STATE OF IOWA, Plaintiff-Appellee, vs. JEFFREY CHADWICK DEAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-799 / 09-0061
Filed December 30, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY CHADWICK DEAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mills County, James S.
Heckerman, Judge.
The defendant appeals his conviction of operating while intoxicated.
AFFIRMED.
Brian F. Beattie, Malvern, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Marci L. McClellan, County Attorney, and Eric C. Hansen, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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VOGEL, P.J.
Jeffery Dean appeals from his conviction for operating while intoxicated,
second offense.
He asserts the district court erred in not suppressing all
evidence gathered pursuant to the implied consent procedures. We affirm.
I. Background Facts.
At approximately 10:20 p.m. on March 28, 2008, in the city of Malvern,
Sergeant Pat Martin stopped a vehicle for speeding and identified the driver to be
Dean. Martin’s radar unit showed the vehicle to be traveling at forty miles per
hour in a twenty-five mile per hour zone. Martin noticed that Dean emitted a
strong odor of alcohol, had slow and slightly slurred speech, and had watery
eyes.
When asked when his last alcoholic beverage was consumed, Dean
responded that it was thirty to forty-five minutes earlier. At 10:40 p.m., after
Dean failed several field sobriety tests and a preliminary breath test indicated
Dean had a blood alcohol level in excess of .08, Martin arrested Dean for
operating while intoxicated (OWI).1
Martin transported Dean to the Mills County Sheriff’s Office, where Martin
read Dean the implied consent advisory at 11:17 p.m. Dean requested to speak
to his lawyer prior to either consenting to or refusing to take the test. Dean had
access to a phone in the Sheriff’s Office for local and “collect” long-distance calls,
as well as his own cell phone. Dean placed several phone calls to his attorney,
leaving messages for him to return his calls. He did reach his friend, with whom
he spoke for several minutes. After fifty-five minutes, Martin advised Dean that
he would need to make a decision about whether or not to take the test “at some
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Dean was also issued a citation for speeding.
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point.” Dean consented to a breath test, which was administered at 12:10 a.m.
At that time, thirty minutes remained in the two-hour time limit prescribed in Iowa
Code section 321J.6(2) (2007). Shortly thereafter, Dean’s attorney returned his
calls.
Dean moved to suppress all evidence gathered pursuant to the implied
consent procedures arguing that (1) Martin was not a “peace officer” with
authority to invoke implied consent and (2) his rights pursuant to Iowa Code
section 804.20 were violated.
The district court overruled Dean’s motion.
Subsequently, Dean was convicted of OWI, second offense, in violation of Iowa
Code section 321J.2. Dean appeals.
II. Standard of Review.
Our review of the district court’s interpretation of a statute is for correction
of errors at law. State v. Garrity, 765 N.W.2d 592, 595 (Iowa 2009); State v.
Snider, 522 N.W.2d 815, 817 (Iowa 1994).
III. Analysis.
A. Error Preservation.
We begin by addressing the State’s contention that Dean did not preserve
error on his claims. In his brief, Dean stated that he “was tried on the minutes of
testimony and convicted” of OWI, second offense. The State asserts that Dean
pled guilty and points to the following district court orders. An October 6, 2008
court order states:
Defendant appeared with his attorney, Brian Beattie, and stipulated
to the accuracy of the minutes of testimony. Review of the minutes
shows that on March 28, 2008, Defendant operated a motor vehicle
while under the influence of alcohol. The minutes also show that
Defendant was convicted of OWI on April 13, 1998. Based on the
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minutes of testimony, Defendant is found guilty of [OWI], second
offense, in violation of Iowa code section 321J.2. Count II is
dismissed on the State’s motion. Sentencing is scheduled for
October 27, 2008, at 9:00 a.m.
A December 2, 2008 sentencing order states:
Defendant entered a plea of guilty to Count I, Operating While
Intoxicated, Second Offense, in violation of Iowa Code section
321J.2. . . .
The plea was entered freely and voluntarily.
Defendant was advised of the constitutional rights given up by
pleading guilty. The Court accepts the plea of guilty and finds
defendant guilty. Defendant waives time for sentencing. . . . Count
II is dismissed pursuant to plea agreement.
The State asserts that the October 6, 2008 order noted that Dean stipulated to
the accuracy of the minutes of testimony, which is consistent with an Alford2 plea.
Further the December 2, 2008 sentencing order explicitly states Dean pled guilty.
Dean does not respond to the State’s argument.
We agree with the State that it appears Dean’s arguments stemming from
the denial of his motion to suppress are not preserved for our review. See State
v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009) (“It is well established that a
defendant’s guilty plea waives all defenses and objections [that] are not intrinsic
to the plea.” (citing State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000))).
Additionally, Dean does not raise his claims in an ineffective-assistance-ofcounsel context. See id. Nevertheless, out of an abundance of caution, we
proceed to the merits of his appeal.
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See North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-68, 27 L. Ed. 2d
162, 168-72 (1970) (holding that an accused may consent to the imposition of a
sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime).
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B. Motion to Suppress.
Dean first argues the district court erred in finding Sergeant Martin was a
peace officer with authority to invoke implied consent procedures. Iowa Code
section 321J.6 requires that implied consent procedures be instituted by a peace
officer. For implied consent purposes, a “peace officer” includes:
Any other law enforcement officer who has satisfactorily completed
an approved course relating to motor vehicle operators under the
influence of alcoholic beverages at the Iowa law enforcement
academy or a law enforcement training program approved by the
department of public safety.
Iowa Code § 321J.1(8)(e). In the present case, Martin testified that he was a
licensed peace officer, having attended the Iowa Law Enforcement Academy and
received training in traffic enforcement. See Snider, 522 N.W.2d at 817 (stating
that because a municipal police officer “is a graduate of the Iowa law
enforcement academy, he met the requirements under [section 321J.1(8)(e)]”).
Further, Martin was employed by the City of Glenwood Police Department and
part-time by the City of Malvern Police Department. We find no merit to Dean’s
argument.
Dean next argues that his rights pursuant to Iowa Code section 804.20
were violated. Under this code section, a person arrested or detained has a
limited statutory right to contact an attorney or family member and once the right
is invoked, the person must be given a reasonable opportunity to do so. Garrity,
765 N.W.2d at 595; State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005);
State v. Vietor, 261 N.W.2d 828, 831-32 (Iowa 1978). However, this right is
subject to the two-hour time limit to administer a chemical test.
Iowa Code
§ 321J.6(2) (requiring a chemical test to be offered within two hours of the person
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taking or refusing a preliminary screening test or the person being arrested,
whichever occurs first); Vietor, 261 N.W.2d at 832. In the present case, after he
invoked his right to contact his attorney, Dean freely used his cell phone to place
several calls over the next hour.
He attempted several phone calls to this
attorney as well as successfully reaching and conversing with a friend. When
Dean eventually consented to the breath test, thirty minutes remained in the twohour time limit prescribed in Iowa Code section 321J.6(2). Given time frame and
the multiple phone calls Dean was freely allowed to place, we find Dean’s rights
under Iowa Code section 804.20 were not violated. Therefore, we affirm.
AFFIRMED.
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