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DECISION BY JUDGE TODD GEER
In State of Iowa vs. Tracy Allen Rokes


In the Iowa District Court and For Black Hawk County State of Iowa, Plaintiff, vs. Tracy Allen Rokes, Defendant. Criminal No. FECR068522 Findings of Fact, Conclusions of Law and Judgment.

This matter came before the court for non-jury trial commencing May 13, 1997. The state appeared by prosecuting Attorney Kasey Wadding. Defendant personally appeared, and was represented by David Correll.

Evidence was presented on May 13, 14, 15, 20 and 21, 1997. Closing arguments were presented on May 22, 1997.

At the conclusion of the state's evidence, defendant's motion for directed verdict of acquittal was overruled.

Upon consideration of the evidence presented, and applicable law, the court enters the following findings and conclusions.

Findings of Fact

This case involves a tragic accident which occurred in Black Hawk County at approximately 11:00 p.m. on October 4, 1966 (sic), at the intersection of Green Hill (sic) Road and Highway 58, Cedar Falls, Iowa. Juli Farrell was driving a motor vehicle southbound on Highway 58 at the time of the accident. Kristina Hill and Tamara Kleinheksel were passengers in Ms. Farrell's vehicle. Kristina Hill occupied the front passenger seat, and Tamara Kleinheksel occupied the rear seat. At the time of the collision, Ms. Farrell was driving 49 to 63 miles-per-hour in a 55 mile-per-hour speed zone. Southbound traffic was controlled by a flashing yellow light.

Defendant was driving his vehicle westbound on Green Hill (sic) Road at the time of the accident. His wife occupied the front passenger seat of the vehicle. He was traveling 36 to 45 miles-per-hour in a 45 mile-per-hour speed zone at the time of the collision. . .westbound traffic at the intersection was regulated by a flashing red light.

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Juli Farrell, Tamara Kleinheksel and Kristina Hill had spent the evening with friends, and were en route home to Hudson, Iowa, at the time of the accident. Juli Farrell had consumed no alcoholic beverages.

Defendant had spent the evening socializing with friends at a Waterloo establishment. Defendant and his wife arrived at the establishment at approximately 7:45 p.m., and left minutes prior to the accident, he consumed approximately five beers, including one beer consumed quickly prior to his departure.

Defendant's wife was despondent at the time she and defendant left the establishment that evening, saddened by her mother's medical condition. She was crying as they proceeded westbound on Green Hill (sic) Road toward the Highway 58 intersection. Defendant attempted to console her, and his attention was diverted from his driving responsibilities to his wife. Defendant failed to observe the flashing red stop signal at the intersection, and failed to observe Juli Farrell's approaching vehicle until he was almost within the intersection. He veered to the left immediately prior to impact.

Occupants of all vehicles were transported to Sartori Hospital in Cedar Falls for treatment. Defendant and his wife were treated and released. Juli Farrell land Tamara Kleinheksel received serious injuries as a result of the accident. Injuries to Ms. Kleinheksel were perceived to be more threatening, and she was transported to University of Iowa Hospital and Clinics for continued treatment. Juli Farrell remained at Sartori Hospital with an undiagnosed ruptured aorta. Her condition was apparently not deemed as serious as Ms. Kleinheksel's condition, and she was transferred from the emergency room to a regular treatment room. Ms. Farrell's condition gradually deteriorated because of the ruptured aorta was not treated. She died the following day. The ruptured aorta was caused by the accident, and was the cause of Ms. Farrell's death.

Ms. Kleinheksel was seriously injured as a result of the accident. She was initially comatose and was at a substantial risk of death because of a serious head injury.

Because an odor of alcohol was detected about the defendant, and because a bodily injury accident was involved, officers followed the implied consent procedures under Chapter

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321J, Code of Iowa, and defendant consented to a withdrawal of his blood for chemical testing. Blood was withdrawn by a qualified individual using sterile equipment, in compliance with Chapter 321J. The samples were preserved in a refrigerator at the Sartori Hospital medical lab pending testing for blood alcohol content.

Defendant consented to the blood withdrawal at 11:43 p. m. The blood was withdrawn at 12: 20 a. m. (sic) on October 5, 1996.

Sartori Hospital medical technician Julie Glade analyzed one of the blood samples on October 5, 1996. However, the test result obtained by Ms. Glade is unreliable because her result fails to consider the fact that a concentrated blood sample was analyzed. During the analysis she conducts, Ms. Glade separates the serum from the red blood, and analyzes only the serum. All of the alcohol in the whole blood concentrates in the serum. Ms. Galde made no adjustment for the fact that she was testing a concentrated specimen, and was not aware of any effect that may have on the reliability of the results she obtained. However, other expert testimony presented in the case demonstrated that the failure to make an adjustment for the concentrated specimen renders the result obtain unreliable. It appears that if the appropriate factor is applied to the concentrated specimen tested, the test result would approximate the result obtained from the Department of Criminalists Laboratory.

The remaining blood sample was delivered to the Iowa Department of Public Safety DCI Criminalists Laboratory by Officer Robert Kramer, Cedar Falls Police Department, on October 17, 1996. Criminalist Calvin Rayburn analyzed the sample for blood alcohol content, and found the sample to contain .087 grams of alcohol in 100 ml. of blood, with a margin of error of .004. The court accordingly finds the defendant's blood alcohol concentration at the time of the blood withdrawal was .083.

Both parties presented evidence in an effort to determine defendant's blood alcohol concentration at the time of the accident. While 321J.2(7) provides that the alcohol concentration established by the results of an analysis of a specimen of defendant's blood withdrawn within two hours after the defendant was driving a motor vehicle is presumed to be the alcohol concentration at the time of driving, it is not clear that 31J.2(7) is applicable in charges brought pursuant to

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Chapter 707,6A, Code of Iowa. The expert witness testimony relative to the alcohol absorption and elimination rates support a finding that at the time of the accident the defendant's alcohol concentration was less that .08. The court finds, based upon the credible evidence presented at trial , that the defendant consumed the majority of the beer he consumed that evening within 60 to 90 minutes of the time of the accident, including consuming one beer immediately before leaving the establishment. The court finds that defendant reached his peak alcohol concentration after the accident, and that the test result of .083 approximated defendant's peak alcohol concentration on the evening in question. The state has demonstrated that at the time of the accident defendant's alcohol concentrations was between .05 and .08.

Substantial evidence was presented concerning whether defendant was intoxicated on the evening in question. Several witnesses detected an odor of alcohol about the defendant. The defendant acknowledge that he had consumed alcohol that evening. However, six witnesses who had substantial contact with the defendant until immediately prior to the accident were of the opinion that the defendant was not under the influence of alcohol. Connie Young, Craig Young, Scott Braun, Tracey Braun, Bill Bradford and Lisa Bradford all testified accordingly.

The Sartori Hospital nurse in charge of defendant's treatment made no indication in her reports that defendant was intoxicated. She noted that defendant's gait was even, and observed him walk in the hospital. She did not indicate presence of alcohol in her reports, and testified that she would have made mention of the presence of alcohol if she had noticed it. Dewayne Brasfield observed the defendant shortly after the accident. Mr. Brasfield did not opine the defendant was intoxicated.

Cedar Falls police officer Robert Michael had contact with the defendant following the accident. He noted that the defendant was "cooperative and fully coherent." He also noted that the defendant had no problems understanding the questions asked of him. No field sobriety tests were requested of the defendant by any of the officers investigating the case.

Officer Robert Anderson testified that the defendant did no seem disoriented and that the defendant answered all questions without hesitation. While Officer Anderson testified that defendant's eyes were bloodshot and watery (as did Officer

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Michael) Anderson testified that the horizontal gaze nystagmus field sobriety test was not performed in part because defendant had an eye injury. Officer Anderson also testified that defendant was cooperative and lucid with the treating nurse.

Officer Venenga also had significant contact with the defendant following the accident. She noted that defendant was coherent and had no slurred speech. She did not have the opinion that defendant was under the influence of alcohol on the evening in question.

Officer Wilson also had substantial contact with the defendant after the accident. Officer Wilson noted that defendant's speech was not slurred. He further noted that defendant had no problems communicating, that he understood that defendant was oriented and defendant 's judgment was not impaired. Officer Wilson's physical observations of the defendant after the accident indicated that the defendant was not impaired, and he testified that he does not know whether defendant was intoxicated.

David Zarifis, Associate Directory of Public Safety at The University of Northern Iowa, arrived on the accident scene shortly after the collision. Mr. Zarifis had contact with the defendant. He noted that defendant had no difficulty standing and testified that there was noting to indicate that defendant was under the influence of alcohol. He further noted that defendant did not slur his speech and that his responses were coherent and appropriate.

Defendant's testimony concerning his drinking and lack of impairment is corroborated by the foregoing witnesses. Defendant's account of his activities on the evening in question are consistent with the accounts of the other witnesses who were with him. Defendant's testimony concerning his sobriety is consistent with the observations of numerous independent witnesses who testified in this case. Defendant adamantly testified that he was not impaired by alcohol at the time of the accident. His testimony concerning the distractions within his

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vehicle at the time he approached the intersection was credible and corroborated by other credible evidence.

Expert witness testimony was presented regarding the evidence of alcohol on individuals at various level. The evidence presented established that certain individuals may be impaired at .05 - .08. Howsoever, the evidence fails to establish that this defendant was under the influence of alcohol at the time of the accident, or at any other time during the requisite causal connection.

CONCLUSIONS OF LAW

For the defendant to be convicted of the offense of Homicide by Vehicle, in violation of Section 707.6A(1), as charged in the trial information, the state must prove both of the following elements with evidence beyond a reasonable doubt:

1. On or about the 4th day of October, 1996, the defendant:

(a) Operated a motor vehicle while under the influence of alcohol or a drug or a combination of such substances;

or

(b) Operated a motor vehicle while having an alcohol concentration of ten hundredths or more;

or

(c) Drove a motor vehicle in a reckless manner.

2. The defendant's acts unintentionally caused the death of Juli Farrell.

Iowa Code Section 707.6A(1).

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For the defendant to be convicted of the offense of Serious Injury by Vehicle, the state must prove each of the following elements beyond a reasonable doubt:

1. On or about the 4th day of October, 1996, the defendant:

(a) Operated a motor vehicle while under the influence or alcohol or a drug or a combination of such substances;

or

(b) Operated a motor vehicle while having an alcohol concentration of ten hundredths or more;

or

(c) Drove a motor vehicle in a reckless manner.

2. The defendant's acts unintentionally caused serious injury to Tamara Kleinheksel.

Iowa Code Section 707.6A(2)

"Serious injury" is a condition which cripples, incapacitates, weakens or destroys a person's normal mental functions, or a bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or extended loss of impairment of the functions of any bodily part or organ. Iowa Code Section 702.18.

A person is "reckless" or acts "recklessly" when eh willfully disregards the safety of persons or property. It is more than a lack of reasonable care which ma cause unintentional injury. Recklessness is conduct which is consciously done with will full disregard of the consequences, and a person knows or should know a risk of harm to another or a property is created. Through recklessness is willful, it is not intentional in the sense that harm is intended to result. Iowa Code Section 702.16, Uniform Criminal Jury Instruction 200.20. State v. Cox,, 500 N.W. 2d 23 (Iowa 1993).

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A person is "under the influence" when, by drinking liquor and /or beer, one or more of the following is true:

1. His or her reason or mental ability has been affected;

2. His or her judgment is impaired;

3. His or her emotions are visibly excited;

4. He or she has, to any extent, lost control of bodily functions or emotions.

Based upon the evidence presented, the court concludes that the state has failed to demonstrate beyond a reasonable doubt that defendant is guilty of either of the offenses charged. It is clear that the defendant was operating a motor vehicle on October 4, 1996, at the time of the accident. It is also clear that Tamara Kleinheksel suffered serious injuries as a result of the accident, and that accident caused the death of Juli Farrell. The evidence also clearly established that the defendant's negligence caused the accident, the resulting serious injuries to Ms. Kleinheksel and the death of Juli Farrell. Defendant, at least in part because of distractions within his vehicle, failed to abide by the flashing red stop signal at the intersection, causing the tragic collision.

However, in this criminal case the question is not whether the defendant was at fault or negligent. Rather, the question is where the state has demonstrated beyond a reasonable doubt the elements of these criminal offenses.

The evidence presented fails to demonstrate that defendant's alcohol concentration was .10 or higher. Rather, the evidence presented was less than the legal limit at the time of the accident. Based on the evidence presented, the court concludes that defendant's alcohol concentration was between .05 and .08 at the time of the accident. The legislature has established .10 as the presumptive level of intoxication. When the evidence fails to demonstrate beyond a reasonable doubt that a defendant's alcohol concentration was in excess of the legal limit; it becomes incumbent upon the state to prove beyond a reasonable doubt that the defendant was under the influence of alcohol.

In reviewing the evidence presented as to the issue of whether defendant was under the influence, the court must conclude that the evidence falls short of establishing beyond a reasonable doubt that the defendant was under influence. Nearly every witness who had contact with the defendant on the evening in question, before and after the accident, either concluded that the defendant was not under the influence or had no opinion as to whether the defendant was under the influence. Theses witnesses include not only acquaintances of the defendant, but also medical and law enforcement personnel. While it is possible that defendant was impaired by alcohol at the time of the accident, it is also possible that he was not. Under those circumstances, the court cannot conclude beyond a reasonable doubt that the defendant was under the influence.

The closest alternative theory of criminal responsibility is the recklessness theory described in paragraph 1(c) above. However, as held in State v. Cox, supra, a traffic violation alone does not constitute recklessness. Further, the evidence presented establishes that defendant was traveling at or below the speed limit as he approached the intersection. There is no indication that defendant was operating his vehicle in an erratic manner. If recklessness were to be found, the court would need to conclude as a matter of law that defendant was reckless in operating a motor vehicle with an alcohol concentration of some 20 to 40 percent less than the legal limit established by the legislature. Without further evidence establishing beyond a reasonable doubt that defendant was under the influence of alcohol at the time of the accident, the court is unable to reach that conclusion.

Defendant is accordingly ADJUDGED not guilty of the offenses of Homicide by Vehicle and Serious Injury by Vehicle. Defendant's bond, if any, is released and sureties exonerated.

Costs are assessed to the state.

Dated This 2 day of June, 1997

Todd A. Geer, Judge
First Judicial District

 

updated 12/26/16