Opinion
No. 4-422 / 03-1904.
July 28, 2004.
Appeal from the Iowa District Court for Cerro Gordo County, Carlynn D. Grupp, District Associate Judge (motion to suppress), and Gilbert K. Bovard, Judge (trial).
The defendant appeals from his conviction, following a bench trial, of operating while intoxicated, first offense. AFFIRMED.
John P. Lander of Brown, Kinsey, Funkhouser Lander, P.L.C., Mason City, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Paul L. Martin, County Attorney, and William Hoekstra, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
I. Background Facts Proceedings
On April 20, 2003, at about 12:30 a.m., Deputy Matthew Klunder of the Cerro Gordo County Sheriff's Office stopped Joshua Moorehead for speeding. Deputy Klunder stated Moorehead had an odor of alcohol and his speech was slurred. He observed that Moorehead's eyes were not bloodshot, but were glazed. Moorehead at first denied having anything to drink, but later admitted to having one beer.
Deputy Klunder was unable to obtain a valid preliminary breath test due to an equipment malfunction. Moorehead failed the field sobriety tests which were administered. Deputy Klunder then stopped field sobriety tests and placed Moorehead under arrest for operating while intoxicated, in violation of Iowa Code section 321J.2 (2003).
Deputy Klunder asked Moorehead if someone could pick up his car, because Moorehead needed to come to the sheriff's office for an additional test. Moorehead, who was then eighteen years old, stated he was driving his mother's car, and that his parents could come to get it. Moorehead then asked, "Would it be possible for me to talk to my mom when you call her?" Klunder replied, "Not right now," explaining that he had to call the dispatcher, who would call Moorehead's mother. Klunder then stated they would have to wait at the scene until Moorehead's parents showed up anyway.
At the scene, Moorehead's mother asked Deputy Klunder if she could talk to Moorehead. Deputy Klunder stated he had to take Moorehead down to the station and someone would call the parents when Moorehead was released. Through the window of the patrol car Moorehead's mother managed to tell Moorehead he was grounded, but Moorehead was unable to speak to his mother. Moorehead's parents then returned to their home.
At the station, Deputy Klunder read Moorehead his Miranda rights and the implied consent form. Moorehead asked Deputy Klunder for advice as to what he should do, and Klunder replied it was Moorehead's decision. Moorehead decided to take the breath test, which resulted in a reading of .182. The dispatcher called Moorehead's parents after he was released from jail at about 3:00 a.m.
Moorehead filed a motion to suppress the results of his breath test. He asserted his request to contact a family member was not honored, which violated section 804.20. The district court determined that the statute was not violated because Moorehead did not make a second request to call an attorney or family member once he reached the place of detention.
Moorehead waived his right to a jury trial, and the case proceeded to a trial on the minutes of testimony before the district court. The court found Moorehead guilty of operating while intoxicated, first offense. Moorehead was sentenced to serve two days in the county jail. He now appeals.
II. Standard of Review
Our review of a claim brought pursuant to section 804.20 is for the correction of errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will affirm the district court's ruling on a motion to suppress if there is substantial evidence supporting the court's findings of fact. Id. Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Id.
III. Section 804.20 A.
Moorehead contends the district court erred in denying his motion to suppress. He claims he made a valid request to speak to his mother and, because this request was not honored, the results of his breath test should not have been considered by the district court in determining his guilt.
Iowa Code section 804.20 provides:
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.
Under section 804.20, an arrested person must be permitted to make a telephone call to an attorney or family member upon request when charged with a violation of chapter 321J, subject to certain limitations. State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978); State v. Carter, 577 N.W.2d 855, 857 (Iowa Ct.App. 1998). An arrestee must have a reasonable opportunity to contact an attorney or family member. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997). The right to contact a family member under this section is neither more nor less qualified than the right to contact an attorney. Krebs, 562 N.W.2d at 426.
Section 804.20 does not require an officer to tell an arrested person that he or she has a right to contact counsel or a family member. Didanato v. Iowa Dep't of Transp., 456 N.W.2d 367, 371 (Iowa 1990). However, when a request to make a telephone call is made, the statutory purpose is not met if the officer stands mute and refuses the request. Id. If the statutory right is violated, the exclusionary rules apply, and any evidence of chemical testing must be suppressed. Vietor, 261 N.W.2d at 832.
The district court found "Iowa law places the burden of requesting the call upon the arrested person once the person is at the place of detention." The court noted Moorehead had not made a request once he reached the jail, and concluded Moorehead had not made a valid request under section 804.20. The statute, however, applies to a person in custody or "restrained of the person's liberty for any reason whatever." Iowa Code § 804.20. There is no language in the statute which requires the request to contact a family member or attorney to be made after the person reaches the place of detention.
The pertinent question is whether the person was "in custody or otherwise sufficiently restrained," at the time the request was made. Krebs, 562 N.W.2d at 426. See also State v. Dennison, 571 N.W.2d 492, 495 (Iowa 1997) (noting the holding in Krebs). In Krebs, 562 N.W.2d at 426, the supreme court determined a request to telephone a family member during field sobriety tests did not implicate section 804.20 because the person was "not in custody or otherwise sufficiently restrained."
In the present case, Deputy Klunder testified Moorehead was technically under arrest after they got through with the field sobriety tests. Thus, Moorehead had been placed under arrest and was sitting in the back of the patrol car at the time he requested to talk to his mother. We conclude Moorehead was "in custody or otherwise sufficiently restrained" at the time he requested to talk to a family member. Moorehead's request should have been honored "without unnecessary delay after arrival at the place of detention. . . ." See Iowa Code § 804.20.
B.
On appeal, the State claims Moorehead did not unequivocally request to speak to a family member. The State asserts that Moorehead's statement only concerned whether his parents were going to pick up the car. A request to contact counsel or a family member must be made in good faith. Ferguson v. Iowa Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1988). Whether a request is made in good faith is determined by an objective consideration of the statements and conduct of the arrestee and peace officer, as well as the surrounding circumstances. Id.
The district court found Moorehead requested to speak to his mother at the scene, but concluded this request was not valid because it was not made at the place of detention. We determine substantial evidence supports a finding that Moorehead requested to speak to his mother. We determine Moorehead's request was sufficiently clear to implicate section 804.20. Because Moorehead's request to speak to a family member was not honored, the results of his breath test should have been suppressed.
IV. Harmless Error.
The State contends that any possible violation of section 804.20 was harmless because there was overwhelming evidence Moorehead was driving while impaired by alcohol. We agree. The evidence indicates Moorehead was speeding and failed to stop when initially pursued by the deputy. He swerved over the center line twice. Upon approaching Moorehead, the deputy detected an odor of alcohol, slurred speech, and glazed eyes. Moorehead failed all field sobriety tests and admitted at the station, "I'm drunk as hell." We conclude there was sufficient evidence to support Moorehead's conviction even without the results of the chemical test. Therefore, Moorehead has failed to demonstrate prejudice from the district court's ruling, and we find no reversible error. State v. Runyan, 599 N.W.2d 474, 479 (Iowa Ct.App. 1999).
AFFIRMED.