State v. Hutton, No. 9-934/09-0512 (Iowa App. 1/22/2010)
| Decision Date | 22 January 2010 |
| Docket Number | No. 9-934/09-0512.,9-934/09-0512. |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. JUSTIN JOSEPH HUTTON, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.
The State seeks discretionary review of a district court ruling granting the defendant's motion to suppress. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Rothman, Assistant County Attorney, for appellant.
Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C., Des Moines, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
The State sought and was granted discretionary review of a district court ruling granting Justin Hutton's motion to suppress evidence of his blood-alcohol concentration in a prosecution for operating while intoxicated (OWI). The State claims the court erred in determining the implied consent advisory given to Hutton was inadequate. We reverse the judgment of the district court and remand for further proceedings.
On December 20, 2008, at about 2:09 a.m., police officers responded to a report of an individual passed out behind the steering wheel of a white Ford Bronco parked at a convenience store. While talking to the driver, Hutton, the officers observed he had bloodshot watery eyes, slurred speech, and smelled strongly of an alcoholic beverage. He admitted he had been drinking beer that evening. He could not complete the horizontal gaze nystagmus test administered by one of the officers, and he failed two other field sobriety tests. A preliminary breath test indicated his blood alcohol concentration exceeded the legal limit.
Hutton was arrested for OWI. He was transported to the police station where he was read an "implied consent advisory" that included information regarding possible suspension of his commercial driver's license.1 Hutton submitted to a Datamaster breath test, which showed his blood alcohol concentration was .205 The State charged Hutton with OWI, first offense, in violation of Iowa Code section 321J.2 (2007). He pled not guilty and filed a motion to suppress the breath test results, which the State resisted. Hutton challenged the adequacy of the implied consent advisory read to him before he submitted to the breath test. He argued the advisory was inaccurate and misleading because it informed him that his commercial driver's license would be suspended for one year if he submitted to the breath test and failed. Due to that supposed incorrect information in the advisory, Hutton argued his "`consent' to chemical testing was involuntary" and in violation of his substantive and procedural due process rights.
Following a hearing, the district court granted Hutton's motion reasoning:
The advisory given by the officer and the code section [321J.8] differ in that "submitting to the test and failing it" is omitted in the applicable code section relating to a person such as Hutton who was operating a noncommercial motor vehicle but held a commercial driver's license. Therefore if Hutton had been advised properly he might have elected not to take the test. His refusal would still subject him to disqualification as provided in 321.208(2). However the Court cannot be confident that Hutton's decision to submit to testing was unaffected by the inaccurate advisory.
The State filed an application for discretionary review that was granted by our supreme court.
When a defendant who has submitted to chemical testing asserts that the submission was involuntary, we evaluate the totality of the circumstances to determine whether or not the decision was made voluntarily. Our review is de novo. While we are not bound by the district court's factual findings, we give considerable weight to the court's assessment of the voluntariness of the defendant's submission to the chemical test.
To the extent the issue presents a question of statutory interpretation, our review is for correction of errors at law.
State v. Garcia, 756 N.W.2d 216, 219-20 (Iowa 2008) (internal citations omitted).
"Iowa's implied consent statute establishes the basic principle that a driver impliedly agrees to submit to a test to determine alcohol concentration or presence of a controlled substance in return for the privilege of using the public highways." State v. Massengale, 745 N.W.2d 499, 501 (Iowa 2008) (internal quotation omitted); see also Iowa Code § 321J.6(1). Subject to certain exceptions not applicable here, see Iowa Code §§ 321J.10, .10A, a person nevertheless has the right to withdraw implied consent and refuse the test. Iowa Code § 321J.9; Massengale, 745 N.W.2d at 501.
Under Iowa Code section 321J.8 (Supp. 2007),2 when a peace officer requests a person to submit to chemical testing, the officer "must advise the person of the consequences of refusing the test as well as the consequences of failing the test." Massengale, 745 N.W.2d at 501. The purpose of section 321J.8 is to provide the person with
a basis for evaluation and decision-making in regard to either submitting or not submitting to the test. This involves a weighing of the consequences if the test is refused against the consequences if the test reflects a controlled substance, drug, or alcohol concentration in excess of the "legal" limit.
Voss v. Iowa Dep't of Transp., 621 N.W.2d 208, 212 (Iowa 2001).
The implied consent advisory that was read to Hutton informed him in relevant part that
[i]f you hold a commercial driver's license the department will disqualify your commercial driving privilege for one year if you submit to the test and fail it, you refuse to take the test, or you were operating while under the influence of an alcoholic beverage or other drug or controlled substance or a combination of such substances.
(Emphasis added.)
Section 321J.8 specifies what information must be conveyed in the implied consent advisory. See Massengale, 745 N.W.2d at 503. At the time of Hutton's arrest, that statute provided:
A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following:
. . . .
. . . If the person is operating a noncommercial motor vehicle and holding a commercial driver's license as defined in section 321.1 and either refuses to submit to the test or operates a motor vehicle while under the influence of an alcoholic beverage or other drug or controlled substance or a combination of such substances, the person is disqualified from operating a commercial motor vehicle for the applicable period under section 321.208 in addition to any revocation of the person's driver's license or nonresident operating privilege which may be applicable under this chapter.
Iowa Code § 321J.8(1)(c)(2) (emphasis added).
The applicable period under section 321.208 (2007)3 is as follows:
A person is disqualified from operating a commercial motor vehicle for one year upon a conviction or final administrative decision that the person has committed any of the following acts or offenses in any state or foreign jurisdiction while operating a commercial motor vehicle or while operating a noncommercial motor vehicle and holding a commercial driver's license:
a. Operating a motor vehicle while under the influence of an alcoholic beverage or other drug or controlled substance or a combination of such substances.
b. Refusal to submit to chemical testing required under chapter 321J.
Iowa Code § 321.208(2)(a), (b) (emphasis added).
Hutton argues the implied consent advisory that was read to him was inaccurate and misleading because at the time of his arrest neither section 321J.8(1)(c)(2) nor section 321.208(2) provided that a test failure is grounds for suspension of a commercial driver's license. Instead, according to Hutton, those provisions provide for revocation only if a person refused testing or is later found to be "under the influence." In support of this argument, Hutton contends, "Having a blood alcohol concentration in excess of .08 commonly referred to as `test failure' is separate and distinct from being `under the influence of alcohol.'"
As Hutton points out, a violation of section 321J.2 can occur by three alternative means, the first two of which are: (1) operating a motor vehicle while "under the influence of an alcoholic beverage or other drug or a combination of such substances," Iowa Code § 321J.2(1)(a); or (2) operating a motor vehicle while "having an alcohol concentration of .08 or more." Iowa Code § 321J.2(1)(b). Our supreme court has stated that a blood-alcohol content in excess of the legal limit does not necessarily mean a person is "under the influence" of alcohol. See State v. Price, 692 N.W.2d 1, 4 (Iowa 2005) (); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 355 (Iowa 1995) (); see also State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) ().
However, "[a]ccurate test results, if positive, provide valuable evidence for use in criminal prosecution." Veach v. Iowa Dep't of Transp., 374 N.W.2d 248, 250 (Iowa 1985). A breath test result "showing some level of alcohol in the blood makes it more probable that a person was under the influence of alcohol than without the evidence." Price, 692 N.W.2d at 4; see also State v. Moorehead, 699 N.W.2d 667, 673 (Iowa 2005) (...
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