IN THE COURT OF APPEALS OF IOWA
No. 19-0849
Filed May 13, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
THOMAS C. CASPER,
Defendant-Appellant.
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Appeal from the Iowa District Court for Cerro Gordo County, Adam Sauer,
District Associate Judge.
Defendant appeals his conviction for operating a motor vehicle while
intoxicated, first offense. AFFIRMED.
Scott A. Michels of Gourley, Rehkemper & Lindholm, P.L.C., West Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.
A state trooper stopped a motorcycle traveling at 110 miles an hour in a
fifty-five-mile-per hour zone. The trooper observed signs of intoxication in vehicle
operator Thomas Casper and administered a field sobriety and preliminary breath
test. The trooper arrested Casper.
At the jail, Casper was given a DataMaster breathalyzer test, which
registered blood alcohol content over the legal limit. As Casper was leaving, he
asked the trooper if he could take another DataMaster test. The trooper
responded, “Sure.” He “asked [Casper] for his driver’s license,” and Casper said,
“No, no, I don’t want to.” Casper left with his wife.
The State charged Casper with operating a motor vehicle while intoxicated,
first offense. See Iowa Code § 321J.2(1) (2018). The trial information cited all
three alternatives for committing the crime: (a) “[w]hile under the influence of an
alcoholic beverage or drugs or a combination of such substances”; (b) “[w]hile
having an alcohol concentration of .08 or more; or (c) “[w]hile any amount of a
controlled substance is present in the person as measured in the person’s blood
or urine.” Id. § 321J.2(1)(a)–(c).
Casper moved to suppress the DataMaster test result on the ground that he
was not “advised that he could have an independent chemical test done at his own
expense” as authorized by Iowa Code section 321J.11. See State v. Smith, 926
N.W.2d 760, 761–63 (Iowa 2019) (“[T]he statute creates a right for a detainee or
arrestee to have an ‘independent chemical test or tests administered at the
person’s own expense in addition’ to any test administered at the direction of an
officer.” (citations omitted)). Following a hearing, the district court denied the
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motion. Casper waived his right to a jury trial and stipulated to a trial on the minutes
of testimony. The district court found him guilty under the first and second
alternatives of section 321J.2(1).
On appeal, Casper reprises his argument that the trooper had an obligation
to “advise him” of his entitlement “to an independent chemical test at his own
expense.” He asserts “[t]he scenario presented in this case is nearly identical to
that presented in [State v.] Lukins, [846 N.W.2d 902 (Iowa 2014)].” Our review is
on error. See Lukins, 846 N.W.2d at 906 (“We review for correction of errors at
law a district court’s ruling on a motion to suppress based on the interpretation of
a statute.”).
In Lukins, the court held, where the defendant made statements that,
“reasonably construed, indicated he wanted another test, even if he was mistaken,
unsure, or unaware of the way in which the additional test would be conducted”,
the police chief “should have informed [him] that he was entitled to an independent
chemical test at his ‘own expense in addition to’ the Breathalyzer test.” Id. at 909–
10. In the absence of the advice, the court concluded the breathalyzer test result
should have been suppressed. Id. at 911.
The court proceeded to a harmless error analysis. Id. There as here, the
State charged the defendant with more than one alternative for committing the
crime. The State argued the evidence was sufficient to affirm the conviction under
the “under the influence” alternative even without the breathalyzer result. Id. at
911–12. The supreme court disagreed. The court noted that the district court’s
verdict “did not indicate under which provision it determined [the defendant] was
guilty” and the order was “devoid of fact findings.” Id. at 912. Because it was
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unclear whether the district court “relied on the erroneously admitted test results”
or “on all the other circumstances suggesting [the defendant] was operating while
intoxicated,” the supreme court reversed and remanded the judgment. Id.
The same problem is not present here. The district court applied the “under
the influence” alternative of section 232J.2(1)(a), in addition to the “alcohol
concentration” alternative of section 232J.2(1)(b). After listing the relevant factors
for determining whether a driver is “under the influence,” the court found:
While visiting with the Defendant, [the trooper] noticed that the
Defendant had blood shot and watery eyes, appeared unsteady on
his feet and spoke with a slur and thick tongue. While in his patrol
vehicle, [the trooper] could smell the odor of an alcoholic beverage
coming from Defendant. Defendant admitted to consuming a couple
alcoholic beverages. Defendant submitted to the horizontal gaze
nystagmus field sobriety test, which resulted in six of six clues.
Defendant stated that he would not be able to complete the walk and
turn and one-leg stand test due to physical restrictions. All of those
factors together demonstrate that due to the ingestion of an alcoholic
beverage, Defendant’s reason or mental ability was affected, his
judgment was impaired and he had to any extent, lost control of his
bodily actions or motions.
Based on these findings, the court determined, “At the time of operation of the
motorcycle, the Defendant was under the influence of an alcoholic beverage.” The
court’s findings and determination are supported by substantial evidence.
Accordingly, we conclude that, even if the trooper had an obligation to advise
Casper about his entitlement to an independent test at his own expense, his failure
to do so amounted to harmless error. See State v. Poster, No. 18-0217, 2019 WL
319846, at *4 (Iowa Ct. App. Jan. 23, 2019) (concluding “[a]ny violation of [the
defendant’s] rights under section 321J.11 was harmless error” in light of the district
court’s “under-the-influence finding,” which was supported by substantial
evidence).
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We affirm the district court’s denial of Casper’s suppression motion and the
court’s imposition of judgment and sentence for operating while intoxicated, first
offense.
AFFIRMED.