State of Iowa v. Rachael Overbay

IN THE SUPREME COURT OF IOWA
No. 10–1955

Filed February 17, 2012

STATE OF IOWA,

Appellant,

vs.

RACHAEL OVERBAY,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Cynthia M.

Moisan, Judge.

The State seeks further review of a court of appeals decision

affirming a district court ruling granting defendant’s motion to suppress

the results of a chemical blood test. COURT OF APPEALS DECISION

VACATED; DISTRICT COURT RULING REVERSED AND CASE

REMANDED.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, John P. Sarcone, County Attorney, and Brendan E.

Greiner, Assistant County Attorney, for appellant.

Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant State Appellate Defender, for appellee.
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MANSFIELD, Justice.

This case presents the question whether a motorist is entitled to

suppression of her blood alcohol test results because she was informed,

incorrectly, that her refusal of the requested chemical test would have

automatically led to revocation of her driving privileges, when in fact her

refusal of the blood test would not have been deemed final but would

have led to her being offered a different chemical test. Consistent with

our precedents, we conclude that inaccurate information does not render

a driver’s consent involuntary when the record indicates that the

inaccuracy did not affect the driver’s decision. For this reason, we

reverse the district court’s decision to grant the driver’s motion to

suppress, vacate the decision of the court of appeals, and remand for

further proceedings.

I. Factual Background and Procedural History.

On June 25, 2010, at approximately 12:43 in the morning, Trooper

Tyson Underwood of the Iowa State Patrol was dispatched to the scene of

a single-vehicle accident on Interstate 80. Emergency medical personnel

from Altoona Fire and Rescue were already attending to the injured

party, Rachael Overbay, as she lay in a grassy area of the median.

According to Underwood, Overbay “was very loud, crying [and]

screaming.” She did admit to being the driver of the vehicle.

Trooper Underwood noticed that Overbay emitted a “strong

alcoholic beverage odor” and her speech was “very slurred and

mumbled.” Overbay admitted she had been drinking at the Yankee

Clipper in Ankeny. The trooper did not request field sobriety tests at the

scene of the accident because he was uncertain as to the extent of

Overbay’s injuries and whether she would be able to perform the tests in
 3

her condition. Overbay was transported by ambulance to Mercy

Hospital.

Trooper Underwood met Overbay in the emergency room of the

hospital about fifteen minutes later and continued his investigation.

When he arrived, Overbay was being treated by medical personnel. At

that time, she was strapped to a backboard on a hospital bed, with a

brace on her neck and tubing in her nose. Overbay also had a urinary

catheter inserted, although Underwood was not aware of this. According

to Underwood, Overbay was “still very loud” and “out of sorts,” and the

nurses were trying to calm her down.

Trooper Underwood asked Overbay to submit to a horizontal gaze

nystagmus test. She declined. Underwood did not ask Overbay to

perform the other field sobriety tests (the walk and turn test or the one-

leg stand test) because of her medical condition. Underwood also asked

Overbay for permission to conduct a preliminary breath test (PBT) under

Iowa Code section 321J.5 (2009), but she apparently refused this test.

Trooper Underwood invoked implied consent under Iowa Code

section 321J.6. He requested a blood sample from Overbay and read the

implied consent advisory required by section 321J.8 out loud to her,

handing her a copy. Although the form itself is not in the record, it is not

disputed that Overbay received the standard advisory based on the

statutory language of section 321J.8. This advisory told Overbay that if

she refused to submit to the chemical test, her license would be revoked

for one year if she had no prior revocations within the previous twelve

years, or two years if she had. The advisory also told Overbay that if she

submitted to the test and an alcohol concentration of eight hundredths

or more was found, her license would be revoked for 180 days if she had
 4

no previous revocations within the previous twelve years, or one year if

she had.

State law provides that “refusal to submit to a chemical test of

blood is not deemed a refusal to submit, but in that case, the peace

officer shall then determine which one of the other two substances [urine

or breath] shall be tested and shall offer the test.” Iowa Code

§ 321J.6(2). However, Underwood did not specifically tell Overbay that if

she refused the blood test, he would then have requested a urine test

before deeming her refusal to be final. Instead, as noted, Underwood

provided an advisory which tracks the language of section 321J.8 and

simply refers to “chemical” testing without distinguishing the types of

chemical tests.

Overbay verbally agreed to provide the blood sample. The sample

was tested by the DCI Criminalistics Laboratory. The results showed a

blood alcohol content of .178, more than twice the legal limit.

On September 1, 2010, the State filed a trial information charging

Overbay with operating a motor vehicle while under the influence of

alcohol (OWI)–second offense, an aggravated misdemeanor in violation of

Iowa Code section 321J.2(2)(b). On October 15, 2010, Overbay filed a

timely motion to suppress the result of her blood test. An evidentiary

hearing was held on October 29, 2010. Overbay did not testify at the

suppression hearing. Trooper Underwood testified, as did a friend of

Overbay’s who had visited Overbay that night at the hospital.

Underwood confirmed that the official consent notice he read did not

state that if the defendant refused to provide a blood sample, this alone

would not lead to revocation.

However, Trooper Underwood testified that if the defendant had

refused a blood test, he would then have requested a urine test. (A
 5

breath test would not have been feasible because there was no

DataMaster at the hospital.) Underwood stated that it is the policy of the

Iowa State Patrol to request a blood sample first in this instance:

Q. Did you request a urine sample? A. No, in this
instance we request blood first and then if they refuse the
blood, then I would have requested urine.

....

Q. Did it seem to you it would have been—she was in
a condition where a urine sample would be easily obtained?
A. I’m not quite sure. I didn’t pay attention to that because
she consented to the blood sample, so I proceeded with a
blood sample, therefore, I didn’t pay any attention to the
possibility of a urine specimen.

Q. Prior to requesting the blood sample, did you even
consider requesting a urine sample? A. I would have
considered it if she would have refused the blood because
that’s our procedure, but up to that point, no, I didn’t think
of anything about a urine specimen.

Q. You didn’t even consider it prior to asking for
blood? A. No, because our procedure, like I said, is blood
first. If they refuse that, then I would go to urine.

Q. Is that written procedure? A. That’s what the DCI
lab requests, that’s the way I’ve been trained.

On November 9, 2010, the district court granted Overbay’s motion

to suppress, finding that although the trooper had reasonable grounds
for invoking implied consent, Overbay’s consent to the blood test was not

voluntary because it was based on “misleading information.” On

December 3, 2010, the State filed an application for discretionary review.

On December 16, 2010, we granted the application and ordered a stay of

the district court proceedings. We subsequently transferred the case to

the court of appeals.

On August 24, 2011, the court of appeals issued a decision, with

one judge dissenting, that affirmed the district court’s suppression order.

The court of appeals majority first noted Overbay had been given a
 6

“misleading” implied consent advisory because the advisory failed to

inform her a refusal to provide the blood sample would not have been a

basis by itself for license revocation. The court then turned to the State’s

argument that the misleading advisory was of no consequence.

According to the State, if Overbay had refused the blood test she would

have been asked to provide a urine sample. Her refusal or consent to

that test would have been dispositive, and if she had consented, the test

results would have been the same as for blood. Thus, in the State’s view,

failing to tell Overbay that her refusal to consent to blood testing would

not have been deemed a refusal of consent to all testing did not matter.

The court of appeals, however, rejected this argument. It noted

that the State failed to present evidence that it “could have obtained

urine” from Overbay under the circumstances. Accordingly, based on

the misleading advisory, that court found that Overbay’s consent to the

blood test was involuntary.

We granted the State’s application for further review.

II. Standard of Review.

“When a defendant who has submitted to chemical testing asserts

that the submission was involuntary, we evaluate the totality of the

circumstances to determine whether or not the decision was made

voluntarily.” State v. Garcia, 756 N.W.2d 216, 219 (Iowa 2008). Our

review is de novo, State v. Hutton, 796 N.W.2d 898, 902 (Iowa 2011);

therefore, we make an independent evaluation based on the entire

record, State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010). We give

considerable weight to the district court’s assessment of voluntariness

but are not bound by its factual findings. State v. Gravenish, 511

N.W.2d 379, 381 (Iowa 1994). Where questions of statutory
 7

interpretation arise, we review for correction of errors at law. Garcia, 756

N.W.2d at 220.

III. Analysis.

A. Iowa’s Implied Consent Law. The operation of a motor vehicle

while under the influence of an alcoholic beverage or while having an

alcohol concentration of .08 or more is an offense under Iowa law. Iowa

Code § 321J.2. Iowa Code section 321J.6, titled “Implied consent to

test,” establishes the authority of a peace officer to test the breath, blood

or urine of any person suspected of driving while intoxicated. It provides

that when there are “reasonable grounds to believe that the person has

been operating a motor vehicle in violation of section 321J.2 or 321J.2A

[that person] is deemed to have given consent to the withdrawal of

specimens.” Id. § 321J.6(1) (emphasis added). The premise of this

statute is that a driver “impliedly agrees to submit to a test in return for

the privilege of using the public highways.” State v. Hitchens, 294

N.W.2d 686, 687 (Iowa 1980).

The primary purpose of the implied consent statute is the removal

of intoxicated drivers from Iowa’s roads in order to protect public safety.

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 594 (Iowa 2011). The

law “was enacted to help reduce the appalling number of highway deaths

resulting in part at least from intoxicated drivers.” State v. Wallin, 195

N.W.2d 95, 96 (Iowa 1972); see also 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.”).

We have held that the procedures provided by the implied consent

statute “are reasonably calculated to further this objective.” State v.

Knous, 313 N.W.2d 510, 511–12 (Iowa 1981).
 8

Although drivers are deemed to have impliedly consented to

testing, they nonetheless generally have the statutory right to withdraw

that consent and refuse to take any test. State v. Massengale, 745

N.W.2d 499, 501 (Iowa 2008), abrogated on other grounds by Hutton, 796

N.W.2d at 904 n.4. “If a person refuses to submit to the chemical

testing, a test shall not be given . . . .” Iowa Code § 321J.9(1). Valid

consent therefore must be given voluntarily with the decision to submit

to a chemical test being “freely made, uncoerced, reasoned, and

informed.” Garcia, 756 N.W.2d at 220. “The ultimate question is

whether the decision to comply with a valid request under the implied-

consent law is a reasoned and informed decision.” State v. Bernhard,

657 N.W.2d 469, 473 (Iowa 2003).

“[B]ecause there are both administrative and criminal

repercussions for submitting to or refusing a chemical test, section

321J.8 requires an officer to advise the person of certain consequences

that may result from the decision.” Hutton, 796 N.W.2d at 902. Iowa

Code section 321J.8 provides:

1. A person who has been requested to submit to a
chemical test shall be advised by a peace officer of the
following:

a. If the person refuses to submit to the test, the
person’s driver’s license or nonresident operating privilege
will be revoked by the department as required by and for the
applicable period specified under section 321J.9.

b. If the person submits to the test and the results
indicate the presence of a controlled substance or other
drug, or an alcohol concentration equal to or in excess of the
level prohibited by section 321J.2 or 321J.2A, the person’s
driver’s license or nonresident operating privilege will be
revoked by the department as required by and for the
applicable period specified under section 321J.12.
 9

Thus, the officer must inform the motorist of the potential periods of

license revocation associated with refusal to take the test or with a

positive test result. Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 211

(Iowa 2001).

The clear intent of section 321J.8 is to provide a
person who has been required to submit [to] a chemical test
a basis for evaluation and decision-making in regard to
either submitting or not submitting to the test. This
involve[s] a weighing of the consequences if the test is
refused against the consequences if the test reflects a
controlled substance, drug, or alcohol concentration in
excess of the “legal” limit.

Id. at 212 (internal quotations marks omitted).

The peace officer, not the accused driver, has the authority to

choose which type of chemical test is administered. Iowa Code

§ 321J.6(2) (providing that “[t]he peace officer shall determine which of

the three substances, breath, blood, or urine, shall be tested”);

Gottschalk v. Sueppel, 258 Iowa 1173, 1183–85, 140 N.W.2d 866, 872–73

(Iowa 1966) (noting the concern that a driver could insist upon an

unavailable test and observing that “[a]ll the starch would be taken out of

the law if arrested drivers could pick and choose the type of test to be

taken”). Thus, section 321J.6(2) provides, “Refusal to submit to a
chemical test of urine or breath is deemed a refusal to submit, and

section 321J.9 applies.”

However, the same is not true with blood: “A refusal to submit to a

chemical test of blood is not deemed a refusal to submit, but in that case

the peace officer shall then determine which one of the other two

substances shall be tested and shall offer the test.” Iowa Code

§ 321J.6(2) (emphasis added). An accused driver has an “absolute right

to refuse to take a blood test provided that he is willing to submit to a

secondary test or tests chosen by the officer.” Rodriguez v. Fulton, 190
 10

N.W.2d 417, 419 (Iowa 1971). This exception was added by the

legislature “primarily [as] an accommodation to those motorists whose

religious beliefs or physical condition make the blood test unsuitable.”

Id. However, if the driver refuses the blood test, the officer is required by

law to offer another test. Iowa Code § 321J.6(2).

B. State v. Bernhard. The central issue raised by Overbay is the

apparent inconsistency between the language of the implied consent

advisory mandated by section 321J.8 and the freedom to refuse a blood

test granted by section 321J.6(2). The implication of the consent

advisory required by section 321J.8 is that license revocation will result

from the refusal to submit to any one of the three tests. However,

section 321J.6(2) specifically exempts a stand-alone blood test refusal

from the penalty of revocation, since it “is not deemed a refusal to

submit.” Id. Overbay maintains that she was misinformed about her

rights under section 321J.6(2) because the language of the implied

consent advisory implied she was required to submit to a blood test or

face license revocation. Because of this misinformation, she claims her

consent was not voluntary and that to hold otherwise would undermine

the purpose of section 321J.8, which guarantees the accused an

opportunity to make a reasoned and informed decision about chemical

testing.

In Bernhard, we addressed this issue under similar facts.

Bernhard was injured in an accident, and evidence at the scene indicated

that he had been driving while intoxicated. Bernhard, 657 N.W.2d at

470. He was “immobilized in a C-collar and on a backboard” and taken

by ambulance to a hospital emergency room. Id. He complained of

numerous pains and was described by the nurse as “very agitated,

nervous, and beset with rapid speech patterns.” Id. A state trooper
 11

requested a blood sample and read the implied consent advisory, but did

not give the defendant a copy. Id. at 471. Although Bernhard was

unable to sign as he was being treated for injuries, he extended his arm

and consented to the blood test. Id.

Bernhard later argued that “because his consent to providing a

sample of blood was obtained by an unwarranted threat of license

revocation, the results of the chemical test should have been

suppressed.” Id. at 472. We disagreed, stating:

Although we recognize that the general admonition
concerning license revocation that was read to defendant
was misleading when given with respect to a request for
blood, it was correct within the context of the complete
statutory procedure that defendant was facing.

Id. As we explained:

If . . . defendant had refused to provide a sample of blood the
implied consent procedure would have merely shifted to a
request for a urine or breath sample. Defendant would have
been required to provide a sample of one of those substances
or face the revocation of his license. Defendant conceded at
the suppression hearing that he was motivated to agree to a
blood test because of the desire not to lose his license. We
find no reason to assume that his choice would have been
different had he been requested to provide a sample of one of
the other two substances. Nor is there reason to believe that
a chemical test of an alternative substance would not have
revealed a similar concentration of alcohol in defendant’s
system.

Id. We concluded that “the only real detriment that may have befallen

defendant was unwittingly consenting to a blood test when he may have

preferred one of the alternative tests” and that this was insufficient to

justify suppression of the test results. Id. at 472–73.

We also reiterated our previously stated view that “not every

inaccurate depiction by law enforcement officers that might bear on a

subject’s election to submit to chemical testing is a basis for suppressing
 12

the test results.” Id. at 473 (citing Gravenish, 511 N.W.2d at 381).

Accordingly, we concluded that Bernhard’s consent to a blood test was

voluntary and that the district court had correctly denied Bernhard’s

motion to suppress. Id.

C. Applying Bernhard to Overbay’s Claim. As we have noted,

this case bears many factual similarities to Bernhard. Both defendants

were injured, extremely agitated, and immobilized in hospital emergency

rooms. Both were read the statutorily required implied consent advisory,

and both agreed to submit to a blood test.

Overbay, however, argues that her case is ultimately

distinguishable from Bernhard and is more similar to an unpublished

court of appeals decision on which the district court relied. See State v.

Michaloff, No. 09–1413, 2010 WL 2080113 (Iowa Ct. App. May 26, 2010).

In particular, Overbay argues there is no evidence she was motivated to

take the blood test out of fear of losing her license. Cf. Bernhard, 657

N.W.2d at 472 (noting that Bernhard conceded this point). Also, Overbay

maintains it is speculative whether a urine sample could have been

obtained from her because she had a catheter inserted.

Overbay’s involuntary consent argument, therefore, must run

something like this: If I had known that a refusal to consent to the blood

test would not have triggered an immediate revocation of my license, I

would have refused that test. Assuming that Trooper Underwood would

have then requested a urine sample (which is undisputed on this record),

I would have consented at that point but the police might have been

unable to obtain a sample because of my medical condition. The

resulting situation would be one where the State had no sample even

though I had not “refused” the test. See McCrea v. Iowa Dep’t of Transp.,

336 N.W.2d 427, 430 (Iowa 1983) (holding that a driver’s consent to test
 13

accompanied by a failure to provide a urine specimen was a refusal in

the absence of a valid medical reason); see also State v. Stanford, 474

N.W.2d 573, 574–75 (Iowa 1991) (holding that a urine sample provided

under threat of catheterization was obtained voluntarily because there

was no coercion at the time the consent was given). Therefore, my

consent to the blood test was involuntary. 1

We are unwilling to engage in this kind of “House That Jack Built”

reasoning here. First, based on common experience, we believe the

presence of a urinary catheter makes it more likely urine could have been

obtained, assuming Overbay consented for her urine to be tested.

Second, while the State did not offer affirmative evidence that Overbay

was motivated to consent to the blood test by fear of losing her license

(not surprisingly, since Overbay exercised her right not to testify at the

suppression hearing), no other reason appears in the record why

Overbay would consent to the test. In short, we see no real basis for

distinguishing this case from Bernhard. If Bernhard’s consent was

voluntary, so was Overbay’s.

We draw further support for this conclusion from our recent

opinion in Hutton. There, we considered a claim that a driver’s consent

to a chemical breath test was involuntary because the advisory

“inaccurately represented the consequences of his decision to submit to

the test or not.” Hutton, 796 N.W.2d at 902. In that case, additional

language in the advisory incorrectly overstated the potential adverse

consequences of taking the chemical test. Specifically, it warned Hutton

that his commercial driver’s license (CDL) would be revoked for one year

if he took the chemical test and failed it. Id. at 904. Despite this

1As previously noted, there was no DataMaster unit available at the hospital to
conduct a breath test.
 14

language, Hutton agreed to take the test anyway—and registered a .205

blood alcohol concentration. Id. at 901. We held under these facts that

Hutton had no basis for arguing his consent to the test was involuntary.

As we explained:

[W]e are confident Hutton was not induced to consent to the
test by the inclusion of the incorrect excess verbiage in the
advisory. The excess verbiage should have discouraged
Hutton from submitting to the test as he did. Accordingly,
we find no grounds to conclude Hutton’s consent was
coerced or uninformed.

Id. at 906. 2

This case is like Hutton in that the advisory was partially

inaccurate. It failed to inform the motorist that refusal of the blood test

would not result in automatic revocation of driving privileges but would

instead result in the motorist being asked to take a different chemical

test. Thus, the advisory slightly overstated the possible consequences of

refusing to take the blood test. But as in Hutton, “we are confident” the

motorist was not induced to take the blood test because of anything

incorrect in the advisory. Had Overbay declined the blood test, she

would have been immediately presented with the same choices with

respect to a urine test. Overbay does not argue that her decision process

at that point would have been any different.

We reiterate what we said in Hutton: “[I]t is optimal to include only

perfectly accurate information in the advisory.” Id. at 905–06. Still, a

less-than-optimal advisory does not automatically render a consent

involuntary. Id.

2In Hutton, we considered two arguments in addition to the defendant’s claim
that his consent to the testing was not voluntarily given. The defendant also
maintained that the advisory he was given violated section 321J.8 and that the advisory
violated his due process rights. See Hutton, 796 N.W.2d at 904–06. Neither of these
arguments has been asserted by Overbay, either here or below. Overbay’s only
contention is that her consent was not voluntarily given.
 15

We have also said before that the State has the burden to prove a

consent to testing was voluntary. Stanford, 474 N.W.2d at 575; see also

Gravenish, 511 N.W.2d at 381. However, if the record as a whole shows

the defendant would have made the same choice to undergo (or not

undergo) chemical testing even if provided a more accurate advisory, the

State has met its burden. See Hutton, 796 N.W.2d at 906 (denying relief

because “we are confident Hutton was not induced to consent to the test

by the inclusion of the incorrect excess verbiage in the advisory”);

Bernhard, 657 N.W.2d at 472 (denying relief because “[w]e find no reason

to assume that [Bernhard’s] choice would have been different had he

been requested to provide a sample of one of the other two substances”);

Gravenish, 511 N.W.2d at 381–82 (denying relief despite a factually

misleading statement by the officer concerning the status of a victim

injured by the defendant, noting that the defendant’s “argument implies

that, had he known Kautman’s true condition, he would have withheld

consent” but “[n]othing in the record . . . bears out this contention”);

Smith v. Iowa Dep’t of Transp., 523 N.W.2d 607, 610 (Iowa Ct. App. 1994)

(upholding revocation because “we find the mistake did not influence

Smith’s decision nor was he prejudiced thereby”); cf. Massengale, 745

N.W.2d at 503–04 (granting relief where the defendant’s decision could

have been influenced by the misleading advisory that omitted all

information regarding consequences for the defendant’s CDL); State v.

Kjos, 524 N.W.2d 195, 197 (Iowa 1994) (granting suppression where the

officer told the defendant that he had to submit to a test on pain of

license revocation even though more than two hours had already passed

since his arrest and therefore the defendant’s license would not have

been revoked if he had refused testing).
 16

In sum, the lesson of our cases is that voluntariness of a consent

is determined at the time consent is given, Stanford, 474 N.W.2d at 575,

and voluntariness is not undermined by inaccurate information if the

record indicates the information would not have affected the motorist’s

decision to submit to or refuse chemical testing. See Hutton, 796 N.W.2d

at 906; Bernhard, 657 N.W.2d at 472; Gravenish, 511 N.W.2d at 381–82.

IV. Conclusion.

For the reasons stated, we vacate the decision of the court of

appeals, reverse the ruling of the district court granting Overbay’s motion

to suppress, and remand for further proceedings consistent with this

opinion.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT

RULING REVERSED AND CASE REMANDED.