COOPER A. OLMSTEAD, Petitioner-Appellant, vs. IOWA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-749 / 06-1805
Filed November 15, 2007
COOPER A. OLMSTEAD,
Petitioner-Appellant,
vs.
IOWA DEPARTMENT OF TRANSPORTATION,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hamilton County, William C.
Ostlund, Judge.
Motorist appeals the district court’s ruling affirming the revocation of his
driver’s license and other privileges. AFFIRMED.
Paul Ahlers of Bottorff & Ahlers, Webster City, for appellant.
Thomas J. Miller, Attorney General, Noel C. Hindt, Iowa Department of
Transportation, Ames, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
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BAKER, J.
Cooper Olmstead appeals the district court’s ruling affirming the
revocation of his driver’s license and other privileges. We affirm.
I. Background and Facts
Cooper Olmstead was arrested in the early morning hours of February 11,
2006. Webster City police officer Scott Ely observed Olmstead’s black Chevrolet
Avalanche speeding. Ely activated his emergency lights and pulled the vehicle
over. Videotape of the police stop shows a bouncing motion of the vehicle after it
had come to a stop. Upon approaching the vehicle, Ely observed Olmstead in
the driver’s seat, with the running vehicle.
Ely observed at least one open
container in the back seat of the vehicle.
Ely administered field sobriety tests to Olmstead, including a preliminary
breath test, and then arrested him for operating while intoxicated (OWI). Ely
transported Olmstead to the Hamilton County Law Enforcement Center, where
Olmstead agreed to take a breath test, which registered an alcohol concentration
of 0.146.
En route to the center, Olmstead asked Ely what would be the
consequence if he had switched seats with the driver. He later told Ely that is
what had happened. Ely did not investigate the credibility of Olmstead’s claim.
At the administrative hearing, Olmstead and the two back-seat passengers,
Daniel Ruba and Nickolas Murphy, testified that Josh Bloomgren had been
driving the vehicle and that Bloomgren and Olmstead quickly switched places
after they pulled over and the vehicle was placed in park. They testified that
Bloomgren “freaked out” when Ely activated his emergency lights, they were
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afraid Bloomgren would try to run from the police, and Olmstead volunteered to
switch places with Bloomgren so that he would pull over.
The Iowa Department of Transportation (DOT) revoked Olmstead’s driving,
registration, and other privileges. See Iowa Code § 321J.2(1)(b) and (2)(a)(3)
(2005) (providing that, if an operator of a motor vehicle has an alcohol
concentration of .08 or more, the person’s driver’s license is revoked). Olmstead
challenged the DOT decision and proceeded to a contested hearing before an
administrative law judge (ALJ).
Following an adverse ruling from the ALJ,
Olmstead appealed to the Director of the DOT, who affirmed the ALJ. Olmstead
appealed the final agency action to the district court. The court affirmed the
decision of the ALJ and DOT.
Olmstead appeals, contending the record
establishes that he switched places with the actual driver of the vehicle, and the
DOT and district court erred in concluding he operated the vehicle.
II. Merits
Our review of a DOT revocation decision is governed by chapter 17A,
Iowa’s Administrative Procedure Act, and is confined to correction of errors of
law. Iowa Code § 17A.19; Scott v. Iowa Dep’t of Transp., 604 N.W.2d 617,
619 (Iowa 2000); Pointer v. Iowa Dep’t of Transp., 546 N.W.2d 623, 625 (Iowa
1996). When reviewing agency action, the district court
acts in an appellate capacity to correct errors of law on the part of
the agency. When we review such an action by the district court,
we merely apply the standards of section 17A.19(10) to determine
whether our conclusions are the same as those of the district court.
If the conclusions are the same, we affirm; otherwise we reverse.
The burden of proof in an administrative license proceeding is
totally on the licensee. We will uphold the agency’s action if
supported by substantial evidence in the record before the court
when that record is viewed as a whole.
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Hager v. Iowa Dep’t of Transp., 687 N.W.2d 106, 108 (Iowa Ct. App. 2004)
(internal quotation marks and citations omitted). We are not, however, bound by
the DOT’s legal conclusions, and we may correct misapplications of the law.
Ginsberg v. Iowa Dep’t of Transp., 508 N.W.2d 663, 664 (Iowa 1993).
Olmstead contends the record establishes that he switched places with
Bloomgren and that substantial evidence does not support a finding that a switch
did not occur.
On appeal, the DOT’s factual findings are binding on us if
supported by substantial evidence, i.e., evidence a reasonable person could
accept as adequate to reach the same findings. Reed v. Iowa Dep’t of Transp.,
478 N.W.2d 844, 846 (Iowa 1991).
“[E]vidence is not insubstantial merely
because it would have supported contrary inferences.
Nor is evidence
insubstantial because of the possibility of drawing two inconsistent conclusions
from it.” Id.
We find substantial evidence exists to support a conclusion that a switch
did not occur. Olmstead’s credibility is placed in question by his changing story
and interest in maintaining a clean driving record, as is the credibility of the
passengers by their lack of forthrightness at the time of the stop. See Laing v.
State Farm Fire & Cas. Co., 236 N.W.2d 317, 320 (Iowa 1975) (“[A] fact finder is
not bound to accept testimony as true because it is not contradicted.”). Further,
the shaking vehicle could be explained by other reasons, including an attempt to
hide open beverage containers.
While the evidence could have supported
Olmstead’s claim that he and Bloomgren switched seats, it could also have
supported the opposite conclusion.
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The controlling issue in this appeal, however, is not whether a switch
occurred, but whether Olmstead operated the vehicle. Olmstead contends he did
not “operate” the vehicle because he did not take an initial step in carrying out
the operation of the vehicle. He argues that, because he did not touch any foot
pedals, gearshifts, or the ignition, he did not exercise actual physical control of
the vehicle, and potential control is not enough.
OWI statutes “should be liberally interpreted in favor of the public interest
and against the private interests of the drivers involved.” State v. Murray, 539
N.W.2d 368, 369-70 (Iowa 1995). An “operator” is defined as “a person who is in
actual physical control of a motor vehicle.” Iowa Code § 321.1(48). “[T]he term
‘operate’ means the immediate, actual physical control over a motor vehicle that
is in motion and/or has its engine running.” Munson v. Iowa Dep’t of Transp.,
513 N.W.2d 722, 724-25 (Iowa 1994) (emphasis added). Even a driver asleep
behind the wheel of a car that is running is “operating” that vehicle under the
statute. See, e.g., State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987). We hold
that whether he had touched the foot pedals, gearshifts, or the ignition is not
dispositive of whether Olmstead had actual physical control of the vehicle.
Olmstead was sitting in the driver’s seat of a running vehicle and that alone is
sufficient to demonstrate actual physical control. We therefore conclude the DOT
and district court did not err in concluding Olmstead operated the vehicle.
AFFIRMED.
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