STATE OF IOWA, Plaintiff-Appellee, vs. DAVID D. ALLSUP, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-807 / 05-1174
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID D. ALLSUP,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, William H. Joy,
Judge.
David Allsup appeals from the judgment and sentence entered upon his
conviction of operating while intoxicated. AFFIRMED.
Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Wayne M. Reisetter, County Attorney, and Jeannine Gilmore, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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EISENHAUER, J.
David Allsup appeals from the judgment and sentence entered upon his
conviction of operating while intoxicated, first offense, in violation of Iowa Code
section 321J.2 (2003).
He contends the district court erred in overruling his
objections to the admission of his urine test. We review his claim for correction
of errors at law. Iowa R. App. P. 6.4.
In the early morning hours of September 15, 2004, Allsup and James
Kalbach were drag racing their pickup trucks when they crashed into a parked
train. Deputy Sheriff Ryan Bowers smelled the odor of an alcoholic beverage on
Allsup, who admitted he had consumed alcohol just prior to the crash. Allsup
refused to submit to a preliminary breath test.
Allsup was taken to the hospital. Deputy Jeremy Sprague was informed
by hospital staff that Allsup was conscious, alert, and able to talk with him.
Deputy Sprague described Allsup as laid back and relaxed. Deputy Sprague
read Allsup the implied consent advisory and requested a urine sample for
analysis. When Allsup stated his preference for a blood sample, the deputy
stated he was specifically requesting a urine sample. Allsup then requested to
speak with an attorney before determining whether to submit to a chemical test.
Allsup made two phone calls, reaching answering machines both times. When
asked again whether he would consent or refuse to submit to a chemical test,
Allsup consented to the urine test and a sample was collected.
Laboratory
testing shows Allsup’s blood alcohol concentration was .141.
Prior to and during trial, Allsup sought to exclude the results of the urine
test on several grounds. He claims he was not given a reasonable opportunity to
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contact an attorney, the State failed to properly collect the urine sample, the
deputy failed to inform him of his right to an independent blood test, and there
was no evidence presented regarding how the margin of error for urine tests is
established. To the extent Allsup argues he was incapable for consenting to or
refusing a chemical test, we conclude the issue was never presented to and
passed on by the district court and therefore cannot be raised for the first time on
appeal. Conner v. State, 362 N.W.2d 449, 457 (Iowa 1985).
Pursuant to Iowa Code section 804.20, a peace officer must provide an
arrestee with 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 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). Moore v. Iowa Dep't of Transp., 473 N.W.2d 230, 231 (Iowa Ct. App.
1991). In addition, police have no affirmative duty to advise a defendant of this
right. See State v. Meissner, 315 N.W.2d 738, 740 (Iowa 1982). Generally, the
right is satisfied when an arrestee is allowed to make a telephone call to a family
member or attorney. Bromeland, 562 N.W.2d at 626.
We conclude Allsup was given a reasonable opportunity to contact an
attorney. Allsup requested to call his attorney and Deputy Sprague provided him
with access to the phone to do so. Allsup called two numbers and left messages
on answering machines. He did not attempt to make any other calls. When
asked again whether he would consent to the test, he consented. The deputy
fulfilled his obligation.
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Allsup next argues the State failed to properly collect the urine sample.
Iowa Administrative Code rule 661-7.3 (2004) states in pertinent part: “[A]s soon
as practicable after arrest, the subject should provide the sample by being
required to urinate into a bottle, cup, or other suitable container which is clean,
dry, and free from any visible contamination.” The deputy testified the container
used to collect the sample appeared to be clean and free from contamination.
We conclude the foundational requirements for a urine sample test result are met
in this case.
Allsup also argues the deputy failed to inform him of his right to an
independent chemical test and did not help him to obtain one.
Iowa Code
section 321J.11 governs independent chemical tests. It provides:
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. Allsup did not request an independent chemical test.
Although the deputy did not inform him of his right to obtain one, officers are not
required to advise a defendant of the statutory right to an independent test. State
v. Wooten, 577 N.W.2d 654, 655 (Iowa 1998).
Finally, Allsup argues the test results should be excluded because the
State failed to present evidence showing how the Department of Criminal
Investigations (DCI) established the margin or error in testing urine for blood
alcohol concentration. Iowa Code section 691.2 states:
Any report, or copy of a report, or the findings of the criminalistics
laboratory shall be received in evidence, if determined to be
relevant, in any court, preliminary hearing, grand jury proceeding,
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civil proceeding, administrative hearing, and forfeiture proceeding in
the same manner and with the same force and effect as if the
employee or technician of the criminalistics laboratory who
accomplished the requested analysis, comparison, or identification
had testified in person.
Accordingly, the DCI lab report containing the analysis of Allsup’s urine was
admissible.
Allsup’s claim goes to the weight of the evidence, not its
admissibility.
Because the results of the urine test were properly admitted, we affirm.
AFFIRMED.
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