Opinion
No. 4-315 / 03-1163.
July 14, 2004.
Appeal from the Iowa District Court for Floyd County, Peter B. Newell, District Associate Judge.
Dennis James Schultz appeals following his conviction for operating while intoxicated. AFFIRMED IN PART; REVERSED IN PART; CASE REMANDED.
John P. Lander of Brown, Kinsey, Funkhouser Lander, P.L.C., Mason City, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Marilyn Dettmer, County Attorney, and Kimberly Birch, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Defendant Dennis James Schultz appeals following his conviction for operating while intoxicated (OWI), in violation of Iowa Code section 321J.2 (2003). He claims the district court erred in denying his motion to suppress because he was denied his statutory right to speak to a family member under Iowa Code section 804.20. He also claims the arresting officer failed to inform him of his Miranda rights. We affirm in part, reverse in part, and remand for a new trial.
I. Background Facts Proceedings
On January 31, 2003, at approximately 11:50 p.m., Nora Springs Police Officer Charles Bengtson stopped a pickup truck after he observed the driver make an overly wide turn and then continue to drive with the vehicle's tires over the centerline. Dennis Schultz was the driver of the vehicle. After Schultz stopped his truck he exited his vehicle and began to walk away. Officer Bengtson instructed Schultz to return to his vehicle, but he refused. Officer Bengtson then advised Schultz that if he did not return to his vehicle he would go to jail. Schultz returned to his truck.
While Officer Bengtson was speaking with Schultz he smelled a strong odor of alcohol. He also noticed that Schultz's speech was mumbled. Schultz was uncooperative. He told Officer Bengtson "I ain't doing nothing to you man" and "just let me walk home." When Officer Bengtson asked Schultz if he had been drinking, Schultz replied that he had a couple of drinks. When Officer Bengtson asked Schultz for his driver's license, registration, and proof of insurance, Schultz responded by staring at a handful of change. He then pulled out his wallet and gave Officer Bengtson his social security card.
Officer Bengtson finally obtained the defendant's driver's license after pointing out to Schultz where the license was located in his billfold. As Officer Bengtson was walking back to his squad car with Schultz's license, Officer Rick Hollanbeck arrived on the scene. While Bengston was walking toward Hollanbeck, he noticed that Schultz had put his truck in gear. Both officers immediately ran to Schultz's vehicle and took his keys from him. Schultz then exited his truck and attempted to walk away. At this point, the officers arrested Schultz for interference with official acts. Schultz was handcuffed and placed in a squad car. He was not read his Miranda rights. Officer Hollanbeck noticed that Schultz had bloodshot and watery eyes as well as slurred speech.
Schultz was never charged with interference with official acts or a traffic violation because Officer Bengtson testified that he decided to "cut him a break."
Officer Bengtson asked Schultz whether he would participate in field sobriety tests. Schultz replied that he would. Schultz either could not or would not complete the nystagmus test because he did not follow the officer's finger with his eyes. Schultz also performed poorly on the walk and turn test. Schultz refused to take a preliminary breath test. Schultz was then informed he was being charged with operating while intoxicated.
At the jail, Officer Bengtson went through the implied consent procedure with Schultz. During this procedure, Schultz asked to call "Deputy Joel Cannon" or "Joel Cannon" at least three or four times. Although Schultz is related to Cannon through marriage, he did not inform Officer Bengston of this fact. Officer Bengtson denied Schultz's repeated requests to call Cannon. He informed Schultz "the only person I'm letting you call would be a lawyer." Officer Bengtson did not learn Cannon was related to Schultz until several months later.
Cannon is referred to as both Joe Cannon and Joel Cannon in the record.
The two-hour time limit imposed by Iowa Code § 321J.6(2) was not a concern in this case.
Schultz did not ask to call anyone else, besides Deputy Cannon, either before or during the implied consent procedure. Schultz refused to give a breath test. After his test refusal Schultz asked if he could call his wife. Officer Bengtson allowed Schultz to call her.
On February 17, 2003, the State filed a trial information charging Schultz with OWI, first offense, a serious misdemeanor. Schultz filed a motion to suppress evidence obtained during and after the traffic stop. The district court denied the motion. Following a stipulated bench trial on the minutes of testimony, the court found Schultz guilty of OWI, first offense, and sentenced him. Schultz appeals.
II. Standard of Review
Our review of Iowa Code section 804.20 is for errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will uphold the district court's ruling on a motion to suppress if there is substantial evidence to support the court's findings of fact. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). Evidence is substantial when a reasonable person would accept it as adequate to reach the same findings. Id.
We review the district court's refusal to suppress statements allegedly made in violation of constitutional guarantees de novo. State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997). Therefore, we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give deference to the district court's fact-findings due to its opportunity to assess the credibility of witnesses, but we are not bound by them. Id.
III. Iowa Code section 804.20
Schultz claims Officer Bengtson failed to comply with Iowa Code section 804.20 and consequently, the district court erred by overruling his motion to suppress. Iowa Code section 804.20 states:
Any peace officer or other person 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 as may be required to secure an attorney.
If this statute is violated, the exclusionary rule applies, and any evidence of chemical testing must be suppressed. Krebs, 562 N.W.2d at 426. The right to contact a family member under section 804.20 is neither more nor less qualified than the right to contact an attorney. Id.
Section 804.20 does not require an officer to tell an arrested person that he or she has a right to counsel or to contact a family member. Didonato v. Dep't of Transp., 456 N.W.2d 367, 371 (Iowa 1990). However, when a request to make a phone call is made, the statutory purpose is not met if the officer stands mute and refuses the request. Id. If an arrested person asks to call a friend, the statute is implicated and the officer should advise for what purpose a phone call is permitted under the statute. Id.
Schultz contends that Officer Bengtson violated section 804.20 when he failed to inform him of the purposes for which a call was permitted after he asked to call Deputy Cannon. Based on our supreme court's pronouncements in Didonato, we agree. Schultz was in the process of deciding whether to consent to or refuse chemical testing when he made his requests to call Deputy Cannon. After Schultz made his requests, Officer Bengtson should have informed him of the purposes for which a call was permitted under section 804.20. Officer Bengtson's response that he would only allow Schultz to call a lawyer did not satisfy the requirements of the statute. Additionally, the fact that Officer Bengtson allowed Schultz to call his wife after he had deemed that Schultz had refused chemical testing does not fulfill the purposes behind section 804.20. Because the purpose behind the statute was not met, we conclude the district court erred in overruling Schultz's motion to suppress.
The State suggests that even if the district court erred by denying Schultz's suppression motion, any error was harmless. We disagree. The district court made the following comment when explaining its reasons for finding the defendant guilty:
[Y]ou refused the preliminary breath test and refused to give a test at the station. Again, it's your right to refuse those tests, but the Court can consider the refusal in making the determination as to whether or not you were under the influence.
It is apparent from the record that the defendant's refusal to submit to a breath test during the implied consent proceedings impacted the fact finder's verdict. Therefore, the case must be remanded for a new trial without consideration of this evidence.
IV. Miranda Warnings
Schultz also claims that Officer Bengtson failed to advise him of his Miranda rights after he was arrested for interference with official acts, thereby violating his right against self-incrimination. He maintains that because he was not informed of his Miranda rights the results of his field sobriety tests and his refusal to submit to a chemical test should have been suppressed.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court found that because of the "compulsion inherent in custodial surroundings, no statement obtained from [a] defendant can truly be the product of his free choice[,]" unless adequate protective measures are employed. (citations omitted). Therefore, the Court held that before an individual who is in custody can be subject to interrogation, he must be advised of certain constitutional rights. Id. at 478-79, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. The Miranda requirements are not triggered unless there is both custody and interrogation. State v. Turner, 630 N.W.2d 601, 607 (Iowa 2001). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.
The State concedes that Schultz was in custody after being arrested for interference with official acts; however, the State denies that either the field sobriety tests or the implied consent procedure amounted to interrogation. We agree. Officer Bengtson was not required to provide Schultz with his Miranda rights prior to requesting that he perform field sobriety tests or during the implied consent procedure because neither situation amounted to interrogation. State v. Stroud, 314 N.W.2d 437, 438 (Iowa 1982); State v. Heisdorffer, 164 N.W.2d 173, 175 (Iowa 1969). Accordingly, the district court properly rejected this argument.
V. Conclusion
We reject defendant's contention that he was subjected to interrogation either during field sobriety tests or the implied consent procedure. However, we conclude Schultz's rights under section 804.20 were violated when the arresting officer did not inform him of the purposes for which a call was permitted under the statute after Schultz asked to call Joel Cannon. Because Schultz's refusal to submit to a chemical test should have been excluded from the evidence, we reverse his conviction and remand for a new trial without consideration of this evidence.