Opinion
No. 5-830 / 04-1212
Filed December 21, 2005
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.
Richard Sitzmann appeals from his conviction of operating while intoxicated. AFFIRMED.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy K. Oetken, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., Vaitheswaran, J., and Hendrickson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On September 20, 2002, off-duty police officer Jay King of the LeMars Police Department was driving to work at a football game, when he noticed a pickup squealing its tires, swerving back and forth, and creating smoke and noise. Officer King followed the vehicle, and at the next intersection the vehicle again squealed its tires, swerved, and caused smoke and noise. The vehicle pulled into a driveway, and King stopped behind it. The driver of the vehicle was Richard Sitzmann. King noticed Sitzmann had an odor of alcohol.
Officer Greg Smidt, who was then on-duty, arrived at the scene, and Officer King left. Officer Smidt also noticed that Sitzmann had an odor of alcohol. Additionally, Officer Smidt noticed Sitzmann had glassy, watery eyes. Sitzmann reported that he had a "couple" of drinks. He failed the horizontal gaze nystagmus (HGN) test. He also failed the walk-and-turn and one-leg-stand tests. A preliminary breath test (PBT) showed Sitzmann to be over the legal limit for operating a motor vehicle. Officer Smidt arrested Sitzmann. At the jail, Officer Smidt invoked implied consent. Sitzmann agreed to a breath test, which showed his blood alcohol content was .189.
Sitzmann was charged with operating while intoxicated, in violation of Iowa Code section 321J.2 (2001). Sitzmann filed a motion to suppress, claiming (1) the initial stop was improper; (2) the officer improperly administered the field sobriety tests; (3) the officer did not have sufficient grounds to administer the PBT; (4) the officer did not wait long enough before applying the PBT; (5) the officer did not have sufficient grounds to invoke the implied consent law; (6) he was not given a timely Miranda warning; and (7) the DataMaster cdm used to administer the breath test was improperly certified. At the suppression hearing, Sitzmann also presented evidence that he had been denied the opportunity to make a telephone call, as required by section 804.20.
The district court denied the motion to suppress. The court found there was reasonable cause to stop the vehicle. The court also determined:
Those field sobriety tests were conducted in a manner sufficient to allow the officer to rely thereon and, along with the observations of the Defendant and his admission to having consumed alcohol, supported a reasonable conclusion Defendant was operating a motor vehicle while intoxicated and [supported the] request for a preliminary breath test and then later to invoke implied consent.
The court found no Miranda violation, and also determined the DataMaster cdm was properly certified.
The case proceeded to a trial to the court on the record made on the motion to suppress and the minutes of evidence. The court found Sitzmann was guilty of operating while intoxicated. Sitzmann was sentenced to ninety days in jail, with all but two days suspended.
II. Probable Cause to Arrest
On appeal, Sitzmann contends Officer Smidt did not have probable cause to arrest him. He asserts the officer failed to properly administer the field sobriety tests, including the HGN test, in this case, and that the results should not be considered. He also claims the PBT was not administered correctly, and it should not be considered as probable cause for arrest. On constitutional issues, such as this one, our review is de novo. State v. Bumpus, 459 N.W.2d 619, 622 (Iowa 1990).
In considering whether an officer has probable cause to arrest a person, our supreme court has stated:
Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it.
Id. at 624. Officer Smidt arrested Sitzmann for several reasons, including (1) erratic driving; (2) odor of alcohol; (3) glassy, watery eyes; (4) admission of drinking; (5) failure of field sobriety tests; and (6) PBT result. Even without the results of the field sobriety tests and the PBT, by examining the totality of the other circumstances in this case, we conclude officer Smidt had probable cause to arrest Sitzmann for operating while intoxicated. See Bruno v. Iowa Dep't of Transp., 603 N.W.2d 596, 599 (Iowa 1999).
III. Preliminary Breath Test
Sitzmann claims officer Smidt did not have reasonable cause to request a PBT. An officer may request a PBT if the officer has reasonable cause to believe that a person has been operating a motor vehicle while intoxicated. Iowa Code § 321J.5(1)(a). The PBT results "may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test. . . ." Iowa Code § 321J.5(2). Because this issue involves statutory interpretation, our review is for the correction of errors of law. See State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003).
"The reasonable ground test is met when the facts and circumstances known to the officer at the time action was required would have warranted a prudent person's belief that an offense had been committed." State v. Braun, 495 N.W.2d 735, 738-39 (Iowa 1993). Here, the officer had reasonable grounds to administer the PBT based on Sitzmann's erratic driving, odor of alcohol, glassy, watery eyes, and admission of drinking. See id. at 739.
Sitzmann also claims the PBT was not properly administered because the officer did not wait at least fifteen minutes before administering the test. Sitzmann's claim is not supported by the record. Officer King testified that Officer Smidt arrived within five or six minutes after he called for assistance. Office Smidt indicates that he arrived at 6:57 p.m. and gave the PBT at 7:05 p.m. Therefore, between thirteen to fourteen minutes are accounted for, and it is likely that Sitzmann was observed by one or the other of the officers for a total of fifteen minutes before the PBT was administered. We conclude there was substantial compliance with the fifteen-minute requirement. See State v. Bird, 663 N.W.2d 860, 862 (Iowa 2003) (finding substantial compliance with statutes and administrative rules regarding PBT testing is necessary).
The device used for PBTs, the Alco-Sensor III, is not reliable if a person had a drink of alcohol within fifteen minutes before taking the test. See State v. Albrecht, 657 N.W.2d 474, 480 (Iowa 2003). In Albrecht, 657 N.W.2d at 480, there was evidence that "while the fifteen minute period is important in those states where the device is used as an evidentiary device, it is not necessary when the device is used as a screener." In Iowa, a PBT is only used as a means of screening for alcohol content. State v. Bird, 663 N.W.2d 860, 862 (Iowa 2003).
Officer King observed Sitzmann drive through two intersections and then park in a driveway before he stopped behind him. No open containers were found in the vehicle, and thus, it is unlikely that when Sitzmann testified that he had a drink "just prior to the stop" that he was admitting to drinking within his vehicle. Taking this evidence into consideration, it is extremely likely that more than fifteen minutes had passed between the time Sitzmann had his last drink and the time the PBT was administered.
IV. Implied Consent
Sitzmann claims Officer Smidt improperly invoked the implied consent procedures of section 321J.6. In deciding whether an officer has met the requirements of section 321J.6, we apply a substantial compliance standard. State v. Lindeman, 555 N.W.2d 693, 697 (Iowa 1996). An officer may invoke implied consent if the officer reasonably believes a person has been operating while intoxicated and one of seven other conditions is met. Iowa Code § 321J.6(1). The circumstances of this case show officer Smidt could reasonably believe Sitzmann had been driving while intoxicated. Also, two of the other conditions were met, Sitzmann had been arrested, and the PBT showed an alcohol concentration above the legal limit. See Iowa Code § 321J.6(1)(a), (d). We find there was substantial compliance with the implied consent procedures.
V. Field Sobriety Tests
The results of the field sobriety tests were considered by the district court in determining whether Sitzmann was guilty of operating while intoxicated. Sitzmann claims the field sobriety tests were not admissible because they were improperly administered. He relies upon an Ohio case, State v. Homan, 732 N.E.2d 952, 955 (Ohio 2000), which noted, "When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable."
Our supreme court has relied upon a different Ohio case, State v. Nagle, 506 N.E.2d 285, 286 (Ohio Ct.App. 1986), which it quoted as follows:
The gaze nystagmus test, as do other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation. Objective manifestations of insobriety, personally observed by the officer, are always relevant where, as here, the defendant's physical condition is in issue.
State v. Murphy, 451 N.W.2d 154, 157 (Iowa 1990). Thus, the testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus test is admissible without the need for further scientific evidence. State v. Edman, 452 N.W.2d 169, 170 (Iowa 1990). We conclude that any inconsistencies in administering the field sobriety tests affect the weight to be accorded to the results, rather than their admissibility. See Murphy, 451 N.W.2d at 158. Courts have broad discretion in determining the admissibility of evidence regarding field sobriety tests. Edman, 452 N.W.2d at 170. We find no abuse of discretion under the facts of this case.
VI. Telephone Call
Finally, Sitzmann contends he was denied the opportunity to make a telephone call, as required by section 804.20. The district court did not rule on this issue, and Sitzmann did not request a further ruling by the court. We conclude Sitzmann has failed to preserve this issue for our review. See State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997) (noting that issues must be presented to and passed upon by the district court before they can be decided on appeal). In order to preserve error, a party seeking to appeal an issue presented to, but not decided by, the district court, must call the court's attention to the issue by a post-trial motion. Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002).
We find no merit to any other contentions raised by Sitzmann on appeal. We affirm his conviction.