STATE OF IOWA, Plaintiff-Appellee, vs. SAMUEL JOSEPH WINBERG, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-082 / 06-0810
Filed February 28, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SAMUEL JOSEPH WINBERG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Nathan
Callahan (Trial) and James D. Coil (Motion to Suppress), District Associate
Judges.
Samuel Winberg appeals his conviction for operating while intoxicated,
third offense. AFFIRMED.
Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro,
P.L.C., Cedar Falls, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Charity McDonell, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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MAHAN, J.
Samuel J. Winberg appeals his conviction for operating while intoxicated
(OWI), third offense. He contends the district court erred in denying his motion to
suppress, arguing his consent to submit to a breath test under the implied
consent advisory was involuntary. We affirm.
I. Facts and Prior Proceedings
At approximately 2:30 in the morning on May 8, 2005, Officer Ryan Bellis
stopped a swerving car. The driver of the vehicle, Winberg, smelled strongly of
alcohol and had bloodshot and watery eyes. Winberg consented to a field
sobriety test and a preliminary breath test.
Winberg was unable to properly
complete the field sobriety tests, and his preliminary breath test registered blood
alcohol content (BAC) in excess of .080.
He was arrested for OWI and
transported to the Cedar Falls Police Department.
A police video documented a large portion of Winberg’s experience at the
police department.
Before Bellis had a chance to finish reading the implied
consent form, Winberg stated he was not going to take the test. Bellis explained
that if he gave a breath test that was over the legal limit, then the administrative
license revocation would be for a period of one year, but if he refused the test
then the revocation would be for a period of two years. Winberg then wanted to
know whether his prior deferred judgment and OWI conviction would make this a
third OWI offense.
Up to this point, Bellis only knew of one previous OWI
conviction, so he took the time to verify Winberg’s criminal record.
He then
confirmed that this would be a third OWI offense. A discussion ensued as to
whether this would change the length of time his license would be revoked.
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Bellis told him he did not know the exact length of time his license would be
revoked. At one point, Winberg asked Bellis for his opinion on what to do. Bellis
told him he was not an attorney, and offered him the opportunity to speak with a
family member or an attorney. Winberg spoke with his brother, and then once
again stated he did not want to take any tests.
Bellis requested that Winberg sign the implied consent form and check the
box that indicated he refused to provide a breath test. Winberg refused to sign
the form, but then told Bellis to sign the form for him. Bellis told him that he could
not sign the form for him. Winberg said he would sign the form if he could be
guaranteed that he would only lose his license for a year. Bellis told him that he
could not guarantee him anything.
Winberg eventually signed the form and
provided a breath specimen yielding a .164 BAC.
Prior to trial, Winberg moved to suppress the breath test results.
He
argued his consent was not voluntary because Bellis did not accept his repeated
refusals to take the test and because Bellis repeatedly explained the
ramifications of refusing to take the test. The district court denied the motion.
Winberg stipulated to a trial to the court on the minutes of testimony and
the exhibits offered into evidence at the suppression hearing. He was found
guilty as charged. He now appeals, contending the district court erred in refusing
to grant his motion to suppress.
II. Standard of Review
“When a person who has submitted to a chemical test asserts that the
submission was not voluntary, we evaluate the totality of the circumstances to
determine whether the decision was freely made or coerced.”
State v.
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Gravenish, 511 N.W.2d 379, 381 (Iowa 1994). Although we are not bound by the
trial court’s factual findings, we give considerable weight to the court’s
assessment on the question of voluntariness. State v. Payton, 481 N.W.2d 325,
328 (Iowa 1992). Our review of this constitutional issue is de novo. Gravenish,
511 N.W.2d at 381.
III. Merits
For consent to be valid, it must be voluntary and “uncoerced.” Id. When
the defendant alleges coercion, the State must prove by a preponderance of the
evidence the absence of undue pressure or duress. Id. A statement is voluntary
if it is the product of essentially free and unconstrained choice made by a
defendant “whose will was not overcome or whose capacity for self-determination
was not crucially impaired.” Id.
Our supreme court has identified a number of factors to help determine
voluntariness. These factors are:
Defendant’s age; whether defendant had prior experience in the
criminal justice system, whether defendant was under the influence
of drugs; whether Miranda warnings were given; whether defendant
was mentally “subnormal;” whether deception was used; whether
defendant showed an ability to understand the questions and
respond; the length of time defendant was detained and
interrogated; defendant’s physical and emotional reaction to
interrogation; [and] whether physical punishment, including
deprivation of food and sleep, was used.
Payton, 481 N.W.2d at 328-29 (internal citations omitted). Most of these factors
are not applicable to this case. For example, Winberg is not mentally subnormal,
he does not allege a Miranda violation, he was not subject to physical
punishment or sleep deprivation, and he does not present any evidence
concerning a physical or emotional reaction to the questions posed by Bellis.
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Also, Winberg was a fully functioning twenty-seven year old adult at the time of
the arrest, and he does not allege the alcohol made him susceptible to coercion.
At the suppression hearing Winberg testified that “he had been advised not to
blow before” and acknowledged that he had “been down this road before.” This,
when coupled with his two prior OWI offenses, illustrates he had prior experience
in the criminal justice system.
Winberg’s primary argument is that the length of time spent discussing the
consent form and the repeated statements regarding the ramifications of refusing
to consent to the test made him realize Bellis would not accept a refusal. When
asked why he changed his mind and consented to the test, Winberg stated
I just didn’t feel as if we were getting anywhere. I didn’t feel I was
going to get out of the room if I don’t—if I didn’t take the test
because we had been in there talking for over an hour.
(Emphasis added.) Winberg’s testimony and the videotape of his discussion with
the police officer belie this argument.
Winberg acknowledged that Bellis never said he could not leave unless he
consented to the test.
Also, Winberg’s claim that he spent “over an hour”
discussing the consent form with Bellis is grossly exaggerated and not supported
by the record. Winberg arrived at the police station at 2:53 and provided his
breath sample at 3:40. In the span of these forty-seven minutes Winberg was
checked in to the police station, searched, and had a lengthy phone conversation
with his brother. Bellis also left Winberg alone for a nine-minute span while he
verified whether this would be Winberg’s second or third OWI offense. Much of
the conversation between Bellis and Winberg consisted of Winberg asking
questions and explaining that he “was not a bad guy.” Bellis was very patient
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and courteous in answering Winberg’s questions. We conclude the length of
time spent discussing the informed consent form was not excessive.
Winberg also claims the consent only came after he was provided
inaccurate information by Bellis.
This argument is without merit and not
supported by the record. Winberg does not point to any specific instances where
Bellis provided inaccurate information. Winberg’s claim that Bellis was untruthful
when he said that he could not sign the form for Bellis does not constitute
deception. Winberg asked Bellis to sign the form for him, and Bellis correctly
stated that he could not sign his name to the form. The fact that Bellis could
have brought in another witness to verify that Winberg refused to sign the form
does not constitute deception.
Finally, Winberg contends “fundamental rules of fairness” suggest that law
enforcement officers should not be allowed to make additional requests for
consent once they receive a clear and unequivocal refusal. Because “anything
less than an unqualified, unequivocal consent is a refusal,” Ferguson v. State
Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988), Winberg argues an
unqualified, unequivocal refusal bans law enforcement officers from further
discussing the implied consent form. We find no legal basis for this argument.
We also do not agree that Winberg unequivocally refused to take the test. His
numerous questions about the OWI process and the potential charges he faced
made his refusal less than unequivocal.
We find the State proved by a preponderance of the evidence that there
was not duress or undue influence.
Even if we assume the test was
inadmissible, Winberg is still not entitled to a new trial. The district court found
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Winberg guilty of OWI pursuant to the “under the influence” alternative of Iowa
Code section 321J.2 as well as under the alcohol concentration alternative. See
Iowa Code § 321J.2 (providing that a person commits the offense of operating
while intoxicated if the person operates a motor vehicle either while under the
influence of an alcoholic beverage or while having an alcohol concentration of .08
or more). A person is “under the influence” when their consumption of alcohol
results in one or more of the following: (1) the person’s reason or mental ability
has been affected; (2) the person’s judgment is impaired; (3) the person’s
emotions are visibly excited; or (4) the person has, to any extent, lost control of
bodily actions or motions. See State v. Dominquez, 482 N.W.2d 390, 392 (Iowa
1992). The person’s manner of driving is relevant evidence bearing on whether
he or she was under the influence. See id.
In the present case, Winberg’s erratic driving behavior shows his judgment
was impaired. His vehicle swerved several times from the outside lane to the
inside lane and almost struck the median. Also, his slurred speech and inability
to complete field sobriety tests demonstrated that he had, to some extent, lost
control of his bodily actions or motions. This, when coupled with his blood shot,
watery eyes and the strong odor of alcohol, constitutes substantial evidence to
support the district court’s conclusion that he was under the influence while
operating a vehicle.
We affirm the district court’s decision.
AFFIRMED.
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