concurring in part and dissenting in part.
I concur in part and dissent in part.
I agree with the majority that the stop was justified if the testimony of the arresting officer is believed. I give weight to the fact findings of the trial court on the issue of credibility of witnesses, and I accept the officer’s version of events and affirm on this issue.
I depart from the majority in their interpretation of Iowa Code section 321J.11. The issue is whether the statute directs the defendant had to have submitted to a chemical test requested by an officer before he was entitled to the independent test provided for in section 321J.11.
*52The majority considers this an issue of first impression1 and looks to State v. Zoss, 360 N.W.2d 523, 525 (S.D.1985), and People v. Dewey, 172 Mich.App. 367, 372-73, 431 N.W.2d 517, 520 (1988), for guidance. In Zoss, the South Dakota court determined their statute required a defendant to take a state-administered test before allowing the defendant to have an independent test. In Dewey, the Michigan Court of Appeals made the same determination as to their statute.
The question is one of interpreting the Iowa statute. Decisions from other jurisdictions are instructive only where the language of the other states’ statutes is the same or similar to the language of the Iowa statute.
Iowa Code section 321J.11, in relevant part, provides:
The person may have an independent chemical test or tests administered at the person’s own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer....
Iowa Code § 321J.11 (1993) (emphasis supplied).
Nothing in this language gives any clear direction a driver’s own test is contingent on the driver. taking a test requested by an officer.
The words providing for an independent test are not preceded by a requirement that an officer’s request for a test to be administered first be made.
These factors clearly distinguish the Iowa statute from the Michigan and South Dakota statutes.
The South Dakota statute provides:
The person tested ... shall be permitted to have a physician, laboratory technician, registered nurse, physician’s assistant or medical technologist of his own choosing administer the chemical analysis in addition to the one administered at the direction of the law enforcement officer.
Zoss, 360 N.W.2d at 524-25 (emphasis added).
The Michigan statute provides:
A person who takes a chemical test administered at the request of a peace officer,
[[Image here]]
Dewey, 431 N.W.2d at 510.
The Iowa legislature crafted the statute by first providing for the independent test before a reference was made to a state-ordered test. The language “in addition to any" test also conveys to me one may or may not be given. (Emphasis supplied.) Because State v. Oakley, 469 N.W.2d 681, 683 (Iowa 1991), appears to pave the way for the state’s testing of a sample used by the defendant in a test, this negates any argument the state might make that it was prejudiced by this interpretation.
Furthermore, a driver who had only an independent test would be subject to revocation under Iowa Code section 321J.9.
. Ginsberg v. Iowa Dep 't of Transp., Motor Vehicle Div., 508 N.W.2d 663 (Iowa 1993), in addressing the issue of refusal to take a blood test, the Iowa court in what appears to be dicta citing Iowa Code section 321J.11 says: "An arrestee cannot demand that the independent test be performed before the test requested by the police officer. ..."