Hoffman v. Iowa Dept. of Transp.

• Decision Date: 31 August 1977
• Docket Number: No. 2-58992,2-58992
• Citation: 257 N.W.2d 22
• Parties: Philip Charles HOFFMAN, Appellee, v. The IOWA DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: Iowa Supreme Court

Page 22

257 N.W.2d 22

Philip Charles HOFFMAN, Appellee, v. The IOWA DEPARTMENT OF TRANSPORTATION, Appellant.

No. 2-58992.

Supreme Court of Iowa.

Aug. 31, 1977.

Richard C. Turner, Atty. Gen., and John G. Mullen, Asst. Atty. Gen., for appellant.

Gary D. Ordway, of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellee.

Considered en banc.

HARRIS, Justice.

In this proceeding under the administrative procedure act the trial court reversed an administrative order which had revoked petitioner's driving privileges under the implied consent law, chapter 321B, The Code. We reverse the trial court and order reinstatement of the revocation.

Philip Charles Hoffman (petitioner), while driving his pickup truck at 12:50 a. m. July 26, 1975, was stopped by Officer Clifford Boley (Boley) of the Johnston, Iowa police department. After conducting field sobriety tests Boley arrested petitioner for operating a motor vehicle while under the influence of an intoxicating beverage in violation of § 321.281, The Code.

At the time of arrest Boley took possession of defendant's key chain which contained the ignition key to the truck. The same key chain also contained keys to petitioner's home and garage, a lock box in the truck containing petitioner's carpenter tools, a savings box stored in petitioner's home, and several other keys. Boley handed the entire key chain to a tow truck driver who came to tow away petitioner's truck.

Boley took petitioner under arrest to the Johnston police department where they arrived at 1:00 a. m. Petitioner stated he wished to speak to his attorney. Boley advised petitioner he had no right to an attorney during the implied consent proceeding. This request by petitioner and reply by Boley were repeated several times.

Boley invoked the implied consent procedure requesting a blood test at 1:14 a. m. and a urine test at 1:15 a. m. Defendant stated he would not take any test or make any statement until he had consulted his attorney. Thereafter, at approximately 1:20 a. m. petitioner was permitted to and did call his attorney. Both the attorney and petitioner then requested a blood test but Boley refused, stating he had already been through the implied consent procedure and was not obligated to repeat it.

In accordance with the implied consent law petitioner's motor vehicle operator's license was revoked for 120 days. Thereafter petitioner requested and was granted a hearing before a hearing officer of the department of transportation who upheld the revocation. Petition for review was then sought in Polk district court where the revocation was reversed.

The trial court determined our decision in Swenumson v. Iowa Department of Public Safety, 210 N.W.2d 660 (Iowa 1973) permits trial courts to examine the factual circumstances in any given case to determine whether " * * * the citizen was confused or was stalling for time so the physiological processes would lower his blood count." The trial court determined petitioner believed he had a right to counsel and that Boley lost his credibility to correct the confusion by unreasonable conduct in seizing all of the petitioner's keys. The trial court concluded Boley's conduct caused petitioner to disbelieve him and to remain confused as to his right to counsel.

I. The trial court proceeding was conducted on the basis of the procedure existing prior to the advent of the Iowa administrative procedure act, chapter 17A, The Code. Those procedures were explained in a number of cases including Crosser v. Iowa Dept. of Public Safety, 240 N.W.2d 682, 684 (Iowa 1976) and Carroll v. Iowa Dept. of Pub. Saf., etc., 231 N.W.2d 19, 21 (Iowa 1975). Accordingly the trial court took evidence of various witnesses and tried the matter anew as a basis for its findings and conclusions.

The Iowa administrative procedure act became effective July 1, 1975. Section 321B.9 now provides: "Judicial review of the actions of the director may be sought in accordance with the terms of the Iowa administrative procedure Act. * * *."

Turning to the administrative procedure act we note § 17A.19, The Code, provides in material part:

"Except as expressly provided otherwise by another statute referring to this chapter by name, the judicial review provisions of this chapter shall be the exclusive means by which a person or party who is aggrieved or adversely affected by agency action may seek judicial review of such agency action. * * *.

" * * *.ay

"7. In proceedings for judicial review of agency action a court may hear and consider such evidence as it deems appropriate. In proceedings for judicial review of agency action in a contested case, however, a court shall not itself hear any further evidence with respect to those issues of fact whose determination was entrusted by Constitution or statute to the agency in that contested case proceeding. Before the date set for hearing a petition for judicial review of agency action in a contested case, application may be made to the court for leave to present evidence in addition to that found in the record of the case. If it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the contested case proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision in the case by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court and mail copies of the new findings or decisions to all parties.

"8. The court may affirm the agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant any other appropriate relief from the agency action, equitable or legal and including declaratory relief, if substantial rights of the petitioner have been prejudiced because the agency action is:

"a. In violation of constitutional or statutory provisions;

"b. In excess of the statutory authority of the agency;

"c. In violation of an agency rule;

"d. Made upon unlawful procedure;

"e. Affected by other error of law;

"f. In a contested case, unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole; or

"g. Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion."

This is a "contested case" as defined by § 17A.2(2), The Code. No application was made to the trial court for leave to present evidence in addition to that appearing in the record before the hearing officer. Accordingly the record for review should have been limited to matters shown before the hearing officer. See Iowa Movers & Warehousemen's Ass'n v. Briggs, 237 N.W.2d 759, 770 (Iowa 1976).

An appeal from the determination of the district court is allowed under § 17A.20. Our review in a contested case under § 17A.20 is not de novo. Our task is to review the record in the manner specified in § 17A.19(7) and make anew the judicial determinations specified in § 17A.19(8). Our review is limited, as the district court's review should have been, to the record made before the hearing officer.

The sole question, then, for our determination is whether the record before the hearing officer shows petitioner did not legally refuse to submit to chemical testing. It is clear Boley followed the implied consent procedure in requesting body fluid specimens. Boley read to defendant at least twice from a form used by the Johnston police department. The form advised him of the consequences for refusal to submit and requested the body fluid specimens. In addition Boley told petitioner at least twice he had no right to counsel during the implied consent proceedings and also explained the consequences of refusing.

Petitioner does not actually contend Boley failed to comply with the implied consent procedures. Rather he argues the circumstances of the case reveal he did not legally refuse to submit to chemical testing. Petitioner would not submit the specimen before being given an opportunity to visit with his attorney. He believes this qualified refusal was justified under the circumstances. He relies heavily on the contention Boley took his entire key chain and wrongfully claimed a right to the keys. Petitioner now claims this episode caused him not to trust or believe Boley. From this petitioner argues it was reasonable for him not to believe Boley's statement petitioner had no right to counsel during the implied consent proceeding. Petitioner contends Boley therefore caused the confusion which led him to believe he had a right to counsel before submitting or refusing to submit to chemical testing. Defendant contends his qualified refusal cannot be deemed a refusal as contemplated by § 321B.3 and § 321B.7, The Code. Petitioner believes his contentions are supported by the fact that immediately after visiting with his attorney he requested he be given the chemical tests.

In Swenumson, supra, 210 N.W.2d at 663 we expressed concern for confusion which might result if a driver was advised of his right to counsel as a part of the Miranda warnings but was left unadvised his Miranda right to counsel was inapplicable to the implied consent proceeding. We have no such problem in the instant case. Petitioner was not given the Miranda warning until after the implied consent proceeding. In addition, as hereinbefore noted, petitioner was advised he had no right to counsel during the implied consent proceeding.

The district court agreed with petitioner's contention Boley's taking of all his keys caused a credibility gap which reasonably caused petitioner not to believe Boley.

It is unnecessary to speculate over the merits of petitioner's contention he was confused by Boley's taking of the keys. There was no evidence offered before the...