Opinion
No. 5-967 / 05-0727
Filed January 19, 2006
Appeal from the Iowa District Court for Linn County, Michael Newmeister, District Associate Judge.
Lori Ann Vacek appeals her conviction for operating while intoxicated, first offense. AFFIRMED.
Robert Rehkemper of Berger Law Firm, P.C., Urbandale, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Harold Denton, County Attorney, and Jason Burns, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Lori Ann Vacek appeals her conviction for operating while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2 (2003). She claims the district court erred in overruling her motion to suppress, arguing her rights under Iowa Code section 804.20 were violated. We affirm.
I. Background Facts and Proceedings
Vacek was charged with OWI, first offense, under the alternate theories of operating a motor vehicle while under the influence of an alcoholic beverage, or while having an alcohol concentration of .08 or more. She filed a motion to suppress the results of a breath test taken after her arrest, which reflected a blood alcohol concentration of .160. She contended that law enforcement officers denied her request to consult a family member, as provided for in Iowa Code section 804.20.
Testimony at the suppression hearing revealed the following facts. During the early morning hours of November 22, 2004, Deputy Sheriff Joel Peshek was dispatched to the scene of a one-car accident. Upon his arrival Deputy Peshek observed a vehicle that had rolled over and was sitting on a fence line. Vacek was standing beside the vehicle and appeared to be shaken up. Vacek told the deputy the accident occurred when she "swerved to miss a twelve-point buck." Vacek also informed the deputy that she had called her brother on her cell phone and expected him to arrive soon. Deputy Peshek told Vacek to come with him to his squad car because it was cold.
The deputy observed Vacek's balance was unsteady. Once they were in the squad car, the deputy smelled alcoholic beverage on Vacek's breath and further observed that her eyes were watery. Upon questioning by the deputy, Vacek admitted she had been drinking and told him she had had about four beers. Deputy Peshek requested Vacek perform field sobriety tests. After she failed all three tests the deputy performed a preliminary breath test. Following that test the deputy arrested Vacek for operating while intoxicated and placed her in the back of his squad car.
Vacek's brother arrived at the scene during the deputy's investigation. Her brother asked to speak to Vacek twice, but Deputy Peshek refused permission.
At the suppression hearing, Deputy Peshek did not recall Vacek making a request at the scene to speak with her brother. According to the deputy, any such requests would have been noted in his written report. Nor did Vacek ask to talk to her brother while en route to the county correctional center. The deputy testified Vacek did not ask to make any phone calls after she arrived at the correctional center. According to Deputy Peshek, any such requests would have been noted in his report and logged in separate jail records.
Vacek testified at the suppression hearing. She claimed she repeatedly requested to speak with her brother at the scene of the accident, but was told that would not be possible. She further testified that after her arrival at the correctional center, the implied consent advisory was read to her. Before submitting to a breath test, she took out her cell phone and asked if she could call her mother or brother. An officer replied that she could, but when she tried to place a call, another officer ordered her to turn off her cell phone. According to Vacek, she was not given an opportunity to make a call on another telephone. However, she was never told she was not allowed to make a phone call.
The district court denied the motion to suppress. It noted the "divergence of recollection of the events" between Vacek and Deputy Peshek and concluded Vacek "never made an unequivocal request to speak with a family member or an attorney." The district court concluded Vacek's ability to perceive and recall the events was "profoundly affected" by her recent involvement in a traumatic accident and her high level of intoxication.
Following the district court's suppression ruling, the case proceeded to a stipulated bench trial. The parties agreed the court could rely on the evidence presented at the suppression hearing and the minutes of testimony. The court found Vacek guilty of operating while intoxicated under alternate theories of operating while under the influence of alcohol or having an alcohol concentration of .08 or more. Vacek appeals.
II. Scope of Review
Our review is for errors at law. State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005). We will uphold the district court's ruling on a motion to suppress which does not involve constitutional issues if the court properly applied the law and there is substantial evidence to support its findings. Id. Evidence is substantial "`when a reasonable mind would accept it as adequate to reach the same findings.'" Id. (quoting State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997)).
III. Merits
In Iowa, a peace officer having custody of any person arrested "shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see" a family member or an attorney of the person's choice, or both. Iowa Code § 804.20. Section 804.20 does not require a police officer to inform a defendant of her right to contact counsel or a family member, but once the right is invoked the officer must give the defendant the opportunity to call or consult with a family member or attorney. Moorehead, 699 N.W.2d at 671. In analyzing the sufficiency of a request, we apply "`an objective consideration of the statements and conduct of the arrestee and peace officer, as well as the surrounding circumstances.'" Id. at 672 (quoting Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997)).
The issue before us is whether there was substantial evidence to support the district court's finding of fact that Vacek did not make an unequivocal request to speak with a family member or attorney. See State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). After reviewing the evidence in this record, we find substantial evidence to support the district court's findings of fact. Deputy Peshek testified Vacek did not ask to make any phone calls either while en route to, or after her arrival at the jail. He noted that any such requests would have been included in his report and logged in separate jail records. Vacek's testimony conflicted with that of the deputy; however, the district court found the deputy more credible due to Vacek's condition at the time of her arrest. See id. at 819 ("When determining the credibility of the testimony of witnesses, the trial court may consider whether the testimony is reasonable and consistent with other evidence, whether a witness has made inconsistent statements, the witness's appearance, conduct, memory and knowledge of the facts, and the witness's interest in the trial."). The district court did not err in denying Vacek's motion to suppress.