Opinion
No. 2-592 / 01-1872
Filed August 28, 2002
Appeal from the Iowa District Court for Clayton County, John J. Bauercamper and Nathan A. Callahan, Judges.
Defendant appeals from the judgment and sentence entered upon his conviction of operating while intoxicated.
AFFIRMED.
Andrew P. Nelson of Meyer, Lorentzen Nelson, Decorah, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Kevin H. Clefisch, County Attorney, for appellee.
Considered by Hecht, P.J. and Vaitheswaran and Eisenhauer, JJ.
Stanley Allen Bernhard appeals from the judgment and sentence entered upon his conviction of operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2001). He contends he did not voluntarily consent to give a blood test, the drawing of his blood was in violation of his procedural and substantive due process rights, and the evidence is insufficient to support his conviction. We affirm.
I. Background Facts and Proceedings . When Iowa State Trooper Kevin Naumer went to investigate a one-vehicle accident in February 2001, he discovered Bernhard's truck upside down with Bernhard trapped inside. Numerous empty beer cans and an open bottle of peppermint schnapps were strewn on the ground around the truck. Trooper Naumer noticed the odor of alcoholic beverages inside the vehicle.
Bernhard was taken to the hospital for treatment of his injuries. His head was immobilized in a C-collar on a backboard. Trooper Greg Rude went to the hospital to request a blood sample for chemical testing. From their conversation, Trooper Rude believed Bernhard's speech was slurred. Trooper Rude also observed Bernhard's eyes to be bloodshot and watery, and smelled the odor of an alcoholic beverage emanating from Bernhard.
After discussing chemical testing, Trooper Rude read the implied consent form to Bernhard and requested a blood sample. Bernhard verbally agreed to submit to the test. Trooper Rude wrote "unable to sign — being treated for injuries" on the line provided on the advisory form for the driver's signature. Trooper Rude asked a nurse to draw a blood sample. The nurse asked Bernhard whether she had his permission to withdraw a sample and he assented by extending his arm. Chemical testing showed Bernhard's blood alcohol concentration was .208.
Bernhard was charged with operating while intoxicated, in violation of Iowa Code section 321J.2 (2001). He filed a motion to suppress the results of his blood test. Following an evidentiary hearing, the district court denied Bernhard's request. Bernhard was found guilty and sentenced to sixty days in the county jail with all but two days suspended, one year of probation, and a $1000 fine.
II. Voluntary Consent . Iowa Code section 321J.6(2) states:
The peace officer shall determine which of the three substances, breath, blood, or urine, shall be tested. Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit, and section 321J.9 applies. A refusal to submit to a chemical test of blood is not deemed a refusal to submit, but in that case, the peace officer shall then determine which one of the other two substances shall be tested and shall offer the test.
Bernhard argues his consent to the blood test was not voluntarily given because he was erroneously advised that a refusal to submit would result in a license revocation. We review interpretations of Iowa's implied consent statute for errors at law. State v. McCoy, 603 N.W.2d 629, 630 (Iowa 1999).
Section 321J.8 requires a peace officer to advise a driver who has been requested to submit to a chemical test that refusal to submit to the test, or a positive test result, will lead to license revocation. This section does not delineate the different types of chemical tests. Because reasonable minds may differ as to the meaning of "chemical tests" in section 321J.8, in interpreting the statute we consider (1) the language of the statute; (2) the objects sought to be accomplished; (3) the evils sought to be remedied; and (4) a reasonable construction that will effectuate the statute's purpose rather than one that will defeat it. Voss v. Iowa Dept. of Transp., 621 N.W.2d 208, 211 (Iowa 2001). We must also consider statutes dealing with the same subject matter and attempt to harmonize them. State v. Harrison, 325 N.W.2d 770, 772 (Iowa Ct.App. 1982).
The purpose of section 321J.8 is to provide a driver with a basis for evaluating whether to submit to a chemical test. Voss, 621 N.W.2d at 212. We find this purpose is not frustrated where a driver is not advised that refusal to submit to a blood test would not result in the revocation of his driver's license pursuant to section 321J.9. If a blood test is refused, the peace officer is required to offer either a urine or breath test. If the driver refuses either of these tests, license revocation occurs pursuant to sections 321J.6(2) and 321J.9. It makes little sense to require a peace officer to inform a driver that refusal to submit to a blood test would not result in license revocation when the officer would then be under a duty to request another test, and refusal to submit to that test would result in license revocation. Accordingly, we find the evidence of Bernhard's blood test should not be suppressed.
The provision in section 321J.6(2) concerning refusal to submit to a blood test is designed to offer an alternative test in cases where the defendant has religious objections to a blood test. State v. Dulaney, 493 N.W.2d 787, 789 (Iowa 1992).
Bernhard contends the State failed to meet its burden of proving his consent was voluntary. He argues his consent was coerced by a false threat of license revocation. In determining whether Bernhard's submission to the blood test was voluntary, our review is de novo. See State v. Gravenish, 511 N.W.2d 379, 381 (Iowa 1994).
When a person who has submitted to a chemical test asserts that the submission was not voluntary, we evaluate the totality of the circumstances to determine whether the decision was freely made or coerced. Id. For a consent to be valid, it must be voluntary and uncoerced. Id. When coercion is alleged, the State must prove the absence of undue pressure or duress by a preponderance of the evidence. Id. Statements are voluntary if they are the product of essentially unconstrained choice, made by a defendant whose will was not overcome or whose capacity for self-determination was not crucially impaired. Id.
Deception by law officers will not, standing alone, render consent involuntary as a matter of law. Id. Rather, it is merely one factor bearing on the question of voluntariness. Id.
Other factors to consider include the defendant's age and prior criminal history, if any; whether he was under the influence of drugs or alcohol; whether he ably understood and responded to questions; his physical and emotional reaction to interrogation; and whether physical punishment was used or threatened. Id.
Bernhard alleges his consent was involuntary because Trooper Rude told him refusal of the blood test would result in license revocation. We have already found this statement was not in error. Given the circumstances of this case, we find Bernard's consent to submit to a blood test was voluntary and uncoerced.
Bernhard also argues his consent was not voluntary because no proper written request for a chemical test was made. Bernhard was being treated for injuries at the time implied consent was invoked. Trooper Rude read the written advisory to Bernhard, who verbally consented to submit to a blood test. The fact that Bernhard's consent was oral did not make the results inadmissible. See State v. Epperson, 264 N.W.2d 753, 756 (Iowa 1978).
Finally, Bernhard contends drawing a sample of his blood without a warrant violated his procedural and substantive due process rights. However, the implied consent law constitutes an exception to the warrant requirement of the Fourth Amendment of the United States Constitution. State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991).
III. Sufficiency of the Evidence . Bernhard argues the district court erred in finding him guilty of operating while intoxicated because there was insufficient evidence as a matter of law to support the verdict. We review challenges to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). As we have found the results of the blood test were admissible and showed a blood alcohol content of .208, we need not consider what the evidence would have shown without the blood test. We find sufficient evidence supports the verdict.
AFFIRMED.