STATE OF IOWA, Plaintiff-Appellee, vs. JOHANN PHILLIP PETER VESPER, III, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-422 / 08-1076
Filed July 2, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHANN PHILLIP PETER VESPER, III,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Sioux County, Robert J. Dull,
District Associate Judge.
A defendant appeals his judgment and sentence for operating while
intoxicated, second offense, contending that the results of a urine test should
have been suppressed. REVERSED AND REMANDED.
David Gill, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, and Coleman McAllister, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
VAITHESWARAN, P.J.
Johann Vesper appeals his judgment and sentence for OWI, second
offense. He contends that the district court erred in overruling his motion to
suppress the results of a urine test.
I.
Background Facts and Proceedings
Vesper was involved in a truck-motorcycle accident outside Sheldon,
Iowa. Officers at the scene did not suspect Vesper of being under the influence
of alcohol or a controlled substance, and, accordingly, did not invoke implied
consent procedures under Iowa Code section 321J.6 (2005). Nonetheless, one
of the officers asked Vesper to provide a urine sample. The officer told Vesper
that “if he had nothing to hide, it would only help him in the future.” Vesper
agreed to provide a sample for testing. Those tests showed that Vesper had a
marijuana metabolite in his system.
The State charged Vesper with operating a motor vehicle while
intoxicated, second offense. Vesper moved to suppress the evidence relating to
his urine test. Following a hearing, the district court denied the motion. Vesper
waived his right to a jury trial and agreed to a bench trial on the stipulated
exhibits. The district court found Vesper guilty as charged.
3
On appeal, Vesper argues that the test results should have been
suppressed because his consent to the test was involuntary.1 “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. Gravenish, 511 N.W.2d 379, 381
(Iowa 1994). Review is de novo. Id.
II.
Analysis
“Statements are voluntary if they are the product of essentially
unconstrained choice, made by a defendant whose will was not overcome or
whose capacity for self-determination was not crucially impaired.” Id. Deception,
while not condoned, does not render consent involuntary on its own. Id. This
factor must be considered in conjunction with other factors, including:
the defendant’s age and prior criminal history, if any; whether he
was under the influence of drugs or alcohol; whether he ably
understood and responded to questions; his physical and emotional
reaction to interrogation; and whether physical punishment was
used or threatened.
Id.
As noted, one of the officers conceded he “had no reasonable suspicion to
believe [Vesper] was under the influence.” Despite this concession, the officer
asked Vesper for a blood, urine, or breath sample, stating he
1
In his motion to suppress, Vesper also argued that the officers did not comply with Iowa
Code section 321J.8, which requires peace officers to advise “[a] person who has been
requested to submit to a chemical test” about the consequences of refusing the test and
the consequences of a positive test. The district court did not rule on this argument. On
appeal, Vesper noted that the officers did not comply with this provision but he did not
argue that this violation required suppression of the test. Therefore, we need not decide
whether this provision applies anytime an officer asks an individual to submit to a
chemical test, irrespective of whether implied consent procedures are invoked.
4
didn’t believe [Vesper] was under the influence but would—was
requesting a sample from him, uh, stated that if he had nothing to
hide, it would only help him in the future. That way nobody could
come back and say that he was under the influence at the time and
we didn’t check.
Later, the officer characterized his conversation as follows:
What I—what I said is, uh, by giving a test, that—let me—um, by
giving the test you will—if you have nothing to hide, you will show to
the people that—then they can’t come back later and say that you
were under the influence and we didn’t test you.
Vesper, in turn, testified that the officer came over to him and asked him whether
he would submit to a urine sample, stating, “We don’t suspect anything, it’s just
for insurance companies; they like to have these things in instances like this.”
These suggestions that a test would prove advantageous to Vesper,
combined with the fact that the officers had no grounds to suspect intoxication
and, therefore, no basis for requesting a test, as well as the omission of advice
concerning the possible adverse consequences of a positive test, lead us to
conclude the consent was involuntary. See State v. Reinier, 628 N.W.2d 460,
468 (Iowa 2001) (“Subtle coercion, in the form of an assertion of authority . . . by
the law enforcement officers [can] make what appears to be a voluntary act an
involuntary one.” (quoting United States v. Griffin, 530 F.2d 739, 742 (7th Cir.
1976))); Commonwealth v. Walsh, 460 A.2d 767, 773 (Pa. 1983) (“[W]e conclude
that if appellant can establish that he had no notice of the criminal investigative
purpose of the blood test, his consent would be invalid.”).
We recognize that this was Vesper’s second offense for operating while
intoxicated, which could lead to an inference that he was aware of the adverse
consequences of a chemical test. However, the record is devoid of details about
5
the prior OWI conviction. Therefore, we decline to draw that inference from his
prior criminal history. The remaining factors for determining whether consent
was voluntary do not apply.
Vesper’s motion to suppress the results of his urine test should have been
granted. We reverse and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
