Opinion
No. 5-538 / 04-1750
Filed November 9, 2005
Appeal from the Iowa District Court for Hardin County, Kim M. Riley, District Associate Judge.
Justin Hoversten appeals from his conviction for operating while intoxicated, second offense. AFFIRMED.
David R. Johnson, of Brinton, Bordwell, Johnson, Clarion, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Richard N. Dunn, County Attorney, and Harry L. Haywood III, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Justin Hoversten appeals from his conviction for operating while intoxicated (OWI), second offense. We conclude the district court properly determined the arresting officer did not violate Hoversten's right to call a relative or attorney under Iowa Code section 804.20 (2003), and therefore affirm.
Background Facts and Proceedings.
In the early morning hours of February 29, 2004, Iowa Falls Police Sergeant McDaniel stopped a vehicle driven by Justin Hoversten because its license plate was expired. McDaniel believed Hoversten to be under the influence of alcohol and requested that he perform field sobriety tests and take a preliminary breath test. Based on the results of these tests, McDaniel arrested Hoversten and took him to the police department.
At the department, McDaniel asked Hoversten for a breath specimen to determine his alcohol content. Hoversten consented to provide the specimen and signed a form to indicate his consent. McDaniel thereafter began to ready the DataMaster for testing. Just as Hoversten approached the machine, his cell phone, which was lying on a counter, rang. Hoversten asked McDaniel if he could answer the telephone. McDaniel replied, something to the effect of, "yes, but it had better be quick." Hoversten then walked over to the phone to silence it, and proceeded to give the breath test. This test resulted in a blood alcohol concentration of .17.
Based on this incident, the State charged Hoversten with OWI, second offense. Prior to trial, Hoversten filed a motion to suppress, alleging among other things that the State violated his rights under Iowa Code section 804.20 to place a phone call. The court denied the motion to suppress, and later found him guilty as charged following a bench trial on the stipulated minutes of testimony. The court sentenced Hoversten to seven days of incarceration, and fined him $1,500. Hoversten appeals, contending the court incorrectly overruled his motion to suppress the results of the DataMaster test.
Scope of Review.
We review the district court's interpretation of Iowa Code section 804.20 for errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997) (citing State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990)). If the district court properly applied the law and there is substantial evidence to support its findings of fact, we will uphold its ruling on a motion to suppress. Id. Merits.
Iowa Code section 804.20 is Iowa's statutory right to call an attorney or a family member. It provides:
Any peace officer . . . having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person's family or an attorney of the person's choice, or both. Such person shall be permitted to make a reasonable number of telephone calls to secure an attorney. . . . If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. . . . A violation of this section shall constitute a simple misdemeanor.
Section 804.20 does not require a police officer to inform a defendant of his right to contact counsel or a family member. See State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005); State v. Stroud, 314 N.W.2d 437, 439 (Iowa 1982). An officer may not, however, tell a defendant he does not have such a right, and once the right is invoked the officer must give the defendant the opportunity to call or consult with a family member or attorney. See State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978).
Hoversten primarily relies on our supreme court's ruling in Didonato v. Iowa Dep't. of Transp., 456 N.W.2d 367 (Iowa 1990). There, the court addressed a situation in which, after being transported to the police station, Didonato demanded to place a telephone call, but was denied the opportunity while the arresting officer filled out an implied consent form. Id. at 368. Didonato later signed the form and was requested to provide a urine sample for testing. Id. On appeal from his administrative license revocation proceeding, the court stated
the statute does not require an officer to tell an arrested person that he has a right to counsel. But when a request to make a phone call is made we do not believe the statutory purpose is met if the officer stands mute and refuses the request. Nor would there be any difference if the request is to call a friend. In these circumstances the statute is implicated and the officer should then advise for what purpose a phone call is permitted under the statute. If the individual still wants to make a phone call, subject to the limitations announced in Vietor, 261 N.W.2d at 832, the officer must allow the call, or place it for the arrested individual pursuant to the terms of section 804.20.
Id. at 371 (citations omitted). Hoversten maintains his question to Sergeant McDaniel in response to his ringing cell phone "implicated" Iowa Code section 804.20 and thus required the officer to both allow him to answer the phone and to inform him of his rights to call a family member or lawyer, or both.
We find the facts of this case fully distinguishable from those presented in Didonato. There, Didonato made an unequivocal request to place a phone call. That request was, at least initially, explicitly denied. The supreme court found this to be error. Here, Hoversten made no such request, either explicitly or implicitly. As the district court noted in its suppression ruling,
Defendant at no time voiced a desire to call an attorney, family member, or friend. There is no evidence as to who called Defendant on his cell phone when it rang. There is no evidence that Defendant requested that someone call him at the Police Department to advise him, nor is there evidence that some friend, attorney, or family member was seeking to reach Defendant in order to consult with him.
In analyzing the sufficiency of Hoversten's "request," we apply "an objective consideration of the statements and conduct of the arrestee and peace officer, as well as the surrounding circumstance." Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997). Nothing about this series of events implicated the language or intent of section 804.20.
A plain reading of the statute supports the district court's position. As noted, section 804.20 requires a peace officer to "permit that person . . . to call, consult, and see a member of the person's family or an attorney of the person's choice, or both." Section 804.20 further speaks to "making" a phone call. It does not address a situation where an individual is in custody and receives an apparently random phone call. Hoversten clearly did not request to "make" a phone call.
In addition, while we are not required to determine whether a peace officer is obligated to allow an arrestee to accept an apparently unsolicited phone call while in custody, we simply note here that Hoversten was not denied any such right. In fact, Sergeant McDaniel told Hoversten "yeah" when asked whether he could accept the phone call. The evidence would not support a finding that Hoversten was forbidden from answering the phone and to thus "consult" with whomever was calling, his subjective feelings notwithstanding.
Accordingly, we conclude the police did not violate Hoversten's statutory right to contact a family member or attorney. We therefore affirm his conviction for OWI, second offense.