Ginsberg v. Iowa Dept. of Transp., Motor Vehicle Div., 93-22
| Decision Date | 24 November 1993 |
| Docket Number | No. 93-22,93-22 |
| Citation | 508 N.W.2d 663 |
| Parties | John David GINSBERG, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant. |
| Court | Iowa Supreme Court |
Bonnie J. Campbell, Atty. Gen., and Stephen E. Reno, Asst. Atty. Gen., for appellant.
Dean Stowers, Rosenberg Law Firm, Des Moines, for appellee.
Considered by HARRIS, P.J., and CARTER, LAVORATO, SNELL, and TERNUS, JJ.
The department of transportation appeals from a district court decision overturning the agency's decision to revoke John D. Ginsberg's license. We affirm.
When Ginsberg was arrested for operating while intoxicated, the arresting officers requested that he submit to a breath test at the police station. After telephoning his attorney, he said that he wanted to take a blood or urine test.
The officers asked if he was refusing to take the breath test. Ginsberg said that he was not refusing to take the breath test but that he wanted his blood or urine tested as well. The officers treated this as a refusal. The peace officers did not explain that on the completion of the requested test, Ginsberg would be allowed to exercise his right to independent testing. See Iowa Code § 321J.11 (1991).
Ginsberg contested the department of transportation's subsequent revocation of his license for test refusal pursuant to Iowa Code section 321J.9 (1991). After a hearing, the administrative law judge sustained the revocation. The reviewing officer affirmed.
Ginsberg sought judicial review. The district court overturned the agency action, concluding that Ginsberg was asserting his right to an independent chemical test. The court found no substantial evidence of refusal since at all times Ginsberg consented to the breath test.
The principles that govern our review are well established. We are bound by an agency's findings of fact if those findings are supported by substantial evidence; we are not bound by an agency's legal conclusions and may correct misapplications of the law. Sallis v. Employment Appeal Bd., 437 N.W.2d 895, 896 (Iowa 1989).
The implied consent procedure of the Iowa Code states that after an arrest for driving while intoxicated, the police shall determine which substance to test for alcohol: breath, blood, or urine. Iowa Code § 321J.6(2) (1991). The police had decided to test Ginsberg's breath.
Whether Ginsberg's conduct constituted refusal pursuant to Iowa Code section 321J.6(2) is a legal question. The statements and conduct of the arrestee and police officer, as well as the surrounding circumstances, are considered in determining if a...
To continue reading
Request your trial
-
State v. Mahoney
...had two chances at getting possible exculpatory evidence. State v. Zoss, 360 N.W.2d at 525. Furthermore, in Ginsberg v. Iowa Department of Transportation, 508 N.W.2d 663 (Iowa 1993), the supreme court assumes without deciding Iowa Code section 321J.11 requires an individual to take the test......
-
State v. Lukins
...test, officers should convey to the detainee information about the detainee's statutory right to the independent test. See508 N.W.2d 663, 664 (Iowa 1993). In that case, police officers treated a detainee's request for a blood or urine test as a refusal to submit to a breath test. Id. Holdin......
-
McMahon v. Iowa Dept. of Transp., Motor Vehicle Div.
...disturb the agency's findings of fact if substantial evidence supports them. Iowa Code § 17A.19(8)(f) (1993); Ginsberg v. Iowa Dep't of Transp., 508 N.W.2d 663, 664 (Iowa 1993). "Evidence is substantial when a reasonable mind could accept it as adequate to reach the same findings [as the ag......
-
State v. Fischer
...the statements and conduct of the arrestee and police officer, as well as on all the surrounding circumstances. Ginsberg v. Iowa Dep't of Transp., 508 N.W.2d 663, 664 (Iowa 1993). If a driver refuses the chemical testing under the implied-consent procedure, the officer sends the department ......
-
Administrative hearings
...Motorist’s Attempt to Assert Right to Independent Testing Does Not Constitute Refusal In Ginsberg v. Iowa Dep’t of Transportation , 508 N.W.2d 663 (Iowa 1993), the Iowa Supreme Court held that an arrestee’s attempt to assert a statutory right to an independent test cannot be regarded by the......