STATE OF IOWA, Plaintiff-Appellee, vs. MITCHELL ROBERT KING, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-026 / 06-0418
Filed April 11, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MITCHELL ROBERT KING,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Peter B. Newell,
District Associate Judge.
Defendant appeals from his conviction for operating while intoxicated, first
offense. AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Stochl, Braun & Churbuck,
Charles City, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, Marilyn Dettmer, County Attorney, and Kimberly L. Birch, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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HUITINK, J.
Mitchell King appeals from his conviction for operating while intoxicated,
first offense, in violation of Iowa Code section 321J.2 (2003).
I. Background Facts and Proceedings
On July 3, 2004, Charles City Police Officer Leonard Luft arrested King for
operating a motor vehicle while intoxicated.
Luft invoked statutory implied
consent procedures by requesting King submit to a breath test using a C.D.M.
Data Master breath testing machine.
King consented to the breath test by
marking the appropriate box and signing a standard Iowa Department of
Transportation implied consent form. Luft’s arrest report includes the following
version of events concerning King’s breath test:
I PUT IN THE CORRECT INFORMATION INTO THE DATA
MASTER. AFTER PUTTING IN THE INFORMATION I READ TO
HIM THE STATEMENT ON TOP OF THE DATA MASTER. THE
STATEMENT READS TO HOW HE SHOULD GIVE A CORRECT
BREATH INTO THE DATA MASTER. I ASKED HIM IF HE
UNDERSTOOD WHAT I HAD JUST READ HIM. HE STATED
THAT HE DID UNDERSTAND. I TOLD HIM TO GIVE A BREATH.
HE WAS NOT GIVING AN ADEQUATE BREATH SAMPLE. I
INSTRUCTED HIM SEVERAL TIMES TO KEEP BLOWING. THE
DATA MASTER FINALLY STOPPED AND STATED THAT IT WAS
AN INVALID SAMPLE. I STARTED OVER AND I USED THE
SAME INFORMATION THAT WAS IN THE MACHINE. I GAVE
HIM A SECOND TEST. I INSTRUCTED HIM AGAIN TO KEEP
BLOWING INTO THE MACHINE. I HAD HIM GIVE A BREATH.
WHEN HE WAS GIVING THE SECOND BREATH HE STILL WAS
NOT GIVING ENOUGH. I STATED SEVERAL TIMES FOR HIM
TO KEEP BLOWING. THE MACHINE STOPPED AND I TRIED
HITTING THE NV KEY BUT IT WOULD NOT PICK UP THE
SAMPLE. THE SECOND TEST READ INVALID SAMPLE. I
REVOKED HIM FOR 1 YEAR FOR A TEST REFUSAL.
The county attorney subsequently filed a trial information charging King
with “Operating While Intoxicated, First Offense.”
Luft’s arrest report was
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included in the minutes of testimony attached to the trial information.
King
entered a not guilty plea, and his case was set for a jury trial.
Prior to trial, King filed a motion to suppress:
information regarding the results of the field sobriety tests, a PBT,
the breathalyzer test and any statements made by the Defendant at
the scene or subsequent thereto as the procedure utilized by law
enforcement was contrary to provisions of Sections 321J.5 and
321J.6 of the Code of Iowa.
King’s motion also alleged:
The officer assumed because the Defendant had difficulty blowing
into the intoxilyzer that he was refusing although he consented to
take the test. He refused to offer the Defendant an alternative test
such as blood or urine which would have been unaffected by his
chronic shortness of breath.
At the suppression hearing, King testified that he tried to comply with Luft’s
instructions during the breath test but was unable to provide an adequate breath
sample.
King also offered a medical report indicating he suffered from a
respiratory ailment that may have interfered with his ability to provide an
adequate breath sample. In addition, King offered expert testimony indicating
that any invalid Data Master breath test result had nothing to do with the
adequacy of King’s breath sample or King’s behavior during the test. King’s
expert also explained the various reasons why a Data Master produces an invalid
test result. He specifically noted the presence of mouth alcohol, buildup of saliva
in the machine’s mouth piece, as well as the “subject’s . . . blowing in a staccatotype fashion.”
Aside from excluding the adequacy of King’s breath sample,
King’s expert did not specify which of the other possible reasons caused the
invalid test results in this case.
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The State’s evidence included Luft’s earlier-mentioned report, as well as
expert testimony supporting Luft’s version of King’s test refusal. The State’s
expert testified that, based on his review of King’s medical records, King was
capable of providing the requisite breath sample to obtain a valid Data Master
test result. He also testified that, based on his observations of the videotape of
King’s breath test, the Data Master produced an invalid test because King
“staggered the breath.”
The trial court’s resulting ruling includes the following findings of fact:
The Court believes that the State has laid a proper
foundation for admission of an instruction that the Defendant failed
to supply an adequate breath sample to measure the alcohol
concentration in his system. The Court believes that the evidence
supports a finding that the Defendant refused to comply with the
officer’s instructions to provide an adequate breath sample.
Therefore, the Court concludes that the Defendant has refused to
provide a breath sample.
Mr. King had an adequate lung capacity to provide a breath
sample. The State’s expert, Michael Tate, testified that in his
opinion the Defendant was not blowing into the machine properly.
Mr. King has on a previous occasion provided a breath sample to
the police.
Mr. King testified that he does not have any
diagnosable lung condition.
Officer Luft in his report indicates his belief that the
Defendant was failing to comply with the instructions to provide an
adequate breath sample.
King’s motion to suppress was accordingly denied.
King thereafter waived his right to a jury trial, and the case was tried to the
court on the minutes of testimony attached to the trial information. The trial court
found King guilty as charged and entered a judgment of conviction and sentence.
On appeal King raises the following issues:
I.
Did the Court err in finding that the State proved the officer
was qualified to administer the breath test and that he conducted it
properly?
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II.
Alternatively, did the Court err in finding that the State
proved that the aborted breath tests were a refusal?
II. Standard of Review
We review the trial court’s ruling on King’s motion to suppress for errors of
law. State v. Bloomer, 618 N.W.2d 550, 552 (Iowa 2000).
III. The Merits
Iowa Code section 321J.16 states that proof of a test refusal “is admissible
in any civil or criminal . . . proceeding arising out of acts alleged to have been
committed while the person was operating a motor vehicle” while intoxicated.
“Anything less than unqualified, unequivocal consent is a refusal.” Ferguson v.
Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988). The factors bearing on
this determination include the defendant’s and the officer’s words and conduct,
as well as the surrounding circumstances. Ginsberg v. Iowa Dep’t. of Transp.,
508 N.W.2d 663, 664 (Iowa 1993). An attempt to stall a breath test until an
attorney is consulted has been held to be a refusal. Swenumson v. Iowa Dep’t of
Public Safety, 210 N.W.2d 660, 662 (Iowa 1973).
A defendant’s lack of
cooperation has also been held to be a refusal. Taylor v. Iowa Dep’t of Transp.,
260 N.W.2d 521, 524 (Iowa 1977).
King’s motion to suppress raised issues of preliminary fact concerning
King’s consent or refusal to consent to a chemical test. The trial court was
therefore required to resolve those issues before ruling on the admissibility of
proof of King’s refusal to submit to a chemical test. See Iowa R. Evid. 5.104(a).
The issues as raised and litigated at the suppression hearing required the court
to make a specific factual finding that King refused to submit to a chemical test
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as a condition of admissibility of evidence of King’s refusal. See, e.g., State v.
Weidner, 418 N.W.2d 47, 49 (Iowa 1988).
As noted earlier, the trial court
resolved this factual issue against King by finding King refused to submit to a
breath test. We are obliged to affirm the trial court’s ruling admitting evidence of
King’s refusal if the court’s findings of fact are supported by substantial evidence.
Id.
The gist of King’s first argument is that the particular foundation
requirements for admission of a breath test result specified in Iowa Code section
321J.15 apply to admission of a test refusal under Iowa Code section 321J.16.
We disagree. The latter section does not prescribe any particular foundational
requirements for admission of a test refusal. Although Luft’s qualifications to
operate a Data Master and his compliance with approved methods for operating
that device are relevant to the resolution of the factual issues raised by King’s
motion to suppress, those facts relate to the weight and not to the admissibility of
King’s test refusal. State v. Stratmeier, 672 N.W.2d 817, 821 (Iowa 2003).
Contrary to King’s claim, the record contains substantial evidence
supporting the trial court’s finding that King refused to consent to a chemical test.
The State’s expert testified that King was able to provide an adequate breath
sample. Both experts testified that a staggered breath or blowing in a staccatotype fashion can produce an invalid test result. The State’s expert also testified
that the invalid Data Master test results in this case were the result of King’s
staggered breath samples and not Luft’s failure to comply with approved
methods for operating that device. Lastly, we note Luft’s testimony that King did
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not comply with his instructions during the test and that he appeared to be
stalling for time.
We have carefully considered all of King’s remaining claims and find they
have no merit or are controlled by the resolution of the foregoing issues. The trial
court’s ruling on King’s motion to suppress and resulting judgment are affirmed.
AFFIRMED.
Mahan, J., concurs; Sackett, C.J., dissents.
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SACKETT, C.J. (dissenting)
I dissent.
I do not believe under the facts of this case that the defendant’s aborted
breath tests were a refusal.
The defendant attempted a breath test twice and did not give an adequate
sample. The evidence is in dispute as to whether defendant purposely did not
give an adequate sample or was unable to do so. The officer had the authority to
request a different kind of test. See State v. Nelson, 394 N.W.2d 346, 347 (Iowa
1986). The officer at the scene does not have the necessary information to
determine whether the subject cannot give an adequate sample or is intentionally
not giving an adequate sample.
The officer should not have to make this
judgment but should offer a urine or blood test, and only if the person refuses to
be subjected to one of those tests should it be determined to be a refusal.
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