State v. Cheney

• Decision Date: 21 August 2019
• Docket Number: No. 18-2100,18-2100
• Citation: 939 N.W.2d 441 (Table)
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Dale Leroy CHENEY Jr., Defendant-Appellant.
• Court: Iowa Court of Appeals

939 N.W.2d 441 (Table)

STATE of Iowa, Plaintiff-Appellee,

v.Dale Leroy CHENEY Jr., Defendant-Appellant.

No. 18-2100

Court of Appeals of Iowa.

Filed August 21, 2019

Colin C. Murphy of Gourley, Rehkemper, & Lindholm, P.L.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

Considered by Tabor, P.J., and Mullins and May, JJ.

MULLINS, Judge.

Shortly before noon on February 24, 2018, Trooper Andrew Albright of the Iowa State Patrol conducted a traffic stop of a vehicle driven by Dale Cheney Jr. Ultimately, Cheney consented to a chemical breath test, which resulted in an alcohol concentration of .137, which is over the legal limit. See Iowa Code § 321J.2(1)(b) (2018). Cheney invoked his statutory right to independent blood testing under Iowa Code section 321J.11. Albright advised Cheney he "would take him home and allow him to have somebody take him wherever he would like to go to have that blood test performed." After citing Cheney for operating while intoxicated (OWI), Albright drove Cheney home and released him upon his signed promise to appear in court. Albright chose to release Cheney rather than book him in jail so as to not impede his ability to obtain independent testing.¹

The State formally charged Cheney with second-offense OWI. Cheney filed a motion to suppress the chemical-breath-test results, contending Albright interfered with his ability to obtain an independent chemical test. Following a hearing, the district court denied the motion, finding "no evidence that Trooper Albright hindered [Cheney’s] ability to obtain an independent blood test."

Following a bench trial on the stipulated minutes of evidence, the court found Cheney guilty as charged. At the time of sentencing, both parties requested Cheney’s sentence to align with statutory mandatory minimums for the offense, which would include seven days in jail. See id. § 321J.2(4)(a). Instead, the court sentenced Cheney to ninety days in jail, with all but seven days being suspended.

Cheney now appeals the district court’s denial of his motion to suppress and the sentence imposed. As to the court’s denial of his motion to suppress, Cheney essentially argues the court erred in concluding Albright did not hinder his ability to obtain independent chemical testing. Cheney takes the position that when the statutory right to independent chemical testing is invoked, law enforcement is required to transport the subject to a local facility for testing or arrange for the same, and Albright failed to do so. Because the basis of Cheney’s motion to suppress is statutory, our review of the district court’s ruling on the motion to suppress is for legal error. See State v. Smith , 926 N.W.2d 760, 762 (Iowa 2019). Section 321J.11 provides, in relevant part, that a

person may have an independent chemical test or tests administered at the person’s own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer.

Our supreme court has ruled " ‘evidence of the results of the test or tests administered at the direction of the peace officer’ must be suppressed when a detainee’s statutory right to an independent test under Iowa Code section 321J.11 is denied." State v. Lukins , 846 N.W.2d 902, 911 (Iowa 2014) (quoting Iowa Code § 321J.11 ). However, "[i]n the absence of police hindrance, an individual’s inability to obtain an independent chemical test will not preclude admission of the results from the police-administered test." State v. Foss , No. 02-0953, 2003 WL 21361556, at *2 (Iowa Ct. App. June 13, 2003). The statutory mandate is satisfied where the subject is provided a reasonable opportunity to obtain an independent test. See Caspar v. Iowa Dep't of Transp. , 506 N.W.2d 799, 803 (Iowa Ct. App. 1993) (Habhab, J., concurring specially).

Here, Cheney’s right to obtain an independent chemical test was not hindered by Albright, let alone entirely denied. Rather, Albright took steps to facilitate Cheney’s desire to undergo an independent test—he released him from detainment and took him home, where he could arrange for his chemical testing. Cheney was afforded a reasonable opportunity to pursue an independent test but failed to do so. Such failure "does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer." Iowa Code § 321J.11.

To the extent Cheney argues the Iowa State Patrol’s procedural manual for OWI investigations² imposes additional legal duties on officers and affords subjects additional statutory rights, we disagree. Even if the relevant procedure assigned new legal rights and duties, we find Albright made reasonable arrangements to afford Cheney the opportunity to undergo chemical testing.

Finally, to the extent Cheney argues Albright’s seizure of his driver’s license hindered him from obtaining an independent test because he would have needed identification to undergo the test, we disagree. Albright was statutorily authorized to serve immediate notice of revocation upon Cheney. See id. § 321J.12(3). Having done so, he was statutorily required to take Cheney’s license and issue a temporary license, which he did. See id. § 321J.12(4). Finding no legal error in the court’s ruling, we affirm the denial of Cheney’s motion to suppress.

As to sentencing, Cheney argues the court improperly equated his disappointment with the suppression ruling with a lack of remorse in imposing a sentence harsher than that recommended by the parties.³ During his statement of allocution at the time of sentencing, Cheney advised the court of his displeasure with the court’s suppression ruling. The court responded:

Mr.

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