Opinion
No. 1-800 / 01-0158.
Filed August 14, 2002.
Appeal from the Iowa District Court for Dubuque County, RICHARD GLEASON, District Associate Judge.
The State seeks discretionary review from a district court's grant of defendant's motion to suppress and from the court's supplemental suppression order. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, Fred H. McCaw, County Attorney, and Mark Hostager, Assistant County Attorney, for appellant.
Thomas J. Straka of Day Hellmer, P.C., Dubuque, for appellee.
Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
The State seeks discretionary review from a district court's grant of Richard Bartlett's motion to suppress and from the court's supplemental suppression order. The State contends the court erred in concluding the standard implied consent advisory governed by Iowa Code section 321J.8 (1999) for chemical testing requires an officer to inform a motorist of the terms of section 321J.6(2), which governs investigation and collection of body specimens. In the alternative, the State claims evidence of Bartlett's blood-alcohol content is admissible by virtue of the inevitable discovery doctrine. Bartlett argues that the State failed to meet its burden of proof that his consent to the chemical test of his blood was voluntary. We reverse and remand. Our resolution of this appeal makes it unnecessary to consider the applicability of the inevitable discovery doctrine.
I. BACKGROUND FACTS AND PROCEEDINGS.
The facts which give rise to this appeal are not in serious dispute. On August 29, 2000, Dubuque County Deputy Sheriff Harley Pothoff interviewed Richard Bartlett at a local hospital after Bartlett was involved in a single car accident. While receiving treatment for his injuries, Bartlett admitted to Deputy Pothoff that he had consumed a couple of glasses of peppermint schnapps. Defendant consented to a preliminary breath test which showed he had a blood alcohol level of .10 or more. Pothoff advised Bartlett he would be requesting a specimen for chemical testing. Bartlett requested to speak with an attorney, but was unsuccessful in contacting one by phone. He then stated he would take the test and talk to his attorney the next day. Deputy Pothoff read Bartlett an implied consent advisory which warned defendant that a refusal to submit to chemical testing would result in a revocation of driving privileges for two years. The deputy then handed Bartlett a form and requested a specimen of blood for chemical testing. Bartlett marked the consent box and signed the form.
A technician drew the blood. Bartlett was later charged with operating while intoxicated or drugged, second offense, in violation of section 321J.2(1) and (2) and failure to maintain control in violation of section 321.288.
Bartlett filed a motion to suppress the blood test results, claiming (1) the blood sample was obtained without a warrant and without his voluntary and uncoerced consent contrary to his constitutional rights, and (2) the blood sample was obtained in violation of section 321J.6(2). In response to the State's motion for a more specific statement as regards his allegation involving section 321J.6(2), Bartlett alleged that Deputy Pothoff was precluded from telling him that if he did not provide a blood sample his license would be revoked, and thus the sample was provided involuntarily and through coercion.
At the hearing on the suppression motion, Pothoff testified neither he nor the advisory form instructed Bartlett that he had the right to refuse a blood test and still not lose his license as long as he provided urine for testing. The court granted Bartlett's motion, concluding that Bartlett's consent to the blood test was obtained by the false threat of a license revocation, and therefore the State could not introduce the results of Bartlett's blood test at trial. The State sought discretionary review of that ruling from our supreme court. The State also filed a motion for enlarged findings before the district court, requesting that the court address the applicability of the inevitable discovery doctrine and application of the exclusionary rule. The district court overruled the motion, concluding that the inevitable discovery rule was inapplicable under the facts of the case. It determined that the State did not prove by a preponderance of the evidence that Bartlett would have provided the urine sample. It found that his continuing consent was speculative, as was his ability to produce the sample. The State sought discretionary review from this supplemental ruling. Our supreme court granted both applications for discretionary review, and the two matters were consolidated.
The trial court found that there was no intent on the officer's part to circumvent the implied consent law.
II. IMPLIED CONSENT ADVISORY.
The State contends the standard implied consent advisory governed by section 321J.8 for chemical testing does not require an officer to inform a motorist of the terms of section 321J.6(2), which governs investigation and collection of body specimens. It argues that it must inform motorists of the consequences of refusal to submit to testing, not the provisions of section 321J.6(2). It asserts that section 321J.8 is clear and unambiguous and does not require an advisory of the officer's duties with respect to obtaining evidence of intoxication, by way of breath, blood, or urine.
Bartlett contends his consent to a blood test was involuntary due to the false verbal threat of a license revocation by Deputy Pothoff. He contends the threat of revocation of his license if he did not provide a blood sample is inconsistent with the language of section 321J.6(2) which states in part that "A refusal to submit to a chemical test of blood is not deemed a refusal to submit. . . ." He claims the remedy for this statutory violation should be the exclusion of the test results. Bartlett based his motion to suppress on both statutory and constitutional grounds.
A. Scope of review. Our review of this interpretation of Iowa Code sections 321J.6(2) and 321J.8 is on error. State v. McCoy, 603 N.W.2d 629, 630 (Iowa 1999).
B. Merits. Section 321J.6(2) provides as follows:
The peace officer shall determine which of the three substances, breath, blood, or urine, shall be tested. Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit, and section 321J.9 applies. A refusal to submit to a chemical test of blood is not deemed a refusal to submit, but in that case, the peace officer shall then determine which one of the other two substances shall be tested and shall offer the test.
Section 321J.8 provides as follows:
A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following:
1. If the person refuses to submit to the test, the person's driver's license or nonresident operating privilege will be revoked by the department as required by and for the applicable period specified under section 321J.9.
2. If the person submits to the test and the results indicate the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited by section 321J.2 or 321J.2A, the person's driver's license or nonresident operating privilege will be revoked by the department as required by and for the applicable period specified under section 321J.12.
The issue presented in this case is how much of the contents of section 321J.6(2) must be conveyed to a person requested to submit to a chemical test, and this turns on our interpretation of section 321J.8. We try to find and give effect to the legislative intent in construing statutes. State v. Green, 470 N.W.2d 15, 18 (Iowa 1991). "If the statutory language is plain and the meaning is clear, we do not search for the legislative intent beyond the express terms of the statute." Horsman v. Wahl, 551 N.W.2d 619, 620-21 (Iowa 1996). If a statute is ambiguous, however, we will resort to rules of statutory interpretation to ascertain the meaning of the statute. See Green, 470 N.W.2d at 18. "Ambiguity exists if reasonable minds may differ or may be uncertain as to the meaning of the statute." Id. To resolve ambiguity, and ultimately determine legislative intent, we will consider the statutory language, the objects sought to be accomplished, the evils sought to be remedied, and a reasonable construction that effectuates the statutory purpose rather than one that defeats it. Id. (citations omitted).
We find the meaning of section 321J.8 is unclear. We are uncertain whether "a chemical test" as used in the introductory paragraph of that section and "refuses to submit to the test" in paragraph (1) include a blood test, or merely refer to urine and breath tests. Therefore, we look to the purpose of section 321J.8, and we seek a reasonable construction that will advance that purpose.
Section 321J.8 requires that, after a driver has been asked to submit to a chemical test, the officer must advise the driver of the consequences of refusing to take the test and the consequences of a positive test result, including the potential periods of revocation. Our supreme court has quoted the intent behind section 321J.8 as follows:
The clear intent of section 321J.8 is to provide a person who has been required to submit [to] a chemical test a basis for evaluation and decision-making in regard to either submitting or not submitting to the test. This involve[s] a weighing of the consequences if the test is refused against the consequences if the test reflects a controlled substance, drug, or alcohol concentration in excess of the "legal" limit. This is a determination that will frequently be made without benefit of counsel by the person of whom [the] request is made. . . .Voss v. Iowa Dep't of Transp., 621 N.W.2d 208, 212 (Iowa 2001).
We must determine whether the purpose behind section 321J.8 would be frustrated if a driver is not advised that refusal to submit to a blood test would not result in the revocation of his driver's license pursuant to section 321J.9. We conclude the purpose behind section 321J.8 would not be frustrated in such a situation. If a driver refuses to submit to a blood test, "the peace officer shall then determine which one of the other two substances shall be tested and shall offer the test." Iowa Code § 321J.6(2). Use of the word "shall" imposes a duty. Iowa Code § 4.1(30)(a). Therefore, the peace officer has a duty to offer either a urine or breath test following the driver's refusal to provide a blood test. If the driver refuses either of these tests, his license will be revoked pursuant to the provisions of sections 321J.6(2) and 321J.9.
Deputy Pothoff invoked implied consent and requested a blood test. He informed Bartlett of the applicable periods of revocation for refusing to submit to a chemical test. These revocation periods would apply to refusal to submit to either a breath or urine test. If Bartlett had refused a blood test, Deputy Pothoff had a duty to request either a breath or urine test of Bartlett. If Bartlett refused to submit to either of these tests, his license would have been subject to the revocation periods read to him by Deputy Pothoff.
Under these circumstances, we think the statutory purpose was achieved without the necessity of Deputy Pothoff advising Bartlett that his license would not be revoked if he refused to submit to a blood test. No useful purpose would be served by requiring that a peace officer inform a driver that the refusal to submit to a blood test would not result in license revocation when the officer would then be under a duty to request another test, and refusal to submit to that test would result in license revocation. Therefore, we reverse the trial court. The evidence of Bartlett's blood test results should not be suppressed.
III. VOLUNTARINESS OF BARTLETT'S CONSENT.
Bartlett contends that the State failed to meet its burden of proof that his consent was voluntary. He argues that he was falsely advised by Deputy Pothoff that a refusal to submit to providing a sample of blood for chemical testing would result in the revocation of his license, contrary to section 321J.6(2). He maintains that, because of this false representation, his consent cannot be considered voluntary and uncoerced. Error has been preserved on this claim. Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994) (stating that a successful party need not cross-appeal to preserve error on a ground urged but ignored or rejected by the trial court).
When a person who has submitted to a chemical test later asserts that his submission was not voluntary, we evaluate the totality of the circumstances to determine whether the decision was freely made or coerced. State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981). For a consent to be valid, it must be voluntary and uncoerced. State v. Gravenish, 511 N.W.2d 379, 381 (Iowa 1994). When coercion is alleged, the State must prove the absence of undue pressure or duress by a preponderance of the evidence. Id. Statements are voluntary if they are the product of essentially unconstrained choice, made by a defendant whose will was not overcome or whose capacity for self-determination was not crucially impaired. Id.
Deception by law officers will not, standing alone, render consent involuntary as a matter of law. Id. Proof of knowledge of the right to refuse is not a prerequisite to proving the decision to submit to the test was voluntary; it is only one relevant circumstance. Knous, 313 N.W.2d at 512. We consider the following additional factors: defendant's age and prior criminal history; whether he was under the influence of drugs or alcohol; whether he ably understood and responded to questions; his physical and emotional reaction to interrogation; and whether physical punishment was used or threatened. Gravenish, 511 N.W.2d at 381.
Bartlett's allegation of involuntariness relies on Deputy Pothoff's failure to advise him that his refusal to submit to the blood test would not result in license revocation. We have already determined that under the current statutory scheme such a statement is not required. In considering all the relevant factors, we determine that Bartlett's consent to submit to the blood test was voluntary and uncoerced.
IV. CONCLUSION.
We reverse the trial court's ruling excluding Bartlett's test results and remand to the district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.