Opinion
No. 38072.
Filed December 10, 1971.
1. Appeal and Error: Rules of Courts. Ordinarily this court will take note only if those assigned errors which are discussed. Revised Rules of the Supreme Court, 1967, Rule 8a2(3). 2. Criminal Law: Trial: Evidence: Intoxicating Liquors. The foundation for admission into evidence of a body fluid test showing compliance with the provisions of section 39-727.02, R.R.S. 1943, is sufficient.
Appeal from the district court for Gage County: ERNEST A. HUBKA, Judge. Affirmed.
Douglas McArthur, for appellant.
Clarence A. H. Meyer, Attorney General, and James J. Duggan, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is an appeal from a conviction for drunk driving. Several errors are assigned but only one is discussed. We therefore take note only of the error assigned and discussed. Revised Rules of the Supreme Court, 1967, Rule 8a2(3).
The appellant asserts that there was no foundation for the introduction into evidence of a body fluid test under section 39-727.02, R.R.S. 1943. There is no merit in this assignment. The foundation was clearly sufficient. The specific claim is that the witness did not testify the test he made was approved by the Department of Health. The witness testified he held the proper permit from the Department of Health and this permit approves his making the test by a specific method known as the Bonnischen test. He described in minute detail the steps included in the Bonnischen test and specifically testified it was a method approved by the Department of Health. He described in similar detail what he did, referring back in at least three instances to his prior description of the Bonnischen test. The steps taken in the actual test coincide with the test previously described. The court instructed the jury that the results of the test to be valid must be done in accordance with tests approved by the Department of Health. No reasonable person could, without completely disregarding the witness' testimony, conclude other than that the test was one approved by the Department of Health.
AFFIRMED.