Opinion
No. 4-183 / 02-2103.
September 9, 2004.
Appeal from the Iowa District Court for Polk County, Joe Smith, District Associate Judge.
Defendant appeals from operating a motor vehicle while under the influence conviction, first offense, raising issues of arrest and operation of intoxilizer device. AFFIRMED.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, John Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan, J., and Snell, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Defendant William Knapp III was charged with operating a motor vehicle while under the influence of alcohol in violation of Iowa Code section 321J.2 (2001). The charge was based on an incident that occurred on March 10, 2002. Defendant waived his right to a trial by jury and stipulated to a trial on the minutes of testimony. The trial court found him guilty and sentenced him to a first offense incarceration and a fine of $1000.
The operative facts show that an Urbandale police officer observed defendant's vehicle traveling on Hickman Road. The officer's radar showed that defendant was speeding. Defendant was stopped, questioned, and observed by the officer to have an odor of alcohol eminating from the car's back seat. Some cases of beer were in the back seat. Defendant's eyes were watery. He told the officer he had consumed a couple of beers at a friend's house. When defendant sat in the back of the officer's patrol car, the officer smelled the odor of an alcoholic beverage.
The officer administered three field sobriety tests and a preliminary breath test to defendant. Defendant performed poorly, leading the officer to arrest him. Defendant later submitted to an Intoxilizer breath test, which showed a blood alcohol concentration of .168.
On appeal, defendant sets forth numerous propositions claiming justification for relief. We consolidate and summarize them for purposes of analysis. Because they pertain to statutory interpretation and application, we review them for errors at law. State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003). The district court's findings are binding if supported by substantial evidence. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990); see also State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001).
Defendant filed a motion to suppress and a motion in limine. Error was preserved. Evidence was taken in regard to both motions.
Defendant believes the provisions of the implied consent law were improperly invoked. See Iowa Code § 321J.6. That law may be invoked when the officer has reasonable grounds to believe the driver was operating a motor vehicle while intoxicated and anyone of seven enumerated conditions in the statute existed. Reasonable grounds are established when the facts and circumstances lead to a prudent person's belief that an offense has been committed. Pointer v. Iowa Dep't of Transp., 546 N.W.2d 623, 625 (Iowa 1996). Both direct and circumstantial evidence may be considered in determining if reasonable grounds exist. Id. at 626.
In this case, the evidence established defendant was speeding, admitted to drinking beer at a friend's house, and had cases of beer in the back seat of the car. His eyes were a little watery, and he exhibited the odor of an alcoholic beverage. The car stop by the officer occurred at about 2:00 a.m.. With the consent of defendant, the officer administered the field sobriety tests. The accuracy of those tests for admissibility is vigorously challenged by defendant.
The walk and turn test is claimed to be invalid because the officer did not instruct defendant to look at his feet during the test. The one-legged stand test is claimed to be invalid because defendant was not told to keep his legs straight. Defendant failed the tests notwithstanding these instructions would have aided not hindered him. Defendant's objection is more technical than based on any substantive difference it would make.
The horizontal gaze nystagmus test was also administered. This was claimed to be faulty on numerous grounds including that car headlights would be passing through the defendant's field of vision. We ignore the results of this test. Even so, the enumerated circumstances are clearly sufficient to establish reasonable grounds to believe defendant was intoxicated when operating his motor vehicle. These grounds also provide probable cause to place defendant under arrest for violation of section 321J.2.
The officer's judgment to place defendant under arrest was bolstered by the result of a preliminary breath test. After arrest, defendant was administered the Intoxilizer breath test which registered blood alcohol concentration of .168.
Defendant challenges the admission in evidence of this test result on numerous grounds. He asserts the administrative rules were violated which require monthly calibration of the preliminary breath testing (PBT) device and maintenance of a calibration log. Iowa Admin. Code r. 661-7.5(2). The calibration log for the PBT device used here showed it had been calibrated on March 2, 2002, and used on March 27, 2002. The log also identified the officer calibrating the device, listed the unit and identification number, and the calibration reading of the test. Although it is not signed by the calibrating officer, that is not required. The administrative rule requires certification of proper working order "within one year immediately preceding use." Iowa Admin. Code r. 661-7.2(1). The Intoxilizer was properly certified.
Defendant also makes an argument based on margin of error. Under Iowa Code section 321J.2(10), the results of the breath test may not be used to prove a defendant had an alcohol concentration of .10 or more "if the alcohol . . . concentration indicated by the chemical test minus the established margin of error inherent in the device or method used to conduct the chemical test does not equal or exceed" .10. Defendant's arguments focus on the margin of error caveat. He correctly says the device used here was not calibrated and certified for accuracy of breath testing above .16. However, the law does not require that. The critical area for testing for accuracy was .10. Division of Criminal Investigation Criminalist Robert Monserrate testified that the margin of error would never be great enough to bring a reading of .160 under .10. Iowa Code section 321J.2(10) requires only that the result minus the established margin for error equal or exceed .10. The calibration and certification of the Intoxilizer instrument used here met the statutory and administrative requirements for accuracy. This evidence was properly admitted for consideration by the trial judge.
Our supreme court in two recent cases approved the use of the Data Master device for testing intoxication, which is similar to the type of device used in the case here. See State v. Stratmeier, 672 N.W.2d 817 (Iowa 2003); State v. Hornick, 672 N.W.2d 836 (Iowa 2003). In both cases, questions of improper use of the device, similar to those raised here, are analyzed and found not to constitute reversible error. We deem no error has been committed by the trial court in this regard.
We have considered all of the questions raised by the defendant in appealing his conviction. The judgment of the trial court is affirmed.