Opinion
No. 1-1053 / 01-1035.
Filed June 19, 2002.
Appeal from the Iowa District Court for Polk County, CYNTHIA M. MOISAN, District Associate Judge.
Jeremy Reed Sinnard appeals from the judgment and sentence entered upon his conviction for second-offense operating while intoxicated in violation of Iowa Code section 321J.2 (2001). AFFIRMED.
Trever Hook, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Linda Zanders, Assistant County Attorney for appellee-State.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Jeremy Reed Sinnard appeals from the judgment and sentence entered upon his conviction for second-offense operating while intoxicated in violation of Iowa Code section 321J.2 (2001). He argues the district court erred in denying his motion to suppress the results of his breath test. Our review is for errors at law. State v. Stephenson, 608 N.W.2d 778, 783 (Iowa 2000). The district court's findings of fact are binding on us if supported by substantial evidence. State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998).
After failing a preliminary breath test in conjunction with a traffic stop, Sinnard was arrested and transported to the police station where he submitted to an intoxilyzer test, which indicated his blood alcohol concentration was .137. Either before or after the intoxilyzer test was administered, Sinnard asked for an independent chemical test and was told he would have to wait until the booking process was completed. After the booking, Sinnard was placed in a cell while officers completed their paperwork. He was later transported to the jail because of an outstanding warrant for his arrest on unrelated matters.
Sinnard argues the district court should have suppressed the results of his breath test because he was denied his right to an independent blood test in violation of Iowa Code section 321J.11. Section 321J.11 provides for alcohol testing of arrested subjects. It reads in relevant part:
The person may have an independent chemical test or tests administered at the person's own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer.
Iowa Code § 321J.11. However, a person is not entitled to an independent test until the test requested by the officer has been administered. Wootten, 577 N.W.2d at 655. Section 321J.11 does not prescribe a sanction against the state if an officer fails to comply with a request for an independent test. Id.
While it is unclear whether Sinnard requested an independent chemical test before or after the intoxilyzer test was administered, the district court found he did request the test. The court concluded, however, defendant's warrant and subsequent transportation to the jail made it impossible for him to obtain an independent test. It found the officers were under no duty to make arrangements or to transport the defendant for the test.
We find the district court properly denied Sinnard's motion to suppress the results of his breath test. When Sinnard requested an independent chemical test, he was informed he could obtain one after the booking procedure was completed. Sinnard never pursued his right to independent testing after he was booked. While Sinnard notes he was never allowed to make a phone call in an attempt to obtain independent testing, the record does not indicate he ever requested such a phone call or any other assistance in obtaining an independent test. As a result, any failure to obtain independent testing cannot be attributed to the officer's actions. Because substantial evidence supports the district court's finding the officers did not frustrate Sinnard's right to independent testing, we affirm.
AFFIRMED.