STATE OF IOWA, Plaintiff-Appellee, vs. DENNIS WILLIAM BUSH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-377 / 08-0881
Filed July 2, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENNIS WILLIAM BUSH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joseph
Moothart (pretrial motions) and Nathan A. Callahan (trial and sentencing), District
Associate Judges.
Defendant appeals from his conviction of operating while intoxicated,
second offense, contending his right to speedy indictment was violated.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Thomas Gaul, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brett Schilling, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
Defendant, Dennis Bush, appeals from his conviction of operating while
intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2
(2005).1 He contends the charge should have been dismissed because the trial
information charging him was filed more than forty-five days after his arrest. The
district court denied his motion to dismiss on this ground and found him guilty
after a trial on the minutes of testimony. We affirm.
I.
BACKGROUND.
On July 6, 2006, Waterloo officers stopped the
defendant in response to a report of a suspicious person driving a red truck. The
defendant appeared to be extremely jumpy and nervous and was sweating
heavily. After officers discovered a crack pipe in the truck, they informed the
defendant he was under arrest. Due to the defendant’s behaviors and because
the defendant told officers he did not have seizure medication he needed, the
officers took him to the hospital.
There, an officer invoked implied consent
procedures and the defendant submitted a breath and urine sample. The breath
sample yielded no results and the urine sample was sent for testing.
The
officer’s incident report stated, “Possession of crack cocaine/3rd offense and
operating while intoxicated/2nd offense charges are pending his discharge from
1
Iowa Code section 321J.2 provides in relevant part,
1. A person commits the offense of operating while intoxicated if the
person operates a motor vehicle in this state in any of the following
conditions:
a. While under the influence of an alcoholic beverage or other drug or a
combination of such substances.
...
c. While any amount of a controlled substance is present in the person,
as measured in the person's blood or urine.
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the hospital.”
The hospital did not notify the police when it discharged the
defendant. The incident report was never submitted and charges were never
filed against the defendant for possession of narcotics.2
The urine test results were returned on July 20, 2006, and showed the
presence of cocaine and marijuana. On August 29, 2006, the defendant was
located and arrested for OWI.
The trial information officially charging the
defendant was filed on October 6, 2006.
The defendant filed a motion to dismiss the charges contending his right to
a speedy indictment was violated. He claimed he was actually arrested for the
charge on the date of the incident, July 6, 2006, but the trial information was not
filed until seventy days later, on October 6, 2006. Following a hearing on the
motion on February 5, 2007, the district court overruled the motion, finding the
defendant was arrested for possession of drug paraphernalia on the date of the
initial stop, but was not arrested for OWI until the test results were returned and
he was located on August 29, 2006. Since the trial information was filed within
forty-five days of August 29, 2006, there was no violation of the speedy
indictment rule.
On March 13, 2007, the State moved to reopen the record after it learned
of a videotape of the initial traffic stop that could be relevant to the defendant’s
2
The officer’s report was made on the date of the incident, but was never submitted to
the county attorney. The officer testified it was not submitted because he was placed on
administrative leave for six months shortly after he made the report, and he forgot to
submit it after he returned to his duties. The officer only realized he had not submitted
the report after he was subpoenaed to testify at the hearing on the defendant’s motion to
dismiss.
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motion to dismiss. After viewing the tape, the court determined it was of no
consequence and affirmed its ruling, noting:
[T]he officer does state “I have a feeling you’re driving under the
influence too, ain’t ya.” Even if the officer did tell the defendant that
he was now under arrest, the context of the above-quoted
statement and the other officer locating evidence in the vehicle is
consistent with the previous finding that the defendant was placed
under arrest for Possession of Drug Paraphernalia and not for
Operating While Intoxicated. [The exhibit] does not establish that
the defendant was arrested for Operating While Intoxicated on July
6, 200[6].
Following a trial on the minutes of testimony, the defendant was found guilty of
operating while intoxicated, second offense. The defendant appeals, contending
the court erred in overruling his motion to dismiss.
II. STANDARD OF REVIEW. When interpreting the speedy indictment
rule, we review for the correction of errors at law. State v. Rains, 574 N.W.2d
904, 909 (Iowa 1998); State v. Edwards, 571 N.W.2d 497, 499 (Iowa Ct. App.
1997).
We are bound by the court’s fact findings if they are supported by
substantial evidence and the defendant is only entitled to prevail if the evidence
was so strong that he was entitled to dismissal as a matter of law. State v. Finn,
469 N.W.2d 692, 693 (Iowa 1991); State v. Hart, 703 N.W.2d 768, 771 (Iowa Ct.
App. 2005).
III.
ANALYSIS.
Absent good cause or the defendant’s waiver, if an
indictment is not filed within forty-five days after an adult’s arrest, the court must
dismiss the charges. Iowa R. Crim. P. 2.33(2)(a). The term “indictment” as used
in the rule includes a trial information. Rains, 574 N.W.2d at 910. In this appeal,
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we must determine when the defendant was “arrested” for OWI to trigger the
forty-five day speedy indictment rule.
The general law of arrest provided by Iowa Code chapter 804 governs the
definition of “arrest” for purposes of rule 2.33(2)(a). Id.; State v. Dennison, 571
N.W.2d 492, 494 (Iowa 1997). An “[a]rrest is the taking of a person into custody
when and in the manner authorized by law, including restraint of the person or
the person’s submission.” Iowa Code § 804.5. An assertion of authority coupled
with a purpose to arrest and followed by submission of the arrestee constitutes
an arrest. State v. Johnson-Hugi, 484 N.W.2d 599, 601 (Iowa 1992).
The defendant argues he was arrested for the OWI charge when he was
initially stopped on July 6, 2006. He contends he was not free to leave and
officers suspected he was driving under the influence. He also points out that on
the implied consent form the officer completed at the hospital, the officer checked
a box stating the defendant “was placed under arrest for violation of Iowa Code
Section 321J.2.”
He argues that the fact no charges were ever filed for
possession of drugs or drug paraphernalia supports the inference that the police
actually arrested him for OWI, particularly since the defendant was stopped while
driving. The State agrees that the defendant was arrested on July 6, 2006, but
was only arrested for possession of narcotics and/or paraphernalia, and he was
only under investigation for the OWI offense. It claims the State would not want
to arrest the defendant for operating while intoxicated until the urine test results
were returned.
6
We find the court’s findings are supported by substantial evidence and its
interpretation of rule 2.33(2)(a) reflects no error of law. The videotape shows the
defendant was initially taken into custody because officers found drug
paraphernalia in the defendant’s truck. An officer’s failure to follow-up on an
arrest by booking or filing charges on the offense does not nullify it as an arrest.
Dennison, 571 N.W.2d at 495; State v. Schmitt, 290 N.W.2d 24, 26 (Iowa 1980).
Thus, the fact that the defendant was never indicted for possession of cocaine or
drug paraphernalia does not mean he was not arrested on that basis.
The evidence and law also support the court’s finding that the defendant
was not arrested for OWI on the date of the initial stop.
At that point, the
defendant was only under investigation for OWI, and was transported to the
hospital for drug testing and out of concern for his health. “[T]he invocation of
implied consent procedures does not require an arrest if the situation qualifies
under one of the conditions set forth in Iowa Code section 321J.6(1)(b)-(f).”
Dennison, 571 N.W.2d at 495. One condition is when, a preliminary breath test
shows an alcohol level below the legal limit, but the officer has reasonable
grounds to believe the person is under the influence of a controlled substance.
Iowa Code § 321J.6(1)(f); Dennison, 571 N.W.2d at 495.
Under this
circumstance, an officer’s request for a chemical test does not convert the
defendant’s custody into an arrest. Id. at 496. The defendant’s detention on July
6, 2006, was due to these exact conditions. In marking the grounds for invoking
implied consent on the form, the officer marked both that the defendant was
under arrest for violation of 321J.2 and because there were grounds to believe
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the defendant was under the influence of drugs. It is significant that the officers
did not issue a citation or a complaint on the OWI charge on July 6, and only
detained the defendant for testing. See id. at 497. The court’s findings are
supported by substantial evidence and we affirm.
AFFIRMED.
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