Ludtke v. Iowa Dept. of Transp.

• Decision Date: 08 May 2002
• Docket Number: No. 00-1805.,00-1805.
• Parties: William Eugene LUDTKE, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant.
• Court: Iowa Supreme Court

646 N.W.2d 62

William Eugene LUDTKE, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant.

No. 00-1805.

Supreme Court of Iowa.

May 8, 2002.

Rehearing Denied July 1, 2002.

Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attroney General, and Mark Hunacek, Assistant Attorney General, for appellant.

John O. Moeller, Davenport, for appellee.

LAVORATO, Chief Justice.

The Iowa Department of Transportation (IDOT) appeals from a district court ruling on judicial review reversing an IDOT order revoking the driver's license of William Eugene Ludtke. The sole issue on appeal is whether under the circumstances the arresting officer could lawfully request a second breath test sample. The IDOT held he could, but the district court reversed. Because we disagree with the district court's ruling, we reverse and remand with directions.

I. Background Facts and Proceedings.

On January 27, 2000, Iowa state trooper Robert Turpin observed Ludtke driving erratically and stopped him. Suspecting that Ludtke was under the influence of alcohol, Turpin proceeded to administer a series of field sobriety tests. A preliminary breath test (PBT) resulted in a .13 reading. Turpin arrested Ludtke for violation of Iowa Code section 321J.2 (1999) (operating a vehicle with an alcohol concentration of .10 or more) and transported him to a law enforcement center. At the station, the trooper invoked the implied consent law, see Iowa Code section 321J.6, and proceeded to administer a breath test using the Model 4011A Intoxilyzer.

The trooper had been certified to use the intoxilyzer for approximately four years. He had performed the test "at least" dozens of times.

The intoxilyzer gauges both the pressure and volume of air a subject blows into the machine. It records the alcohol content of deep lung air and purges the sample into the atmosphere at the completion of a three-stage testing cycle. The intoxilyzer performs a calculation based on a fixed ratio of alcohol in lung air to alcohol in the blood and reports the result as a blood alcohol reading. See State v. Steadman, 350 N.W.2d 172, 173 (Iowa 1984)

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The intoxilyzer's green light indicates when there is sufficient pressure into the machine. If the green light turns off, indicating insufficient pressure, the test aborts and the device does not produce a hardcopy printout. Thus, the machine will not produce a hardcopy printout until the test is complete.

According to the trooper's testimony, sometimes a subject puffs lightly into the machine for ten seconds, and the machine locks in and accepts that as a satisfactory test. The operator of the machine has no control over the machine once a test begins as to what sample it takes. The operational checklist indicates the operator should instruct a subject "to blow into [the] mouthpiece for as long as possible." The checklist does not leave a blank space for the officer to record the length of time a subject blows into the machine.

The trooper prepared an operational checklist and followed the procedures necessary to obtain a valid reading from the machine. The first test the trooper administered showed a result of .083 breath alcohol concentration. The machine printed out a hardcopy of the results. According to the trooper, the machine worked properly for the first test and gave him no indication that the test was a failure.

The trooper testified that Ludtke only blew in the intoxilyzer for seven or eight seconds on the first test. For this test, the trooper counted out loud to determine the length of time Ludtke blew into the machine. Because Ludtke blew "for at least ten seconds" for the PBT the trooper administered in the field, the trooper knew Ludtke could blow longer. According to the trooper, Ludtke took the tube out of his mouth before he was through blowing as long and hard as he could. For this reason, the trooper did not consider the first test to be a proper valid breath test, and administered a second test using the intoxilyzer. On the second try, the trooper again prepared an operational checklist. Ludtke blew for twenty seconds on the second test. The test resulted in a .120 reading. The trooper considered the second test a valid test and the more accurate of the two tests. The trooper attributed the difference in results of the two tests to the fact that "the second test was the result of deep lung air ... which is more accurate[,] and the test result of the first one was not."

The trooper further testified that the intoxilyzer worked properly that day for both tests and that he operated it properly for both tests.

Ludtke did not testify, but he did submit an affidavit after the hearing, in which he stated that when he blew into the intoxilyzer the first time, the trooper took the hose away from him after the machine registered a satisfactory test. Ludtke also stated in the affidavit that he did not stop blowing by his own decision. The IDOT did not object to the admission of the affidavit, and the administrative law judge (ALJ), who heard the case, admitted it into evidence.

The ALJ filed a proposed decision in which he found that the first test was a valid one because no error was indicated and Ludtke "blew enough breath to lock-in a printed reading on the evidence card." Therefore, the ALJ concluded, Ludtke met his burden of proving that he complied with the implied consent law and that the peace officer did not satisfy the procedural requirements of that law. The ALJ rescinded the revocation of Ludtke's driver's license.

The IDOT appealed. The reviewing officer reversed, finding there was no statutory, administrative, or case law that prohibits a peace officer from requesting a second bodily specimen for testing. Here, the trooper believed Ludtke had not provided the proper specimen for the first test. Therefore, the reviewing officer concluded, "[t]o not allow a second breath test when a peace officer believes an arrestee has not provided a proper breath specimen would encourage an arrestee to thwart the test result by not following the instructions and provid[ing] only a partial breath specimen." The reviewing officer then reinstated the revocation of Ludtke's driver's license.

Ludtke petitioned for judicial review in the district court. The district court concluded Iowa Code chapter 321J provided no authority for the second test. The court further found that Ludtke met his burden of proof by showing the first test was a valid one under the statute and accompanying administrative rules. The court reversed the IDOT's ruling and rescinded the revocation of Ludtke's driver's license. It is from this ruling that the IDOT appeals.

II. Issue.

The issue is whether under the circumstances the trooper could lawfully request a second breath test sample.

III. Scope of Review.

Iowa Code chapter 17A governs review of license revocation decisions under Iowa Code chapter 321J. See Iowa Code § 321J.14; Reed v. Iowa Dep't of Transp., 478 N.W.2d 844, 845-46 (Iowa 1991). The district court acts in an appellate capacity to correct errors of law on the part of an agency when the court exercises its power of judicial review under Iowa Code section 17A.19(8). Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001). The court may affirm the agency action or remand to the agency for further proceedings. Iowa Code § 17A.19(8). The court shall reverse, modify, or grant any other appropriate relief from the agency action if substantial rights of the petitioner have been prejudiced because of such action. Id. In reviewing the district court's decision, we apply the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Heartland Express, 631 N.W.2d at 265. If they are, we affirm; otherwise, we reverse. Id. An agency's factual findings are binding on appeal if supported by "substantial evidence in the record made before the agency when the record is viewed as a whole." Iowa Code § 17A.19(8)(f); accord Reed, 478 N.W.2d at 846

. Evidence is substantial when a reasonable person could accept it as adequate to reach the same findings. Reed, 478 N.W.2d at 846. Conversely, evidence is not insubstantial merely because it would have supported contrary inferences, or because two inconsistent conclusions could be drawn from it. Id. Therefore "[t]he ultimate question is not whether the evidence supports a different finding but whether the evidence supports the findings actually made" by the agency. Id.

"In short, the findings of an agency are binding on appeal unless a contrary result is demanded as a matter of law. This limited scope of factual review is warranted by the presumably greater expertise an agency has over matters within its purview." CMC Real Estate Corp. v. Iowa Dep't of Transp., 475 N.W.2d 166, 174 (Iowa 1991) (citation omitted).

IV. Applicable Law.

Iowa's implied consent statute provides in relevant part:

A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 [operating while under the influence of alcohol or a drug or while having an alcohol concentration of .10 or more (OWI)] ... is deemed to have given consent to the withdrawal of specimens of the person's blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 ... and if any of the following conditions exist:

a. A peace officer has lawfully placed the person under arrest for violation of section 321J.2.

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