Opinion
No. 4-479 / 03-0847.
August 26, 2004.
Appeal from the Iowa District Court for Story County, Steven P. Van Marel and Thomas R. Hronek, District Associate Judges.
Defendant appeals from the judgment and sentence entered on his conviction for operating while intoxicated, first offense, following a stipulated trial on the minutes of testimony. AFFIRMED.
Richard Bartolomei of Bartolomei Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Stephen Holmes, County Attorney, and Timothy Meals, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Defendant-appellant, Brandon Lowry, appeals from the judgment and sentence entered on his conviction for operating while intoxicated, first offense, following a stipulated trial on the minutes of testimony. He contends the court erred in admitting the results of the breath test because (1) there were no reasonable grounds to invoke implied consent, (2) the test was performed improperly, and (3) the State did not establish the necessary foundation for admitting the test results. We affirm.
I. Background facts and proceedings.
On July 23, 2002, around 2:00 a.m., an Ames police officer observed a black Tahoe driving over a curb with both the front and back passenger-side wheels as defendant made a right turn on to a multi-lane street. After following the vehicle and seeing it swerve and cross the center line, the officer stopped it in a residential neighborhood. Defendant, who was driving the Tahoe, started to get out of it. The officer described defendant's movements as slow and uncoordinated, and defendant leaned against his vehicle. The officer observed that defendant smelled of an alcoholic beverage, his eyes were red and watery, and his speech was slurred. Defendant admitted he had been drinking. He failed three field sobriety tests, and a preliminary breath test (PBT) indicated his blood alcohol concentration was above 0.18. The officer arrested defendant for operating while intoxicated and took him to the police station. At the station, the officer invoked implied consent, and defendant submitted to a breath test. The test indicated defendant's blood alcohol concentration (BAC) was 0.156.
The State charged defendant with operating while intoxicated, first offense. Defendant filed a combined pretrial motion to suppress, motion in limine, motion for determination of admissibility pursuant to Iowa Rule of Evidence 5.104, and motion to dismiss. At the hearing on the motions, the court received testimony on the challenges to the admissibility of the breath test results. Defendant also testified. The district court denied all the motions.
Defendant waived a jury trial and, following a stipulated trial on the minutes of testimony, the district court found defendant guilty. Sentencing was set for a month later. At sentencing, defendant filed a motion for new trial, motion to vacate judgment, and motion in arrest of judgment. The court considered the motion to vacate judgment premature and the motion in arrest of judgment untimely. The court imposed a two-day jail sentence and $1000 fine plus surcharges and costs.
At the hearing on the motion for new trial based on newly-discovered evidence, defendant questioned a criminalist concerning testing and certification procedures for the Datamaster breath test machine. The court considered defendant's claim concerning certification to be narrow — relating to an alleged impropriety in the completion of the certification report. The court determined, because the guilty verdict rested on findings defendant was under the influence and had a BAC exceeding 0.10, that even a successful challenge to the breath test results would not change the outcome of the trial. The court concluded the State substantially complied with certification procedures and denied defendant's motion for new trial.
II. Scope and standard of review.
A. Motion to suppress:
When constitutional rights are implicated, we review a court's ruling on a suppression motion de novo. "In doing so, we independently evaluate the totality of the circumstances shown in the record." Because this case involves constitutional issues: "We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings."
State v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (citations omitted).
B. Motions in limine and for pretrial determination of admissibility under Iowa Rule of Evidence 5.104(a). Our review is for correction of errors of law and not for an abuse of discretion. See State v. Long, 628 N.W.2d 440, 445 (Iowa 2001). We give deference to the findings of the district court and "uphold such findings if they are supported by substantial evidence." Id. at 447.
III. Discussion.
Defendant seeks to avoid the breath test results by challenging the links in the chain leading to the use of the Datamaster machine and by challenging the foundation for admission because of improper testing and certification of the Datamaster.
A. Reasonable cause for the investigatory stop. Although not listed under his issues presented for review, defendant argues the officer did not have reasonable cause to stop his vehicle.
The Fourth Amendment of the United States Constitution requires reasonable cause to stop a person for investigation. The main reason law enforcement may stop a person is to resolve the ambiguity as to whether criminal activity is afoot. The United States Supreme Court has said reasonable cause may exist even when there is no probable cause for an arrest. Once a defendant challenges the legality of an officer's stop, the State has the burden to show the officer had specific and articulable cause to reasonably believe criminal activity [was] afoot.
State v. Heuser, 661 N.W.2d 157, 161 (Iowa 2003) (citations and internal quotation marks omitted).
We conclude the officer had reasonable cause to stop the Tahoe. He observed the driver turning from Sixth on to Grand, driving over the curb with both passenger side wheels, weaving on Grand, and crossing the center line. See Shellady v. Sellers, 208 N.W.2d 12, 14 (Iowa 1973) (stating "[e]rratic driving such as weaving across the center line of the street is sufficient to justify an officer in stopping the vehicle and conducting an investigation.").
B. Reasonable grounds to believe defendant violated section 321J.2. "The reasonable grounds test is met when the facts and circumstances known to the officer at the time action was required would have warranted 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) (quoting Munson v. Iowa Dep't of Transp., 513 N.W.2d 722, 723 (Iowa 1994)).
In addition to the reasonable grounds for the investigative stop cited above, the officer made the following observations of defendant following the stop. Defendant's movements appeared slow and uncoordinated, he smelled of an alcoholic beverage, his eyes were red and watery, and his speech was somewhat slurred. When asked if he had drunk any alcohol, defendant admitted he had had a couple of drinks. We conclude a prudent person could believe defendant was operating his vehicle while intoxicated from these circumstances alone. Therefore the officer had reasonable grounds to believe defendant had violated section 321J.2 and probable cause to arrest defendant.
The officer had defendant perform three field sobriety tests: horizontal gaze nystagmus (HGN), one-legged stand, and walk-and-turn. The officer scored defendant's performance of all three tests as failures. Defendant claims the officer did not properly administer the tests according to the law enforcement manual, so the results are not reliable. See State v. Homan, 732 N.E.2d 952, 955-56 (Ohio 2000). If the test results are not reliable, defendant argues, then opinions formed from the results are invalid and cannot be considered by the court in deciding the sufficiency of the reasonable-grounds or probable-cause determinations of the officer.
In State v. Murphy, the court analyzed the admissibility of the HGN test. State v. Murphy, 451 N.W.2d 154, 156-58 (Iowa 1990). The court found that courts around the nation had differing views on the admissibility of the test and whether a police officer is qualified to testify about the test. Ohio courts were among those that "regard the HGN test as no more scientific that other field sobriety tests that require no expert interpretation" Id. at 157 (citing State v. Nagel, 506 N.E.2d 285, 286 (Ohio 1986). Reiterating Iowa's liberal approach to the admissibility of technical information, the court stated "the result reached in State v. Nagel most closely mirrors our own liberal approach. . . ." Id. The Ohio Supreme Court determined:
The gaze nystagmus test, as do other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation. Objective manifestations of insobriety, personally observed by the officer, are always relevant where, as here, the defendant's physical condition is in issue.
Id. (quoting Nagel, 506 N.E.2d at 286). In the case before us, although the officer did not administer the tests precisely as set forth in the manual, the differences are de minimus. The clues observed by the officer in determining defendant unsuccessfully performed all three tests are clear and obvious and not affected by the minimal difference in the way they were conducted. The officer could reasonably rely on the test results as an indicator of whether or not defendant was under the influence of an intoxicant. Although we believe the officer's observations of defendant's driving and actions after the stop are sufficient to support the conclusion defendant was operating while intoxicated, the results of the field sobriety tests bolster that conclusion.
Defendant raises challenges to the preliminary breath test (PBT) based on (1) his claim he had chewing tobacco in his mouth when tested and (2) improper or inadequate record-keeping of calibration of the PBT equipment used. Because of our resolution of the other claims concerning reasonable grounds and probable cause, we need not address the PBT test or its exclusion because the test results do not affect our conclusions the investigatory stop, the determination defendant was under the influence of intoxicants, and the subsequent arrest were proper.
C. Invoking implied consent. Iowa Code section 321J.6 provides a person is deemed to have given consent to chemical testing if that person "operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A. . . ." Iowa Code § 321J.6(1). In addition to the reasonable grounds, at least one of seven enumerated conditions must exist. On the implied consent form, the officer marked two of the seven — arrest for violation of section 321J.2 and a PBT in excess of the level prohibited by section 321J.2. We already have determined the circumstances before us provide reasonable grounds to believe defendant was operating in violation of section 321J.2. Those reasonable grounds provide probable cause for his arrest. Consequently, the officer properly invoked implied consent.
D. Datamaster breath test. Iowa Code section 321J.2 provides a person may commit the offense of operating while intoxicated in three ways: (1) operate under the influence of alcohol or drugs, (2) operate while having an alcohol concentration of .10 or more, or (3) operate while having any amount of a controlled substance in the person. Iowa Code § 321J.2(1). Following the bench trial on the minutes of testimony, the district court found defendant "was under the influence of an alcoholic beverage and had a breath-alcohol concentration of .10 or more." (Emphasis added). Defendant was found guilty based on two of the three options. In ruling on defendant's motion for new trial, the court noted it found defendant operated while under the influence, so even excluding the breath test results would have no effect on the guilty verdict. We conclude the circumstances and evidence discussed above provide a sufficient basis for the district court's findings and conclusions. Accordingly, we affirm defendant's conviction on this ground and do not address his multiple challenges to the Datamaster and the test results.