State v. Bernhard, 01-1872.

• Decision Date: 26 February 2003
• Docket Number: No. 01-1872.,01-1872.
• Citation: 657 N.W.2d 469
• Parties: STATE of Iowa, Appellee, v. Stanley Allen BERNHARD, Appellant.
• Court: Iowa Supreme Court

657 N.W.2d 469

STATE of Iowa, Appellee, v. Stanley Allen BERNHARD, Appellant.

No. 01-1872.

Supreme Court of Iowa.

February 26, 2003.

Andrew P. Nelson of Meyer, Lorentzen & Nelson, Decorah, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Kevin H. Clefisch, County Attorney, for appellee.

CARTER, Justice.

Defendant, Stanley Allen Bernhard, appeals from his conviction of OWI. He contends that a chemical test of his blood-alcohol level should have been suppressed because his consent to the withdrawal of his blood was obtained by an unwarranted threat of license revocation. The court of appeals rejected that contention and affirmed defendant's conviction. We agree with that disposition. We affirm the decision of the court of appeals and the judgment of the district court.

On February 2, 2001, defendant's four-wheel-drive pickup truck slid off the roadway south of Postville. The vehicle ended up overturned in the ditch. Emergency medical and fire personnel soon arrived at the scene, as did officers of the Iowa State Patrol. These officers found an open bottle of peppermint schnapps beside the truck and detected an odor of that liquor in the interior of the cab.

Defendant was taken by ambulance to a hospital in Waukon. He arrived at the hospital emergency room immobilized in a C-collar and on a backboard. He was complaining of pain in his right arm, shoulder, and left hip. No head injuries or neurological injuries were observed. He was able to move all four extremities. The emergency-room nurse described defendant's condition as very agitated, nervous, and beset with rapid speech patterns.

Soon after defendant's arrival at the hospital, Trooper Greg Rude of the Iowa State Patrol appeared and spoke to him in the emergency room. At this time, medical personnel were in the room attending to defendant's injuries. Trooper Rude detected the odor of liquor on defendant's breath. He advised defendant that he had come to get a blood sample and then proceeded to read an advisory to defendant from a form that is regularly used for the initiation of the implied-consent procedure for chemical testing.¹ Trooper Rude did not deliver a copy of the implied-consent form to defendant nor did defendant ever sign it. Trooper Rude wrote on the form "unable to sign being treated for injuries." The district court found that this action on Trooper Rude's part was warranted in order to avoid disrupting defendant's medical treatment.

A nurse was present during the time that Trooper Rude was in the emergency room. She testified that following Trooper Rude's reading of the implied-consent admonition defendant extended his arm and allowed her to draw a sample of blood. At the suppression hearing, defendant testified that he did not actually hear what Trooper Rude was reading. He stated, however, that comments made to him by the nurse made him aware that a refusal to consent to a chemical test would result in the loss of his license. He testified that he consented to a withdrawal of blood in order to avoid that sanction.

Trooper Rude took possession of the blood sample obtained in the hospital. That sample was later tested at a laboratory and revealed a concentration of 208 grams of alcohol in 100 milliliters of blood. The district court denied defendant's request to suppress the results of this chemical test. That evidence was made a part of the record, subject to defendant's objection, in a stipulated bench trial resulting in defendant's conviction of OWI, first offense. Other facts and circumstances that bear on this appeal will be considered in connection with our discussion of the legal issues presented.

I. Whether the Results of Chemical Testing of Defendant's Blood Should Have Been Suppressed.

The statement that was read to defendant included the following:

The Implied Consent Law requires that a peace officer advise the person of the following:

Refusal to submit to the withdrawal of a body specimen for chemical testing will result in revocation of your privilege to operate a motor vehicle for one year if you have not previously been revoked within the previous twelve years under the implied consent or drunk driving laws of this state, or for two years if you have one or more revocations within the previous twelve years. If you are under age 18, the revocation will be for the above periods, or until you reach age 18, whichever is longer.

Defendant correctly notes that under the provisions of Iowa Code section 321J.6 (1999) a refusal to provide a sample of blood is not a basis for a license revocation. That statute provides:

The peace officer shall determine which of the three substances, breath, blood, or urine, shall be tested. Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit, and section 321J.9 [providing for license revocation] applies. A refusal to submit to a chemical test of blood is not deemed a refusal to submit, but in that case, the peace officer shall then determine which one of the other two substances shall be tested and shall offer the test.

Iowa Code § 321J.6(2) (emphasis added).

Had defendant refused to consent to a withdrawal of blood, the officer would have had to request either a breath sample or a urine sample and in that case a refusal to provide either would have resulted in a revocation of defendant's license pursuant to Iowa Code section 321J.8(1). That statute provides:

If the person refuses to submit to the test, the person's driver's license or nonresident operating privilege will be revoked by the department as required by and for the applicable period specified under section 321J.9.

Iowa Code § 321J.8(1). Section 321J.9 provides for a varying length of revocation depending on the subject's prior history of license revocations.

Defendant urges that, because his consent to providing a sample of blood was obtained by an unwarranted threat of license revocation, the results of the chemical test should have been suppressed. In advocating this disposition he relies on our decision in State v. Kjos, 524 N.W.2d 195 (Iowa 1994). In that case the defendant was advised more than two hours following his arrest that he must agree to a chemical test or face license revocation. Actually, Iowa Code section 321J.6(2) provides that "[i]f the peace officer fails to offer a test within two hours after the preliminary screening test is administered or refused or the arrest is made, whichever occurs first, a test is not required, and there shall be no revocation under section 321J.9." Based on this statute, we concluded that Kjos had been misinformed concerning the consequences of refusing a chemical test. Kjos, 524 N.W.2d at 197. We held that suppression of the chemical test result was the proper remedy because "[o]nly in this way can a defendant's right to refuse a test offered more than two hours after arrest be preserved." Id.

We are convinced that defendant's reliance on Kjos in the present case is misplaced. Unlike the defendant in Kjos, Bernhard was required by law to submit to a chemical test or have his license revoked. Although we recognize that the general admonition concerning license revocation that was read to defendant was misleading when given with respect to a request for blood, it was correct within the context of the complete statutory procedure that defendant was facing. At the time this admonition was given, the statutory procedure had not yet run its course.

Trooper Rude elected to first request a sample of blood. Because defendant consented to that request the inquiry went no further. If, however, defendant had refused to provide a sample of blood the implied consent procedure would have merely shifted to a request for a urine or breath sample. Defendant would...