State v. Kelly, 88-197

Decision Date19 October 1988
Docket NumberNo. 88-197,88-197
Citation430 N.W.2d 427
PartiesSTATE of Iowa, Appellant, v. JoAnne Lacy KELLY, Appellee.
CourtIowa Supreme Court

Thomas J. Miller, Atty. Gen., Charles J. Krogmeier, Sp. Asst. Atty. Gen., Carolyn J. Olson, Asst. Atty. Gen., and Mark Sandon, Asst. Co. Atty., for appellant.

Steven K. Nalean of Nalean & Nalean, Boone, for appellee.

Considered en banc.

SNELL, Justice.

This is a discretionary review of a district court ruling suppressing evidence in a criminal prosecution for operating a motor vehicle while intoxicated, in violation of Iowa Code section 321J.2(1) (1987). The trial court granted the motion of defendant, JoAnne Lacy Kelly, to suppress evidence of an implied consent breath test that was offered two hours and nine minutes after Kelly was arrested and a preliminary breath test was administered. We reverse and remand for trial.

At approximately 3:00 p.m. on October 15, 1987, state trooper Rick Lampe was called to the scene of an automobile accident involving Kelly. At 3:54 p.m., while Kelly was at the hospital receiving treatment for her injuries, she was placed under arrest by Trooper Lampe, who shortly thereafter administered a preliminary breath test. At 4:45 p.m., Kelly was released from the hospital and taken to the Boone, Iowa police station. At 5:10 p.m., Trooper Lampe made an oral request to Kelly for an intoxilyzer breath test, to which Kelly responded by requesting an opportunity to consult her legal counsel. Her attorney was located just before 6:00 p.m. After Kelly consulted briefly with him, she acceded at 6:03 p.m. to a written request for a breath test. The test was administered at approximately 6:10 p.m. and indicated Kelly had a blood alcohol concentration in excess of .10 percent.

In her motion to suppress, Kelly asserted evidence of the test was inadmissible because the written request for the test was not made within the two-hour limitation period provided by Iowa Code section 321J.6(2) (1987) as follows:

If 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.

The district court agreed, finding adherence to the two-hour limit to be a statutory foundational requirement for the admission of evidence of section 321J.6 tests. The State contends this conclusion was erroneous for two reasons. First, the State argues, the two-hour limit does not apply under the facts of this case, since much of the delay in making the written request was occasioned by Kelly's need for medical attention. Second, the two-hour limit only applies to license revocations for the refusal to be tested pursuant to our implied consent law, and does not constitute a foundational requirement for admission of evidence of those tests.

In support of its first argument, the State relies on our decision in State v. Martin, 383 N.W.2d 556 (Iowa 1986). In Martin we determined the two-hour limit did not apply where the officer's written request for the test was based solely on the defendant's involvement in a motor vehicle accident or collision resulting in personal injury or death. Id. at 559 (discussing section 321B.4(1)(b), the predecessor to section 321J.6(1)(b)). We noted the two-hour limit was only imposed where a preliminary screening test was administered or refused, or where the defendant had been arrested, but that no similar triggering event was provided for cases falling under the subsection regarding accidents with personal injury or death. Id.

In this case, contrary to Martin, a preliminary screening test was administered and the defendant was arrested. By the express terms of section 321J.6(2), these triggering events imposed the two-hour limit. We decline to ignore these triggering events in cases which we could determine, in retrospect, also fell under the subsection regarding accidents with personal injury or death. The two-hour limit, commencing at 3:54 p.m., when Kelly was placed under arrest, applied to this case.

Moreover, it is not disputed the two-hour limit was not satisfied here. The written request was not made to Kelly until two hours and nine minutes after her arrest. The oral request at 5:10 p.m. was not sufficient, under our cases, to comply with the statute. See State v. Richards, 229 N.W.2d 229, 233 (Iowa 1975) (the written request is one of the foundational requirements for admissibility of blood analyses made pursuant to the implied consent statute).

We must now determine whether the two-hour limit is a foundational requirement for the admission of evidence of section 321J.6 tests in a prosecution for operating a motor vehicle while intoxicated, in violation of section 321J.2(1) (1987). In previous cases we have alternately implied the two-hour limit is and is not a foundational requirement. Compare State v. Schlemme, 301 N.W.2d 721, 723 (Iowa 1981) (time limit was listed in an itemization of procedural requirements under chapter 321B) with State v. Jensen, 216 N.W.2d 369, 372 (Iowa 1974) (time limit was not listed under a similar itemization). We have not, however, yet addressed the issue directly. See State v. Stoneking, 379 N.W.2d 352, 355 (Iowa 1985).

In doing so now, we think it important to note the general purpose of chapter 321J and the specific purposes of the procedural requirements contained therein. Chapter 321J is designed "to reduce the holocaust on our highways part of which is due to the driver who imbibes too freely of intoxicating liquor." See State v. Hitchens, 294 N.W.2d 686, 687 (Iowa 1980); Severson v. Sueppel, 260 Iowa 1169, 1174, 152 N.W.2d 281, 284 (1967). The purpose of its procedural requirements is "to protect the health of the person submitting to a test and to guarantee its accuracy for use in later judicial proceedings." State v. Wallin, 195 N.W.2d 95, 97 (Iowa 1972). As stated in State v. Schlemme, 301 N.W.2d at 723-24:

In effectuating these purposes and balancing them against the general purpose of the statute, we have not hesitated to hold evidence inadmissible when the standards were not complied with and thus endangered health or the accuracy of the test. See, e.g., State v. DeBerg, 288 N.W.2d 348, 350 (Iowa 1980) (State failed to prove syringes and needles were originally factory wrapped and disposable); State v. Smith, 272 N.W.2d 859, 860-62 (Iowa 1978) (urine placed in blood test bottle containing anticoagulant with no testimony as to effect of this mixture); State v. Richards, 229 N.W.2d 229, 233 (Iowa 1975) (peace officer failed to make timely written request of defendant to submit to blood test); State v. Wallin, 195 N.W.2d at 98 (peace officer failed to make written request directing physician to withdraw blood, and syringe and needles did not meet statutory specifications); State v. Shelton, 176 N.W.2d 159, 161 (Iowa 1970) (evidence failed to establish that nurse had been designated by licensed physician to withdraw blood and failed to establish that proper syringe was used).

However, we have adhered to the general purposes of the chapter and allowed admission of evidence when objections based upon specific lack of foundation requirements did not endanger the defendant's health or did not endanger the accuracy of the test. See, e.g., Schmoldt v. Stokes, 275 N.W.2d at 210 [Iowa 1979] (when original arresting officer did not demand test, subsequent qualified officer who rearrested defendant could request test); State v. Winquist, 247 N.W.2d 256, 259 (Iowa 1976) ("medical technologist" as used in statute dependent upon training as microbiologist and experience in withdrawal of blood and not technical requirement of certification by American Society of Clinical Pathologists); Janson v. Fulton, 162 N.W.2d at 441-42 [Iowa 1968] (language in statute requiring physician, medical technologist, or registered nurse designated by licensed physician to withdraw "body substances" does not prevent peace officer from taking urine, breath, or saliva sample as legislature did not intend literal construction); Severson v. Sueppel, 260 Iowa at 1174, 152 N.W.2d at 284 (peace officer who did not see defendant drive may rely on observations of other peace officers for reasonable grounds to believe that he was guilty of offense).

Thus, whether a particular statutory provision was intended to also constitute a foundational requirement may be ascertained by determining whether a failure to comply with it endangered the defendant's health or the accuracy of the test.

We can conceive of no circumstances under which the failure to make the written request within the two-hour limit would endanger the defendant's health. Nor are we persuaded the accuracy of the test would be endangered to the defendant's prejudice by such a delay. It is common knowledge "the human body dissipates alcohol rapidly." State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978) (quoting People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 417, 239 N.E.2d 351, 352 (1968)). A lapse of time in excess of two hours in the administration of the test would therefore result in a decrease, not an increase, in the defendant's blood alcohol concentration. See, e.g., State v. Armstrong, 236 Kan. 290, 294, 689 P.2d 897, 901 (1984); Willis v. State, 302 Md. 363, 380, 488 A.2d 171, 180 (1985).

Further support for the conclusion the two-hour limit is not a foundational requirement may be found in the framework of chapter 321J. Section 321J.6(2), providing for the two-hour limit, does not proscribe testing after the time period had run; it merely states "a test is not required" after the two hours have expired. It then provides a refusal to consent to a test at that time shall not result in revocation of the defendant's driver's license under our implied consent law. Iowa Code § 321J.6(2) (1987). The effect of these provisions is to provide a point after which the defendant's consent to testing...

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