Carroll v. Iowa Dept. of Public Safety, Driver's License Division, 2--56883

• Decision Date: 25 June 1975
• Docket Number: No. 2--56883,2--56883
• Parties: Robert Gene CARROLL, Appellee, v. IOWA DEPARTMENT OF PUBLIC SAFETY, DRIVER'S LICENSE DIVISION, State of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 19

231 N.W.2d 19

Robert Gene CARROLL, Appellee, v. IOWA DEPARTMENT OF PUBLIC SAFETY, DRIVER'S LICENSE DIVISION, State of Iowa, Appellant.

No. 2--56883.

Supreme Court of Iowa.

June 25, 1975.

Richard C. Turner, Atty. Gen., and Peter E. Voorhees, Asst. Atty. Gen., for appellant.

Noran L. Davis, Council Bluffs, for appellee.

Submitted to MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP and REYNOLDSON, JJ.

UHLENHOPP, Justice.

This appeal involves a proceeding to revoke a driver's license under the implied consent law, chapter 321B, Code 1973 (all references are to that Code).

State Trooper Kenneth R. Heimgartner arrested plaintiff Robert Gene Carroll for operating a motor vehicle while under the influence of intoxicants. Plaintiff refused to take a blood or breath test or to sign the written refusal to take them. Subsequently, the Iowa Department of Public Safety revoked plaintiff's driver's license for 180 days, under the implied consent law. § 321B.7.

Plaintiff requested an administrative hearing under § 321B.8, which provides that the hearing 'shall cover the issues of whether a peace officer had reasonable grounds to believe the person to have been operating a motor vehicle upon a public highway of this state while under the influence of an alcoholic beverage, whether the person was placed under arrest and whether he refused to submit to the test or tests.'

Sgt. P. Roby, an agent of the Commissioner of Public Safety, conducted the hearing and taped the proceedings. Trooper Heimgartner testified for the Department. His testimony in part, from the typist's transcription, follows:

Q. (Sgt. Roby.) Would you tell in your own words from the time that you saw this vehicle driven by Mr. Carroll until after the Implied Consent was invoked? A. (Trooper Heimgartner.) Well I.

Q. (Can't make out.) A. Well I was westbound on 83 approximately a mile and a half east of the junction of 191 and 83 when I observed the vehicle which was eastbound as he was going around the curve, he did go across the center line and then did pass onto the shoulder at which time I slowed down, pulled to the shoulder of the road to possibly avoid him striking me or vice versa. This was the case and after we met each other I turned around and proceeded to pursue the vehicle. As I approached the rear of the vehicle I also observed the vehicle go across the center line several times and also onto the shoulder of the road a few times. Now as far as how many times, I did not count them, but there were a few times there that they the vehicle did cross the center line, also onto the shoulder, and at which time I did turn my red lights on and to attract the driver's attention a bit more, I did flash my head lights from bright to dim. It seemed as if the driver of the vehicle did not see the red lights or the flashing of the head lights and continued to drive on a little bit farther. When he did notice them he slowed down considerably to a speed of five miles an hour before he proceeded to go onto the shoulder of the road. I approached the driver and asked him to step out of the car for me and also to shut his vehicle off which he did with a little hesitation. He looked at me as if to ask why he should shut it off, but he did not ask the question. As he got out of the car he did lose balance to a certain extent to, well, he caught his balance on the side of the car and proceeded to walk back to the back of my car or the side of my car at which time I went around and unlocked the door. As he was reaching for the door latch, it seemed as if he lost his balance again and staggered down into the ditch somewhat. In fact, he did fall down. When he got back up he did get into my car as I asked. I got on the driver's side and proceeded to ask him where his, for his driver's license and he got the driver's license out for me, or the billfold out, and then he put it back into his pocket saying I was not going to take his driver's license, that I did not need his driver's license. . . .

Q. Now before we go any further, Trooper Heimgartner, did you arrest this man? A. Yes, I did. . . .

Q. Yes, proceed. A. And at 10:35 P.M., as noted on the form here, I did request a chemical test of blood, and at which time he did refuse. Shortly thereafter I asked for the chemical test of breath, and again he refused to give the chemical test of breath. And on both occasions, he did refuse to sign the form stating that he refused. Then I proceeded to inform him that his driving privileges would be suspended, and by doing this, I did read the form to him. I advised him what the situation was as far as suspension for at least 120 days or no more than one year. He said he did understand the charge and understand he would lose his license but again he did refuse to sign the Implied Consent form. . . .

Q. I see, now was the man, was this blood and breath test request within a two hour period after the arrest? A. Yes, it was.

Q. The man was arrested at approximately what time? A. At approximately 10:25 P.M. . . .

Q. And the man to the best of your opinion was definitely under the influence of an alcoholic beverage? A. Yes, he was. . . .

Plaintiff introduced no evidence.

On the basis of the evidence introduced, Sgt. Roby upheld the revocation.

Plaintiff thereupon appealed to district court under § 321B.9. The trial court...