STATE OF IOWA, Plaintiff-Appellant, vs. SHAUN MICHAEL SHAFFER, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-533 / 08-1431
Filed September 17, 2009
STATE OF IOWA,
Plaintiff-Appellant,
vs.
SHAUN MICHAEL SHAFFER,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
District Associate Judge.
The State was granted discretionary review of the district court’s grant of
defendant’s motion to suppress evidence of his alcohol concentration.
REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Martha E. Trout and Mary Tabor,
Assistant Attorneys General, Wayne Reisetter, County Attorney, and Stacy
Ritchie, Assistant County Attorney, for appellant.
Terri Jo Rekemeyer, Newton, for appellee.
Considered by Vaitheswaran, P.J., and Eisenhauer and Mansfield, JJ.
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VAITHESWARAN, P.J.
We must decide whether a police officer adequately accommodated an
arrestee’s limited statutory right to secure an attorney.
I.
Background Facts and Proceedings
A Waukee police officer stopped a vehicle driven by Shaun Shaffer after
he failed to use his turn signal while changing lanes. The officer asked Shaffer if
he had been drinking. Shaffer initially responded that he consumed a couple of
beers and later stated he had three or four. The officer told Shaffer that he was
exhibiting signs of intoxication, and he proceeded to administer field sobriety
tests and a preliminary breath test. The result of the preliminary breath test
exceeded the legal limit,1 and Shaffer was arrested and transported to the
Waukee Police Department.
At the police station, the officer read Shaffer an implied consent advisory
and asked if he would submit to a chemical test. Shaffer asked how much time
he had before he would be required to take the test. The officer told him the test
needed to be performed within two hours of his arrest. Gesturing to the implied
consent advisory form, Shaffer asked, “But if I don’t even touch this?” The officer
told Shaffer he could not “stall[ ] for time” or he would mark Shaffer’s response as
a refusal on the form.
Shaffer asked if he could call “someone.” The officer told him he could
call an attorney, family member, or both. Shaffer took his cell phone out of his
pocket and started looking for someone to call. A few minutes passed before he
1
At the suppression hearing, the officer testified that the preliminary breath test indicated
Shaffer’s alcohol concentration was about .08. However, a videotape of the traffic stop
indicates the result of the preliminary breath test was actually .109.
3
decided to call his friend, Aaron Daniels. Daniels did not answer, so Shaffer tried
calling another friend. That friend answered and gave Shaffer the telephone
number of Shaffer’s cousin. Shaffer called his cousin, who also did not answer.
He waited a few minutes and tried again, but still received no answer.
Several minutes later, Shaffer received a call on his cell phone which the
officer allowed him to answer.
After seeking advice from the caller, Shaffer
decided to try an attorney. He asked the officer for the telephone number of
attorney Terri Rekemeyer, telling him that he thought she lived in Newton but
worked in Des Moines. He also told the officer he did not know whether she
practiced with a law firm or by herself. Shaffer then remembered he had the
phone number of Rekemeyer’s son, Mike Billings. He asked the officer to call
Billings from the telephone at the police station. The officer dialed the number,
and Shaffer left Billings a message to call the police station as soon as possible.
When a few minutes elapsed with no return call, the officer tried to locate
Rekemeyer’s telephone number in a Des Moines phone book. He was unable to
find a listing. The officer tried calling Billings’s cell phone number and discovered
the outgoing message was “a business type message” for “some real estate
guy.” Shaffer asked if he could check the phone book for Rekemeyer’s number.
The officer denied his request. He told Shaffer it was “time to make a decision.”
After some additional discussion, Shaffer consented to a chemical test, which
revealed an alcohol concentration that exceeded the legal limit of .08.
The State charged Shaffer with operating while intoxicated, first offense, in
violation of Iowa Code section 321J.2 (2007). Shaffer moved to suppress the
result of his chemical test, alleging a violation of his limited statutory right to
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counsel under section 804.20. Following a hearing, the district court granted
Shaffer’s motion. The court reasoned:
Had defendant had a chance to look in the phone book for the
attorney’s phone number, there would still have been time to
perform the test. Of course, there is no guarantee the number
would have been located, but by not allowing defendant an
opportunity to locate the number of his attorney of choice,
defendant was effectively denied his right to counsel.
The State sought discretionary review, which the Iowa Supreme Court
granted. The appeal was transferred to this court for disposition.
II.
Analysis.
Iowa Code section 804.20 states in relevant part:
Any peace officer or other person having custody of any person
arrested or restrained of the person’s liberty for any reason
whatever, shall permit that person, without unnecessary delay after
arrival at the place of detention, to call, consult, and see a member
of the person’s family or an attorney of the person’s choice, or both.
Such person shall be permitted to make a reasonable number of
telephone calls as may be required to secure an attorney.
Under this provision, an officer must give an arrestee a “reasonable opportunity”
to contact an attorney before submitting to a chemical test. Bromeland v. Iowa
Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997). The provision “is to be
applied in a pragmatic manner, balancing the rights of the arrestee and the goals
of the chemical-testing statutes.” State v. Tubbs, 690 N.W.2d 911, 914 (Iowa
2005).
Our review of the district court’s interpretation of section 804.20 is for
errors at law. State v. Garrity, 765 N.W.2d 592, 595 (Iowa 2009). We will uphold
a ruling on a motion to suppress if the district court applied the law correctly and
there is substantial evidence to support the findings of fact. Id.
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Here, there is no real dispute about the facts.
The only question is
whether the district court correctly applied the law to those facts. The record
reflects that the officer allowed Shaffer to make at least four phone calls from his
cell phone and one call from the telephone at the police station. The officer also
let Shaffer answer an incoming call on his cell phone. The officer additionally
allowed Shaffer to leave a message with his attorney’s son, directing him to call
the police station as soon as possible.
Finally, the officer checked the Des
Moines phone book for the attorney’s telephone number and called the attorney’s
son himself. We conclude the officer afforded Shaffer a reasonable opportunity
to contact counsel.
In reaching this conclusion, we have considered the fact that the officer
was not close to abutting the two-hour deadline for administering the test2 and,
accordingly, could have accommodated Shaffer’s request to check the phone
book himself.
Because the officer afforded Shaffer many and varied
opportunities to obtain advice and reach his attorney, we are persuaded that his
refusal to take this additional step does not mandate a different result.
See
Bromeland, 562 N.W.2d at 626 (noting the limited right to counsel under section
804.20 “is satisfied by allowing the arrestee to make a telephone call”); Ferguson
v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988) (“[O]rdinarily the
statutory right to counsel would be satisfied if the arrestee was allowed to make a
phone call to his lawyer.”); State v. Vietor, 261 N.W.2d 828, 831-32 (Iowa 1978)
(noting defendant “was allowed to make several telephone calls” and this would
2
There appears to be about a nineteen-minute discrepancy between the time on the
videotape and the time the events actually occurred.
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ordinarily satisfy the right to access to counsel but for the fact that the record was
silent “concerning whether he tried to reach a lawyer or whether the officer’s
categorical statement he could not have one persuaded him not to try”); Moore
v. Iowa Dep’t of Transp., 473 N.W.2d 230, 231 (Iowa Ct. App. 1991) (“The twohour period during which testing must occur does not mean every arrestee is
granted two full hours before he or she must consent to testing.”).
We have also considered Haun v. Crystal, 462 N.W.2d 304, 306 (Iowa Ct.
App. 1990), cited by the district court, as well as Short v. Iowa Department of
Transportation, 447 N.W.2d 576, 579 (Iowa Ct. App. 1989), both holding that the
arrestees were not afforded a reasonable opportunity to contact attorneys.
These opinions turned on the fact that the arrestees contacted attorneys with the
knowledge of the officers and were awaiting further contact with them when the
officers administered the chemical test. Haun, 462 N.W.2d at 306; Short, 447
N.W.2d at 578-79. In contrast, Shaffer was not able to reach an attorney even
after several attempts and even with the assistance of the officer. See Vietor,
261 N.W.2d at 831 (“If the lawyer . . . cannot be reached promptly by telephone
or otherwise, the defendant may be required to elect between taking the test and
submitting to revocation of his license, without the aid of counsel.”). Additionally,
the record contains evidence that Shaffer did not act in good faith.
See
Bromeland, 562 N.W.2d at 626 (“[A]ny request for counsel must be made in good
faith.”); Vietor, 261 N.W.2d at 831 (“An arrested person should not be allowed to
sabotage the purpose of Chapter 321[J] by delay.”). The officer testified, “I think
he was stalling.”
He cited Shaffer’s questions to him about the two-hour
deadline, his reference to not touching the implied consent forms, and the time it
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took to retrieve phone numbers. For these reasons, Haun and Short do not
dictate a different result.
We reverse the district court’s ruling on Shaffer’s motion to suppress and
remand for further proceedings.
REVERSED AND REMANDED.
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