Opinion
No. 04-0128.
March 31, 2005.
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.
Richard Mark Rolling appeals his conviction, following a bench trial on the minutes of evidence, for operating while intoxicated, third offense. AFFIRMED.
Richard Bartolomei, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy K. Oetken, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Richard Mark Rolling appeals his conviction, following a bench trial on the minutes of evidence, for operating while intoxicated (OWI), third offense. He contends the district court erred in overruling his motions challenging the admissibility of certain evidence. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
At approximately 9:00 p.m. on June 6, 2002, Trooper Lynn Oleson of the Iowa State Patrol stopped Rolling's vehicle after observing he was not wearing a seat belt. Trooper Oleson noticed that Rolling's eyes were bloodshot and watery and that Rolling had two cans of beer in his center console, one of which was open and about one-third full. Based on these observations Oleson asked Rolling to take a seat in his squad car with the intention of beginning field sobriety tests. Once inside the squad car Oleson noticed the odor of alcohol coming from Rolling and immediately asked him to submit to field sobriety testing. Oleson also asked Rolling how much beer he had consumed and Rolling responded he "had about four." The trooper then had Rolling perform the horizontal gaze nystagmus (HGN), walk and turn, and one legged stand tests. In Trooper Oleson's opinion Rolling failed all three tests. Oleson then requested a preliminary breath test from Rolling. The test indicated Rolling had an alcohol concentration in excess of .10, the legal limit at that time. Rolling was arrested for OWI and transported to the sheriff's office. Once there Rolling was read the implied consent advisory form and signed it. Rolling submitted to a test of his breath on the Intoxilyzer 4011A. This test showed Rolling's alcohol concentration to be .202.
At the time of Rolling's arrest the Intoxilyzer 4011A was an approved device to test alcohol concentration. See Iowa Admin. Code r. 661-7.2(3)( a) (1988). Effective May 1, 2003, this device was removed as an acceptable device to determine alcohol concentration in Iowa. The state now uses the Datamaster cdm.
On July 9, 2002, Rolling was charged, by trial information, with OWI, third offense, in violation of Iowa Code section 321J.2 (2001). Rolling filed a combined motion entitled "MOTION TO SUPPRESS, MOTION IN LIMINE, RULE 104 DETERMINATION OF ADMISSIBILTIY, MOTION TO DISMISS, EVIDENTIARY HEARING REQUESTED" on August 26, 2002. In the combined motion Rolling sought to exclude all evidence obtained as a result of the stop based upon an alleged lack of legal cause to stop him, to conduct field sobriety tests, to request a preliminary breath test, and to invoke implied consent, and based upon alleged improper administration of the field sobriety tests and defects in the certification and calibration of both the Alco-sensor used for the preliminary breath test and the Intoxilyzer 4011A.
Following an evidentiary hearing the district court denied Rolling's motions. The court found that the stop was legally proper based on Rolling's failure to wear a seat belt. The court also found that despite Rolling's various assertions the field sobriety tests were not administered properly the videotape of the stop did not warrant disqualification of the evidentiary value of the test results, Trooper Oleson was justified in relying on the tests, and the "weight to be given to those test results is for the trier of fact in future proceedings." Thus, the court determined that based on the open container of beer, Oleson's observations of Rolling, and Rolling's admission he had consumed "about four" beers, Trooper Oleson had reasonable grounds to believe Rolling was operating a motor vehicle while intoxicated and his request for a preliminary breath test and invocation of implied consent met statutory criteria. Finally, the court found the evidence showed the proper procedures were followed and, pursuant to section 321J.15, the "results of the Intoxilyzer test are admissible `without further foundation.' The weight to be given to and the reliability of those results are for a trier of fact."
The matter proceeded to bench trial on the minutes of evidence. The district court found Rolling guilty as charged. Rolling was sentenced to a term of imprisonment of five years with all but thirty days suspended, placed on probation for two years, and fined $2,500.
Rolling appeals the trial court's denial of his motions, challenging the admissibility of the field sobriety tests and the Intoxilyzer results. Specifically, Rolling contends the trial court erred in (1) considering any of the field sobriety tests as supporting a finding of reasonable grounds to invoke implied consent or probable cause to arrest, because the trooper admitted he failed to administer each of the tests in compliance with the respective standardized elements, (2) failing to rule on or adequately address his claim the State did not establish the necessary foundation for the admission of the Intoxilyzer 4011A test results under section 321J.15; and (3) failing to consider that under the rules of statutory construction the plain meaning of the specific statutory language of section 321J.2(10) precluding the use of the test result in criminal prosecutions for which there is no margin of error actually determines admissibility and controls the more general language of 321J.15, and finding the results were admissible under section 321J.2(10).
II. SCOPE AND STANDARDS OF REVIEW.
Because this case raises issues of the proper interpretation and application of both statutes and administrative rules our review is for errors at law. State v. Stratmeier, 672 N.W.2d 817, 820 (Iowa 2003). "`Where the issue on appeal is not one of fact but rather one of statutory interpretation and application, the supreme court is not bound by trial courts determinations of law.'" State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003) (quoting State v. Davis, 271 N.W.2d 693, 695 (Iowa 1978)). In cases involving issues of statutory interpretation and application the district court's findings of fact are binding on appeal if supported by substantial evidence in the record. See State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001) (citing State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990)).
III. MERITS.
A. Arrest and Implied Consent.
Under Iowa Code section 321J.5, when a peace officer has reasonable grounds to believe that a person is operating a motor vehicle while intoxicated, in violation of section 321J.2 or 321J.2A, the officer may request a sample of the operator's breath for a preliminary screening test. We conclude Trooper Oleson had reasonable grounds here to believe Rolling was operating while intoxicated based on the following facts: Oleson smelled alcohol on Rolling; he observed Rolling had bloodshot, watery eyes; Rolling was not wearing a seatbelt in violation of the law; Rolling's admission to Oleson he had "had about four" beers; and the fact there was a partially consumed open beer can in his vehicle.
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)). An officer may consider both direct and circumstantial evidence in determining whether reasonable grounds exist. Id. Taking all of the facts listed above into account, Trooper Oleson had reasonable grounds to believe Rolling was operating a vehicle while intoxicated and thus could request a preliminary breath test from Rolling. We recognize that Rolling is alleging the field sobriety tests were not properly administered. However, even without taking into consideration the results of those tests, reasonable grounds existed to believe he was operating his vehicle while intoxicated.
After establishing reasonable grounds to request a preliminary breath test, Trooper Oleson administered the test. Oleson testified that the preliminary breath test showed an alcohol concentration in excess of .10, the legal limit at the time. This result, together with the other facts listed above which provided reasonable grounds to believe Rolling had been operating while intoxicated, gave Trooper Oleson probable cause to arrest Rolling for OWI, in violation of section 321J.2.
Iowa's implied consent statute, Iowa Code section 321J.6, governs an officer's authority to request a chemical test for purposes of determining alcohol concentration. Under this statute an officer may invoke implied consent when (1) the officer has reasonable grounds to believe the driver was operating a motor vehicle while intoxicated, and (2) any one of the seven conditions listed in section 321J.6(1) exists. State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003); see also State v. Palmer, 554 N.W.2d 859, 862 (Iowa 1996). Trooper Oleson had reasonable grounds to believe Rolling was operating a motor vehicle while intoxicated based on the facts discussed above. Thus the first requirement for invoking implied consent was met. One of the seven conditions listed in 321J.6(1) is that "A peace officer has lawfully placed the person under arrest for violation of section 321J.2." Iowa Code § 321J.6(1)(a). As noted above, Oleson had probable cause to lawfully arrest Rolling for OWI, and therefore the second requirement for invoking implied consent under 321J.6 is also met. Thus, Trooper Oleson was justified in invoking implied consent for the withdrawal of a breath specimen from Rolling.
Oleson read Rolling the implied consent form. Rolling signed the form and gave a breath sample using the Intoxilyzer 4011A. The result of the test showed Rolling had a .202 alcohol concentration.
We need not determine whether the district court erred in considering the results of the field sobriety tests because even without considering such results there existed both probable cause to arrest Rolling for OWI and grounds to invoke implied consent, rendering error, if any, harmless.
B. Foundation for Admission of Intoxilyzer 4011A Results.
1. Section 321J.15.
The admissibility of breath test results is governed by Iowa Code section 321J.15. Under section 321J.15 there are three requirements which must be met for the introduction at trial of evidence of a person's alcohol concentration as shown by a chemical analysis of the person's breath: (1) the analysis of the breath specimen was performed by a certified operator; (2) the certified operator was using a device intended to determine alcohol concentration; and (3) the certified operator was using methods approved by the commissioner of public safety. If these three criteria are established, "no further foundation is necessary for introduction of the evidence." Iowa Code § 321J.15. Under section 321J.15, when the State has shown that a certified operator used an approved device and methods of operation, no further foundation is necessary for admission of the test results. State v. Bechtel, 434 N.W.2d 892, 894 (Iowa Ct.App. 1988).
Trooper Oleson testified, and Rolling does not dispute, that Oleson has been certified by the Iowa Department of Public Safety to administer breath tests on the Intoxilyzer 4011A. Thus, the first foundational requirement was met. At the time of Rolling's arrest the Intoxilyzer 4011A was an approved device under Iowa's administrative rules for determining alcohol concentration, thereby satisfying the second foundational requirement. Iowa Admin. Code r. 661-7.1, r. 661-7.2(3)(a) (1988).
See note 1.
Finally, Trooper Oleson testified that he followed the operational checklist that is put out by the Iowa Department of Public Safety, Division of Criminal Investigation (DCI) to ensure the proper operation of the Intoxilyzer 4011A. The commissioner of public safety has approved the breath testing methods established by the DCI pursuant to delegation of supervisory authority to the DCI by Iowa Administrative Code rule 661-7.2. See Hornik, 672 N.W.2d at 840-41 (holding commissioner's decision to approve DCI-established methods by referencing the written instructions and training of the DCI is consistent with the requirement of the Iowa Code). The State also introduced evidence showing that the intoxilyzer used by Oleson had been certified to be in proper working order within the preceding year. See Iowa Admin. Code r. 661-7.2(1) (1988). Accordingly, because Trooper Oleson was using methods approved by the Commission of Public Safety the third foundational requirement in section 321J.15 was also met.
Rolling further argues the results of the breath test are unreliable because the State failed to test the thermostats which control the warm-up and the temperature inside the sample cell to ensure operation within the manufacturer's design specifications. He alleges the temperature of the sample cell affects the test results. However, DCI criminalist Robert Monserrate testified for the State that, based on studies he had conducted or was involved in, he had found that any perceptible changes due to the temperature of the sample cell were statistically insignificant and were within the margin of error for the device.
Monserrate's testimony from a separate case on the issue of the calibration and certification of Intoxilyzer Models 1140A was admitted by agreement of the parties.
The legislature has determined that if the three requirements discussed above are met the evidence of alcohol concentration is admissible without further foundation. Iowa Code § 321J.15. "Under this statutory arrangement, unless it can be demonstrated that the test results are so unreliable as to preclude consideration, the results are admissible [and] any challenge to the procedures used in obtaining the chemical test goes to the weight of the evidence rather than its admissibility." Stratmeier, 672 N.W.2d at 821. Thus, Rolling's challenges to the results of the test would go to the weight to be given the results, not to their admissibility. Accordingly, we conclude the district court did not err in denying this foundational challenge to the admissibility of the Intoxilyzer 4011A breath test results based on section 321J.15.
2. Section 321J.2(10) — Margin of Error.
Notwithstanding our determination that the State satisfied the foundational requirements for the admission of the intoxilyzer result under section 321J.15, Rolling contends the test results should have been excluded because the DCI's methods for determining the margin of error of the intoxilyzer results are unreliable and thus the results are inadmissible under section 321J.2(10). He argues that according to this section the State is required to show an "established margin of error" for each individual intoxilyzer used, and further argues that the more specific statutory language in 321J.2(10) actually determines admissibility and controls the more general language of 321J.15. Rolling asserts that because the State failed here to establish a reliable margin of error for the specific intoxilyzer used to test his breath the test result was not admissible.
Section 321J.2(10) states:
In any prosecution under this section, the results of a chemical test shall not be used to prove a violation of subsection 1, paragraph "b" or "c", if the alcohol, controlled substance, or other drug concentration indicated by the chemical test minus the established margin or error inherent in the device or method used to conduct the chemical test does not equal or exceed the level prohibited by subsection 1, paragraph "b" or "c".
As set forth above, unless is can be shown that the test results are so unreliable as to preclude consideration, the challenges made to the procedures utilized to obtain the results go to the weight of the evidence rather than to admissibility. Stratmeier, 672 N.W.2d at 821. Our review of the record leads us to conclude the State's methods of establishing a margin of error, as explained by Monserrate, did not make Rolling's test results so unreliable as to preclude their consideration.
The Intoxilyzer 4011A used in this case had been calibrated within the year preceding Rolling's test to be accurate within a .004 or 5% margin of error. The machine was tested with solutions of .05 and .10, within the first two potentiometers contained in the intoxilyzer machine. Therefore, the accuracy of the results of the particular Intoxilyzer 4011A used was shown to be reliable to establish that Rolling was operating while intoxicated as defined in section 321J.2(1)(b). However, Rolling argues the DCI's certification procedures are insufficient and the test results flawed because the DCI does not test accuracy for alcohol concentrations that fall within the range of the potentiometer that contains his test result of .202.
Monserrate did testify that different potentiometers read at different ranges which were respectively up to .08, from .08 to .15, from .15 to .22, and from .22 to .32. He acknowledged that testing using the standard solutions of .05 and .10 does not test the accuracy of the third potentiometer and that he does not calibrate the third and fourth potentiometers to see if they read specimens within his claimed margin or error. However, he also testified that the margin of error at levels above .10 would clearly not be great enough to bring Rolling's test result of .202 below .15 and certainly not below the legal limit of .10. He therefore concluded that any possible difference between the margin of error for results above .15 and the tested and established margin of error for results below this level is not significant enough to be prejudicial to Rolling.
Furthermore, to the extent that Rolling is attempting to argue that the possible margin of error could bring his result down to .15 and thus qualify him for a deferred judgment such argument is without merit because the margin of error is not considered in determining eligibility for a deferred judgment. See Iowa Code § 321J.2(3)(a)(1).
Furthermore, Rolling is not eligible for a deferred judgment regardless of his breath alcohol concentration because he has previously been convicted of OWI. See Iowa Code § 321J.2(3)(a)(2).
We conclude Rolling's test result from the Intoxilyzer 4011A was also admissible under section 321J.2(10) because the State's method of establishing a margin of error did not render the test results so unreliable so as to preclude their consideration. See Stratmeier, 817 N.W.2d at 821. Thus, Rolling's challenges to the margin of error and the results go to the weight of the evidence, not its admissibility, and the district court did not err in allowing this evidence.
IV. CONCLUSION.
We conclude the district court did not err in denying Rolling's motions challenging the admissibility of certain evidence surrounding his arrest for OWI. Based on the specific facts and circumstances found here, we conclude that Trooper Oleson had reasonable grounds to request a preliminary breath test from Rolling, probable cause to arrest him for OWI, and grounds to invoke implied consent. We further conclude the court did not err in determining the foundational requirements for the admission of Rolling's test results were met under section 321J.15 and in overruling the part of Rolling's motions based on section 321J.2(10).
We have considered all issues and arguments presented, whether or not expressly addressed in this opinion. Any we have not addressed are controlled by those we have addressed, are without merit, or we deem them waived. AFFIRMED.
See Iowa R. App. P. 6.14(1)( c) (stating a failure in a brief to argue in support of an issue may be deemed waiver of that issue).