have already decided that it can be established that a driver was under the influ-
Clearly this evidence, without the support of the result of the analysis, does not establish defendant’s guilt beyond a reasonable doubt. The judgment will be reversed.
Virginia’s statute provides- thus:
“Only a physician, registered professional nurse or graduate laboratory technician, using some type of a cleanser or sterilizer for the instruments used and for the part of the body from which the blood is taken, other than alcohol or other substance which might in any way affect the accuracy of the test, shall withdraw blood for the purpose of determining the alcoholic content therein.” 49 Va. L. Rev. 398-399.
The convenience of amending the Regulations to the effect of stating that when the sample is taken no antiseptic containing alcohol, which may affect the result of the analysis shall be used, should be considered.
Some authorities hold that the result of the analysis is admissible, but what is affected is its probative force. Crews v. Commonwealth, 138 S.E.2d 265 (1964); State v. Schwade, 131 N.W.2d 421 (1964); State v. Erdman, 391 P.2d 518 (1964). We understand that the best practice is not to admit it, and the samples should be taken following the norms generally established to safeguard the correct result of the analysis which, as we have seen, include that alcohol should not be used as a disinfectant.
Even though it is affirmed that to talk incoherently is not to understand well what is being said, on cross-examination, it was admitted that all the answers he gave to the police were understood.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.