Opinion
No. 3-296 / 02-1203
Filed June 13, 2003
Appeal from the Iowa District Court for Warren County, Richard B. Clogg and Odell G. McGhee, District Associate Judges.
Timothy Mineart appeals from the judgment and sentence entered upon his conviction for operating a motor vehicle while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2 (2001). AFFIRMED.
Christopher Kragnes and Tiffany Koenig, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Gary Kendall, County Attorney, and Douglas Eichholz, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Timothy Mineart appeals from the judgment and sentence entered upon his conviction for operating a motor vehicle while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2 (2001). He contends the district court erred in denying his motion to suppress because he was not allowed reasonable opportunity to contact an attorney in violation of Iowa Code section 804.20. We affirm.
On July 8, 2001 at approximately 11:10 p.m. Officer Chad Workman of the Norwalk Police Department stopped Mineart after observing him driving forty-seven miles per hour in a twenty-five mile per hour zone. Mineart drove over a curb as he pulled into a parking lot. Officer Workman observed that Mineart's speech was slurred and his eyes were watery and red. Workman also noticed the order of alcohol coming from Mineart and Mineart admitted he had been drinking. As Mineart produced his license and registration for Workman he fumbled with the papers. Mineart made some errors as he performed the field sobriety tests. Officer Workman arrested Mineart for OWI.
On July 20, 2001 the State filed a trial information charging Mineart with OWI, first offense and Mineart pled not guilty. Mineart filed a motion to suppress on September 11, 2001 alleging he was denied his right to contact an attorney under Iowa Code section 804.20. Following hearing the district court denied Mineart's motion to suppress. Mineart waived his right to a jury trial and the case was submitted to the court on a stipulated record. The court found Mineart guilty of OWI and sentenced him to thirty days in the county jail with all but two days suspended and a $1000 fine. Mineart appeals, claiming the trial court erred in denying his motion to suppress.
At the suppression hearing Officer Workman testified that after he transported Mineart to the Norwalk police station he asked Mineart if he wanted to call a family member, friend, or lawyer. Mineart initially declined the offer to make any phone calls. After Workman read Mineart the implied consent advisory, Mineart asked to make a phone call prior to submitting to a breathalyzer test. Workman testified he then provided Mineart with a phone and phonebook allowed him to make his calls. Mineart attempted to reach an attorney at his office but only reached the attorney's answering machine. Mineart then attempted to call the same attorney at home four times and received a busy signal each time.
It appears Mineart may also have tried unsuccessfully to contact a friend at this point, but the record in somewhat unclear as to this matter.
Officer Workman testified that Mineart then stopped making phone calls and did not ask to make any other calls at that point. Workman testified that had Mineart asked to make additional calls he would have let him. Workman then asked Mineart to submit to a breath test and Mineart consented. The results of the test showed an alcohol concentration of .144. After submitting to the breath test Mineart asked to call a friend and Workman allowed him to do so.
Mineart also testified at the suppression hearing. He stated that Workman never advised him he could make a phone call and only allowed him to do so after he asked to speak to an attorney. He testified that after he was unable to reach his attorney either at the office or at his home Officer Workman told him he had to take the breath test at that point or he "would be guilty."
In ruling on Mineart's motion to suppress the district court determined Mineart's testimony that Workman told him he must take the test or he "would be guilty" was not credible. The court found Mineart was afforded a reasonable opportunity to call an attorney under section 804.20 and thus denied his motion to suppress the test results under the implied consent law.
The issue on appeal involves the trial court's findings of fact and its application of a statute to the facts. The findings of fact underlying the district court's ruling on a motion to suppress which does not involve constitutional issues are binding on appeal 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) (distinguishing the standard by which we review trial court's findings of fact in rulings on motions to suppress involving constitutional issues (deference to the trial court's findings) from the standard by which we review findings in rulings on motions to suppress not involving constitutional issues (binding if supported by substantial evidence)). Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Frake, 450 N.W.2d at 818. We review issues of statutory interpretation and application for errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). We give weight and deference to the district court's findings on credibility of witnesses, even when reviewing constitutional issues de novo in the context of motions to suppress. State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996) (weight); State v. Jackson, 542 N.W.2d 842, 846 (Iowa 1996) (deference).
Mineart claims the breath test administered after the invocation of the implied consent procedure should be suppressed because he was not afforded his statutory right to consult with a family member or attorney pursuant to Iowa Code section 804.20. That section 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.
Iowa Code§ 804.20 (2001).
Under this provision a person has a limited statutory right to counsel before being required to take or refuse a chemical test. State v. Vietor, 261 N.W.2d 828, 831-32 (Iowa 1978). If this statutory right is violated, the exclusionary rule applies and any evidence of chemical testing must be suppressed. State v. Krebs, 562 N.W.2d 423, 426 (Iowa 1997). However, the statute does not provide an absolute right to counsel. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997). Section 804.20 only requires a peace officer provide the arrestee with a reasonable opportunity to contact an attorney. Id. The right is limited to circumstances which will not materially interfere with the administration of testing within the two hour time limit imposed by section 321J.6(2). Vietor, 261 N.W.2d at 831-32; Moore v. Iowa Dep't of Transp., 473 N.W.2d 230, 231 (Iowa Ct.App. 1991). In addition, police have no duty to advise a defendant of this right. See State v. Meissner, 315 N.W.2d 738, 740 (Iowa 1982); Vietor, 261 N.W.2d at 831. Ordinarily, the right is satisfied if an arrestee is allowed to make a telephone call to his attorney. Bromeland, 562 N.W.2d at 626; Ferguson v. Iowa Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1988).
Initially, we give deference to, and agree with the district court's credibility determination regarding the conflicting testimony of Officer Workman and Mineart concerning what took place after Mineart was transported to the police station.
The record here reveals Officer Workman informed Mineart he could call a family member, friend, or an attorney, despite the fact Workman had no affirmative duty to so advise Mineart. Although Mineart initially declined this offer, when he later requested to make a phone call Workman provided him with a phonebook and phone and Mineart was allowed to make several phone calls to his attorney. Mineart then stopped making calls and did not request to make any additional calls until after the breath test, at which point he was again allowed to use the phone. Mineart did not request that Workman wait until he got through to an attorney to perform the breath test but merely consented when asked if he would submit to the test. Officer Workman did not have a duty to wait until the attorney's line was open or to inform Mineart he could try to contact another attorney or family member before administering the breath test that was consented to by Mineart. We agree with the district court that Mineart was afforded a reasonable opportunity to contact an attorney in compliance with section 804.20.
We conclude the trial court did not err in denying Mineart's motion to suppress. Its findings of fact are supported by substantial evidence and its conclusions of law correctly apply the law to those findings. We affirm denial of the motion to suppress and the subsequent conviction and sentence.