Opinion
No. 1-984 / 01-1069.
Filed March 13, 2002.
Appeal from the Iowa District Court for Des Moines County, MICHAEL DIETERICH, District Associate Judge.
Mary Ann Sly appeals from the judgment and sentence entered upon her conviction of operating while intoxicated, second offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Patrick Jackson, County Attorney, and Timothy Davis, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Mary Ann Sly appeals from the judgment and sentence entered upon her conviction of operating while intoxicated, second offense. We affirm her conviction and preserve her ineffective assistance of counsel claim for postconviction proceedings.
The record indicates that police officer Melissa Moret stopped Sly's car because she noticed it was weaving and driving below the speed limit. Because Moret believed Sly smelled like she had been drinking, Sly was subjected to a series of field sobriety tests, which she failed. Moret then requested a preliminary breath test. After Sly was unable to produce an adequate breath sample, she was arrested for operating while intoxicated. When Moret subsequently invoked implied consent procedures, Sly became agitated, hyperventilated, and was taken to a hospital. As a result, Sly failed to complete the requisite implied consent procedures and testing. Moret treated Sly's failure as a deemed refusal to comply with the implied consent procedures.
At trial the State's case included Moret's observations and the fact that Sly failed or refused to complete the implied consent procedures. Sly denied she was intoxicated. She cited a history of strokes as the reason she failed sobriety testing and for her conduct after she was arrested. Sly also offered expert medical testimony supporting this theory.
The jury rejected Sly's defense theory and she was convicted as charged. On appeal Sly contends she was denied effective assistance of trial counsel. She faults counsel for failing to offer expert testimony applying "Widmark's Equation," which she claims would have shown her blood alcohol level was insufficient to support the claim she was intoxicated. She further contends that such testimony would have bolstered her defense theory.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal where the record is adequate to decide to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
We find the record insufficient to resolve Sly's claim. We therefore preserve her ineffective assistance of counsel claim for postconviction proceedings to allow counsel to explain the decision not to offer expert testimony concerning "Widmark's Equation." See State v. Mann, 512 N.W.2d 814, 817 (Iowa Ct. App. 1993) ("Where the record is inadequate to permit us to resolve the claim, we preserve the claim in order to provide the allegedly ineffective attorney the opportunity to explain his or her conduct."). The decision of the district court is affirmed.
AFFIRMED.