IN THE COURT OF APPEALS OF IOWA
No. 18-0217
Filed January 23, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KEVIN LEON POSTER, II,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
District Associate Judge.
A defendant appeals his conviction for operating while intoxicated,
challenging the suppression ruling. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., Mullins, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
TABOR, Presiding Judge.
Kevin Poster appeals his conviction for operating while intoxicated (OWI).
He contends the district court should have suppressed his breath test results
because the arresting officer misinformed him about the right to an independent
chemical test under Iowa Code section 321J.11 (2017). Because the record
contains ample evidence to support the district court’s alternative finding Poster
was driving under the influence, we find any error in denying his motion to suppress
was harmless. Accordingly, we affirm.
I. Facts and Prior Proceedings
Patrolling the 500 block of Welch Avenue in Ames just before 2:30 a.m.,
Iowa State University Police Officer Natasha Greene noticed a red Pontiac almost
ran a stop sign and proceeded dangerously through a busy intersection without
yielding the right of way.1 She pulled over the driver, Poster.
From the smell of alcohol on his breath and the way he answered her
questions, Officer Greene suspected Poster was intoxicated. Poster admitted
drinking two or three thirty-two ounce mugs of Bud Light in a ninety-minute span.
He described his level of intoxication as a “warm stomach” feeling and “having fun.”
Officer Greene administered field sobriety tests, during which Poster
exhibited signs of impairment. Officer Greene arrested him for OWI. She took
Poster to the armory building to book him into jail. Video monitors in the building
captured their interactions. Poster agreed to provide a breath sample on the
DataMaster, which showed his blood alcohol content at .138—over Iowa’s legal
1
In her report, the officer noted others cars were present and the location was “typically a
well-traveled pedestrian intersection due to its close proximity to the bar area of Ames.”
3
limit of .08. The State charged Poster by trial information with OWI first offense, a
serious misdemeanor, in violation of Iowa Code section 321J.2.
Before trial, Poster moved to suppress the DataMaster result, asserting
Officer Greene violated his right under section 321J.11 to an independent chemical
test by misinforming him when blood and urine tests are available to suspects.
At the suppression hearing, Officer Greene described Poster as being “very
chatty” while she filled out paperwork—asking her more questions “than I think any
other arrestee or defendant I’ve met.” She estimated he posed twenty questions
on a range of different topics. Greene read Poster the implied-consent advisory.
After several minutes, she asked him to sign the consent form. On the video
recording, Poster can be heard saying he found the advisory to be “super
confusing.” Before he provided a breath sample, Poster broached the subject of
other forms of testing.2
POSTER: How often do you guys take, like, blood tests or,
like, urine tests?
GREENE: Urine tests reasonably often.
POSTER: [Unintelligible.]
GREENE: If we think there are other drugs on board.
POSTER: That’s what I was gonna ask when I was over here.
I was, like, if someone was, like, high or something what would you
make them do? [unintelligible] . . . okay. That has to be, like, a
different—Would they come into this room or what would they?
GREENE: They wouldn’t pee in this room but, yes, they’d
come into this room and then we’d go down to the bathroom and get
a sample.
POSTER: But blood test wise? You’d, like, [unintelligible.]
GREENE: Oh no, we don’t do blood tests here.
POSTER: I was gonna say [unintelligible.]
GREENE: Blood tests in Iowa, most often, is if they are unable
to give a breath, like, if they are hospitalized. And if it’s a serious
2
The conversation was informal, and Greene and Poster occasionally spoke over each
other. There is no transcript, but we can discern the following from the video recording.
4
accident involving injury or death, then you can request a PBT or
request a [cough]—
POSTER: Sure.
GREENE: —blood sample. Alright [unintelligible].
Officer Greene testified she did not view Poster’s question as a request for
an independent test. She did not advise Poster further about his right to an
independent chemical test.
The district court denied the motion to suppress, concluding the
conversation could not reasonably be construed as a request for an independent
chemical test. The court offered this analysis:
He was making conversation about what happens to people who get
arrested for operating while intoxicated. I don’t think and I find he
was not specifically asking or requesting anything about his case in
particular. It was just a general question about, obviously I’m taking
a breath test here. When do you do urine and blood tests? And the
officer gave a relatively decent answer. It wasn’t perfect because
there are times when you can do an independent blood test and there
are times you can force people to give blood, but I think she was
attempting to answer his question. So, first of all, I don’t think that
his statements could reasonably be construed as a request for an
independent blood test.
Then on the second point about whether or not the officer
gave him such misleading information that he couldn’t even ask for
an independent blood test that he thought that was impossible,
again, that conversation I don’t think had anything to do with his case.
They were all questions and conversations about OWI arrests in
general. When he was asking about when blood is taken or when
the police ask for blood or urine, I don’t think that was related to his
particular case. He was just asking in general when would you do
blood and urine as opposed to a breath test.
Poster waived his right to a jury trial and agreed to the district court
adjudicating his guilt based on the minutes of testimony. The court then concluded
“by evidence beyond a reasonable doubt” Poster “operated a motor vehicle on
October 13, 2017, in Story County, Iowa; and, secondly, that when he did so he
was intoxicated.” The court specifically found Poster “was both under the influence
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of alcohol and had a breath or blood alcohol level of over .08 percent or more.”
Poster appeals, challenging only the suppression ruling.
II. Scope and Standard of Review
Because the district court based its ruling on Iowa Code section 321J.11,
we review the ruling on the motion to suppress for correction of legal error. State
v. Lukins, 846 N.W.2d 902, 906 (Iowa 2014) (citing State v. Madison, 785 N.W.2d
706, 707–08 (Iowa 2010); State v. Fischer, 785 N.W.2d 697, 699 (Iowa 2010)).
But reversible error may not be predicated upon a ruling admitting or excluding
evidence unless a substantial right of the party is affected. State v. Tyler, 867
N.W.2d 136, 166 n.14 (Iowa 2015) (quoting Iowa R. Evid. 5.103).
III. Analysis
Poster disputes the suppression ruling for two reasons. First, he asserts
his question about urine and blood testing could be reasonably construed as a
request for an independent chemical test. Second, he believes his question
obligated Officer Greene to give him accurate information about his right to an
independent test. Because her answer was misleading, Poster maintains the
officer violated his statutory right.
Under Iowa Code section 321J.11, when a peace officer has reasonable
grounds to believe a person has been operating while intoxicated, the peace officer
“may take a specimen of a person’s breath or urine for the purpose of determining
the alcohol concentration.” The section also provides, “The person may have an
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independent chemical test or tests administered at the person’s own expense in
addition to any administered at the direction of a peace officer.”3
Our supreme court interpreted this statutory right liberally in Lukins,
explaining, “[A]ny 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.” 846 N.W.2d at 909. A detainee is not “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.” Id.
Lukins set out an officer’s obligation when a detainee requests an
independent chemical test in less than precise language.4 Id. When confronted
with a “legally imprecise request,” the officer “cannot stand mute and deny the
request.” Id. “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.” Id.
Here, at the point of signing the implied consent form, Poster continued his
inquisitive conversation with Officer Greene by asking “how often” the police take
blood or urine tests. He also asked how those tests were administered.
On appeal, Poster argues under Lukins his questions about urine and blood
tests “should have been considered a request for independent testing by the
3
“Officers are not required to advise a defendant of the statutory right to an independent
test.” State v. Wooton, 577 N.W.2d 654, 655 (Iowa 1998).
4
In Lukins, the court found a detainee who stated, “That seems really f***ing high. For
four f***ing beers that seems . . . that seems really high” and asked, “[C]an I get a re-
check . . . ? . . . . Can I get a re-blow . . . ?” after submitting a breath sample, while not
entitled to a second Breathalyzer test, had adequately conveyed he wanted another test.
846 N.W.2d at 909–10. Under those circumstances, the officer “should have informed
Lukins that he was entitled to an independent chemical test at his ‘own expense in
additional to’ the Breathalyzer test.” Id. at 910.
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officer.”5 He asserts, “At the very least the officer had an obligation to provide
Poster with accurate information regarding independent testing because of his
questions.”
The State contends Poster was just “curious” about when police would
request a sample of urine or blood rather than breath and did not request
independent testing under section 321J.11. Officer Greene’s response, in the
State’s view, was appropriate and “she had no duty to digress into other
explanations that did not bear on his actual inquiry.”
Curiosity or fact-finding—whatever prompted Poster’s questions about
urine or blood testing—the Lukins court was clear it “disapproved of peace officers
impeding detainees’ access to rights guaranteed by the legislature.” Id. But we
need not reach that question here.
Regardless of whether the district court should have suppressed the
Datamaster result, we accept the State’s argument that reversal is unwarranted.
The district court specifically found the minutes contained proof beyond a
reasonable doubt under two independent theories for OWI. See Iowa Code
§ 321J.2(1)(a) (“under the influence of an alcoholic beverage”), (b) (“having an
alcohol concentration of .08 or more”). “[A] person is ‘under the influence’ when
the consumption of alcohol affects the person’s reasoning or mental ability, impairs
a person’s judgment, visibly excites a person’s emotions, or causes a person to
5
Poster also points to the special concurrence in State v. Daniel, No. 16-0891, 2017 WL
706339, at *3 (Iowa Ct. App. Feb. 22, 2017) (Tabor, J., specially concurring), finding an
officer’s statement that he would only give a blood test “if he thought drugs were involved”
was potentially misleading and suggesting once a suspect asked about the possibility of
independent chemical testing, the officer had an obligation to inform the suspect of his
rights under section 321J.11, or at a minimum, not to provide misinformation chilling any
request for independent testing.
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lose control of bodily actions.” State v. Truesdell, 679 N.W.2d 611, 616 (Iowa
2004).
Substantial evidence supported the court’s under-the-influence finding.
Poster’s careless driving caught the officer’s attention. See id. He acknowledged
consuming a significant amount of alcohol in a relatively short timeframe before
the traffic stop. See id. The results of the field sobriety tests indicated intoxication.
And his chatty demeanor at the armory showed a visible excitement of his
emotions. See id. Under these circumstances involving a bench trial on stipulated
minutes of testimony, the district court’s ruling admitting the DataMaster test result
did not affect Poster’s substantial rights. See Tyler, 867 N.W.2d at 166 n.14. Any
violation of Poster’s rights under section 321J.11 was harmless error. Cf. State v.
Garrity, 765 N.W.2d 592, 598 (Iowa 2009) (analyzing violation of Iowa Code
section 804.20). Poster is not entitled to a new trial.
AFFIRMED.