Opinion
No. 6-074 / 05-0548
Filed March 29, 2006
Appeal from the Iowa District Court for Polk County, Carol S. Egly and Odell McGhee, District Associate Judges.
Cory Brant appeals following his conviction for operating while intoxicated, second offense. AFFIRMED.
Aaron Hamrock of McCarthy Hamrock, P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Romanda B. Ford, Assistant County Attorney, for appellee-State.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Cory Brant appeals following his conviction for operating while intoxicated, second offense. We affirm.
Background Facts and Proceedings.
At 1:55 a.m. on the morning of July 22, 2004, Pleasant Hill Police Sergeant Paul Brown arrested Corey Brant for operating while intoxicated and transported him to the police station. After arriving at the booking room, Sergeant Brown asked Brant if he wished to make any phone calls. Brant responded that he wished to call his attorney. Sergeant Brown provided a phonebook, and Brant made several phone calls, but was unable to speak to an attorney. Brant also called his brother, who provided him with the phone number of an attorney whom Brant unsuccessfully attempted to reach.
At 2:13 a.m., Sergeant Brown invoked implied consent, and Brant was allowed to continue making telephone calls. After those calls were not answered, Sergeant Brown then informed Brant it was unlikely he would be able to contact an attorney at that hour. At 3:09 a.m. Brown again asked Brant if he would submit to a breath test. When Brant replied that he would not submit to the test until he talked to an attorney, Sergeant Brown informed Brant he would consider that response a refusal. Brant insisted he was not refusing to submit to a test, but merely maintaining he would not take the test until he spoke with a lawyer. Brant again refused to sign the implied consent form, and Sergeant Brown recorded this as a refusal to submit to the test.
Based on these events, the State charged Brant with operating while intoxicated, second offense. Brant later filed a motion to suppress the evidence of his breath test refusal, arguing his right to call an attorney under Iowa Code section 804.20 (2003) had been abridged. The court denied the motion. Brant then waived his right to a jury trial and the case was presented to the court for a bench trial on the minutes of testimony. The court found Brant guilty and sentenced him to a two-year term of imprisonment, with all but two days suspended. Brant appeals, contending the district court erred in denying the motion to suppress the breath test refusal because the statutory right to consult counsel was abridged.
Scope and Standards of Review.
When the admission of evidence depends on the interpretation of a statute, we review for correction of errors of law. State v. Palmer, 554 N.W.2d 859, 864 (Iowa 1996). Thus, we review the district court's ruling on the motion to suppress to determine whether the court correctly interpreted and applied section 804.20. State v. Demaray, 704 N.W.2d 60, 62 (Iowa 2005).
Discussion.
Brant claims his statutory right to counsel under Iowa Code section 804.0 was violated. The statute provides in pertinent part:
Any peace officer or other person having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person's family or an attorney of the person's choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made it shall be made in the presence of the person having custody of the one arrested or restrained.
Iowa Code § 804.20. This limited right to counsel is satisfied by allowing the arrestee to make a telephone call. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 625 (Iowa 1997). "Section 804.20 does not provide an absolute right to counsel, but requires a peace officer to provide the arrestee with a reasonable opportunity to contact an attorney." Id.
Law enforcement officers need not allow an arrestee facing an implied consent decision the opportunity to deliberate for the full two-hour statutory period within which a valid BAC test must be undertaken if it is to serve as the basis for revoking driving privileges. See Moore v. Iowa Dep't. of Transp., 473 N.W.2d 230, 231 (Iowa Ct.App. 1991) (stating "[t]he two-hour period during which testing must occur does not mean every arrestee is granted two full hours before he or she must consent to testing"). We therefore reject Brant's claim his statutory rights were violated when Sergeant Brown "prematurely" determined that Brant's actions constituted a refusal.
Moreover, Brant was allowed to make a number of phone calls both prior to and after the invocation of implied consent. See Moore, 473 N.W.2d at 232 (stating that generally an arrestee's right to communications "is satisfied if the arrestee is permitted to make a phone call to his or her attorney"). Despite his efforts to call attorneys both at their offices and at their homes, Brant was unable to reach one. After concluding that further efforts were likely to be fruitless due to the lateness of the hour, Sergeant Brown informed Brant he must make a decision on whether to take the breath test. Having considered all of the circumstances, including but not limited to the time and the number of Brant's unsuccessful attempts to call an attorney, we conclude Brant was provided a reasonable opportunity to contact an attorney under section 804.20. Accordingly, we conclude the district court properly denied the motion to suppress Brant's refusal of the breath test, and we affirm the conviction.