Opinion
No. 1-848 / 01-0369.
Filed February 6, 2002.
Appeal from the Iowa District Court for Des Moines County, MARK KRUSE, District Associate Judge.
Defendant appeals his conviction for operating while intoxicated, first offense, in violation of Iowa Code sections 321J.2(1)(a), (b), and (2)(a). AFFIRMED.
J. Bryan Schulte, Burlington, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, Patrick C. Jackson, Des Moines County Attorney, Tim Davis and Mona Clarkson, Assistant County Attorneys, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
John Kienast appeals his judgment and sentence for operating while intoxicated, first offense. He contends the arresting reserve officer was not a peace officer whose knowledge could be imputed to the officer administering the chemical test and, accordingly, the district court should have suppressed his intoxilyzer test result. We disagree and affirm.
I. Background Facts and Proceedings
Phillip Getchell, a reserve deputy with the Des Moines County Sheriff's department, was patrolling a freeway with his partner when he observed a vehicle drive off the road three times. Getchell stopped the car and noted that the driver, Kienast, smelled of alcohol and had slurred speech. Kienast told the officer he had in fact been drinking that night.
Noting Kienast was also unsteady on his feet, Getchell administered the fingertip field sobriety test and a preliminary breath test. Kienast failed both and was arrested.
Getchell transported Kienast to Burlington for an intoxilyzer test. Sergeant Gregory Allen administered the test without independently determining that Kienast was intoxicated. The machine registered a blood alcohol concentration of .158.
The intoxilyzer machine at the Des Moines County jail was broken.
The State charged Kienast with operating while intoxicated, first offense, in violation of Iowa Code sections 321J.2(1)(a), (b), and (2)(a). He was arraigned on July 7, 2000. On August 31, 2000, Kienast filed a motion to suppress the chemical test result on the ground that Officer Allen lacked reasonable grounds to believe Kienast was driving while intoxicated when he administered the intoxilyzer test. The district court denied the motion. The court adjudged Kienast guilty on the minutes of testimony and sentenced him to a jail term. This appeal followed.
The sole legal issue is whether Getchell met the statutory definition of a peace officer so that his observations of Kienast could be imputed to Sergeant Allen, affording Allen reasonable grounds to believe Kienast was intoxicated. Our review of this issue is for errors of law. State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994).
II. Waiver of Error
As a preliminary matter, the State contends Kienast waived error by filing his motion to suppress more than forty days after his arraignment, without pleading good cause for this late filing. See Iowa R. Crim. P. 10 (3). Although the State did not raise this timeliness issue in its resistance to Kienast's motion to suppress, "we will uphold a ruling of the court on the admissibility of evidence on any ground appearing in the record, whether urged below or not." State v. McCowen, 297 N.W.2d 226, 227 (Iowa 1980); accord State v. Ball, 600 N.W.2d 602, 604 (Iowa 1999).
Kienast's motion to suppress was filed fifty-five days after arraignment. He averred that the factual basis of his motion was only discovered during an administrative license revocation hearing held just two days before the deadline to file his motion. This reason constitutes good cause for his late filing. While the State's minutes of testimony filed earlier might have apprised Kienast that Getchell was only a reserve officer, those minutes made no reference to his reserve status, stating only that he was a "deputy with the Des Moines County Sheriff's Department." Cf. State v. White, 530 N.W.2d 77, 84 (Iowa Ct. App. 1994) (noting minutes apprised defendant of evidence that was subject of motion to suppress). As Kienast could not have gleaned this relevant information from the State's criminal filings, we reject the State's waiver contention and proceed to the merits of his motion to suppress.
III. Status as a Peace Officer
Iowa Code section 321J.1(8) defines a "peace officer" as:
a. A member of the Iowa state patrol.
b. A police officer under civil service as provided in chapter 400.
c. A sheriff.
d. A regular deputy sheriff who has had formal police training.
e. Any other law enforcement officer who has satisfactorily completed an approved course relating to motor vehicle operators under the influence of alcoholic beverages at the Iowa law enforcement academy or a law enforcement training program approved by the department of public safety.
(emphasis added). The record contains substantial evidence that Getchell was a peace officer within the meaning of Iowa Code section 321J.1(8)(e). A Des Moines County sheriff testified that all reserve officers are required to have at least 150 hours of training as well as continuing training. He stated Getchell was current on his training requirements, having completed several Iowa Law Enforcement Academy-approved courses on drunk driving. Getchell confirmed this testimony, stating he had completed courses on OWI recognition and OWI field sobriety testing and had taken other courses to maintain his certification as a reserve officer. Cf. State v. Palmer, 554 N.W.2d 859, 865 (Iowa 1996) (noting officer administering field sobriety tests was not trained and certified to administer tests). Documentary evidence bears this out. In 1993, the Iowa Law Enforcement Academy issued Getchell a "certificate of completion and competency" on standardized field sobriety tests, signed by the director of the academy and the instructor. In addition, after this incident in May 2000, a community college issued him a certificate attesting to his satisfactory completion of a "driving unimpaired" course.
As there was substantial evidence Getchell was a peace officer, his observations of Kienast could be imputed to Officer Allen. See State v. Owens, 418 N.W.2d 340, 342 (Iowa 1988) (noting well-established rule that knowledge of one officer is presumed shared by all acting in concert). Cf. Klarenbeek v. Iowa Dep't. of Transp., 555 N.W.2d 475, 478 (Iowa 1996); Palmer, 554 N.W.2d at 868 (holding shared knowledge rule could not be used to determine intoxication under implied consent statute when arresting officer was not qualified as peace officer). With this imputed knowledge, Officer Allen possessed reasonable grounds to believe Kienast was intoxicated. Therefore, the result of the intoxilyzer test he administered did not need to be suppressed.
We affirm Kienast's judgment and sentence for operating while intoxicated, first offense.
AFFIRMED.