State v. Mahoney

Citation515 N.W.2d 47
Decision Date25 January 1994
Docket NumberNo. 92-1171,92-1171
PartiesSTATE of Iowa, Appellee, v. Lawrence Francis MAHONEY, Appellant.
CourtCourt of Appeals of Iowa

Richard E.H. Phelps II of Brierly Law Office, Newton, for appellant.

Bonnie J. Campbell, Atty. Gen., Roxann M. Ryan, Deputy Atty. Gen., James Wilson County Atty., and Richard J. Scieszinski, Asst. County Atty., for appellee.

Considered by DONIELSON, P.J., and HAYDEN and SACKETT, JJ.

DONIELSON, Presiding Judge.

In the early morning of October 19, 1991, Jasper County Deputy Sheriff Koeneman was on patrol west of Newton when he received CB reports of a small, dark car traveling the wrong way on Interstate 80 at a slow rate of speed. As the deputy was proceeding towards Newton, CB traffic reported that the vehicle turned around and was driving slowly, in the proper direction, in the eastbound lane. The deputy saw a car on the left-hand shoulder of the interstate with a left turn signal on. Deputy Koeneman observed the vehicle suddenly turn and go right across two lanes of interstate traffic up the exit ramp to Newton. The car was moving slowly and weaving.

Deputy Koeneman attempted to stop the car as he followed it onto Highway 14 and across the Interstate 80 bridge. Deputy Koeneman used his yellow flashing lights, red flashing lights, the spotlight, and the siren. The driver, defendant Mahoney, ultimately pulled over. Deputy Koeneman observed Mahoney was not responsive or coherent and had difficulty unfastening his seat belt and getting out of the car. Mahoney could not perform field sobriety tests. At his trial, however, Mahoney maintained he requested almost immediately he be given a blood test, but that the deputy refused.

On October 24, 1991, Mahoney was charged by trial information with operating a motor vehicle while intoxicated (OWI) in violation of Iowa Code section 321J.2 (1991). Mahoney filed a motion to suppress the evidence obtained from the stop on the grounds Deputy Koeneman did not have reasonable grounds to make the stop. The district court denied the motion.

At trial, Mahoney argued the car that was observed going the wrong way could not have been his because his car was a silver-colored Chevrolet Lumina, while the description of the suspect vehicle given over the CB was of a small, dark vehicle. Mahoney further testified he was traveling the correct way on the interstate since he was driving from the east side of Newton after leaving Shooters bar. Mahoney argued he could not have left the bar at approximately 2:10 a.m., driven over ten miles the wrong way to Colfax, turned around, and made it back to the Newton exit at 2:21 a.m., the time at which Deputy Koeneman made the stop.

Deputy Koeneman testified he had not seen any other cars matching the description of the suspect vehicle. Koeneman testified he stopped Mahoney after observing him weaving across two lanes of interstate traffic, weaving up the exit ramp, running a stop sign, and weaving across two lanes of traffic while crossing the bridge over the interstate.

After the jury returned a guilty verdict, the district court sentenced Mahoney to a thirty-day jail term, all but seven days suspended, a $750 fine, and one year probation. Mahoney appeals.

Mahoney argues Deputy Koeneman did not have reasonable cause to stop his vehicle. He repeats his argument that, since he left Shooters bar shortly after 2:00 a.m., he could not have driven over ten miles the wrong way, turned around, driven back to Newton, crossed the interstate, and proceeded on Highway 14 by 2:21 a.m., the time Deputy Koeneman testified he made the stop. Mahoney also argues, among other things, the district court erred in overruling his objection to jury instruction number 9, which stated, although Mahoney requested an independent blood test, the arresting officer is not required to take such a test if the suspect refused to take a breath test. Mahoney also argues the district court should have granted a mistrial after the assistant district attorney mentioned at trial a trooper "found in the vehicle a previous O.W.I. ..." We address each issue in turn.

Appellant first argues Deputy Koeneman did not have reasonable cause to stop his vehicle and the court, therefore, should have suppressed all evidence from the stop. When addressing constitutional issues on appeal our review is de novo. State v. Lamp, 322 N.W.2d 48, 50 (Iowa 1982); State v. Iverson, 272 N.W.2d 1, 4 (Iowa 1978). Appellant bases his argument on the premise the officer stopped his car by mistake.

Deputy Koeneman approached exit 164 from the west in response to CB reports of a small, dark car initially traveling the wrong way on the eastbound lanes and then turning around and heading east. As he approached the exit, the deputy saw a car on the left shoulder with its left signal on. The car veered right across two lanes of traffic and headed up the exit ramp to highway 14. The deputy followed the car up the ramp, flashing his spotlight across the back window to get the driver's attention. He also turned on his emergency lights and his siren before the vehicle finally stopped. Appellant testified he never was on the eastbound lanes and he took the westbound ramp of exit 164. He asserts:

[I]t would have been possible and probable that the Deputy lost track of the small dark vehicle at the I-80/Highway 14 interchange and when arriving at the entrance to Highway 14 South of I-80 saw Mr. Mahoney's vehicle and stopped it.

We find it implausible that the deputy, while shining his spotlight on a car from about two car lengths behind it, could "lose track" of the car and stop another by mistake. The question remains whether the deputy had reasonable grounds for stopping the car. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07 (1968); State v. Malloy, 453 N.W.2d 243, 244 (Iowa App.1990). The officer must have "specific and articulable cause to reasonably believe criminal activity is afoot.... [C]ircumstances evoking mere suspicion or curiosity will not suffice." State v. Cooley, 229 N.W.2d 755, 761 (Iowa 1975); see State v. Aschenbrenner, 289 N.W.2d 618, 619 (Iowa 1980). The officer may have several reasons for the stop; the stop will be upheld if any of those reasons are sufficient. State v. Garcia, 461 N.W.2d 460, 463-64 (Iowa 1990). The officer saw the car moving slowly on the left shoulder, turning across two lanes to take the exit, see Iowa Code §§ 321.314-15 (1993), weaving up the exit ramp, running a stop sign, see Iowa Code § 321.256 (1993), weaving across the traffic lanes on the bridge, and failing to respond to obvious attempts to stop the car. The deputy clearly had "specific and articulable cause" to stop the car. Therefore, the court did not err in refusing to suppress the evidence from the stop.

Appellant next asserts the court erred in giving jury instruction nine which states:

The Defendant allegedly requested an independent blood test. A police officer is not required to offer such a blood test upon a refusal by the Defendant to submit to a breath test.

Appellant objected on the grounds the instruction does not correctly interpret Iowa Code section 321J.11 and because of the word "allegedly."

The issue of statutory interpretation raised by appellant apparently is one of first impression. See State v. Oakley, 469 N.W.2d 681, 682 (Iowa 1991). In interpreting statutes we seek to give effect to the intent of the legislature. State v. Berry, 247 N.W.2d 263, 264 (Iowa 1976). "We also try to give meaning and effect to every part of the statute." Id.; see State v. Ludvigson, 482 N.W.2d 419, 422 (Iowa 1992). Iowa Code section 321J.11 (1993) states in pertinent part:

[A]ny peace officer, using devices and methods approved by the commissioner of public safety, may take a specimen of a person's breath or urine for the purpose of determining the alcohol concentration or the presence of drugs....

The 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.

(Emphasis added.)

The supreme court declined to address sua sponte the issue of whether a person must submit to the test administered by the officer before being allowed to have an independent test. State v. Oakley, 469 N.W.2d at 682. The court did not, however, leave us without some indication of how it might rule if the question were properly presented on appeal. It cited State v. Zoss, 360 N.W.2d 523, 525 (S.D.1985) and People v. Dewey, 431 N.W.2d 517, 520 (Mich.App.1988) as both supporting the proposition that submission to the state's test is a condition precedent to demanding an independent test. The cases are instructive.

Both courts decided due process did not prohibit requiring a defendant to take a state-administered test before allowing a demand for an independent test. The South Dakota statute stated a defendant could have a "chemical analysis in addition to the one administered at the direction of the law enforcement officer." S.D.Codified Laws Ann. § 32-23-15 (emphasis added.) The Michigan statute similarly stated:

A person who takes a chemical test administered at the request of a peace officer ... shall be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests described in this section.

Mich.Comp.Laws § 257.625a(5); Mich.Stat.Ann. § 9.2325(1)(5).

The South Dakota court cited Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as requiring the State to give defendants access to any material evidence in the state's possession that is favorable to the defendant. State v. Zoss, 360 N.W.2d at 525. Both the South Dakota and Michigan courts cited California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), to support the proposition that fairness requires a defendant be...

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    ...actually submits to a state-administered test. Our court of appeals explained the scope of this statutory entitlement in State v. Mahoney, 515 N.W.2d 47 (Iowa App.1994). In Mahoney, the court found that a person arrested for DWI must submit to the officer's requested test before being entit......
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