IN THE COURT OF APPEALS OF IOWA
No. 13-1858
Filed April 22, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NICHOLAS D. STEPHENS,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Carol L. Coppola
(motion to suppress) and Cynthia M. Moisan (trial), District Associate Judges.
A defendant appeals from the ruling of the trial court finding him guilty of
operating while intoxicated, second offense. AFFIRMED.
R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, John P. Sarcone, County Attorney, and Jordan Roling, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.
Nicholas D. Stephens appeals from the ruling of the trial court finding him
guilty of operating while intoxicated, second offense.
I. Background Facts and Proceedings
Stephens was arrested on suspicion of operating while intoxicated at
approximately 3:19 a.m. the morning of April 14, 2013, and taken to the county
jail for testing. Officer Jeremy Christensen, the arresting officer, read the implied
consent advisory to Stephens and asked if he wanted to make a telephone call.
There was some discussion between the officer and Stephens, and it was
apparently agreed that Stephens would call his mother. Stephens supplied the
number. The officer placed the call, made sure the phone was ringing, and
handed the receiver to Stephens. There was no answer.
There was further discussion about Stephens calling his father or some of
his friends, but Stephens apparently did not know the telephone number of any
party except his mother, and although he had a cellular phone on his person, the
battery was dead. Officer Christianson attempted to revive the cell phone but
was unsuccessful.
The officer then suggested Stephens call his mother again and leave a
message. The call was made, and Stephens asked the officer for a call-back
number, but the officer did not know the number of the Datamaster room where
they were located and suggested she could “Google” the jail’s phone number.
The officer asked again if he wanted to make more calls, but Stephens
answered, “I really don’t know anyone’s number up here.” The officer asked
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again, “So nobody else you want to call?” Eventually Stephens answered, “No,
I’m good.”
The officer then requested a breath test, and Stephens consented. The
test results indicated Stephens was intoxicated above the legal limit for operating
a motor vehicle.
Stephens filed a motion to suppress contending the breath test was
inadmissible on the basis that he was denied the right to make a telephone call
after his arrest and before the test was taken as guaranteed by Iowa Code
section 804.20 (2013). Specifically, Stephens contended that the officer should
have provided a call-back number. The officer testified that the jail had several
numbers and he did not know the number of the Datamaster room where they
were located. The motion to suppress was overruled.
Stephens waived his right to a jury trial and stipulated to a trial to the court
on the minutes attached to the trial information. He was found guilty as charged
and sentenced accordingly.
Stephens appeals, contending that the motion to suppress should have
been granted because he was denied his right to make a telephone call as
provided by statute.
II. Error Preservation
When a pretrial motion to suppress is denied by the trial court no further
objection is necessary to preserve error. State v. Richards, 229 N.W.2d 229,
232-33 (Iowa 1975). Error has been preserved, and the State does not contend
otherwise.
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III. Scope of Review
Review of statutory construction is for corrections of errors at law. State v.
Walker, 804 N.W.2d 284, 289 (Iowa 2011).
IV. Discussion
This matter involves the interplay of the implied consent law (Iowa Code
chapter 321J) and the statutory right to counsel as provided by Iowa Code
section 804.20. Under the implied consent law, persons operating a motor
vehicle in such a manner as to constitute reasonable grounds to believe their
blood alcohol content is .08 or higher are deemed to have given their consent to
the withdrawal of a bodily substance specimen for testing. Iowa Code § 321J.6.
A sample drawn within two hours after the driver was in physical control of the
vehicle is presumed to reflect the alcohol concentration at the time of operation.
Iowa Code § 321J.2(12)(a). If the person refuses to submit to the testing, the
test is not to be given, but the person’s operator’s license is subject to revocation.
Iowa Code § 321J.9(1).
Iowa Code section 804.20 provides:
Any peace officer or other person having custody of any
person or arrested or restrained of the person’s liberty for any
reason whatever, shall permit that person, without unnecessary
delay after arrival at the place of detention, to call, consult, and see
a member of the person’s family or attorney of the person’s choice,
or both. Such person shall be permitted to make a reasonable
number of telephone calls as may be required to secure an
attorney. If a call is made, it shall be made in the presence of the
person having custody of the one arrested or restrained.
Before proceeding with a chemical test under the implied-consent statute,
a law enforcement officer is not required to advise an arrestee of any right to
counsel but is required to honor an arrestee’s request to make a call to an
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attorney or family member. State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005).
Once the request has been made, the scope of the purpose for the call has been
expanded beyond the specific content of the statute to any good-faith purpose.
State v. Garrity, 765 N.W.2d 592, 596 (Iowa 2009). Once the right to a call is
invoked, the custodial officer cannot stand mute and ignore the request, but
instead, the officer is obligated to direct the detainee to a telephone and invite the
detainee to make a call or make the call himself. State v. Hicks, 791 N.W.2d 89,
96-97 (Iowa 2010). A call does not meet the requirements of the statute if the
custodial officer is advised that the person called will be calling back or coming to
the detention facility in a time comfortably within the two-hour limit and the officer
does not wait for the call or visit. Haun v. Crystal, 462 N.W.2d 304, 306 (Iowa
1980); Short v. Iowa Dep’t of Transp., 447 N.W.2d 576, 578 (Iowa Ct. App.
1989). Presumably, an exception would exist if the call or visit was not
forthcoming and the two-hour limit was about to expire. Violations of section
804.20 result in application of the exclusionary rule. Garrity, 765 N.W.2d at 597.
Stephens contends that the officer did not tell him who he could call, did
not permit or facilitate the call to his friends, and was obligated to provide the
call-back number of the detention facility to place on his mother’s answering
machine. Finally, he contends he was not provided adequate time to make his
calls. He notes that a little less than one hour of the two-hour limit had elapsed
when the test was taken, and only approximately seven minutes passed after his
entry into the Datamaster room until he consented to be tested.
The trial court noted, “[T]he question is less about the number of minutes
that have passed and more about what happened during the passage of those
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minutes.” We agree. The two-hour waiting period does not mean that every
detainee is to be given two hours before he or she can consent to testing. Moore
v. Iowa Dep’t of Transp., 473 N.W.2d 230, 231 (Iowa Ct. App. 1991).
Officer Christensen advised Stephens of his right to make a telephone call
to “anybody.” When Stephens provided his mother’s telephone number,
Christensen made the call, made sure the telephone was ringing, and gave the
receiver to Stephens. The officer and Stephens discussed calling Stephens’s
father and other friends, but Stephens gave no telephone numbers or names to
the officer. They decided to call Stephens’s mother again and leave a message,
but the officer was unable to provide a call-back number and did not try to obtain
one. The officer asked once again if there was anyone he wanted to call, and
Stephens answered, “No, I’m good.” The officer could reasonably believe
Stephens had given up making any additional calls. Stephens signed the
consent, and the test was taken.
If the right to make a call has been invoked but the arrestee is
unsuccessful in reaching the party they have attempted to call, the officer is
obligated to make additional calls—but only when a further request is made.
Tubbs, 690 N.W.2d at 914. This is not a situation where the officer knew the call-
back number and withheld it; Officer Christensen did not know the correct
number. Even if it had been given, any obligation to wait a specified amount of
time for a call to be returned without any indication a return call would be made is
questionable. Section 804.20 is to be applied in a pragmatic matter, balancing
the rights of the arrestee and the goals of the implied-consent statute. Id. Here,
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compliance with the intent of the two applicable statutes has been achieved.
AFFIRMED.
Vogel, P.J., concurs; Doyle, J., dissents.
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DOYLE, J. (dissenting)
I respectfully dissent. I do not believe Officer Christensen provided a
reasonable opportunity for Stephens to contact his mother.
Officer Christensen detained Stephens in the Datamaster room of the Polk
County jail. Stephens’s cell phone was dead. The jail’s landline was his only link
to the outside world. Stephens supplied his mother’s phone number to Officer
Christensen, and the officer placed the call, made sure the phone was ringing,
and handed the receiver to Stephens. There was no answer, and the call was
ended. The officer tried to revive Stephens’s cell phone with a charger. That
effort was not successful. The officer suggested Stephens call his mother again
on the landline and leave a message. Stephens made the call and asked the
officer for a call-back number for the Polk County facility. Officer Christensen, a
Johnston police officer, did not know the number. He suggested Stephens’s
mother could “Google” the jail to obtain the number. Stephens left a message on
his mother’s voice mail telling her she could “Google” the number for the jail.
Stephens argues Officer Christensen did not meet his affirmative duty to
permit and facilitate phone communication between Stephens and his mother
because he failed to give Stephens a call-back number for the jail. I agree. The
legislature has mandated that law enforcement shall permit a detainee to call a
family member or attorney. Iowa Code § 804.20. Once Stephens invoked his
section 804.20 rights, Officer Christensen was obligated to provide Stephens with
a reasonable opportunity to contact a family member or attorney. See Hicks, 791
N.W.2d at 96. In fact, Officer Christensen was required “to take affirmative action
to ensure [Stephens’s] request for a phone call [was] honored.” Id. at 97.
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The purpose of section 804.20 is to afford detained suspects the
opportunity to communicate with a family member and attorney. See id. at 95.
As Stephens points out in his brief, “It is axiomatic that the return caller must
have the phone number in order to be able to call back and reach the
Defendant/detainee at the place of detention.” The failure to provide a call-back
number essentially thwarted Stephens’s effort to communicate with his mother
thereby rendering his 804.20 rights illusory.
I commend Officer Christensen for his affirmative, albeit unsuccessful,
effort to revive Stephens’s cell phone. And I do not doubt the officer did not know
the phone numbers for the jail or the Datamaster room. But it was the officer that
selected Stephens’s place of detainment and he could have easily obtained a
call-back number with very little effort. Imposing a duty to provide a detainee
with a call-back number in order to facilitate communication between the
detainee and his family members or attorney does not place an undue burden
upon law enforcement.
The failure of Officer Christensen to provide a call-back number was as
much a denial of Stephens’s section 804.20 rights as a denial of outgoing calls. I
would therefore reverse the district court’s denial of Stephens’s motion to
suppress and would remand for further proceedings.