State v. Owens, 87-444

• Decision Date: 20 January 1988
• Docket Number: No. 87-444,87-444
• Citation: 418 N.W.2d 340
• Parties: STATE of Iowa, Appellee, v. Daniel Ray OWENS, Appellant.
• Court: Iowa Supreme Court

Page 340

418 N.W.2d 340

STATE of Iowa, Appellee, v. Daniel Ray OWENS, Appellant.

No. 87-444.

Supreme Court of Iowa.

Jan. 20, 1988.

Robert A. Wright, Jr., Des Moines, for appellant.

Mark Hunacek, Asst. Atty. Gen., Ames, for appellee.

Considered by LARSON, P.J., and SCHULTZ, CARTER, LAVORATO, and NEUMAN, JJ.

LAVORATO, Justice.

Daniel Ray Owens contends in this appeal that the district court erred by denying his motion to suppress the results of a urine test taken under the implied consent law, chapter 321B. The test was given by police officers following an automobile accident in which Owens was injured and another driver was killed.

Owens alleges the officers lacked reasonable grounds to require him to submit to chemical testing pursuant to Iowa Code sections 321B.3 and 321B.4 (1985). He also alleges he submitted to the urine test only after the officers threatened to use physical force to make him take a blood test.

Owens argues this supposed threat was a violation of his statutory and due process rights, making the results of the subsequent urine test inadmissible in his trial on charges of involuntary manslaughter and operating while intoxicated (OWI). Because we do not think the district court erred by admitting the test results, we affirm its ruling and allow Owens' involuntary manslaughter and OWI convictions to stand.

In June 1986, while driving in Des Moines, Owens collided with another automobile. The other driver died at the scene of the accident. Because Owens had also suffered injuries, he was taken to a hospital.

Among the police officers investigating the collision was Bob Webber, who specializes in alcohol-related driving offenses. Officer Webber learned at the scene of the accident that another officer had smelled alcohol on Owens' breath.

At the hospital, approximately ninety minutes after the accident, Webber gave Owens a preliminary breath test, which showed a blood-alcohol level somewhat below the legal limit. The officer then requested a blood test, but Owens' wife, who was present, stated "they needed to talk to an attorney first." The officer agreed and said he would wait.

Owens' attorney, an experienced criminal lawyer who has handled a number of OWI cases, arrived at the hospital about three hours after the accident. After conferring with Owens, the attorney told police officers that Owens "was not giving a sample of anything."

At this point, one of the several officers present allegedly said that if Owens did not take a test voluntarily, a warrant for the blood test would be obtained and forcibly executed. The district court, however, noted that police testimony did not confirm this statement. The court also found that a warrant would have been justified under the circumstances.

After the alleged threat, Owens' attorney requested that his client be given a more accurate breath test rather than a blood test. The officers refused because a breath testing instrument was not available at the hospital and there was not time, within the statutory limits for testing, to take Owens to such an instrument.

The attorney then advised Owens to take a urine test, which he did. The test showed a blood-alcohol level above the legal limit.

Owens was charged with OWI and involuntary manslaughter. See Iowa Code §§ 321.281, 707.5(1). Before trial he moved to suppress the urine test results on due process and statutory grounds.

The district court denied the motion. The court also denied a motion to reconsider, finding the alleged threat irrelevant because physical compulsion would have been within valid police powers. Owens was eventually convicted of both OWI and involuntary manslaughter.

On appeal, Owens offers three arguments for suppressing the test results and reversing his convictions. First, he maintains the police officers did not have the reasonable grounds required by the implied consent law to request a blood test. Second, he contends the officers' failure to offer an alternate test after he refused the blood test denied him the procedure required by statute and the due process clause of the United States Constitution. Third, Owens argues that the threat of force violated his substantive rights under the due process clause and the Iowa Code.

Our review of the constitutional issues here is de novo, which involves an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Schubert, 346 N.W.2d 30, 32 (Iowa 1984). In considering the statutory questions, however, we sit only to correct errors of law. State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975).

I. Reasonable Grounds to Test.

Owens' initial contention is that the police officers did not have the statutory "reasonable grounds" to request a blood test. He first asserts that the request for a preliminary breath test was based on secondhand knowledge, implicitly arguing that the preliminary breath test itself should not have been given. Next, he argues the preliminary test results were not reasonable grounds for further testing because they showed a blood-alcohol level below the legal limit. We disagree that these facts show a lack of reasonable grounds to test.

First, reasonable grounds to request the preliminary test, as required by section 321B.3, ¹ did exist. The reasonable grounds test is met when the facts and circumstances known to the officer at the time action was required would have warranted a prudent person's belief that an offense had been committed. Crosser v. Iowa Dep't of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976). Further, it is well established that when police officers are acting in concert, the knowledge of one is presumed shared by all. Schubert, 346 N.W.2d at 32; accord State v. Thornton, 300 N.W.2d 94, 97 (Iowa 1981).

Hence, in Owens' case, the requesting officer is presumed to have had knowledge of the alcohol odor on Owens' breath, even though he knew of it only through another officer. Such knowledge, together with the fact that Owens was involved in a fatal motor vehicle collision, certainly gave the requesting officer reasonable grounds to believe that Owens had violated Iowa Code section 321.281 and was therefore eligible for a preliminary test. See Iowa Code § 321B.3.

And even without this knowledge, the officer had authority under the statute to request a preliminary test: such a request is proper when "the operator has been involved in a motor vehicle collision resulting in ... death," id.

Next, it is clear that the officers had statutory authority to request further testing. Under section 321B.4(1), a blood test may be requested if the officer has reasonable grounds to believe the driver was violating section 321.281 and, among other possibilities, the driver was involved in a collision resulting in death. In Owens' case, the latter condition was unquestionably satisfied.

The reasonable grounds test was also satisfied. At the time the officer requested the blood test, he knew not only that Owens had had alcohol on his breath, but also that a preliminary breath test showed a blood-alcohol level of .08, which is slightly below the legal limit of .10. That the level was somewhat below the limit is not significant here. The preliminary breath test is for "screening" only, Iowa Code § 321B.3, and is not an accurate measure of blood-alcohol concentration, State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987).

We agree with the State that inaccuracy can cut both ways--the results may be too low or too high. That the test result was less than the legal limit does not automatically eliminate any reasonable grounds for believing Owens was driving while intoxicated. If, as in this case, the preliminary results showed the presence of alcohol, a prudent person would be warranted in requesting a more accurate test. This is especially true when, as here, the preliminary results were only slightly below the legal limit.

We hold that the request for a blood test here was clearly warranted by the facts and circumstances known to the requesting officer.

II. Procedural and Substantive Rights Under the Due Process Clause and the Iowa Code.

Owens also argues that the alleged threat violated his procedural and substantive rights under the Iowa Code and the due process clause of the fourteenth amendment of the United States Constitution. We disagree.

A. Procedural rights. Owens contends his statutory and due process procedural rights were violated when, after he refused the blood test, the officers threatened to get a search warrant instead of offering him an alternate test as apparently required by Iowa Code section 321B.4(2). ² We find no merit in this argument.

Putting aside, for a moment, what the statute requires, we think it is well settled that the due process clause does not require the police to offer an alternate test. Since a blood test can be forced upon an unconsenting driver without violating due process, South Dakota v. Neville, 459 U.S. 553, 559 & n. 9, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 756 (1983); Schmerber v. California, 384 U.S. 757, 758-60, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908, 912-13 (1966), we cannot see how the due process clause could require the offer of an alternate test if a blood test is refused. Cf. State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981) (driver's right to refuse test is not part of the procedural due process rights).

We likewise see no statutory violation here. Section 321B.4(2) allows the officer to determine which of the four substances, breath, blood, saliva, or urine, shall be tested. If the driver refuses the blood test, the statute goes on to say that the "officer shall then determine which one of the other three substances shall be tested and shall offer the test." In this case, a breath testing instrument was not readily available, leaving the officer a choice between a saliva and urine test. Owens was given his choice. He picked the urine test. This was more than what the statute required.

We hold that neither...