Opinion
No. 5-237 / 04-1347
Filed April 13, 2005
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
Jeffery Andrews appeals from the agency decision to revoke his driver's license for refusing implied consent to chemical testing. AFFIRMED.
Carter Stevens of Roberts, Stevens Lekar, P.L.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Carolyn J. Olson, Assistant Attorney General, Ames, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Jeffery Andrews appeals from the agency decision to revoke his driver's license for refusing to consent to chemical testing. We now affirm.
I. Background Facts and Proceedings.
Black Hawk County Deputy Herbst responded to a personal injury accident at the residence of Jeffery and Sherry Andrews in the early morning hours of July 27, 2003. When Herbst arrived, an ambulance crew was present and assisting Jeffery in his garage. Herbst initially spoke with Sherry who stated Jeffery had "dumped the bike" as the couple were riding up the driveway on their motorcycle after a ride in Gilbertville. Herbst testified Sherry, who was noticeably intoxicated, also disclosed both she and Jeffery had been drinking in Gilbertville, but that neither had consumed alcohol after the accident. While on the scene, Herbst briefly inspected the motorcycle and found a number of divots and scratches. Herbst also observed that Sherry had a swollen ankle for which she declined treatment from paramedics.
Herbst followed the ambulance transporting Jeffery to the local hospital, and waited outside the room in which Jeffery was being treated until Herbst received permission from a physician to continue the investigation. Upon conversing with Jeffery, Herbst noted the smell of alcohol on Jeffrey's breath, slurred speech, and bloodshot eyes. Based upon his belief that Jeffery had been operating the motorcycle while under the influence of alcohol at the time of the accident, Herbst requested a blood alcohol test from Jeffery. Jeffery mistakenly maintained that he was not required to submit to testing because the accident had occurred on private property. Jeffery also told Herbst that he was not intoxicated upon arrival at his home from Gilbertville, and that he and Sherry had then decided to go on another ride that evening. He maintained the motorcycle was not in motion at the time of the accident, but rather had tipped when he tried to get on the parked vehicle, causing Jeffery to sustain a head injury. While Jeffery conceded at the agency hearing that he had consumed two beers much earlier in the evening prior to driving back from Gilbertville, he stated further that majority of his and Sherry's alcohol consumption occurred after the accident.
See State v. Miller, 204 N.W.2d 834, 837 (Iowa 1973) (concluding the Operating While Intoxicated statute addresses driver behavior on both public streets and private property).
Deputy Herbst read Jeffery the implied consent advisory and again requested a specimen for testing purposes. Jeffery refused and demanded that Sherry be permitted in the hospital room. Sherry was allowed to enter, and after conversing with Jeffery, recanted her previous story of the night's events so as to coincide with Jeffery's account. Herbst again requested an answer to the consent form, and Jeffery refused to respond. When Jeffery requested to speak with an attorney, Herbst pointed out the room's telephone and a phonebook. Jeffery declined the opportunity to contact an attorney at that time. All subsequent attempts by Herbst to obtain some type of specimen for alcohol testing were also refused.
The Iowa Department of Transportation notified Jeffery of the revocation of his license to operate and register motor vehicles in Iowa for a period of one year as a result of his refusal to provide a blood or urine sample. An administrative law judge ruled the revocation was appropriate under the circumstances of this case, and Jeffery appealed the matter to the agency's director. The agency's final decision affirmed the finding that Herbst had reasonable grounds to believe Jeffery operated the motorcycle while intoxicated and the conclusion that Herbst properly invoked implied consent.
Jeffery filed a petition for judicial review, and the district court affirmed the final agency decision. Jeffery now appeals, contending (1) Herbst had insufficient grounds to invoke implied consent, and (2) his valid request to contact an attorney under Iowa Code section 804.20 (2003) was denied.
II. Scope and Standard of Review.
Review of an agency determination is for errors at law. Cobb v. Employment Appeal Bd., 506 N.W.2d 445, 447 (Iowa 1993). We review district court decisions on judicial review of agency action under the standards of Iowa Code chapter 17A. Locate.Plus.Com, Inc. v. Iowa Dep't of Transp., 650 N.W.2d 609, 612 (Iowa 2002). As the district court is itself acting in an appellate capacity to correct errors of law on the part of the agency, on appeal "we apply the standards of Iowa Code section 17A.19[(10)] to the agency action to determine whether our conclusions are the same as those of the district court." Swanson v. Employment Appeal Bd., 554 N.W.2d 294, 296 (Iowa Ct.App. 1996). We will grant relief where substantial rights of a party have been prejudiced because the agency action is in excess of the agency's statutory authority, is unsupported by substantial evidence, is unreasonable, arbitrary, or capricious, or is affected by other error of law. Iowa Code § 17A.19(10).
An agency's findings of fact are binding on the Court of Appeals only where such determinations "are clearly vested by a provision of law in the discretion of the agency." Iowa Code § 17A.19(10)(f); Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004). The agency here is given specific authority to revoke the driver's license of a person who refuses to submit to chemical testing where the agency finds the peace officer had reasonable grounds to believe the person was operating a motor vehicle while intoxicated. Iowa Code § 321J.9. On review we are therefore bound to the factual determinations made by the agency if supported by substantial evidence. Mycogen Seeds, 686 N.W.2d at 465. Evidence is substantial if a reasonable mind would accept it as adequate to reach a finding. Swanson, 554 N.W.2d at 296.
III. Discussion.
Deputy Herbst testified credibly as to Sherry's initial recitation of the night's events, including: (1) Jeffery and Sherry had not consumed alcohol after the accident, and (2) Jeffery "dumped the bike" while driving up the driveway. We find reasonable Herbst's inference that "dumped" indicated the motorcycle was in motion at the time of the accident, and hence Jeffery was believed to have been operating the vehicle within the meaning of Iowa Code chapter 321J. State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987) (finding "operating" to mean immediate, actual physical control over a motor vehicle that is either in motion or has its engine running).
Based on Herbst's personal observation of Jeffery at the hospital and on Sherry's representation that neither she nor Jeffery had consumed alcohol subsequent to the accident, Herbst was also justified in concluding Jeffery had been operating the motorcycle while intoxicated. While Jeffery's version of events would paint a very different picture, we find a reasonable fact-finder could accept Sherry's initial version of the incident and refuse to credit Jeffery's version. We note that Sherry only recanted her initial version after Jeffery whispered something to her in the hospital room.
We find the record before the Iowa Department of Transportation presented substantial evidence supporting the agency's determination that Deputy Herbst had reasonable grounds to believe Jeffery was operating while intoxicated, and that Jeffery refused to submit to alcohol testing to which he had impliedly consented upon being issued an Iowa driver's license.
We also find substantial evidence in the record upon which the agency could conclude Deputy Herbst provided Jeffery with a reasonable opportunity to contact an attorney of his choice. Section 804.20 does not afford an absolute right to counsel, only a reasonable opportunity to contact an attorney before deciding whether to comply with the implied consent procedure. Bromeland v. Iowa Dep't of Transp., Motor Vehicle Div., 562 N.W.2d 624, 626 (Iowa 1997). The record reveals that upon Jeffery's request to contact an attorney, Herbst showed Jeffery the phone and a phonebook in the hospital room. However, Jeffery expressly declined this opportunity to consult an attorney.
Having found no merit in either of Jeffery's assignments of error, we affirm.
AFFIRMED.