State v. Stratmeier, 02-1522.
| Decision Date | 17 December 2003 |
| Docket Number | No. 02-1522.,02-1522. |
| Citation | 672 N.W.2d 817 |
| Parties | STATE of Iowa, Appellant, v. Steven Paul STRATMEIER, Appellee. |
| Court | Iowa Supreme Court |
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy Oetken, Assistant County Attorney, for appellant.
Jack A. Faith, Sioux City, for appellee.
In this appeal the State challenges a district court ruling that the results of a chemical test of a breath sample were inadmissible because the procedure used in conducting the test was not approved by the commissioner of public safety. After reviewing the record and considering the arguments presented, we conclude that the procedures for testing did comply with the approved procedures for sampling breath and that the test results should be admissible with no further foundation pursuant to Iowa Code section 321J.15 (2001).
At approximately 1:40 a.m. on March 30, 2002, Deputy Paul Betsworth stopped Steven Paul Stratmeier's white Ford pickup on Highway 75 in LeMars, Iowa. The deputy had observed him driving seventy-five miles per hour in a sixty-five-mile-per-hour zone and driving onto the east shoulder of the road two times in a half-mile stretch of road. Upon approaching the pickup, the deputy smelled a strong odor of alcohol coming from Stratmeier. His eyes were glassy and his speech slurred. The deputy asked Stratmeier back to his squad car, and as they walked to the squad car, Stratmeier's balance was noticeably poor.
In the car, the deputy asked Stratmeier if he had been drinking that night. Stratmeier admitted to drinking, but claimed he had not had a drink in over an hour. Stratmeier performed poorly on field sobriety tests, and at approximately 2:05 a.m., a preliminary breath test indicated that his blood alcohol level was .13. A second preliminary breath test indicated that Stratmeier's blood alcohol level was.14. The deputy arrested Stratmeier for operating while intoxicated (OWI).
Stratmeier said he understood. The deputy then changed a disposable mouthpiece at the end of the machine and attempted to obtain a sample of Stratmeier's breath in the chamber of the DataMaster cdm.
Stratmeier blew into the mouthpiece for a short time, but the machine started beeping, which indicated that his blowing had stopped. The deputy instructed Stratmeier to "take a deep breath and blow long into the tube." Defendant gave another "short breath" and again the machine indicated that the sample was still incomplete. The deputy did not replace the mouthpiece in between defendant's two breaths. The deputy then pushed a manual override button on the machine, called the "NV" button (No Volume), and received a printout revealing that the alcohol concentration of the incomplete breath sample was .121. The defendant was charged with OWI, second offense.
We have determined that the DataMaster cdm is an approved device for gauging blood-alcohol concentration and have upheld the instructions for its use issued by the Division of Criminal Investigation Criminalistics Laboratory as required by Iowa Administrative Code rule 661-7.2 (2003). State v. Hornik, 672 N.W.2d 836, (Iowa 2003). The machine on which Stratmeier was tested was certified as required by Iowa Administrative Code rule 661-7.2(1). The deputy was certified to use the machine.
According to the instructions adopted by the criminalistics laboratory, in order to test a subject's breath, the DataMaster will ask a series of questions about the test subject. The questions include what the person is charged with, name, sex, date of birth, etc. The answers to these questions are put on the printout of the completed test. Next, because of a mandatory fifteen-minute suspect-observation time, the machine asks for the exact time that the test was stopped and started. Then, the officer puts a new disposable mouthpiece on the machine and instructs the subject to blow.
Once the test is started, the subject has two minutes to provide a sample. A complete sample requires approximately "[a] normal breath blown into the mouthpiece for as long as he/she can" to complete the sample. If the officer obtains a complete sample, the machine prints out three copies of the result; one for the subject, one for the county attorney, and one for the operator of the machine. The manual suggests that, "[i]f the subject fails to deliver an adequate breath sample the first time and is instructed to repeat the breath test," the officer should replace with a fresh mouthpiece.
The DataMaster may consider a breath sample incomplete for a number of reasons in which case the breath sample is not automatically processed. According to the testimony of Robert Monserrate, a criminalist for the Iowa Department of Public Safety, Division of Criminal Investigation Criminalistics Laboratory, who supervises the State's alcohol breath testing program, a breath sample would not be automatically accepted if a subject was not blowing hard enough into the machine or had not blown enough air into the machine. However, in such a situation, the instructions provide that the sample may be accepted by using the manual override device on the machine that registers the alcohol concentration of the breath that was injected into the chamber of the DataMaster device.
When a subject injects a breath sample in the DataMaster, the alcohol level in his breath rises along a slope of increasing concentration. The machine will not automatically indicate that a sample is complete until the level of alcohol concentration is constant. Monserrate testified that the slope detector indicates a sample is complete when a test subject's alcohol level has peaked. Monserrate testified that "[t]he [manual] override will capture whatever sample is in the chamber at the time and what it sees is going to be valid and accurate as to what was submitted to the instrument."
Stratmeier moved to suppress the test results of the incomplete sample on two grounds: (1) the deputy improperly failed to change the mouthpiece before Stratmeier's second attempt to register on the device, and (2) acceptance of the concentration shown for the incomplete breath sample was contrary to the written directions for use of the device issued by the criminalistics laboratory. The district court, although rejecting the first ground of the motion, ordered that the test results be suppressed because the recording of the concentration of an incomplete sample was contrary to the directions promulgated pursuant to administrative rule.
Because the principal issue involved in this appeal is one of statutory interpretation, our review is for the correction of errors at law. Hornik, 672 N.W.2d at 838; State v. Stoneking, 379 N.W.2d 352, 353-54 (Iowa 1985).
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