Opinion
No. 1-795 / 01-0064.
Filed March 27, 2002.
Appeal from the Iowa District Court for Plymouth County, ROBERT J. DULL, District Associate Judge.
Defendant appeals from the judgment and sentence entered upon a jury verdict finding him guilty of operating while intoxicated in violation of Iowa Code section 321J.2 (Supp. 1999), contending the results of the Intoxilyzer test warrant suppression because he was denied his right to an independent test under section 321J.11 (1999). REVERSED AND REMANDED FOR NEW TRIAL.
Robert B. Deck, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy Oetken, Assistant County Attorney, for appellee, State.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
A jury convicted Paul Bindner of operating a motor vehicle while intoxicated. On appeal, he contends the district court should have suppressed the results of his Intoxilyzer test because he was not afforded an independent test as authorized by statute. We agree and, accordingly, reverse and remand for new trial.
I. Background Facts and Proceedings
A LeMars police officer responded to a citizen complaint of erratic driving. The officer fell in behind the subject of the complaint and watched as the driver floated back and forth between the center line and the curb. The officer stopped the vehicle, approached the driver, and noticed he had watery, bloodshot eyes, a slight slur to his speech, and smelled of alcohol. He identified the driver as Bindner and asked him to submit to field sobriety tests. Bindner failed the tests. He was arrested and taken to the Plymouth County Sheriff's office.
An officer administered an Intoxilyzer test, which recorded a blood alcohol level of .175. After administering the test, the officer advised Bindner of his right to an independent chemical test and asked if he wanted one. Bindner gave a positive response. The officers mentioned the test again, but a test was not obtained.
Proceedings at the sheriff's office were videotaped and a videotape was introduced into evidence.
The State charged Bindner with operating while intoxicated, first offense. See Iowa Code § 321J.2 (1999). Bindner moved to suppress the .175 test result on the ground he was not afforded an independent chemical test. The district court denied the motion and the case proceeded to trial. A jury found Bindner guilty and the district court pronounced judgment and sentence. This appeal followed.
The sole question on appeal is whether Bindner was denied his right to an independent chemical test. Our review is for errors of law. Iowa R. App. P. 6.4. We will uphold a district court's fact-findings if they are supported by substantial evidence. State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998).
II. Independent Chemical Test
Iowa Code section 321J.11 governs independent chemical tests. It provides:
The person may have an independent chemical test or tests administered at the person's own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer.
The district court found: (1) Bindner did not trigger this code provision because he did not really request an independent chemical test; (2) the officers did not deny Bindner a chance to obtain an independent test; and (3) Bindner did not have money to pay for the test. Based on these findings, the court concluded that there was a "failure" or "inability" to obtain the independent test within the meaning of section 321J.11, permitting admission of the Intoxilyzer test result. We do not find substantial evidence to support the court's findings.
A. Request for Independent Test . Officers told Bindner he had a right to an independent chemical test and asked him if he wanted one. Despite his inebriated condition, Bindner lucidly responded, "OK. Call 376-2577. She's a nurse." The officers did not make the call. Instead, they proceeded to book Bindner.
The officers were not required to do so. State v. Wootten, 577 N.W.2d 654, 655 (Iowa 1998).
While one of the officers was asking Bindner booking-related questions, another officer again mentioned Bindner's right to an independent test. The officer also stated the test would be at Bindner's expense and would be performed by a nurse designated by the officer, whose name and number were on a bulletin board. The officer asked Bindner whether he still wanted the test. Bindner again answered affirmatively. This constitutes substantial evidence of a request for an independent chemical test.
B. Refusal of Test . There is also substantial evidence showing the police officers denied Bindner's request for an independent test. Cf. Casper v. Iowa Dep't of Transp., 506 N.W.2d 799, 801 (Iowa Ct.App. 1993), (noting licensee was "held in such a manner as to make it impossible for him to acquire the independent blood test."). As noted, the officers did not call the number initially provided by Bindner. Later, when Bindner reaffirmed his desire to have the test, the officers again did not make the call. Instead, one of them said, "get on the horn and call a nurse." The problem with this instruction was that Bindner could not gain access to the phone, as it was located on a wall behind a counter, and he was handcuffed to a rail in front of the counter. Indeed, when Bindner had asked to make two other calls, the officers dialed the phone and then stretched the telephone cord to get the receiver to Bindner. The record reflects there was no way Bindner could make the necessary phone call absent assistance from the officers. That assistance was not forthcoming.
In addition to not placing the call, the officers impeded Bindner's efforts to obtain an independent test by telling him he could only call their own nurse rather than a nurse of his choosing. The State argues this was all the statute required. We disagree. Section 321J.11 plainly and unambiguously prescribes an "independent" test. The term "independent" is defined as "free from the influence, guidance, or control of others; self reliant." American Heritage Dictionary 353 (2d ed. 1983). Using this common definition, a test performed by an agent of the State is not "independent."
Our conclusion finds support in the balance of section 321J.11 which states that the independent test is "in addition to any administered at the direction of a peace officer." This language clearly envisions a test given by someone other than a state agent. See also Wootten, 577 N.W.2d at 656 (noting witness who had some laboratory experience was called by the defendant to ask about the test); Casper, 506 N.W.2d at 801 (noting licensee was not transported to a place to have independent test). To hold otherwise would render the word "independent" and the remaining cited language meaningless. See State v. McSorley, 549 N.W.2d 807, 810 (Iowa 1996); cf. Daggett v. Nebraska Eastern Exp., Inc. 252 Iowa 341, 349, 107 N.W.2d 102, 107 (1961) (independent contractor is one who is "free to determine for himself the manner in which the specified result shall be accomplished."). Given the absence of ambiguity in the statute, we need not resort to principles of statutory construction and, accordingly, need not address the State's arguments concerning the legislative history of section 321J.11. See State ex. rel. Miller v. Midwest Pork, L.C., 625 N.W.2d 694, 700 (Iowa 2001).
C. Ability to Pay . Finally, we do not find substantial evidence to support the district court's finding that Bindner lacked the ability to pay for an independent test. The person Bindner wanted to call to administer the test was his sister-in-law. There was no indication in the record as to what her charge for the test would have been, if anything. The only evidence of Bindner's financial resources related to whether Bindner could raise bail. After talking to his sister, Bindner decided to stay in jail overnight rather than pay to get out. This evidence is insufficient to draw an inference that Bindner could not have paid for an independent test, had he been allowed to obtain one.
III. Remedy
Having found substantial evidence of a request for an independent test and police denial of the test, we conclude there was no "failure" or "inability" by Bindner to obtain the independent test. See Casper, 506 N.W.2d at 802 (police denial of independent test does not constitute "failure" or "inability" to obtain the test). The only remaining question is what the remedy should be. Bindner argues that the Intoxilyzer test result should be suppressed. The State responds that a spoliation instruction will cure the error.
Our highest court has not yet addressed the issue. See State v. Wooten, 577 N.W.2d 654, 656 (Iowa 1998) (noting it did not need to resolve the question, as the record did not contain evidence of a request for an independent chemical test). Our court, however, has. In Casper, the court stated, "[i]n a criminal prosecution for driving under the influence, proof of that denial [of an independent chemical test] would require suppression of any police-administered chemical test." Casper, 506 N.W.2d at 802. As Casper was a license revocation proceeding, this language was dicta. Nevertheless, we find it to be persuasive dicta. Section 321J.11 provides that "[t]he failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer." (emphasis added). This language suggests that, conversely, where police officers deny the independent test, the appropriate sanction would be suppression. Accordingly, we conclude that the result of Bindner's Intoxilyzer test must be suppressed.
IV. Disposition
The jury was instructed that it could find Bindner guilty of operating while intoxicated under either of two alternatives: (1) by operating a motor vehicle while under the influence and/or (2) by operating a motor vehicle while having a blood alcohol concentration of .10 or more. At oral arguments the State argued there was sufficient evidence to affirm the conviction under the first alternative even if the Intoxilyzer test was suppressed. We disagree. We cannot determine from the verdict whether the jurors found Bindner guilty under the first alternative. See State v. DeWitt, 597 N.W.2d 809, 812 (Iowa 1999). Therefore, we reverse and remand for new trial.
REVERSED AND REMANDED FOR NEW TRIAL.