State v. Sewell
| Citation | 960 N.W.2d 640 |
| Decision Date | 04 June 2021 |
| Docket Number | No. 20-0445,20-0445 |
| Parties | STATE of Iowa, Appellee, v. Matthew Robert SEWELL, Appellant. |
| Court | United States State Supreme Court of Iowa |
Robert G. Rehkemper (argued) of Gourley, Rehkemper & Lindholm, P.L.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven (argued), Assistant Attorney General, and Amy E. Zenor, County Attorney, for appellee.
We are asked to decide today whether Iowa law or the Iowa Constitution guarantee a suspected drunk driver the right to a private phone consultation with counsel before deciding whether to take a blood alcohol test. We conclude that Iowa law does not provide such a right because the statute provides that if a call to counsel is made, "it shall be made in the presence of the person having custody of the one arrested or restrained." Iowa Code § 804.20 (2019). We conclude that the Iowa Constitution does not provide such a right because the right to counsel under article I, section 10 arises in "criminal prosecutions" and "cases involving the life, or liberty of an individual," not in procedures that occur before such a prosecution or case is commenced. For these reasons, we hold that the defendant was not entitled to a private phone consultation with counsel and his motion to suppress was properly denied. We affirm the defendant's conviction and sentence.
On January 15, 2019, at 2:49 a.m., dispatch received a call from a local resident reporting that someone was passed out in a truck in their driveway in Milford. Dickinson County Sheriff's Deputy Matt Grimmus arrived at the resident's home at about 3:00 a.m. Upon arriving, Deputy Grimmus discovered a silver Ford-150 in the driveway running with its lights on. There was a male in the driver's seat sleeping. Deputy Grimmus reported,
The man originally denied he had identification, but eventually produced his driver's license identifying him as Matthew Sewell. Sewell admitted he had been drinking, and Deputy Grimmus noticed a strong odor of an alcoholic beverage. Sewell did not know what street he was on and looked confused. His eyes were watery and bloodshot and his speech was slurred. Sewell did not perform well on three field sobriety tests and declined the preliminary breath test.
Deputy Grimmus arrested Sewell at 3:22 a.m. and transported him to the Dickinson County Jail. Deputy Grimmus and Sewell arrived at the Dickinson County Jail at 3:46 a.m. Deputy Grimmus read Sewell the text of the implied-consent advisory and requested a chemical breath test sample at 3:53 a.m. Following the invocation of implied consent, Deputy Grimmus gave Sewell the opportunity to contact an attorney or a family member. Sewell was allowed to use his cellphone to retrieve phone numbers but not to place calls.
Sewell left a message with Matthew Lindholm, a criminal defense attorney in West Des Moines. When Lindholm called back at 4:25 a.m., Sewell explained they were talking on the jail's landline, not Sewell's cellphone. Deputy Grimmus denied Lindholm and Sewell's request for a confidential phone call on Sewell's cellphone, stating that Sewell and his attorney could have a confidential meeting at the jail. Deputy Grimmus also indicated that the jail policy is for all detainee calls to be on the jail landline, which is recorded.
When Lindholm learned that he could not have a private phone conversation with Sewell, he declined to proceed further.1 Lindholm later testified at the suppression hearing that he was "not comfortable advising him" under the circumstances.
At 4:55 a.m., Sewell decided to take the breath test and recorded a .206 blood alcohol content. He was booked into jail.
On February 4, Sewell was charged by trial information with operating while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2. Sewell filed a motion to suppress evidence, urging that his rights under Iowa Code section 804.20, the Fourth and Sixth Amendments to the United States Constitution, and article I, sections 8 and 10 of the Iowa Constitution had been violated. He also filed a motion to dismiss alleging due process violations. Both motions centered on the Dickinson County jail's refusal to allow Sewell a private, unrecorded conversation with Lindholm.
The district court held a hearing on the motions on August 15. Lindholm was one of the witnesses. Lindholm testified that the vast majority of his criminal practice involves OWIs. In a typical year, he handles in excess of one hundred such cases. Often, Lindholm receives calls from people who have been arrested and are in custody and are looking for advice regarding whether to consent or refuse chemical testing. In those situations, Lindholm wants to gather information, including: How much did the person drink and when? How did the person perform on the field sobriety tests and the preliminary breath test? Does the person have prior offenses? Was there an injury or death?
On November 15, the district court entered a ruling denying both of Sewell's motions. Afterward, Sewell waived his rights to a jury trial and stipulated to a trial on the minutes of testimony. The trial court found Sewell guilty of OWI on two alternative theories: being under the influence of alcohol and having a blood alcohol concentration of .08 or more. Sewell was sentenced to serve in the weekend offender program and to pay a fine of $1250 plus surcharges. See Iowa Code § 321J.2(3)(a ), (c ). Sewell appealed, and we retained the appeal.
The district court's interpretation of Iowa Code section 804.20 is reviewed for errors at law. State v. Hellstern , 856 N.W.2d 355, 360 (Iowa 2014). "We affirm the district court's suppression ruling when the court correctly applied the law and substantial evidence supports the court's fact-finding." State v. Walker , 804 N.W.2d 284, 289 (Iowa 2011). We review constitutional claims de novo. State v. Pettijohn , 899 N.W.2d 1, 12 (Iowa 2017).
(Emphasis added.)
Sewell argues that "made in the presence of the person having custody of the one arrested or restrained" means only that the call shall be dialed in the presence of the officer. After that, the officer is required to leave and allow the detainee to have a private, confidential conversation. The State argues that "made in the presence" means that the officer can be present and listen while the detainee talks to any family member or attorney.
"We begin our inquiry in this case with the language of the statute as a whole." Doe v. State , 943 N.W.2d 608, 610 (Iowa 2020). Normally, when the same term is used repeatedly in the same statute, we give the term the same meaning each time. See State v. Paye , 865 N.W.2d 1, 7 (Iowa 2015) ().
Iowa Code section 804.20 uses the word "make" or "made" in reference to phone calls in three separate sentences. If we are to read "make" or "made" consistently in each of these sentences, the notion appears to be that the phone calls are brief and for the purpose of obtaining counsel, not for the purpose of obtaining advice from counsel. Thus, the second sentence of the statute says that the detainee shall be permitted to "make a reasonable number of telephone calls as may be required to secure an attorney." The third sentence says that if a call is made, "it shall be made in the presence of the person having custody of the one arrested or restrained." And the fourth sentence says that if the person is intoxicated or a minor, the call "may be made by the person having custody." To achieve consistency in the meaning of "make" in all three sentences, "make" must mean something more than "dial" and something less than "have a private, substantive discussion to obtain legal advice."
This reading also accounts for the contrasting terminology of the fifth sentence. That sentence expressly permits the attorney "to see and consult confidentially with" the detainee "alone and in private" at the place of detention. If phone calls came with the same guarantee of confidentiality as in-person visits, it is odd that no such language—i.e., "confidentially ... alone and in private"—appears in the prior sentences. Presumably, the fifth sentence's use of "confidentially ... alone and in private" is intended to assure that in-person consultations would be privileged. See Iowa Code § 4.4(2) (...
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