State v. Frescoln, No. 16-2043

• Court: Court of Appeals of Iowa
• Writing for the Court: DOYLE, Judge.
• Citation: 911 N.W.2d 450
• Docket Number: No. 16-2043
• Decision Date: 06 December 2017
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Hunter Nathanial FRESCOLN, Defendant-Appellant.

911 N.W.2d 450

STATE of Iowa, Plaintiff-Appellee,
v.
Hunter Nathanial FRESCOLN, Defendant-Appellant.

No. 16-2043

Court of Appeals of Iowa.

Filed December 6, 2017

Robert G. Rehkemper III of Gourley, Rehkemper & Lindholm, P.L.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Jean C. Pettinger and Timothy M. Hau, Assistant Attorneys General, for appellee.

Heard by Danilson, C.J., and Doyle and Mullins, JJ.

DOYLE, Judge.

Hunter Frescoln appeals the judgment and sentence entered following his conviction for operating while intoxicated (OWI), second offense. He challenges the district court order denying his motion to suppress the results of a chemical test showing his blood alcohol content was in excess of the legal limit.

I. Background Facts and Proceedings.

Ankeny Police Officer Jake Cusack initiated a traffic stop of the vehicle Frescoln was driving on the night of August 12, 2016. During the stop, Officer Cusack observed signs that Frescoln was intoxicated, and Frescoln admitted he had consumed two beers. While Frescoln performed field sobriety tests, Officer Cusack observed more signs that Frescoln was intoxicated. Frescoln refused to submit to a preliminary breath test. Officer Cusack transported Frescoln to the Pleasant Hill Police Department and secured a search warrant to seize a sample of Frescoln’s blood for chemical testing, which showed Frescoln’s blood alcohol content was .093.

The State charged Frescoln with OWI, third offense. Frescoln moved to suppress the results of the chemical test, alleging the State violated his rights under Iowa Code chapter 321J (2016) and the Iowa Constitution. The district court denied the motion following a hearing. Frescoln waived his right to a jury trial, and the case was submitted to the court on the minutes of evidence. The court found Frescoln guilty of second-offense OWI and sentenced him to a period of not more than two years of incarceration with all but thirty days of the sentence suspended.

II. Implied Consent Statute.

The first question before us is whether a law enforcement officer has the option of obtaining a sample for chemical testing by either invoking the implied consent statute or obtaining a warrant. Frescoln asserts the Iowa legislature removed the option of obtaining a chemical sample by warrant when it enacted our implied

911 N.W.2d 453

consent laws. Under Frescoln’s interpretation, an officer may only obtain a sample for chemical testing by following the procedure established by our implied consent statute.

We review the district court’s interpretation of our implied consent statute for the correction of errors at law. See State v. Lamoreux , 875 N.W.2d 172, 176 (Iowa 2016). We affirm if the district court’s ruling correctly applied the law and substantial evidence supports its fact findings. See id.

The United States and Iowa Constitutions prohibit unreasonable searches. See State v. Moriarty , 566 N.W.2d 866, 868 (Iowa 1997). "A warrantless search is presumed unreasonable." Id. To conduct a valid search without a warrant, it must fall under one of the recognized exceptions to the warrant requirement. See id. An exception to the warrant requirement exists when a person consents to allow the search. See id. However, obtaining a search warrant is the preferred method for conducting a constitutionally permissible search. See Terry v. Ohio , 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure ...."); State v. Ochoa , 792 N.W.2d 260, 285 (Iowa 2010) ("We have also generally endorsed the warrant-preference requirement."). As our supreme court recently affirmed in State v. Pettijohn , 899 N.W.2d 1, 22-23 (Iowa 2017), "Whenever practicable, the state should obtain a warrant prior to conducting a search."

Our legislature enacted Iowa’s implied consent law "to protect public safety and eliminate intoxicated driving from Iowa roads." State v. McIver , 858 N.W.2d 699, 704 (Iowa 2015). Under the law, Iowa drivers have impliedly consented to chemical testing when there are "reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A." Iowa Code § 321J.6(2) ; accord McIver , 858 N.W.2d at 705. The implied consent law provides an incentive for drivers to consent to chemical testing by subjecting those who refuse to voluntarily provide a sample for testing to license revocation. See McIver , 858 N.W.2d at 704-05. It does not, however, require a driver to submit to chemical testing. See id. at 704. Consent to chemical testing obtained under the implied consent statute falls under the voluntary consent exception to the warrant requirement. See State v. Stanford , 474 N.W.2d 573, 575 (Iowa 1991) (finding Stanford voluntarily consented to chemical testing after reading implied consent advisory); see also State v. Palmer , 554 N.W.2d 859, 861 (Iowa 1996) ; cf. Pettijohn , 899 N.W.2d at 29 (analyzing whether, under the totality of the circumstances, the defendant consented to submit to chemical testing pursuant to Iowa Code chapter 462A—Iowa’s implied consent statute for boating—after holding the chapter does not automatically permit warrantless searches consistent with the Iowa Constitution). Therefore, it is imperative that the decision to provide a sample for chemical testing be reasoned and informed. See State v. Overbay , 810 N.W.2d 871, 876 (Iowa 2012).

In State v. Hitchens , 294 N.W.2d 686, 687-88 (Iowa 1980), the supreme court held that if a driver refuses a chemical test after being offered one under the implied consent law, the officer cannot then go "outside the statute" to obtain a warrant for chemical testing. It is undisputed that Frescoln was never presented with an opportunity, through the invocation of implied consent or otherwise, to consent or refuse evidentiary chemical testing. The

911 N.W.2d 454

Hitchens decision is distinguishable because here, Officer Cusack never invoked the implied consent procedures and Frescoln never refused a chemical test.

Frescoln argues the procedures outlined in chapter 321J are the only means by which law enforcement may obtain chemical testing of an OWI suspect. He attempts to construe the statute in a manner making it the exclusive means by which law enforcement can obtain chemical testing of persons suspected of OWI. However, nothing in the statute expressly...