IN THE COURT OF APPEALS OF IOWA
No. 13-1024
Filed April 16, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEVEN SHERWOOD BUNCE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, James D. Birkenholz,
District Associate Judge.
A defendant appeals his conviction for operating while intoxicated.
AFFIRMED.
Daniel Rothman of McEnroe, Gotsdiner, Brewer, Steinbach, P.C., West
Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, John P. Sarcone, County Attorney, and Jordan Rolling, Assistant
County Attorney, for appellee.
Considered by Tabor, P.J., McDonald, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
TABOR, J.
Steven Bunce challenges the district court’s denial of his motion to
suppress. Bunce claims the state trooper who stopped his vehicle did not have
reasonable grounds to request a preliminary breath test (PBT) under Iowa Code
section 321J.5 (2013). Bunce also claims the court erred in finding probable
cause for an arrest. Because we find reasonable grounds existed for the trooper
to request a breath sample from Bunce, we affirm.
I. Background Facts and Proceedings
Just before one a.m. on February 14, 2013, Iowa State Patrol Officer Matt
Papin saw Bunce’s Ford Fusion merge onto Interstate 80 from the ramp at Merle
Hay Road. Papin noticed Bunce’s car begin to pull away from his patrol vehicle.
The trooper clocked the Fusion’s speed at eighty miles per hour, and turned on
his lights to initiate a stop. Other than the excessive speed, Papin did not
observe any erratic driving, and Bunce responded to the trooper’s lights by
pulling over to the side of the interstate without incident.
Trooper Papin walked to the passenger side of the vehicle and began a
routine traffic stop. After Papin explained the reason for the stop, the passenger,
not driver Bunce, spoke with the trooper. During the initial interaction, Papin did
not detect signs of intoxication. Then Papin asked Bunce to accompany him to
his patrol car. While sitting with Bunce in the patrol car, Papin noticed an odor of
alcohol that became stronger the longer they sat together. Papin asked Bunce
about the smell, and Bunce admitted he had “one beer.” Based on these
3
circumstances, Papin asked Bunce to perform standard field sobriety tests: the
horizontal gaze nystagmus (HGN),1 the walk-and-turn, and the one-leg stand.
Bunce failed the HGN test by exhibiting four of six possible clues of
intoxication. When Papin was administering the HGN test, he noticed Bunce’s
eyes were bloodshot. During the walk-and-turn test, Bunce initially did not follow
the officer’s instructions precisely, but quickly corrected himself. The trooper
checked one clue for impairment, a passing score for Bunce on the walk-and-turn
test. During the one-leg-stand test, the officer noticed Bunce “swaying
consistently” which became more pronounced toward the end of the test. The
swaying merited Bunce one clue for impairment, but the trooper considered that
a passing test.
After the field sobriety testing, Papin asked Bunce to submit a breath
sample for the PBT. The PBT measured Bunce’s blood alcohol content (BAC) as
.143. Trooper Papin asked Bunce if he felt the effects of alcohol; Bunch replied
“yeah.” Papin then placed Bunce under arrest. The trooper invoked implied
consent based on both the PBT result and arrest. The DataMaster testing
indicated a BAC of .129 at 1:53 a.m.
The State filed a trial information on March 21, 2013, charging Bunce with
operating a motor vehicle while under the influence, in violation of Iowa Code
section 321J.2. Bunce filed a motion to suppress on April 25, arguing Trooper
Papin did not have the reasonable grounds required under section 321J.5 to
request a PBT. After the district court denied the motion, Bunce waived his right
1
The trooper also administered a vertical gaze nystagmus test; Bunce did not show a
vertical nystagmus.
4
to a jury trial and stipulated to a bench trial on the minutes of testimony. The
court entered a guilty verdict on May 31, 2013. Bunce now appeals.
II. Standard of Review
We review a district court’s denial of a motion to suppress on statutory
grounds only to correct errors of law. State v. Owens, 418 N.W.2d 340, 342
(Iowa 1988).
III. Analysis
A. Did Bunce’s speeding in the wee hours of the morning,
reliance on his passenger to converse with the officer, odor of
alcohol, admission to drinking, bloodshot eyes, failure of the HGN
test, and clues of impairment on the remaining field sobriety tests
give the trooper reasonable grounds to request a breath sample for
the PBT under Iowa Code section 321J.5?
Bunce argues because he passed two of three field sobriety tests, the
trooper lacked reasonable grounds to request a PBT. The State responds that a
reasonable grounds determination is based “on the totality of an officer’s
observations rather than dictated by the outcome of the field sobriety tests.” We
agree with the State’s position.
Iowa Code section 321J.5 allows a peace officer to request a breath
sample for a PBT when the officer has “reasonable grounds to believe” a driver
has operated a motor vehicle while under the influence of an alcoholic beverage
or while having an alcohol concentration of .08 or more. “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.” State v. Owens, 418 N.W.2d 340, 342 (Iowa
1988). The “reasonable ground for belief” standard is “tantamount to probable
5
cause.” Cf. State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005) (discussing
“totality of circumstances” test for Iowa Code section 804.7).
Field sobriety tests allow officers to assess whether a driver is under the
influence of alcohol. See State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990)
(discussing HGN, walk-and-turn, and one-leg-stand tests as reliable indicators of
intoxication). But the results of field sobriety tests are not the only evidence
available to officers conducting an investigatory stop. It is the totality of an
officer’s observations that allows him or her to request a breath sample for
preliminary testing.
For instance, an officer may take into account the manner of driving when
deciding whether to request a breath sample. Cf. State v. Dominguez, 482
N.W.2d 390, 392 (Iowa 1992) (quoting instruction allowing jury to consider
manner of driving in deciding if defendant was under the influence). Here, the
trooper saw Bunce rapidly accelerating and traveling well over the speed limit on
the interstate. Speeding can indicate impaired mental judgment and may be
considered by an officer deciding if a driver is under the influence. See Zill v.
State, 355 S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011). An officer
may also consider the early morning hour of the stop, “a time notorious for
drunken driving.” See State v. Rosenstiel, 473 N.W.2d 59, 62 (Iowa 1991),
overruled on other grounds by State v. Cline, 617 N.W.2d 277 (Iowa 2000).
Furthermore, the driver’s interactions with the officer during the traffic stop
feed into the overall determination of intoxication. In this case, the officer found it
unusual that the passenger did most of the talking during the stop for speeding:
6
I didn’t think I was getting too many verbal responses from Mr.
Bunce, just movement and just complying with my actions, not
really doing any talking or explaining of anything or stating
anything, it was mostly coming from the passenger. . . . [I]t did
pique my curiosity why that was.
A reasonable person in the trooper’s situation could have viewed Bunce’s
reluctance to converse with him as an effort to minimize the trooper’s exposure to
any odor of alcohol from the driver’s breath. See Bixenman v. Kansas Dep’t of
Revenue, 307 P.3d 217, 220 (Kan. Ct. App. 2013) (noting officer found driver’s
behavior unusual when he would turn away from the officer when speaking).
Once the trooper moved Bunce into his patrol car, the odor of alcohol
coming from Bunce was apparent. The trooper then asked Bunce if he had been
drinking alcohol and Bunce admitted having “a little bit to drink.” The trooper
asked how much, and Bunce said he had “one beer.” Both the smell of alcohol
and the admission to drinking contributed to the trooper’s reasonable grounds to
believe Bunce was violating chapter 321J. See State v. Marks, 644 N.W.2d 35,
38 (Iowa Ct. App. 2002) (listing odor of alcohol, bloodshot eyes, and admission to
consuming “some beer” as fueling the finding of reasonable cause to believe
Marks had been driving while intoxicated).
At this point in the investigation, the trooper secured Bunce’s agreement
to perform the field sobriety tests. When conducting the HGN test, Trooper
Papin noticed Bunce’s bloodshot eyes, a traditional sign of intoxication. Trooper
Papin also found four of six clues for intoxication on Bunce’s HGN test. The
HGN test, developed by the U.S. Department of Transportation’s National
Highway Traffic Safety Administration (NHTSA), measures the effect of alcohol
consumption on the central nervous system. Murphy, 451 N.W.2d at 157
7
(explaining despite its “pretentiously scientific name” the test simply measures
the involuntary jerking of the eyeball”). Trooper Papin testified that, according to
his training, the HGN test has been determined by testing in police departments
across the nation to be the most accurate of the field tests to indicate a BAC
exceeding .08.
Trooper Papin testified Bunce only scored one clue for intoxication on
each of the other two field sobriety tests, which constituted passing scores. On
cross-examination, the trooper said he “couldn’t give a solid reason” why Bunce
passed the walk-and-turn and one-leg-stand tests, but suggested: “Usually
people who are in good condition have good balance generally.” Bunce asserts
on appeal the State should not be able to “overlook” his passing scores on two of
the field sobriety tests, and suggests the HGN test results should have been
considered a “false positive.”
Bunce’s position has not been universally rejected. The Kansas Court of
Appeals recently discussed the “contentious issue” of whether police officers can
form reasonable grounds to believe a suspect is driving under the influence when
he successfully completes walk-and-turn and one-leg-stand tests, without
reaching a resolution. See Bixenman, 307 P.3d at 220; see also Lefebvre v.
State, 19 A.3d 287, 297–300 (Del. 2011) (Steele, C.J., dissenting) (objecting to
majority’s suggestion that “passed field sobriety tests can be ignored under the
‘totality’ test if, before testing, the police might have had sufficient alternative
evidence to constitute probable cause”).
But we find more persuasive authority in the majority opinion in Lefebvre,
as well as decisions from Alaska, Minnesota, Pennsylvania, and Tennessee.
8
The majority of the Delaware appeals court rejected Lefebvre’s argument that
“her having passed every properly administered field sobriety test (other than the
HGN and PBT, which the Superior Court determined were not properly
administered) constitutes ‘overwhelming evidence’ that she was not impaired by
alcohol.” Lefebvre, 19 A.3d at 294. The majority held “[f]ield tests results that
are either favorable to the driver or mixed do not . . . negate the probable cause
to arrest that existed before the field tests began.” Id. at 295 (noting NHTSA’s
findings that “an individual may pass field tests and still be under the influence of
alcohol”).
In State v. Grier, 791 P.2d 627, 628 (Alaska Ct. App. 1990), the court
reversed the suppression of a motorist’s breath test. During the early morning
hours, an Alaska state trooper stopped the motorist for speeding; the motorist
smelled of alcohol, had bloodshot eyes, and admitted having consumed “two or
three beers.” But the motorist was able to satisfactorily complete four out of five
field sobriety tests, only failing the HGN test. Like Bunce, Grier pointed to his
successful performance on the other field sobriety tests and argued the HGN test
was subject to “false positives, i.e. identifying men and women as intoxicated
who are not.” Grier, 791 P.2d at 632 n.3. The Alaska court explained “probable
cause is established even though the facts known to the officer could also be
reconciled with innocence.” Id.
In State v. Grohoski, 390 N.W.2d 348, 350 (Minn. Ct. App. 1986), the
appellate court considered the prosecution’s appeal. Grohoski was stopped for
speeding on his motorcycle, had bloodshot and watery eyes, emitted a strong
odor of alcohol, and admitted to drinking “a few” alcoholic beverages. The trial
9
court found Grohoski passed all of the field sobriety tests and suppressed the
breath test results. The appellate court reversed, finding the trial court
improperly focused on the absence of indicia of intoxication, stating: “A DWI
suspect need not exhibit every known sign of intoxication in order to support a
determination of probable cause.” Grohoski, 390 N.W.2d at 351. Similarly, in
Craze v. Commonwealth, 533 A.2d 519, 521 (Pa. Commw. Ct. 1987), the
appellate court determined an officer had reasonable grounds to order a
breathalyzer test despite the fact the motorist successfully completed the heel-to-
toe field sobriety test; the motorist acted in a disorderly manner, had bloodshot
eyes, smelled of alcohol, and admitted drinking one beer.
In State v. Bell, ___ S.W.3d ___, 2014 WL 644502, (Tenn. 2014), the trial
court suppressed evidence obtained following the motorist’s arrest, finding the
motorist “did pretty doggone good on the field sobriety tests.” On the
prosecution’s appeal, the court of criminal appeals held once the officer had
witnessed the defendant’s success on a battery of field sobriety tests, there was
not probable cause to arrest based on the totality of circumstances available to
the officer. Bell, __ S.W.3d at ___. On further review, the state supreme court
held “performance on field sobriety tests is but one of the many factors officers
should consider when deciding whether to arrest a motorist for DUI.” Id. at ___
(finding Bell’s “significant moving violation” coupled with the smell of alcohol and
his admission to having imbibed “more than [he] should have” amounted to
probable cause for an arrest).
We reject Bunce’s implication that reaching a reasonable-ground
determination under section 321J.5 requires a mathematical calculation where a
10
court must tally the field sobriety test clues showing impairment against the clues
not showing impairment. The conditions leading to a finding of reasonable
grounds or probable cause “are not technical they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” See State v. Dawdy, 533 N.W.2d 551, 555–56 (Iowa 1995).
Bunce’s speeding in the early morning hours, his hesitation to speak with
the trooper, his bloodshot eyes, his odor of alcohol, his admission to drinking, his
failure of the HGN test, along with slight clues of impairment on the walk-and-turn
and one-leg-stand tests, provided reasonable grounds for seeking a PBT under
section 321J.5. See State v. Wilkes, 756 N.W.2d 838, 845 (Iowa 2008).
B. Did the trial court mistakenly find the trooper had probable
cause for Bunce’s arrest?
Bunce also challenges his arrest, claiming no probable cause existed
without the PBT results. It is not necessary to decide if probable cause for an
arrest existed without the PBT results because, as discussed above, the trooper
had reasonable grounds to request a breath sample under section 321J.5.
Bunce’s PBT result—showing a BAC of .143—constituted a reasonable basis to
invoke implied consent and to place the defendant under arrest for operating
while intoxicated. Iowa Code § 321J.6; see Wilkes, 756 N.W.2d at 845. The
district court properly overruled Bunce’s motion to suppress.
AFFIRMED.