Opinion
No. 5-331 / 04-1348
Filed August 17, 2005
Appeal from the Iowa District Court for Scott County, C.H. Pelton, Judge.
Gary Michael Bailey appeals from the district court's ruling on judicial review affirming the Iowa Department of Transportation's revocation of his driver's license for driving with an alcohol concentration of 0.10 or more. AFFIRMED.
Paul Macek, Davenport, for appellant.
Mark Hunacek, Ames, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Gary Michael Bailey appeals from the district court's ruling on judicial review affirming the Iowa Department of Transportation's (DOT) revocation of Bailey's driver's license for driving with an alcohol concentration of 0.10 or more. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
On September 28, 2002, at approximately 5:46 p.m. the motorcycle Gary Bailey was operating was involved in an accident with an automobile. Bailey arrived at the hospital at approximately 6:11 p.m. suffering from severe injuries to his lower right leg and foot which would eventually lead to the amputation of his right leg below the knee. The reports from both emergency room doctors who treated Bailey stated he was awake and alert when he arrived at the hospital. One report stated he had suffered no amnesia for the event and was alert and oriented, the other noted he had not lost consciousness, followed commands, and answered questions appropriately. Blood was drawn from Bailey at approximately 6:14 p.m. and he was given his first medication at 6:20 p.m.
There is no evidence that this blood, which was drawn about three minutes after Bailey arrived at the hospital, was drawn for any reason other than to be used for medical purposes. Although the record is not clear on the point, it appears it was blood from this draw that was subjected to the chemical testing that led to Bailey's license revocation.
Officer Troy Simon was dispatched to the hospital to prepare paperwork for a withdrawal of blood or urine from Bailey. The paperwork included a doctor's certification form attesting to the fact Bailey was not capable of consenting to or refusing a request for withdrawal of a specimen. Officer Simon turned the paperwork, including the unsigned doctor's certification, over to Officer Anderson at the hospital. Officer Simon never spoke with Bailey or any doctor, nor did he see a doctor sign the form or hear him give consent. He testified Officer Anderson must have obtained the doctor's certification for the withdrawal of the specimen from Bailey.
On February 3, 2003, Bailey received a notice of license revocation from the DOT which stated that his license was being revoked due to a chemical test showing an alcohol concentration of 0.174 in the blood sample which had been drawn from Bailey on September 28, 2002.
After receiving notice that his license was being revoked, Bailey requested and received a contested case hearing before an administrative law judge (ALJ) in which he challenged the revocation. At the hearing the DOT did not produce the doctor's certification form, but requested the ALJ hold the record open to allow it to produce the certification. The ALJ stated he felt the "whole case rests upon" that certification and agreed to give the DOT one day to produce the certification or dismiss the revocation if such certification did not exist. The next day the DOT faxed to the ALJ and Bailey a certification form from Dr. Lee. On the form Dr. Lee certified he was a licensed physician, that on "28, 2002," Gary Bailey was brought to the hospital for the purpose of withdrawing a body substance to determine the alcohol content of his blood, that Bailey was either "dead, unconscious or otherwise in a condition rendering him incapable of consent or refusal" to the withdrawal of the specimen, and thus Dr. Lee would either withdraw or order withdrawal of a specimen of Bailey's blood under section 321J.7 of the Code of Iowa. The reason given by Dr. Lee, as stated on the form, that Bailey was incapable of consent or refusal, is that Bailey was "heavily sedated."
The ALJ issued a proposed decision, concluding that the revocation of Bailey's license was appropriate and should be sustained. In upholding the revocation the ALJ found that Bailey had the burden of proving the police officer did not satisfy the procedural requirements of the implied consent law and that he had failed to meet this burden.
[Bailey] has failed to meet his burden of proof in this case. [Bailey] was in a motorcycle accident and he was injured. A doctor signed a statement that [Bailey] was not capable of consent or refusal because he was heavily sedated. A blood test was withdrawn which indicated an alcohol concentration of .174. It is for these reasons the revocation should be sustained.
Bailey appealed the ALJ's proposed decision and the reviewing officer affirmed the decision, finding that Bailey "did not refute the physician's certification that [Bailey] was incapable [of consenting or refusing.] The evidence established only that [Bailey] was conscious. There was no testimony from the treating physician, or other medical personnel, to refute the certification."
Bailey then filed a petition for judicial review with the district court. The district court affirmed the license revocation. The court concluded the evidence supported findings that "Bailey was very severely injured by trauma (his right leg was virtually amputated) and heavily sedated such that he was incapable of giving or refusing consent, as certified by an attending physician." Bailey appeals from the district court's order affirming his license revocation. He contends he was capable of consenting to or refusing the withdrawal of a specimen for purposes of chemical testing and that the doctor's certification form should not have been admitted into evidence.
II. SCOPE AND STANDARDS OF REVIEW.
Our administrative procedure act (Iowa Code chapter 17A) governs a court's review of a DOT revocation. Hafits v. Iowa Dep't of Transp., 605 N.W.2d 1, 2 (Iowa 2000); Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 625 (Iowa 1997). A court may reverse the agency action in a contested case if it is "not supported by substantial evidence in the record before the court when that record is viewed as a whole." Iowa Code § 17A.19(10)(f) (2003). Bailey relies on this ground in challenging his revocation.
III. MERITS.
Under our implied-consent statute, a driver who operates a motor vehicle under circumstances giving reasonable grounds to believe the driver is intoxicated is deemed to have consented to a withdrawal and testing of his blood, breath, or urine. Iowa Code § 321J.6. The withdrawal of body substances is to be made at the written request of a peace officer. If the driver is not able to consent or refuse, Iowa Code section 321J.7 applies:
A person who is dead, unconscious, or otherwise in a condition rendering the person incapable of consent or refusal is deemed not to have withdrawn the consent provided by section 321J.6, and the test may be given if a licensed physician certifies in advance of the test that the person is dead, unconscious, or otherwise in a condition rendering that person incapable of consent or refusal.
Hafits, 605 N.W.2d at 1-2 (citation omitted).
Bailey contends that for several reasons the physician's certification form should not have been admitted into evidence before the agency. Administrative agencies are not bound by technical rules of evidence. Hamer v. Iowa Civil Rights Comm'n, 472 N.W.2d 259, 262 (Iowa 1991). An ALJ may base his or her decision upon evidence that would ordinarily be deemed inadmissible under the rules of evidence, as long as the evidence is not immaterial or irrelevant. Clark v. Iowa Dep't of Revenue and Fin., 644 N.W.2d 310, 320 (Iowa 2002). For this reason, even hearsay evidence is typically allowed in administrative proceedings and may constitute substantial evidence for the agency's decision. Id.
Bailey first argues that because the document is not dated or timed its compliance with section 321J.7 cannot be assured. He contends this Code provision "requires that the certification must be given in advance of the withdrawal of the blood." This, however, is simply not what the Code requires. The statute which sets forth Iowa's implied consent law clearly differentiates between the withdrawal of a specimen and the chemical testing of the specimen for the determination of alcohol concentration or other drugs. See Iowa Code § 321J.6 ("A person . . . is deemed to have given consent to the withdrawal . . . and to a chemical test or tests. . . ."). Section 321J.7 then provides that the test may be given if a licensed physician "certifies in advance of the test that the person is . . . incapable of consent or refusal." (Emphasis added). Thus, section 321J.7 requires only that the certification be given in advance of the testing of the specimen, not the withdrawal of the specimen. Accordingly, Bailey's argument on this issue is without merit.
Bailey also argues the certification should not have been admitted because there is not a complete date on it. The certification does give the date "28, 2002" as the date the specimen was withdrawn from Bailey. Although there is no month listed, a person could quite reasonably conclude the certification was made on September 28, 2002, as that was the date Bailey was involved in the accident, was at the hospital listed on the form, and was treated by the doctor who signed the form. Furthermore, Bailey has offered no evidence of, or even suggested, any other month to which the certification may be referring. We believe, as the State argues, that the only reasonable inference is the one drawn by the agency, that the "28" set forth in the certification is the 28th day of September, 2002.
In addition, we note that at the end of the agency hearing Bailey specifically consented, on the record, to hold the record open for twenty-four hours to allow the DOT to provide the physician's certification to the ALJ and have it admitted into evidence. He thus cannot now reasonably claim that the agency erred by acting in a manner consistent with the consent he had given.
We conclude the physician's certification form was properly admitted into evidence before the agency. We have considered all of Bailey's arguments to the contrary, whether or not specifically addressed herein, and find them to be without merit.
Bailey also contends that the agency's factual determination that he was incapable of consent or refusal, and thus section 321J.7 was complied with, is not supported by substantial evidence in the record. Our supreme court has held that a physician's certification of incapacity is not conclusive, but that it is "strong evidence" of that fact. State v. Axline, 450 N.W.2d 857, 859 (Iowa 1990); State v. Weidner, 418 N.W.2d 47, 48 (Iowa 1988). It has also stated that "we will not second-guess a good faith medical opinion rendered by a licensed physician faced with a close decision." State v. Laughridge, 437 N.W.2d 570, 572-73 (Iowa 1989). Furthermore, in administrative proceedings "the driver has the burden of proving by a preponderance of the evidence that he had complied with the implied consent law and that the peace officers had not satisfied the procedural requirements thereof." Mary v. Iowa Dep't of Transp., 382 N.W.2d 128, 132 (Iowa 1986). Thus, here the burden was on Bailey to refute the "strong evidence" of the doctor's certification of incapacity and show that section 321J.7 was thus not complied with.
Bailey presented evidence that he was awake, alert, and responsive in the emergency room. However, as our previous cases have noted, such evidence is not necessarily inconsistent with a doctor's certification that he was incapable of consent or refusal at the time the request for the chemical test was made. See Hafits, 605 N.W.2d at 2-3; Axline, 450 N.W.2d at 860.
Applying the principles of prior cases, we conclude the DOT's finding of incapability is supported by substantial evidence. We start, of course, with the "strong evidence" presented by the doctor's certificate itself. Bailey presented no evidence from any medical personnel to refute the certification. Bailey did establish that he was conscious, alert, and responsive for a period of time after arriving at the hospital at approximately 6:11 p.m. However, the evidence shows the request for the chemical test was not made until 7:20 p.m., at which time Dr. Lee determined Bailey was "heavily sedated" and incapable of either consenting to or refusing such testing. The agency could reasonably determine, as it apparently did, that Bailey did not refute the strong evidence of this good-faith medical opinion rendered by a licensed physician.
Under our standard of review we agree with the district court that there is substantial evidence in the record to support the DOT's finding that Bailey was incapable of consent or refusal.
IV. CONCLUSION.
We conclude the agency did not err in admitting the physician's certification form into evidence. We further conclude the district court did not err in concluding substantial evidence supports the DOT's finding that Bailey was incapable of consenting to or refusing testing at the time the request for testing was made.