IN THE SUPREME COURT OF IOWA
No. 08–0330
Filed May 15, 2009
STATE OF IOWA,
Appellee,
vs.
PAUL GARRITY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County,
Christine Dalton, Judge.
Defendant appeals his conviction for OWI third offense contending
the district court erred in denying his motion to suppress his breath test
refusal and all evidence of his statements made to police after his request
to contact another officer was wrongfully denied. DECISION OF COURT
OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Arthur
Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Thad Roche and Meredith Friedman, student interns,
Michael J. Walton, County Attorney, and Marc Gellerman, Assistant
County Attorney, for appellee.
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BAKER, Justice.
In this application for further review, Paul Garrity seeks to
overturn his conviction for operating while intoxicated (“OWI”) third
offense. He contends that the Scott County District Court erred in
denying his motion to suppress his breath test refusal and all evidence of
his statements to police after his request to contact another officer was
denied. Specifically, Garrity alleges the State violated his rights under
Iowa Code section 804.20 when the arresting officer denied Garrity’s
request to speak to a narcotics officer and did not explain that Garrity
had a statutory right to speak to an attorney or a family member under
section 804.20. We conclude that because the officer did not advise
Garrity of the persons he was permitted to call as allowed under Iowa
Code section 804.20, the State violated his rights, but this error was
harmless, and Garrity is not entitled to a new trial.
I. Background Facts and Proceedings.
Shortly after midnight on September 17, 2007, Officer Cockshoot
responded to a 911 call. The caller alleged that a man driving a green
Dodge Intrepid was drunk. Cockshoot found and stopped the driver,
Paul Garrity, for speeding and failure to use a turn signal when changing
lanes. Cockshoot observed that Garrity had slow, slurred speech and the
smell of alcohol on his breath. Cockshoot then put Garrity in the squad
car, while checking his driver’s license. Another officer arrived and
asked Garrity how much he had been drinking. Garrity claimed he had
two beers. He later stated he had only one beer and one shot of
sambuka. Garrity then told Cockshoot that he knew he was in trouble
and asked him to call Matt Ehlers, an Iowa state narcotics officer.
Garrity wanted to arrange some type of deal where he would reveal a
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large drug operation and in return not do jail time. Cockshoot refused to
make the call.
Garrity voluntarily performed and failed the field sobriety tests. He
did submit to a preliminary breath test during this stop. At that point,
he had a blood alcohol content of .133. Garrity was taken to the Scott
County jail.
At the Scott County jail, Cockshoot read Garrity the implied
consent advisory form. Garrity refused to give a breath sample. Garrity
then asked Cockshoot if “you guys [could] fix this for me?” When
Cockshoot questioned Garrity about driving while intoxicated, Garrity
first stated he was not driving and then later said he was driving. During
the questioning, Garrity also claimed he was not drinking. After being
questioned, Garrity said to Cockshoot, “You’re not going to call the guy,
are you?” Cockshoot replied, “He has nothing to do with this,” and
“What’s he going to do for me?” Cockshoot then told Garrity he could
call the narcotics officer after he was released.
The State charged Garrity with OWI third offense, driving under
suspension while barred as a habitual offender, and driving while license
denied or revoked. Garrity filed a motion to suppress the refusal to take
the breath test and the videotape based on Iowa Code section 804.20.
The court denied the motion to suppress finding that Garrity was not
attempting to seek advice from an attorney, but merely asked to speak
with the narcotics officer in order to cut a deal and avoid arrest.
Garrity waived his right to a jury trial, and the court found him
guilty of all three counts. Garrity appeals this conviction. However, on
appeal, Garrity only challenges the OWI third offense conviction. Garrity
claims the State violated Iowa Code section 804.20 by failing to inform
him of his right to call an attorney or a family member when he
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specifically asked to speak to Matt Ehlers, a narcotics officer. The State
argues that Garrity’s request to call the narcotics officer was not a
legitimate request that would invoke this statutory right. The State also
claims even if there was a violation, the trial court’s failure to suppress
the challenged evidence was harmless error because the court could have
concluded Garrity was guilty of operating a vehicle while intoxicated even
without evidence of his test refusal and the videotape of his interrogation,
as that evidence was merely cumulative. The court of appeals affirmed
the district court. Garrity now applies for further review.
II. Scope of Review.
We review the district court’s interpretation of Iowa Code section
804.20 for errors at law. State v. Moorehead, 699 N.W.2d 667, 671 (Iowa
2005). If the district court applied the law correctly, and there is
substantial evidence to support the findings of fact, we will uphold the
motion-to-suppress ruling. Id. Evidence is considered substantial when
reasonable minds could accept it as adequate to reach a conclusion. Id.
III. Discussion and Analysis.
A. Invocation and Analysis of Iowa Code Section 804.20. Iowa
Code section 804.20 states:
Any peace officer or other person having custody of
any person 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 an
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. If such person is
intoxicated, or a person under eighteen years of age, the call
may be made by the person having custody. An attorney
shall be permitted to see and consult confidentially with
such person alone and in private at the jail or other place of
custody without unreasonable delay. A violation of this
section shall constitute a simple misdemeanor.
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Iowa Code § 804.20 (2007). The statute requires that arrestees be
allowed to call both an attorney and a family member. Requests for
either type of call are equally important. State v. McAteer, 290 N.W.2d
924, 925 (Iowa 1980).
The court first addressed this statutory right in State v. Vietor, 261
N.W.2d 828, 829–30 (Iowa 1978). In Vietor, the defendant was arrested
and read his Miranda rights, but then told in the informed consent
reading that he was not entitled to consult an attorney before deciding
whether to undergo a chemical test. Id. The court found that although
the statute did not require the officer to tell the arrestee that he had the
right to counsel, the officer could not tell the arrestee that he did not
have a right to counsel. Id. at 831.
The court also enunciated three statutory rules. Id. at 832. First,
an arrestee that asks to call his lawyer should be permitted to do so
before submitting to a chemical test. Id. Second, if that person is denied
the opportunity to call a lawyer, the evidence of refusal to engage in the
chemical test is inadmissible. Id. Third, the arrestee’s right to prior
consultation is limited to circumstances where it does not “materially
interfere” with the chemical test procedure.1 Id. We later stated that the
statute is to be applied pragmatically by balancing the rights of the
arrestee and the goals of the chemical-testing statutes. State v. Tubbs,
690 N.W.2d 911, 914 (Iowa 2005).
In Didonato v. Iowa Department of Transportation, 456 N.W.2d 367,
371 (Iowa 1990), we further explained an officer’s duty under Iowa Code
section 804.20. In that case, Didonato, the arrestee, demanded a phone
call, but that request was denied. Didonato, 456 N.W.2d at 368.
1This rule is particularly important as “a chemical test is to be administered
within two hours of the time of arrest or not at all.” Vietor, 261 N.W.2d at 831; Iowa
Code § 321J.6(2).
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Didonato continued to ask for his phone call, but eventually signed an
implied-consent form and provided a urine sample. Id.
In Didonato, the court held that when a request for a phone call is
made, and the officer stands mute and refuses the request, the statutory
purpose of section 804.20 is not met. Id. at 371. The fact that Didonato
requested to call a friend, rather than an attorney or family member, did
not change the duty of the police officer. Id. (“But when a request to
make a phone call is made we do not believe the statutory purpose is met
if the officer stands mute and refuses the request. Nor would there be
any difference if the request is to call a friend. In these circumstances
the statute is implicated and the officer should then advise for what
purpose a phone call is permitted under the statute.”). The officer must
advise the defendant of the purpose of the phone call under the statute
in a circumstance where the arrestee requests a phone call. Id. If the
arrestee then decides to call a family member or attorney, the police
must allow that phone call. Id.
Had we stopped at Didonato, the outcome would be clear.
However, we recently decided another case that might suggest an
alternate outcome. In Tubbs, the defendant originally agreed to chemical
testing, but then changed his mind. Tubbs, 690 N.W.2d at 913. He
asked to talk to his wife to have her read the document before signing it,
but the officer remembered Tubbs’ wife had a no-contact order, and did
not allow the phone call. Id. Tubbs did not ask to talk to any other
family member or attorney after being informed that the phone call would
not be allowed because of the no-contact order. Id. Because he did not
ask to contact someone other than his wife, we determined that under
the unique facts of that case the officer had fulfilled the responsibilities
under section 804.20 because Tubbs was not denied the opportunity to
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talk to another family member or an attorney. Id. at 914. Tubbs is
distinguishable because, unlike Didonato where there was confusion as
to the people within the scope of section 804.20 who may be called, there
was no confusion that triggered the duty to clarify the scope of the
persons who may be called. Further, Tubbs made no further request to
call someone else.
One purpose of Iowa Code section 804.20 is to allow the arrestee to
call an attorney before making the decision to submit to chemical testing.
Tubbs, 690 N.W.2d at 914. The statute, however, does not limit the
phone call to that purpose. As long as the purpose of the phone call is a
good faith purpose (e.g., not for ordering a pizza), the arrestee may
choose to contact family or a legal representative for advice, or to have
them inform his employer that he is not likely to be at work, pick up
children from school, or arrange to have the dog let out. See generally
Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997).
Explaining the scope of this statutory right will not interfere with
the chemical tests. People may be aware they have the right to a phone
call, but are likely unaware of the specified people they are allowed to
call. If, as here, the officer turns down the arrestee’s phone call request
because the request is to call someone not contemplated in the statute,
the officer must explain the scope of the statutory right.
Garrity requested to make a phone call. We have stated when a
request for a phone call is made, the police cannot remain mute and
simply deny the request. That is precisely what Cockshoot did in this
situation. Once Garrity asked to call a person outside the scope of
section 804.20, Cockshoot had an obligation to advise Garrity of the
purpose of the phone call, i.e., who Garrity could call, and he did not do
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so. Didonato, 456 N.W.2d at 371. The State violated Iowa Code section
804.20.
B. Exclusionary Rule. We apply the exclusionary rule to
violations of Iowa Code section 804.20, whether it is a violation of the
right to communicate with family or with an attorney. McAteer, 290
N.W.2d at 925. The exclusionary rule extends to the exclusion of breath
tests, breath test refusals, and non-spontaneous statements obtained
after unnecessary delay in allowing the person the statutory right to
consult with an attorney or family member. Moorehead, 699 N.W.2d at
675.
Under our rules, the test refusal must be excluded. Vietor, 261
N.W.2d at 832. The closer question is whether to exclude the DVD
recording of Garrity taken at the police station. From the district court’s
opinion, it is evident that the court did not use statements from the DVD
as the basis for its decision. Rather, the DVD was used to demonstrate
Garrity’s body motions, judgment, slurred speech and inability to
communicate. Under this record, the exclusionary rule does not extend
to the use of the recording for this purpose.
C. Harmless Error. Even though the district court erred in
admitting evidence of Garrity’s test refusal, Garrity is not automatically
entitled to a new trial. A violation of Iowa Code section 804.20 is a
nonconstitutional error. See Moorehead, 699 N.W.2d at 672.
Where a nonconstitutional error [i]s claimed, the test
for determining whether the evidence [i]s prejudicial and
therefore require[s] reversal [i]s this: “Does it sufficiently
appear that the rights of the complaining party have been
injuriously affected by the error or that he has suffered a
miscarriage of justice?”
State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004) (quoting State v. Trudo,
253 N.W.2d 101, 107 (Iowa 1977). In applying this test, we presume
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prejudice unless the record affirmatively establishes otherwise.
Moorehead, 699 N.W.2d at 673. However, we can find harmless error
when evidence obtained from a violation of Iowa Code section 804.20
would merely be cumulative. State v. Enderle, 745 N.W.2d 438, 442
(Iowa 2007).
The police stopped Garrity after responding to a 911 call that
identified a possible drunk driver. Garrity was actually pulled over for
speeding and failure to use a turn signal. Cockshoot observed that
Garrity had slurred speech and the smell of alcohol on his breath.
Before Garrity asked Cockshoot to contact narcotics officer Matt Ehlers,
he admitted to drinking. Garrity also failed all three field sobriety tests.
The judge who entered the verdict in this case specifically stated that she
observed the recording taken at the police station and determined that
Garrity was intoxicated based upon his body motions, judgment, slurred
speech, and inability to communicate. There is no indication that she
took into consideration the content of Garrity’s statements on the
recording, and the test refusal was not a factor in her decision. Cf.
Moorehead, 699 N.W.2d at 673 (“Moorehead’s high breath test result is
the very first fact cited as evidence of guilt. Mindful of a defendant’s
right to a fair trial and just application of our rules, . . . it cannot be
fairly said that the breath test result did not injuriously affect
Moorehead’s rights. The district court’s error in admitting this evidence
clearly prejudiced Moorehead.”). We find that any violation of Garrity’s
rights under Iowa Code section 804.20 was harmless error. Garrity is
not entitled to a new trial.
IV. Disposition.
We conclude that because the officer did not advise Garrity of the
purpose of the phone call allowed under Iowa Code section 804.20, the
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State violated his rights, and evidence of Garrity’s test refusal should
have been suppressed. Nonetheless, this error was harmless, and,
therefore, Garrity is not entitled to a new trial.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.