Opinion
No. 194 / 01-0158
Filed February 26, 2003
Appeal from the Iowa District Court for Dubuque County, Richard R. Gleason, Judge.
The State seeks discretionary review of an order suppressing blood-test results in an OWI prosecution. The court of appeals reversed. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, Fred H. McCaw, County Attorney, and Mark Hostager, Assistant County Attorney, for appellant.
Thomas J. Straka of Day Hellmer, P.C., Dubuque, for appellee.
On review from the Iowa Court of Appeals.
The State seeks discretionary review of an order suppressing blood-test results in the prosecution of defendant, Richard Vern Bartlett, for OWI. The district court sustained Bartlett's motion to suppress on the basis that the implied-consent advisory given to him by a deputy sheriff incorrectly stated that if he did not provide a sample of blood his license would be revoked. Discretionary review was granted, and the court of appeals reversed the order suppressing the evidence. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals reversing the district court's suppression order.
On August 29, 2000, Bartlett was involved in a single-car accident. He sustained minor injuries and was taken to a hospital for treatment. At the hospital, he was interviewed by a deputy sheriff and admitted that he had consumed two glasses of peppermint schnapps. At that time, the deputy administered a preliminary breath test, which showed a blood-alcohol level above .10. The deputy then requested a sample of blood for chemical testing and read to Bartlett the implied-consent advisory contained on a form regularly used for the initiation of the implied-consent procedure for chemical testing.
The portion of the implied-consent form read to defendant was as follows:
The Implied Consent Law requires that a peace officer advise the person of the following:
Refusal to submit to the withdrawal of a body specimen for chemical testing will result in revocation of your privilege to operate a motor vehicle for one year if you have not previously been revoked within the previous twelve years under the implied consent or drunk driving laws of this state, or for two years if you have one or more revocations within the previous twelve years. If you are under age 18, the revocation will be for the above periods, or until you reach age 18, whichever is longer.
The deputy then handed the implied-consent form to Bartlett who signed the form indicating consent to a withdrawal of blood. The resulting chemical test revealed a concentration of .122.
In his motion to suppress, Bartlett urged that, because the implied-consent advisory was given with respect to a request for blood, it misadvised him as to the consequences of refusing the test. He correctly notes that, under the provisions of Iowa Code section 321J.6 (1999), a refusal to provide a sample of blood is not a basis for a license revocation. If the subject refuses to consent to a withdrawal of blood, the officer must then request either a breath sample or a urine sample. Refusal to submit to that alternative request does result in a revocation of defendant's license. Iowa Code § 321J.8(1). The district court found that the deputy had made an unwarranted threat of a license revocation and that, consequently, Bartlett's consent to withdrawal of blood was involuntary. The court ordered the test results suppressed.
We conclude that the court of appeals decision reversing the order suppressing the test results was correct based on our decision in State v. Bernhard, ___ N.W.2d ___, ___ (Iowa 2003) (also decided this date). In Bernhard we hold that advising a subject of implied-consent testing that a refusal of a chemical test will result in license revocation, although inaccurate with respect to a request for blood, is not of sufficient detriment to the subject being tested to warrant the suppression of the test results. Consistent with Bernhard, the court of appeals correctly ruled that the district court's suppression order in the present case was unwarranted and must be reversed.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.