Opinion
No. 2-359 / 01-1223
Filed November 15, 2002
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
David Bird appeals his conviction of operating a motor vehicle while intoxicated (OWI), second offense. REVERSED AND REMANDED.
Jerald Kinnamon and J.D. Keegan, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, David Tiffany and Victoria Dominguez, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
David Bird appeals his conviction of operating a motor vehicle while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (1999).
I. Background Facts and Proceedings.
Shortly before 1 a.m. on November 21, 2000, Iowa City police officer Darren Zacharias stopped a vehicle Bird was driving after Bird made a prohibited right turn on a red light. While speaking with Bird, Zacharias detected an odor of alcohol. Bird admitted drinking and that he consumed his last drink within fifteen minutes before the stop. After Bird failed a field sobriety test, Zacharias requested a preliminary breath test (PBT) from Bird using an Alco-Sensor III testing device. The result of Bird's PBT was 0.114.
Zacharias then asked Bird to accompany him to the police station for more sobriety testing. After Bird failed additional sobriety tests, Zacharias invoked statutory implied consent procedures based on his belief Bird was driving while intoxicated and the PBT results earlier obtained. The resulting intoxilyzer test indicated Bird's blood alcohol level was 0.129. Bird was arrested and subsequently charged with OWI.
Prior to trial Bird filed a motion to suppress, challenging the admissibility of the intoxilyzer test results. Bird claimed Zacharias had no authority to invoke the implied consent procedures because the statutory requirements for invoking implied consent procedures and related testing were not satisfied. Bird argued that the PBT result upon which Zacharias relied was obtained in violation of department of public safety rules governing the use and calibration of such devices. He specifically cited Zacharias's failure to follow the manufacturer's operating instructions by administering one instead of two PBTs after learning Bird consumed alcohol within fifteen minutes before he was stopped. Bird also cited omissions in the Iowa City Police Department's log relating to the value and standard used to calibrate the PBT device. The trial court rejected Bird's arguments, stating:
Defendant does not contest that the arresting officer had reasonable grounds to request a PBT. He argues that the officer is required to follow the procedures as set forth in Ex#1 (copy of the manual for the Alco-Sensor III). The Court's review of the manual finds that an ambiguous reference is made to circumstances where a second test should be used. Testimony of the manufacturer of this device, Mr. Forrester, confirms that this device is sold for different purposes and where used as a screening device, as it is in the State of Iowa, a second test is not required to fulfill the purpose for which it is intended.
Following the same analysis regarding the challenge based on the machine's manual, it is this Court's finding that if the log kept on this PBT device was not in strict compliance with the Administrative Code requirements, it would not support suppressing the Intoxlyzer results. The PBT device as used in this state is a screening device and the results are by statute inadmissible as evidence of OWI. The facts and circumstances of this case support a finding of a proper stop and reasonable grounds to arrest. The parties have stipulated to the same. There is no admission into evidence and this Court finds that substantial compliance with section 321J.6 has been shown and that the underlying requirements "were not compromised."
Bird's motion was denied. Bird was subsequently convicted of OWI, second offense, resulting in this appeal.
II. Scope of Review.
Generally our scope of review on evidentiary issues is for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). To the extent resolution of these issues requires interpretation of a statute or an administrative rule, our review is for errors of law. State v. DeCamp, 622 N.W.2d 290, 292 (Iowa 2001).
III. Timeliness of Motion to Suppress.
The State initially contends Bird waived his objection to the admissibility of the intoxilyzer test results because his motion to suppress was not timely filed. We disagree.
Motions to suppress evidence illegally obtained must be filed within forty days after a defendant's arraignment. Iowa R.Crim.P. 2.11(4). In the absence of good cause, an untimely motion to suppress waives the underlying objection. Iowa R.Crim.P. 2.11(3); State v. White, 530 N.W.2d 77, 84 (Iowa Ct.App. 1994), cert. denied, 516 U.S. 88 (1995). Our determination that a motion was not timely filed is dispositive even though the State did not resist the motion on that ground in the district court. State v. DeVoss, 648 N.W.2d 56, 63 (Iowa 2002); State v. Ball, 600 N.W.2d 602, 604 (Iowa 1999), cert. denied, 531 U.S. 867 (2000).
In criminal cases the service and filing of motions are completed in the same manner as civil actions. Iowa R.Crim.P. 2.34(2). Iowa Rule of Civil Procedure 1.442(4) provides in pertinent part:
Whenever these rules or the rules of appellate procedure require a filing with the district court or its clerk within a certain time, the time requirement shall be tolled when service is made, provided the actual filing is done within a reasonable time thereafter.
Service is made for purposes of this rule by mailing a copy of the motion to the opposing party's attorney and is complete upon mailing. Iowa R.Civ.P. 1.442(2).
Bird's motion was actually filed on February 14, 2001, forty-one days after his arraignment on January 4, 2001. However, the certificate of service stamp on the motion indicates it was mailed to the county attorney on February 13, 2001, forty days after Bird's arraignment. In the absence of any claim that a one-day delay between service and filing was unreasonable, we find Bird's motion to suppress was timely filed and proceed to consider the merits of the remaining issues raised on appeal.
IV. The Merits.
In criminal cases involving claims of tainted evidence, the State has the burden to show its evidence is admissible. State v. Hamilton, 335 N.W.2d 154, 158 (Iowa 1983). The purpose of excluding evidence obtained as the result of illegal government activity is to deter police misconduct and protect the integrity of the judicial process. State v. Naujaks, 637 N.W.2d 101, 111 (Iowa 2001). A similar rationale has resulted in the exclusion of chemical test results obtained in violation of Iowa Code section 321J.6, Iowa's implied consent statute. See State v. Christianson, 627 N.W.2d 910, 913 (Iowa 2001); State v. Palmer, 554 N.W.2d 859, 867 (Iowa 1996).
A peace officer having reasonable cause to believe a person is operating a motor vehicle while intoxicated may request that person to provide a breath sample for testing using a PBT device approved by the commissioner of public safety. Iowa Code § 321J.5. If there is reasonable cause to believe a person is operating while intoxicated and the PBT result exceeds .10, the peace officer may invoke statutory implied consent procedures and request withdrawal of a bodily substance for a chemical test of the substance withdrawn. Iowa Code §§ 321J.6(1), 321J.6(1)( d); State v. Lindeman, 555 N.W.2d 693, 695 (Iowa 1996). Both reasonable cause to believe a person is operating a vehicle while intoxicated and a requisite PBT result must be present. Lindeman, 555 N.W.2d at 696 n. 2.
Substantial rather than literal compliance with section 321J.6 is sufficient to legally invoke implied consent procedures if the purposes underlying the requirements of that section are not compromised. Id. at 696. These purposes are (1) to protect the health of the person being tested, (2) to guarantee accuracy of the test result used in judicial proceedings, and (3) to prevent citizens from indiscriminate testing or harassment. State v. Hopkins, 465 N.W.2d 894, 896 (Iowa 1991). The foundation for admission of an intoxilyzer test result at trial is satisfied if the State establishes (1) the test was performed by a certified operator (2) using a device intended to determine alcohol concentration, and (3) the methods used were approved by the commissioner of public safety. Iowa Code § 321J.15.
Bird's suppression theory is premised on the unreliability of the PBT results underlying the invocation of implied consent procedures and resulting intoxilyzer test at issue. As noted earlier, Iowa Code section 321J.5 requires testing using a PBT device approved by the commissioner of public safety. The department of public safety rule governing the use and calibration of such devices provides:
7.5(2) Any peace officer using an approved device shall follow the instructions furnished by the manufacturer for use of such a device. Each unit shall be calibrated at least once per month using either a wet alcohol standard or a dry gas standard. The officer or officer's department shall keep a record of each calibration. This record shall include:
a. The officer performing the calibration.
b. Date.
c. The value and type of standard used.
d. Unit type and identification number.
Iowa Admin. Code 661-7.5 (2001). Like other agency rules, rule 661-7.5 should be given the force of law provided it is reasonable and consistent with the legislative enactment from which it is derived. Harlan Sprague Dawley, Inc. v. Iowa State Bd. of Tax Review, 601 N.W.2d 66, 69 (Iowa 1999). We presume, in the absence of more definitive authority, that this rule was adopted to advance the public interest in the proper operation of approved PBT devices and to insure the accuracy and reliability of PBT results. See Iowa Code § 321J.5; cf. State v. Hansen, 203 N.W.2d 216, 223 (Iowa 1972). We also presume that substantial rather than literal compliance with the rules requirements is sufficient if their underlying purposes are not compromised. Cf. Lindeman, 555 N.W.2d at 696.
As noted earlier, Zacharias's compliance with the manufacturer's operating instructions for the Alco-Sensor III was contested at the suppression hearing. The instruction at issue provides:
**If the ALCO-SENSOR III is being used as a SCREENER, the subject can be asked if he/she has used any alcohol in the last 15 minutes. If the response is negative, test the subject immediately; if otherwise, wait 15 minutes before testing. If the test result is positive, wait 2 to 5 minutes and take a second test. A similar result indicates true blood alcohol level. A much lower result strongly suggests mouth alcohol was present at the time of the first test.
If the ALCO-SENSOR III is being used EVIDENTIALLY, the subject must be kept under observation for 15 minutes as previously described.
The undisputed record indicates Zacharias failed to administer a second PBT when the express language of the instructions required him to do so. Although the State's expert testified a failure to administer a second test did not compromise the device's intended purpose of screening for alcohol, there is no evidence vouching for the accuracy or reliability of the resulting numeric measure of Bird's blood alcohol content. Any assertion that the PBT result reflected Bird's true blood alcohol content directly contradicts the language of the instruction.
If the purposes of these provisions are as earlier indicated, they have been clearly compromised by Zacharias's failure to follow the manufacturer's instructions in the operation of the Alco-Sensor III. Under section 321J.6( d), implied consent procedures are authorized if there is a PBT result equal to or exceeding .10. A PBT result whose accuracy reflects no more than the presence of alcohol is legally insufficient to support invocation of implied consent procedures. Id. Contrary to the district court's conclusion, we find the record insufficient to establish Zacharias's substantial compliance with either section 321J.6 or rule 661-7.5.
We also note that the subsequent intoxilyzer test confirming Bird's blood alcohol content exceeded .10 is of no consequence to our determination. In State v. Christianson, 627 N.W.2d 910 (Iowa 2001), our supreme court held that implied consent cannot be invoked unless the peace officer first has reasonable grounds to believe a driver is operating while intoxicated. Christianson, 627 N.W.2d at 913. Although Christianson only dealt with the reasonable grounds requirement of 321J.6, we believe the same reasoning requires the requisite PBT result be obtained before invocation of implied consent procedures.
We rely on the same substantial compliance analysis to determine the consequences of the Iowa City Police Department's failure to record the value and standard used to calibrate the Alco-Senor III used in this case. As noted earlier, we presume the purpose of the rule requiring these records is to advance the public interest in the accuracy of such devices. In the absence of the required records, we believe this purpose is compromised by the use of a device the accuracy of which is beyond ascertainment in accordance with the standards set by the department of public safety. For the same reasons stated earlier, the fact that this information may lend itself to subsequent determination is of no consequence to our substantial compliance analysis. Christiansen, 627 N.W.2d at 910.
In reaching our decision we have not ignored the State's argument that it has met its burden to establish the foundational facts necessary for admission of the intoxilyzer test results. See Iowa Code § 321J.15. While establishment of the requisite foundation for admission of intoxilyzer test results and substantial compliance with section 321J.6 do not present mutually exclusive considerations, they are nevertheless distinct issues. To hold otherwise would require the admission of evidence obtained through illegal government activity in direct contradiction of earlier cited authority requiring exclusion of such evidence.
In summary, we hold the arresting officer's failure to follow the manufacturer's operating instructions for the Alco-Sensor III PBT device, as well as the Iowa City Police Department's failure to record the value and method used to calibrate that device, necessitate the exclusion of the intoxilyzer test result in this case. We have not considered Bird's constitutional challenge to the use of PBT based on their inherent unreliability because he failed to raise that issue in the trial court. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994).
We reverse and remand for further proceedings in conformity with this opinion.