STATE OF IOWA, Plaintiff - Appellee, vs. RONALD JOSEPH WASKO , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-320 / 07-0956
Filed June 11, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RONALD JOSEPH WASKO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Kirk A. Daily,
District Associate Judge.
Ronald Wasko appeals his conviction for operating while intoxicated,
second offense, and driving while suspended. AFFIRMED.
Steven Gardner, Ottumwa, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney
General, Mark Tremmel, County Attorney, and Richard Scott, Assistant County
Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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MAHAN, J.
Donald Wasko appeals following conviction and sentence for operating
while intoxicated, second offense, in violation of Iowa Code section 321J.2(2)(b)
(2005), and driving while suspended in violation of section 321J.21.
asserts the following on appeal:
Wasko
(1) the district court erred in admitting
testimonial evidence in violation of his constitutional right to confrontation; (2)
there was insufficient evidence to support the finding that he was operating a
motor vehicle; (3) there was insufficient evidence to support the finding that the
blood test was withdrawn within two hours; and (4) the district court erred in
admitting his driving record and notice of suspension. We affirm.
I. Background Facts and Proceedings.
On December 17, 2005, Robert Ludwig was traveling east on River Road
from Ottumwa and noticed dust rising from the gravel road. Seeing no other
traffic, Ludwig pulled over, scanned the ditch, spotted a car upside down, and
called 911. He tried speaking to the person in the car, later identified as Wasko,
but received no response. Deputy Jeff Layton of the Wapello County Sheriff’s
Department was the first officer to arrive on the scene. Deputy Layton noticed
Wasko had a strong odor of alcohol and appeared to be unconscious.
ambulance crew arrived and removed Wasko from the vehicle.
An
Iowa State
Trooper Jason Neely joined the scene as medics loaded Wasko into the
ambulance. He also smelled the odor of alcohol on Wasko. Trooper Neely gave
Deputy Layton a blood sample kit and the necessary forms to obtain a sample of
Wasko’s blood from his medical providers. The ambulance transported Wasko to
the hospital and Deputy Layton followed to continue his investigation.
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At the hospital, Dr. Thomas Leavenworth signed an affidavit certifying that
Wasko was unconscious and incapable of consenting or refusing to submit his
blood. Laboratory technician Gregory Durrell took a sample of Wasko’s blood,
signed the request form Deputy Layton provided, labeled the sample, and turned
it over to Deputy Layton. Deputy Layton then turned the sample over to Trooper
Neely who mailed it to the Iowa Division of Criminal Investigation laboratory
(DCI). The DCI analysis found a blood alcohol content of .172.
Wasko waived his right to a jury trial, and the case was tried to the court
on the minutes of evidence. The court concluded Wasko was guilty of operating
while intoxicated, second offense, and driving while suspended.1 Wasko was
sentenced to a term of imprisonment not to exceed two years, with all but seven
days suspended. Wasko now appeals.
II. Scope and Standard of Review.
We conduct a de novo review of alleged constitutional violations. State v.
Bentley, 739 N.W.2d 296 (Iowa 2007), cert. denied, ___ U.S. ___,128 S. Ct.
1655, ___ L.Ed.2d ___ (2008). In all other matters, we review the court’s actions
for the correction of errors of law. Iowa R. App. P. 6.4; State v. Keeton, 710
N.W.2d 531, 532 (Iowa 2006). In reviewing challenges to the sufficiency of the
evidence supporting a guilty verdict we consider all of the evidence in the record
in the light most favorable to the State and make all reasonable inferences that
may fairly be drawn from the evidence. Keeton, 710 N.W.2d at 532.
The court admitted a certified copy of Wasko’s December 2005 driving record
establishing that his license was suspended due to a prior operating while intoxicated
test refusal. The court also admitted a certification establishing that notice was mailed to
Wasko of his license revocation.
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III. Issues on Appeal.
A. Confrontation Clause.
Wasko argues the district court erred in admitting the blood alcohol test as
testimonial evidence in violation of his constitutional right to confrontation. In its
minutes of testimony, the State’s witness list included two criminalists or a
designee and indicated the witnesses’ written analysis and results of the blood
alcohol testing would be admitted pursuant to Iowa Code section 691.2.2 Under
that section, Wasko could have requested the criminalists or designee testify in
person at trial by notifying the county attorney at least ten days before the date of
trial. Iowa Code § 691.2 (2007). Wasko failed to notify the county attorney to
request the witnesses to testify in person.
The primary purpose of the confrontation clause is to secure for the
opponent the opportunity of cross-examination. State v. Holland, 389 N.W.2d
365 (Iowa 1986) (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105,
1110, 39 L. Ed. 2d 347, 353 (1974)). The Iowa Supreme Court has rejected
confrontation clause challenges to Iowa Code section 691.2. State v. Davison,
245 N.W.2d 321, 323 (Iowa 1976); State v. Kramer, 231 N.W.2d 874, 880 (Iowa
1975).
We find Wasko was given the opportunity to request the testimony in
person pursuant to the statute.
We find no violation of Wasko’s Sixth
Amendment right to confront the witnesses against him. We conclude the district
court did not err in admitting the blood alcohol test and affirm on this issue.
Section 691.2 is Iowa’s “Notice and Demand Statute” that authorizes admission of
certification reports without having the analyst present.
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Wasko also argues the laboratory report is testimonial evidence and
cannot be admitted into evidence without testimony of the person who prepared
the report. Because we find Wasko waived his right to request the testimony
pursuant to section 691.2, we decline to discuss whether the laboratory report is
testimonial or non-testimonial evidence.
B. Sufficiency of Evidence: Operation of the Motor Vehicle.
Wasko also claims there was insufficient evidence to show he operated
the motor vehicle.
To convict a defendant charged with operating while
intoxicated, the State must establish beyond a reasonable doubt the defendant
operated the vehicle and did so while intoxicated. Iowa Code § 321J.2(1) (2005);
State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).
Operation of a motor
vehicle may be established by direct or circumstantial evidence. Hopkins, 576
N.W.2d at 377-78; State v. Boleyn, 547 N.W.2d 202, 205 (Iowa 1996).
Therefore, even if direct evidence fails to prove that a defendant was in the
process of operating a motor vehicle when authorities found him, circumstantial
evidence may prove the defendant had operated when driving to the location
where the vehicle was located. See Hopkins, 576 N.W.2d at 377-78.
Contrary to Wasko’s contention, we find substantial circumstantial
evidence that he had driven to the location where he was found. A witness
traveling east on River Road from Ottumwa noticed dust rising from the gravel
road. There were no other cars or people on the road. The witness pulled over
and scanned the ditch, where he spotted Wasko’s car upside down with a
flashing light.
The witness noticed Wasko was in the car and unconscious.
When police arrived, several officers noticed Wasko had a strong odor of alcohol,
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he was trapped inside the vehicle, he appeared to be unconscious, and the
vehicle’s lights were on.
We find this evidence substantially supports the district court’s finding that
Wasko operated the motor vehicle when driving to the location where the vehicle
was discovered by the witness and law enforcement. We affirm on this issue.
C. Sufficiency of the Evidence: Blood Test.
Wasko next claims there was insufficient evidence to show the blood
alcohol test was taken within two hours of operation of the motor vehicle
pursuant to Iowa Code section 321J.2(8)(a).3 Because Wasko contends there is
insufficient evidence to show he operated the motor vehicle, he argues the twohour window cannot be established.
We have already found substantial
evidence that Wasko operated the motor vehicle when driving to the location
where the vehicle was discovered. The question now before us, therefore, is
whether the blood alcohol test was administered within two hours of Wasko’s
operation or physical control of the motor vehicle.
At around 4 p.m., just before sunset, on December 17, 2005, a witness
noticed dust rising from the gravel road when there were no other cars or people
on the road. The witness then spotted Wasko’s car upside down in the ditch and
immediately called 911.
Wasko was transported to the hospital.
At around
5 p.m., an emergency room doctor observed Wasko, determined he was
3
Under section 321J.2(8)(a), the alcohol concentration of a
Defendant’s blood, breath or urine withdrawn within two hours after the
Defendant was driving or in physical control of a motor vehicle is
presumed to be the alcohol concentration at the time of driving or being in
physical control of the motor vehicle.
Iowa Code § 321J.2(8)(a).
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unconscious, and determined Wasko was unable to consent or refuse to give a
blood sample. A laboratory technician was summoned to draw a blood sample
from Wasko.
The technician’s report indicated he received the request to
withdraw the sample at “17:13.”
We find this evidence substantially supports the district court’s finding that
the blood alcohol test was administered within two hours of Wasko’s operation or
physical control of the motor vehicle. We affirm on this issue.
D. Admissibility of Driving Record and Notice of Suspension.
Wasko last argues the district court erred in admitting his driving record
and notice of suspension because the State failed to establish mailing of notice.
The Iowa Supreme Court has determined that the State is required to show the
Iowa Department of Transportation (DOT) mailed notice of suspension to a
defendant in order to support a conviction for driving under suspension. State v.
Green, 722 N.W.2d 650, 651-52 (Iowa 2006). Proof that the DOT mailed a
notice of suspension to the defendant may be established by testimony to
support its claim of mailing or an affidavit of mailing. Id. at 652. The DOT may
use its records in conjunction with U.S. Postal Service records available to the
DOT to prepare an affidavit of mailing verifying the mailing of a notice. Id.
In this case, the State submitted a copy of an official notice of suspension
dated February 25, 2004. The notice was addressed to Wasko at his last known
address.
The State also submitted a certificate of bulk mailing showing the
Department mailed an official notice of suspension to Wasko at his last known
address on February 27, 2004.
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We find this evidence substantially supports the district court’s finding that
notice of suspension had been mailed to Wasko. We conclude the district court
did not err in admitting the driving record and notice of suspension as evidence
and we affirm on this issue.
AFFIRMED.
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