Opinion
No. 5-922 / 05-0836
Filed January 19, 2006
Appeal from the Iowa District Court for Story County, Thomas R. Hronek, Judge.
Rebeckah Knight appeals from her sentencing for first-offense operating while intoxicated. AFFIRMED.
Daniel J. Gonnerman of Gonnerman, Owen Stonehocker, LLP, Ames, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Stephen Holmes, County Attorney, and Shawn Smith, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Rebeckah Knight appeals from her sentencing for first-offense operating while intoxicated, in violation of Iowa Code section 321J.2 (2003). She contends the district court erred in considering an improper factor in sentencing. We review her claim for an abuse of discretion. State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003).
Knight was arrested on December 8, 2004 for operating while intoxicated. Her breath test registered a blood alcohol concentration of .187. Knight pled guilty on March 28, 2005. At her sentencing hearing, the district court noted her blood alcohol concentration in denying her deferred judgment, pursuant to Iowa Code section 321J.2(3)(a)(1).
Knight contends the court abused its discretion in considering her blood alcohol concentration because it was not admitted by her or otherwise proven in the record, and was therefore an unproven offense. We disagree. Knight does not challenge the accuracy of her breath test result and it is the test result that triggers the prohibition on sentencing options rather than some independent finding by the court concerning the defendant's blood alcohol content. State v. Rettinghaus, 591 N.W.2d 15, 17 (Iowa 1999). Furthermore, proof of Knight's blood alcohol concentration need only be found to exist by a preponderance of the evidence. Id. Knight's breath test result, provided in the minutes of testimony and in the substance abuse evaluation report offered at sentencing by Knight, were sufficient to establish her blood alcohol concentration exceeded .15. Therefore, deferred judgment was not available. Iowa Code § 321J.2(3)(a)(1).
Knight also contends the consideration of her blood alcohol concentration violates her constitutional right to a jury trial as set forth in United States v. Booker, 543 U.S.220, 125 S. Ct. 738, ___ L. Ed. 2d ___ (2005) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding that facts which increase a defendant's authorized punishment must be found by a jury beyond a reasonable doubt). However, the case before us is factually distinguishable from the cases cited by Knight in that section 321J.2(3)(a)(1) does not increase the penalty for operating while intoxicated beyond the statutory maximum. Rather, section 321J.2(3)(a)(1) simply removes the option of deferred judgment for motorists whole blood alcohol concentration exceeds .15. Accordingly, we reject Knight's argument and affirm her sentence.