IN THE SUPREME COURT OF IOWA
No. 12–2221
Filed May 16, 2014
STATE OF IOWA,
Appellee,
vs.
TONY GENE LUKINS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for O’Brien County, Charles K.
Borth, Judge.
The State seeks further review of a court of appeals decision
reversing a district court’s denial of a motion to suppress evidence of
Breathalyzer-test results. DECISION OF COURT OF APPEALS
AFFIRMED; JUDGMENT OF DISTRICT COURT REVERSED AND CASE
REMANDED.
David R. Johnson of Brinton, Bordwell & Johnson, Clarion, for
appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, and Micah J. Schreurs, County Attorney, for appellee.
2
ZAGER, Justice.
Tony Lukins was arrested for operating while intoxicated. After
registering a .207 on a breath test at the O’Brien County jail, Lukins
made several statements to the arresting officer indicating his desire to
retake the breath test. After a great deal of discussion, the officer denied
Lukins’s request. Prior to trial, Lukins moved to suppress the breath-
test result arguing suppression was required because he had been
denied his statutory right to an independent chemical test. The district
court denied Lukins’s motion, and after a bench trial on the minutes of
testimony, it convicted Lukins of operating while intoxicated, second
offense. Lukins appealed, and we transferred the case to the court of
appeals. The court of appeals reversed his conviction, holding the
district court erred in denying his motion to suppress. The State sought
further review, which we granted. For the reasons set forth below, we
affirm the decision of the court of appeals and reverse the judgment of
the district court.
I. Background Facts and Proceedings.
Around 1:40 a.m. on February 9, 2012, Chief of Police Timothy
Rohrbaugh witnessed a black pickup truck run a stop sign in
Sutherland, Iowa. After following the truck a short distance, Rohrbaugh
turned on his police cruiser’s flashing lights. The truck did not stop.
Rohrbaugh pursued the truck onto a highway, where the truck reached
speeds of more than eighty miles per hour. At one point, the truck was
jerked back onto the pavement after veering into a ditch. After the truck
was straightened, it travelled a short distance and came to a stop.
Rohrbaugh went to the truck and immediately suspected the driver
had been drinking. He smelled alcohol and noticed the driver had
3
slurred speech and a bloody chin. The driver, Tony Lukins, stated he
“had a few of beers at the bar.”
After being requested by Rohrbaugh to perform field sobriety tests,
Lukins agreed to do so. After completing three of the four field sobriety
tests, Rohrbaugh asked Lukins to get into his squad car. While
Rohrbaugh removed items from off the front passenger seat, Lukins
stumbled and fell down into the ditch beside the road. After Lukins got
into the squad car, Rohrbaugh conducted a preliminary breath test.
After confirming the preliminary breath test indicated Lukins’s blood
alcohol content was above the legal limit, Rohrbaugh arrested him for
operating while intoxicated and transported him to the county jail in
Primghar, Iowa.
At the jail, Rohrbaugh read Lukins the implied consent advisory
and requested Lukins consent to a Breathalyzer test. Lukins, who was
bleeding from a cut on his chin, consented to the Breathalyzer test. The
Datamaster result of the Breathalyzer test was .207, over the legal limit
of .08. After Rohrbaugh informed Lukins of this result, the following
conversation was captured by the jail’s security cameras:
LUKINS: I don’t mean to be an a** or anything, but can I get
a re-check, or anything . . . ?
ROHRBAUGH: A what?
LUKINS: . . . the way I’m bleeding . . . .
ROHRBAUGH: A rain check?
LUKINS: A re-check. You know, with this blood and that.
ROHRBAUGH: You want your blood checked?
LUKINS (looking at and gesturing toward the Breathalyzer
machine): No, can I get a re-check?
4
ROHRBAUGH (tapping the breath-test machine): A re-check
of this?
LUKINS: Yeah.
ROHRBAUGH: And what’s the blood gonna make it different,
or . . . ?
LUKINS: I don’t know. I’m just . . . I didn’t know I was
bleeding this f***ing bad until you pulled me over and I
looked at my hand.
ROHRBAUGH: I don’t think we need to do another check
because I don’t think the blood or the bleeding had anything
to do with your breath.
LUKINS: Well, no, I just was . . . I don’t know what the heck
to really check, to tell you the truth.
After Rohrbaugh read Lukins advisories about the revocation of his
driver’s license, Lukins returned to the issue of the test:
LUKINS: Can I ask for a re-blow, by the way?
ROHRBAUGH: It isn’t going to be any different.
LUKINS: That seems really f***ing high. For four f***ing
beers that seems . . . or, actually, I’m sorry, a six pack, that
seems really high.
....
LUKINS: Can I get a re-blow please, Rohrbaugh?
ROHRBAUGH: It isn’t going to be any different.
LUKINS: You don’t think so?
ROHRBAUGH: No.
LUKINS: Can we try it?
ROHRBAUGH: No.
Rohrbaugh then transferred Lukins to a deputy at the county jail.
Lukins asked the deputy,
LUKINS: Can I get a re-breathalyzer test, by the way? For a
point-two-oh? [referring to his blood–alcohol content].
5
DEPUTY: That’s not my call; that’s up to the officer.
No second test or independent chemical test was offered or performed.
On March 5, Lukins was charged by trial information with
operating while intoxicated, second offense, under Iowa Code sections
321J.2(1)(a) and 321J.2(1)(b).1 See Iowa Code § 321J.2(1)(a), (b) (2011).
Prior to trial, Lukins filed a motion to suppress the Breathalyzer results.
Lukins argued his statements at the county jail implicated his right to
obtain an independent chemical test under Iowa Code section 321J.11.2
According to Lukins, once he implicated the right, officers were required
to advise him of his right to obtain an independent chemical test. The
officers’ failure to do so, Lukins insisted, was a denial of his right to an
independent chemical test. Because Lukins was not provided a
reasonable opportunity to obtain an independent chemical test, he
argued the results of the breath test should be suppressed. The State
resisted.
After a hearing, the district court issued its ruling on Lukins’s
motion. The district court found based on the video recording that
Lukins’s requests could not reasonably be construed as requesting an
independent test. The district court instead concluded Lukins requested
1Lukins received a deferred judgment for operating while intoxicated, first
offense, in November 2005.
2There is some question whether the permissive phrasing of Iowa Code section
321J.11 confers a “right” upon detainees to have an independent chemical test. See
Iowa Code § 321J.11 (providing “[t]he person may have an independent chemical test
. . . administered at the person’s own expense (emphasis added)). We have never
addressed this issue. In a number of cases, however, we have referred to a “statutory
right to an independent test.” See, e.g., State v. Bloomer, 618 N.W.2d 550, 553 (Iowa
2000); State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998) (explaining the record was
unclear about when the detainee “first knew of his right to an independent test”); State
v. Epperson, 264 N.W.2d 753, 756 (Iowa 1978) (“Regarding defendant’s statutory claims,
he had a right to have an independent chemical test.”). Neither party raises this issue
in this case. Therefore, we assume for purposes of this appeal that Iowa Code section
321J.11 does confer a statutory right to an independent chemical test upon detainees.
6
a second test using the Breathalyzer machine. According to the district
court, these statements were inadequate to invoke Lukins’s statutory
right to an independent chemical test. Therefore, the district court
denied Lukins’s motion to suppress the Breathalyzer results.
On November 15, the matter proceeded to a bench trial on the
minutes of testimony. The district court found Lukins guilty of operating
while intoxicated, second offense. The district court sentenced Lukins
the same day.
Lukins appealed the ruling on the motion to suppress, and we
transferred the case to the court of appeals. The court of appeals
reversed, holding Lukins had invoked his right to an independent
chemical test. The court of appeals reasoned that once Lukins invoked
the right, officers were required to inform him of his right to obtain an
independent chemical test. Because the officers had not done so, the
results of the Breathalyzer test should have been suppressed. The court
of appeals remanded for a new trial.
The State sought further review, which we granted.
II. Standard of Review.
The district court denied Lukins’s motion to suppress based on its
interpretation of Iowa Code section 321J.11. We review for correction of
errors at law a district court’s ruling on a motion to suppress based on
the interpretation of a statute. State v. Madison, 785 N.W.2d 706, 707–
08 (Iowa 2010); State v. Fischer, 785 N.W.2d 697, 699 (Iowa 2010).
III. Discussion.
A. Invocation of the Right to an Independent Test. Iowa Code
section 321J.11, in relevant part, provides:
The person [whose breath, blood, or urine is being
examined to determine blood alcohol concentration] may
have an independent chemical test or tests administered at
7
the person’s own expense in addition to any administered at
the direction of a peace officer.
Iowa Code § 321J.11.
In this case, we address whether Lukins adequately invoked his
statutory right to an independent chemical test. The State argues Lukins
did not do so. According to the State, Lukins’s statements indicate he
sought only to take a second test using the Breathalyzer machine, an
opportunity to which he was not statutorily entitled. Lukins, on the
other hand, contends his statements should have been reasonably
construed by officers as a request for an independent chemical test, at
which point they should have informed him of his statutory right to an
independent chemical test. He argues their failure to do so requires
suppression of the Breathalyzer results obtained by Rohrbaugh.
Lukins likens this case to those in which we have interpreted Iowa
Code section 804.20. That statute provides a peace officer must permit a
person “arrested or restrained of the person’s liberty . . . to call, consult,
and see a member of the person’s family or an attorney of the person’s
choice, or both.” Id. § 804.20. Unlike the statute before us in this case,
we have thoroughly delineated under Iowa Code section 804.20 a peace
officer’s obligation to explain the detainee’s rights when a detainee
implicates his or her right to make a telephone call and the standard
used to determine whether a detainee has adequately invoked that right.
In Didonato v. Iowa Department of Transportation, after his arrest
for operating while intoxicated, a detainee asked to call a friend, but the
police officer denied him the opportunity to make the telephone call. 456
N.W.2d 367, 368 (Iowa 1990). Despite affirming the detainee’s license
revocation, we explained that “when a request to make a phone call is
made” an officer cannot refuse the request even “if the request is to call a
8
friend.” Id. at 371. If the suspect requests to call a friend, “the statute is
implicated and the officer should then advise for what purpose a phone
call is permitted under” Iowa Code section 804.20. Id. We later
reaffirmed this rule. See State v. Garrity, 765 N.W.2d 592, 597 (Iowa
2009) (holding the peace officer should have informed the suspect of the
scope of individuals to whom a call could be placed when suspect
requested to call an individual outside of that scope). We have also
explained the detainee’s and officer’s statements and conduct, as well as
surrounding circumstances, are considered objectively. State v.
Moorehead, 699 N.W.2d 667, 672 (Iowa 2005).
Those cases left open the standard by which to determine whether
a detainee’s statements to law enforcement were adequate to invoke his
or her rights under Iowa Code section 804.20. See State v. Hicks, 791
N.W.2d 89, 94 (Iowa 2010) (noting the use of two frameworks to assess
the adequacy of a detainee’s invocation). In Hicks, after his arrest for
operating while intoxicated, the detainee made repeated requests to
make a telephone call so that he could go home. Id. at 96. The police
officer denied the requests. See id. at 97. In interpreting the statute, we
rejected the unambiguous-request standard used for requests for
counsel in certain cases under the Fifth Amendment, disapproving of its
focus “on the grammatical clarity of the detainee’s request.” See id. at
94–95 (noting the scholarly debate the unambiguous-request standard
engendered). We held that it would be better “to liberally construe a
suspect’s invocation of this right.” Id. at 95. We therefore held any
statement that may be reasonably construed as invoking the detainee’s
right to communicate with family or counsel is adequate. Id.
The State distinguishes the line of cases under Iowa Code section
804.20 as implicating the fundamental right to counsel, which is plainly
9
not implicated in this case. The State is correct—we signaled concerns
about detainees’ access to counsel that depended on their ability to
clearly and grammatically invoke their right. See, e.g., id. (citing State v.
Effler, 769 N.W.2d 880, 896 (Iowa 2009) (Appel, J., specially concurring)
(noting commentary critical of the unambiguous-request standard
because it “makes important constitutional rights turn on linguistic
finery”)). The overriding concern in those cases, though, was that the
detainees lacked crucial knowledge about their right to communicate
with a family member or lawyer, thus making invoking the right more
difficult. See Didonato, 456 N.W.2d at 371 (holding that when a detainee
requests to call a friend the officer must inform the detainee of the
purposes for which a telephone call is permitted). Iowa Code section
804.20 does not require a peace officer to inform the detainee of his or
her right to make a telephone call. Hicks, 791 N.W.2d at 94. In Garrity,
we observed nevertheless that a detainee may be aware he or she has a
right to make a telephone call; however, the detainee may be unaware
that a statute limits to whom such a call may be made. See 765 N.W.2d
at 597. For that reason, if the detainee suggests calling someone outside
the scope of individuals authorized by the statute, the peace officer, who
knows the statutory scope, must clarify to the detainee the scope of
individuals to whom a telephone call may be made under Iowa Code
section 804.20. See id.; see also Hicks, 791 N.W.2d at 95 (concluding a
reasonableness standard best ensures detainees will be accorded their
statutory right to make a telephone call). In short, the absence or
shortage of knowledge on the detainee’s part warranted enabling the
detainee to invoke his or her rights by legally inaccurate requests.
It is clear that a detainee may be similarly unaware of his or her
rights under Iowa Code section 321J.11. First, as with the right to a
10
telephone call under Iowa Code section 804.20, an officer need not advise
a suspect of his or her right to an independent chemical test. State v.
Wootten, 577 N.W.2d 654, 655 (Iowa 1998); State v. Epperson, 264
N.W.2d 753, 756 (Iowa 1978). Also, like the detainee unaware of to
whom a telephone call may be placed, the detainee who submits to the
police officer’s requested blood alcohol test may have some vague notion
that he or she is entitled to an independent chemical test. He or she may
not know, however, that the chemical test is available only after the
detainee submits to the officer’s requested test or that the statute does
not entitle the detainee to a second test on the Breathalyzer machine.
See State v. Bloomer, 618 N.W.2d 550, 553 (Iowa 2000) (explaining a
detainee is entitled to an independent test after the detainee “has
submitted to a requested test”). Under these circumstances, it would not
be unexpected that the detainee’s oral attempts to invoke his or her
rights are legally inaccurate. The similarity of circumstances between
the detainee’s knowledge of his or statutory right to a telephone call and
his or her statutory right to an independent chemical test indicate the
standard for invoking the right should be similar as well.
Holding statements that may be reasonably construed as invoking
the detainee’s statutory right to an independent chemical test adequate
also promotes consistency in this area of the law. A detainee is required
under Iowa Code section 321J.11 to request an independent test “within
a reasonable time under the circumstances.” See Wootten, 577 N.W.2d
at 656. A peace officer need only use reasonable methods, under the
circumstances, to convey to a drunk-driving suspect the implied consent
warnings. See State v. Garcia, 756 N.W.2d 216, 222 (Iowa 2008). And,
of course, any statement that may be reasonably construed as invoking
the detainee’s statutory right to a telephone call is adequate to do so.
11
See Hicks, 791 N.W.2d at 95. A reasonableness standard thus currently
governs many interactions between officers and detainees, and to apply a
different rule or standard here would be inconsistent with this existing
framework.
In addition, we previously gave a strong indication of an officer’s
obligation to inform a detainee of his or her rights under Iowa Code
section 321J.11 once that right is invoked. Although we did not directly
address this issue, we explained in Ginsberg v. Iowa Department of
Transportation that when a detainee requests an independent chemical
test, officers should convey to the detainee information about the
detainee’s statutory right to the independent test. See 508 N.W.2d 663,
664 (Iowa 1993). In that case, police officers treated a detainee’s request
for a blood or urine test as a refusal to submit to a breath test. Id.
Holding the detainee’s request was not a refusal, we instructed that
when he “requested that his blood or urine be tested in addition to his
breath, the peace officer should have explained that, after the requested
breath test had been completed, [the detainee] would be able to have
other substances tested.” Id. Ginsberg does not control here; however, it
shows that in this context, as in the context of Iowa Code section 804.20,
we have disapproved of peace officers impeding detainees’ access to
rights granted by the legislature.
With those considerations in mind, we see no reason why a
detainee should be required to string together a precise formulation of
words mirroring the statutory language in order to invoke his or her
statutory right to an independent chemical test. Therefore, under Iowa
Code section 321J.11 a detainee’s statements should be liberally
construed. Cf. Hicks, 791 N.W.2d at 95 (stating under Iowa Code section
804.20 a suspect’s invocation of his or her right should be liberally
12
construed). And like under Iowa Code section 804.20, any statement
that can be reasonably construed as a request for an independent
chemical test is adequate to invoke the detainee’s right to such a test
under Iowa Code section 321J.11. As with officers who fielded phone call
requests in Didonato, an officer who fields a legally imprecise request for
an independent test cannot stand mute and deny the request. Cf. 456
N.W.2d at 371 (explaining that when a request for a phone call is made
the statute’s purpose is not “met if the officer stands mute and refuses
the request”). Rather, if an imprecise statement, reasonably construed,
implicates the statute, then the officer should inform the detainee of his
or her right to an independent chemical test under Iowa Code section
321J.11. Cf. id.
Applying the standard set forth above, Lukins implicated his
statutory right to an independent chemical test. At the outset of the
conversation, Lukins asked, “[C]an I get a re-check . . . ?” In fact, on
several occasions during his conversation with Rohrbaugh, Lukins asked
for a “re-check” or a “re-blow.” Clearly these entreaties do not closely
track with the language of Iowa Code section 321J.11. But this scenario
is similar to the requests by the detainees in Didonato and Garrity. In
both those cases, the detainees requested to make telephone calls to
individuals to whom Iowa Code section 804.20 did not authorize calls,
and we held their statements implicated that statute. Garrity, 765
N.W.2d at 597 (holding an officer must inform a detainee of the
individuals to whom a call is permitted when the detainee requests to
call someone outside the statute’s permissible scope); Didonato, 456
N.W.2d at 371 (holding when a detainee asks to call a friend the officer
must inform the detainee the purpose for which a call is permitted). As
with the statutorily impermissible requests in those cases, Lukins was
13
not entitled under Iowa Code section 321J.11 to take a second crack at
the Breathalyzer machine. Nevertheless, his statements, reasonably
construed, indicated he wanted another test, even if he was mistaken,
unsure, or unaware of the way in which the additional test would be
conducted. His statements, like those of the detainees in Didonato and
Garrity, were adequate to implicate the statute. When Lukins implicated
Iowa Code section 321J.11, Rohrbaugh should have informed Lukins
that he was entitled to an independent chemical test at his “own expense
in addition to” the Breathalyzer test. Iowa Code § 321J.11. Because
Rohrbaugh did not do so, he violated Lukins’s statutory right to an
independent chemical test.
B. Remedy. The question remains whether the Breathalyzer test
Rohrbaugh conducted must be suppressed because Lukins was denied
his statutory right to an independent chemical test. Iowa Code section
321J.11 provides that “[t]he failure or inability of the person to obtain an
independent chemical test or tests does not preclude the admission of
evidence of the results of the test or tests administered at the direction of
the peace officer.” An opinion of our court of appeals suggested that
denying a detainee’s right to an independent chemical test was not a
“failure” or “inability to obtain” the test, so the statute would not prevent
suppression under circumstances like these. See Casper v. Iowa Dep’t of
Transp., 506 N.W.2d 799, 802 (Iowa Ct. App. 1993). In fact, the court of
appeals reasoned, the police officer’s test would have to be suppressed
lest the statutory right to an independent test be rendered meaningless.
See id.; see also id. at 803 (Habhab, J., specially concurring) (“Nothing
would prevent the ignoring of the request.”). Afterward, while leaving
open the question of suppression, this court cast doubt on Casper’s
14
reasoning. See Wootten, 577 N.W.2d at 655–56 (noting Casper “was a
license revocation case,” not a criminal case).
Several states have statutes with language nearly identical to ours.
See, e.g., Alaska Stat. Ann. § 28.35.033(e) (West, Westlaw current
through 2014 2d Reg. Sess.) (“The failure or inability to obtain an
additional test . . . does not preclude the admission of evidence relating
to the test taken at the direction of a law enforcement officer . . . .”);
Mont. Code Ann. § 61-8-405(2) (Westlaw current through the 2013 Sess.)
(“The failure or inability to obtain an independent test . . . does not
preclude the admissibility in evidence of any test given at the direction of
a peace officer.”); Ohio Rev. Code Ann. § 4511.19(D)(3) (West, Westlaw
current through Files 1 to 94 of the 130th Gen. Assemb. (2013–2014))
(“The failure or inability to obtain an additional chemical test . . . shall
not preclude the admission of evidence relating to the chemical test or
tests taken at the request of a law enforcement officer.”). More
important, courts interpreting statutory language similar to ours have
held suppression of the officer’s requested test is the minimum remedy
when the detainee is denied his or her statutory right to an independent
chemical test. See, e.g., Lockard v. Town of Killen, 565 So. 2d 679, 682
(Ala. Crim. App. 1990) (rejecting a literal reading of the words “failure or
inability” and holding results of law enforcement Breathalyzer test must
be suppressed); Ward v. State, 758 P.2d 87, 90 (Alaska 1988) (concluding
when “the police deprive a defendant of his or her statutory right to an
independent blood test, the results of the defendant’s breath test must
be excluded”); Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996)
(concluding suppression was the appropriate remedy when a detainee
was denied an independent test); State v. Schauf, 216 P.3d 740, 746
(Mont. 2009) (explaining “the proper result is suppression of the results
15
of the law enforcement test”); Koenig v. N.D. Dep’t of Transp., 810 N.W.2d
333, 336 (N.D. 2012) (“If an individual is denied this statutory right [to
an independent blood or chemical test], results of tests administered at
the direction of law enforcement may be suppressed or the charges may
be dismissed.”); State v. Hilditch, 584 P.2d 376, 377 (Or. Ct. App. 1978)
(holding a denial by law enforcement of a reasonable opportunity to
obtain an independent test is neither a “failure” nor an “inability” to do
so and therefore suppressing evidence); City of Blaine v. Suess, 612 P.2d
789, 791 (Wash. 1980) (concluding new trial could not remedy law
enforcement’s denial of suspect’s requested independent test and
therefore remanding for dismissal).
The weight of persuasive authority favors interpreting our statute
to require suppression of the test directed by law enforcement when law
enforcement denies a detainee his or her statutory right to an
independent chemical test. According to these authorities, the statutory
terms “failure” and “inability” do not contemplate an officer’s denying a
detainee’s statutory right to an independent chemical test. See State v.
Durkee, 584 So. 2d 1080, 1082–83 (Fla. Dist. Ct. App. 1991) (concluding
the statutory terms should not be understood to encompass the law
enforcement official’s wrongdoing); accord Unruh, 669 So. 2d at 245. We
do not believe the legislature, in using the statutory terms “failure or
inability,” intended to require admission of the officer’s requested test in
cases where the officer denied the detainee a statutory right granted by
the legislature.
There are also other reasons to suppress the results of the
Breathalyzer test. Not suppressing law enforcement’s Breathalyzer
results would permit officers to deny with impunity a detainee’s request
for an independent chemical test. As was recognized in Casper, not
16
suppressing the results “would render meaningless” the detainee’s
statutory right to an independent chemical test. 506 N.W.2d at 802; see
also Hilditch, 584 P.2d at 377 (making a similar observation and also
noting it “would allow the police to profit from their own misconduct in
preventing an arrestee from obtaining such a test”). We do not believe
the legislature intended to grant detainees a right while permitting
officers to deny the right without any evidentiary consequence.
In addition, this remedy is consistent with the remedy ordered
when the detainee’s statutory right under Iowa Code section 804.20 is
denied. Under that statute, suppression of the results of the test
obtained by law enforcement is the remedy when a detainee’s right to
make a telephone call is violated. See State v. McAteer, 290 N.W.2d 924,
925 (Iowa 1980) (affirming a district court’s suppression of breath test
results when a detainee was denied her right to call a family member);
State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978) (holding when a
detainee’s request to call a lawyer is denied “evidence of his refusal to
take a chemical test shall be inadmissible at a later criminal trial”). For
all these reasons, we hold “evidence of the results of the test or tests
administered at the direction of the peace officer” must be suppressed
when a detainee’s statutory right to an independent test under Iowa
Code section 321J.11 is denied. Iowa Code § 321.11. Accordingly, the
district court erred by denying Lukins’s motion to suppress the
Breathalyzer results obtained by Rohrbaugh.
C. Harmless Error. The State contends it was harmless error not
to suppress Lukins’s Breathalyzer results. “In cases of nonconstitutional
error, reversal is required if it appears the complaining party has suffered
a miscarriage of justice or his rights have been injuriously affected.”
17
Moorehead, 699 N.W.2d at 672. Prejudice is presumed “unless the
record affirmatively establishes otherwise.” Id. at 673.
The State contends the remaining evidence proved Lukins was
guilty of driving under the influence. He ran a stop sign, sped away from
the pursuing officer, and careened into a ditch. He smelled strongly of
alcohol, had slurred speech, and admitted drinking at a bar, though
Lukins said he drank just six beers. He also fell down into the ditch
beside the road while waiting for Rohrbaugh to remove items from the
passenger seat of the police squad car. According to the State, this
evidence is sufficient to affirm Lukins’s conviction, despite admission of
the Breathalyzer results.
The problem with the State’s argument is twofold. First, Lukins
was charged with operating a motor vehicle either “[w]hile under the
influence of an alcoholic beverage or other drug or combination of such
substances,” Iowa Code § 321J.2(1)(a), or “[w]hile having an alcohol
concentration of .08 or more,” id. § 321J.2(1)(b). The district court’s
verdict, however, did not indicate under which provision it determined
Lukins was guilty. We have held that when there are multiple bases for
guilt, one of which is erroneous, we must reverse if the jury’s verdict does
not indicate which basis was accepted. See State v. Smith, 739 N.W.2d
289, 295 (Iowa 2007) (reversing convictions “because the general verdict
returned by the jury did not reveal the basis for its guilty verdict”); State
v. Heemstra, 721 N.W.2d 549, 559 (Iowa 2006) (“Because we have no
indication as to which basis of guilt the jury accepted, we must reverse
and remand for a new trial.”). Thus, even if we assumed the evidence
highlighted by the State supports Lukins’s conviction for operating while
intoxicated on the basis he was under the influence of alcohol or drugs,
and Lukins had been convicted by a jury, remand would be required
18
because the verdict did not reveal its basis. See Smith, 739 N.W.2d at
295 (“A verdict based on facts only legally supporting one theory for a
conviction will not negate the possibility that the defendant was
convicted under a theory containing legal error.”).
However, Lukins was convicted after a bench trial on the minutes
of testimony, which ordinarily means “we have a written exposition of the
fact finder’s reasoning in the verdict.” Moorehead, 699 N.W.2d at 673.
Nevertheless, the district court’s order finding Lukins guilty of operating
while intoxicated, second offense, is devoid of fact findings. We have
explained that where, as here, a defendant stipulates to a bench trial on
the minutes of testimony, the district court must, among other things,
“ ‘find the facts specially and on the record,’ separately state its
conclusion[s] of law, and render an appropriate verdict as required by
Iowa Rule of Criminal Procedure [2.17(2)]”. State v. Sayre, 566 N.W.2d
193, 196 (Iowa 1997) (citing Iowa R. Crim. P. 16(2) (now Iowa R. Crim. P.
2.17(2))). Without these findings of fact, we have no way of determining
what facts the district court relied upon to find Lukins guilty of operating
while intoxicated. Cf. Moorehead, 699 N.W.2d at 673 (reviewing the
district court’s fact findings to determine district court’s reasoning
underlying its verdict). The district court may have relied on the
erroneously admitted test results, or it may have relied on all the other
circumstances suggesting Lukins was operating while intoxicated. The
district court’s order is unclear. Under the circumstances, we must
reverse and remand.
IV. Conclusion.
An officer is under no obligation to inform a detainee of his or her
statutory right to an independent chemical test. Wootten, 577 N.W.2d at
655. But any statements that can be reasonably construed as a request
19
for an independent chemical test are adequate to invoke the detainee’s
right to an independent test under Iowa Code section 321J.11. Upon the
detainee’s invocation of the right, the officer must inform the detainee of
his or her right according to the terms of Iowa Code section 321J.11. As
this was not done in this case, Lukins’s statutory right to an independent
test was violated. Violation of this right requires suppression of the test
results obtained by law enforcement. The district court therefore erred in
denying Lukins’s motion to suppress. Since we cannot determine what
basis of guilt was used for the district court’s verdict, we reverse and
remand for a new trial.
DECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT OF
DISTRICT COURT REVERSED AND CASE REMANDED.
All justices concur except Waterman, J., Cady, C.J., and
Mansfield, J., who dissent.
20
#12–2221, State v. Lukins
WATERMAN, Justice (dissenting).
I respectfully dissent because the majority erroneously requires
suppression of a perfectly valid breath test that showed Lukins’s blood
alcohol level was more than two and one-half times the legal limit. The
majority does so to remedy a violation that did not occur. Lukins never
asked for an independent chemical test; rather, he merely requested a
second Breathalyzer test. As the majority acknowledges, Lukins had no
statutory right to repeat the breath test.
To the extent Lukins’s initial question was ambiguous (“Can I get a
re-check, or anything?”), the police chief, Rohrbaugh, clarified what
Lukins wanted by specifically asking him, “You want your blood
checked?” Lukins answered, “No, can I get a re-check?” Rohrbaugh
tapped the Datamaster Breathalyzer and said, “A re-check of this?”
Lukins responded, “Yeah.” They continued discussing Lukins’s request
to repeat the breath test. Lukins never asked for a different test to
measure his intoxication. I disagree with the majority’s conclusion that
Lukins’s statements “can be reasonably construed as a request for an
independent chemical test . . . adequate to invoke the detainee’s right to
an independent test under Iowa Code section 321J.11.” To the contrary,
Lukins affirmatively rejected the offer of a blood test and never asked for
a urine test or any other form of test. Lukins made clear what he wanted
was another breath test. It is factually inaccurate to conclude he
invoked his right to an independent test. He did no such thing.
The district court reviewed the booking video and, applying the
same test as today’s majority, determined correctly that Lukins never
invoked his right to independent testing:
21
Defendant’s statements and inquires cannot reasonably be
construed as a request for an independent chemical test. A
review of the booking recording in its entirety shows that it
was the Defendant’s desire to have a second chance to
provide a breath sample on the Datamaster machine at the
jail facility. Neither Iowa Code section 321J.11 nor any other
statutory provision grants a Defendant a right to a second
test on law enforcement’s Datamaster machine. In fact,
during one part of the conversation, the officer asked
Defendant whether he was requesting a blood test, and the
Defendant responded in the negative stating “no, can I get a
re-check.” While the Defendant did ask for a “re-check” or a
“re-blow” on multiple occasions, the quantity of those
requests does not change their nature or the officer’s duties.
The court construes each as a request for a second test on
the Datamaster thereby not implicating Section 321J.11.
This conclusion is further supported by the Defendant’s
request to the jailer, once the arresting officer has left the
scene, of “can I get a re-[B]reathalyzer test by the way.”
I would affirm the district court.
After today, any request to retake the breath test will require
disclosure of the independent chemical test options for blood or urine
under section 321J.11 (2011). This is a new disclosure requirement, at
odds with our precedent applying that statute. We have construed
section 321J.11 narrowly, concluding a detainee has a right to an
independent test only after the detainee successfully completes the test
requested by an officer. See State v. Bloomer, 618 N.W.2d 550, 553 (Iowa
2000). In Bloomer, the defendant asked for a urine test without
consenting to the breath test. Id. He had no right to the urine test
without taking the breath test. Id. We plainly stated officers are not
required to advise a detainee of the option under section 321J.11 to an
independent test when presented with such a request. Id. (“The officer
. . . was not required to convey that information.”). Similarly, here, all
Lukins did was ask to retake the breath test, which he was not entitled
to retake. Under Bloomer, the officer could deny Lukins’s improper
request without further disclosing what other testing options were
22
available to him. The majority departs from Bloomer, giving section
321J.11 an expansive interpretation by requiring additional disclosures.
I would adhere to stare decisis, rather than effectively overruling
Bloomer. See State v. Walker, 804 N.W.2d 284, 296 (2011) (“Stare decisis
is a valuable legal doctrine which lends stability to the law . . . .” (internal
quotation marks omitted)).
The majority relies on our decisions applying Iowa Code section
804.20, the statute governing a detainee’s right to call a lawyer or family
member. See id. at 290 (discussing purpose of section 804.20). We have
never previously equated the disclosure requirements under these
separate statutes. I would not start now. Cases under section 804.20
are inapposite because that statute helps protect a detainee’s
constitutional right to counsel and privilege against self-incrimination.
See id. at 294–95. By contrast, section 321J.11 does not implicate either
of those constitutional rights but, rather, merely provides a statutory
right to an independent chemical test:
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. The
failure or inability of the person to obtain an independent
chemical test or tests does not preclude the admission of
evidence of the results of the test or tests administered at the
direction of the peace officer.
Iowa Code § 321J.11 (emphasis added). The legislature thereby specified
that the breath test results remain admissible notwithstanding the
“failure or inability of the person to obtain an independent chemical
test.” Id. The majority overrides that command from our elected
branches by suppressing Lukins’s breath test results. Suppression is
the right remedy under section 804.20, not here.
23
Today’s decision creates uncertainty. If, in hindsight, what Lukins
said is enough to trigger a new consent advisory about testing options,
any number of scenarios when detainees question test results could lead
to suppression of otherwise valid breath tests. We have emphasized the
need for clear rules when citizens suspected of drunk driving are
detained for testing under Iowa’s statutory implied consent procedures:
[A] bright-line rule has the advantage of providing clear
guidance to law enforcement personnel. Clarity as to what
the law requires is generally a good thing. It is especially
beneficial when the law governs interactions between the
police and citizens. Law enforcement officials have to make
many quick decisions as to what the law requires where the
stakes are high, involving public safety on one side of the
ledger and individual rights on the other. A clear, teachable
rule is a high priority. [A] flexible approach, by contrast, is
likely to lead to uncertainty in particular cases.
Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 601 (Iowa 2011).
In Welch, a motorist who initially refused the Breathalyzer test
changed his mind eleven minutes later and asked to take the test. Id. at
592–93. The police refused. Id. at 593. Our court affirmed the
revocation of his license. Id. at 602. We unanimously held “a motorist’s
request to take the chemical test need not be honored after he or she has
previously refused that test following a valid implied consent advisory.”
Id. We noted “Iowa’s existing, clearcut ‘one refusal’ rule reduces the time
and cost burdens on law enforcement.” Id. at 601. The rule as applied
in today’s majority’s opinion is anything but clearcut. Rather, I predict
case-by-case adjudication over whether particular comments by
intoxicated detainees constitute a request for independent testing.
This uncertainty, and the resulting suppression of otherwise valid
breath test results, will undermine the purpose of chapter 321J—public
safety.
24
In construing various provisions of chapter 321J, we have
continuously affirmed that the primary objective of the
implied consent statute is the removal of dangerous and
intoxicated drivers from Iowa’s roadways in order to
safeguard the traveling public. See, e.g., Severson v.
Sueppel, 260 Iowa 1169, 1174, 152 N.W.2d 281, 284 (Iowa
1967) (“It is obvious the purpose of the Implied Consent Law
is to reduce the holocaust on our highways part of which is
due to the driver who imbibes too freely of intoxicating
liquor.”); Shriver v. Iowa Dep’t of Transp., 430 N.W.2d 921,
924 (Iowa 1988) (reiterating that the primary purpose behind
chapter 321J is to “promote the public safety by removing
dangerous drivers from the highways”).
Id. at 594. I would interpret the requirements of section 321J.11 to
further the goal of public safety.
The legislature has specified in great detail the disclosures peace
officers are required to make to motorists suspected of drunk driving.
See Iowa Code § 321J.8 (implied-consent advisory). Officers are welcome
to voluntarily disclose additional information to motorists, but it is not
our place as a court to require them to do so, on pain of suppression of
compelling evidence of intoxication.
For these reasons, I am unable to join the majority.
Cady, C.J., and Mansfield, J., join this dissent.