Opinion
No. 2-071 / 01-0564.
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, ARTHUR E. GAMBLE, Judge.
Plaintiff-appellant John Ginther appeals from the district court's finding that his license revocation adjudication by the Iowa Department of Transportation (DOT), pursuant to Iowa Code section 321J.2 (1999), was supported by substantial evidence. AFFIRMED.
Joel Bittner and Blaine Hudnall, Des Moines, for appellant.
Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Mark Hunacek and Carolyn Olson, Assistant Attorneys General, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Plaintiff-appellant John Ginther appeals from the district court's finding that his license revocation adjudication by the Iowa Department of Transportation (DOT), pursuant to Iowa Code section 321J.2 (1999), was supported by substantial evidence. Ginther claims on appeal that the facts show he was not given an intoxilyzer test within the required two-hour time period following the arrest or preliminary breath test (PBT), as required in section 321J.6(2), that evidence from the intoxilyzer test was therefore invalid and inadmissible, and that consequently the revocation was not supported by substantial evidence. Ginther also claims the DOT was in error to find the officer had reasonable grounds to stop him. We affirm.
Ginther was operating an all-terrain vehicle (ATV) on September 10, 1999, in Polk County, Iowa. Either a short time before midnight or a short time after, Ginther was stopped by Officer Martin of the Johnston Police Department, given a preliminary breath test, which he failed, and arrested. Another officer, Officer Woller, appeared on the scene soon thereafter. Woller testified at trial that he transported Ginther to the police station around 12:24 a.m., requested his implied consent at 12:55 a.m. and administered the intoxilyzer test to him at 12:59 a.m. The inconsistency giving rise to this appeal was Officer Woller's seemingly contradictory indication in his report that Ginther was transported to the police station at "0124 hours," or 1:24 a.m., which Ginther claims proves he did not submit to the intoxilyzer until at least 1:59 a.m., rather than 12:59 a.m. Officer Woller testified that he had been distracted by Ginther and had erroneously recorded the time as 1:24 a.m. when it in fact had been 12:24 a.m.
The DOT found that Ginther was requested to submit to the intoxilyzer at 12:55 a.m., and that the test was administered at 12:59 a.m., consistent with Officer Woller's version of the facts rather than with Ginther's. As the DOT indicated, this finding was consistent with Officer Woller's police report and testimony, even if the report had included the seemingly inconsistent notation that Ginther was transported to the station at 1:24 a.m.
In reviewing an agency decision, we apply the standards of Iowa Code section 17A.19(10) to assess whether our conclusions coincide with those reached by the district court. Bd. of Supervisors v. Iowa Civil Rights Comm'n, 584 N.W.2d 252, 254 (Iowa 1998). Ordinarily, our review is confined to whether the district court correctly applied the law. Bennett v. Iowa Dep't of Natural Res., 573 N.W.2d 25, 27 (Iowa 1997). Our review of the factual findings of the DOT is limited to a determination of whether the evidence is substantial to support the findings made. See CMC Real Estate Corp. v. Iowa Dep't. of Transp., 475 N.W.2d 166, 173-74 (Iowa 1991). Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Id.
Because Officer Woller's testimony and report supported the DOT's conclusion that the test was administered at 12:59 a.m., we find, consistent with the district court's conclusion, that the DOT's decision was supported by substantial evidence.
Ginther also argues on appeal that the initial stop was unreasonable. The DOT argues, citing Westendorf v. Iowa Department of Transportation, 400 N.W.2d 553, 557 (Iowa 1987), that the exclusionary rule does not apply in this license revocation proceeding, and that Ginther's argument regarding the reasonableness of the stop is therefore irrelevant.
There has been a shift in the law since Westendorf, and some of the barriers separating the administrative and criminal proceedings in OWI cases have been removed. See Iowa Code § 321J.13(6); Brownsberger v. Iowa Dep't of Transp., 460 N.W.2d 449, 451 (Iowa 1990) (interpreting section 321J.13(4), which was rescinded in 1997, but which is similar to section 321J.13(6), added in a 1999 amendment). However, the Iowa Supreme Court has consistently considered the constitutionality of a stop to be immaterial with respect to the initial license revocation proceedings. Brownsberger, 460 N.W.2d at 451. Additionally, the court has ruled that, although a statute such as 321J.13(6) may also act as an exclusionary rule, it too is inapplicable in the initial license revocation proceedings. See Manders v. Iowa Dep't. of Transp., 454 N.W.2d 364, 366-67 (Iowa 1990). The record in this case does not contain any evidence of criminal proceedings and, specifically, of any finding that the officer's stop was unreasonable, which under Brownsberger could trigger section 321J.13(6), and require a similar finding in this civil proceeding. Furthermore, the record does not contain new evidence relating to the legality of the stop, another trigger for the remedy provided in section 321J.13(6). We therefore find that the agency did not err in failing to find the stop of Ginther's ATV was unreasonable. See Brownsberger, 460 N.W.2d at 451; Manders, 454 N.W.2d at 366-67 (interpreting section 321J.13(4)).
AFFIRMED.