Opinion
No. 3-150 / 02-1249.
Filed April 30, 2003.
Appeal from the Iowa District Court for Boone County, STEVEN J. OETH, District Associate Judge.
Defendant appeals from the judgment and sentenced entered upon his conviction for operating while intoxicated. AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Jim Robbins, County Attorney, and David Brown, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Douglas Elsberry appeals from the judgment and sentence entered following his conviction for operating while intoxicated in violation of Iowa Code section 321J.2 (2001). He contends the district court erroneously denied his motion to suppress and determined his guilt upon insufficient evidence. We find no merit in his claims and affirm.
I. Background Facts and Proceedings.
In the early morning hours of September 9, 2001, Deputy Matthew Mardesen received a report of a vehicle in a ditch in rural Boone County. He responded and discovered a red pickup in the ditch of the road. The pickup was missing a tire and there was a mark on the windshield indicating that the driver's head had struck it. Computer records revealed the vehicle was registered to the defendant.
Deputy Mardesen went to Elsberry's house and knocked on the door. Eventually, Elsberry answered. Deputy Mardesen asked Elsberry about the vehicle in the ditch. Elsberry informed the deputy he drove the vehicle into the ditch after falling asleep at the wheel and then walked home. Elsberry indicated he had been at home for about half an hour.
Deputy Mardesen detected an odor of alcohol emanating from Elsberry and observed that his eyes were bloodshot and watery. Mardesen asked Elsberry whether he had been drinking. He told Mardesen that he had been at the beer tent in Boone. He also admitted to having one beer at home during the half hour preceding Mardesen's arrival.
At Mardesen's request, Elsberry submitted to three standardized field sobriety tests: the horizontal gaze nystagmus test, the walk and turn, and the one-leg stand. Elsberry failed all three tests. He then submitted to a preliminary breath test that registered over the legal limit. Based on the foregoing, Elsberry was arrested and transported to the Boone Police Department. At the police department, Mardesen invoked the implied consent procedure. Elsberry consented to a breath test which revealed an alcohol concentration of .155.
The State charged Elsberry with operating while intoxicated. The State alleged defendant operated a motor vehicle while under the influence of an alcoholic beverage or, in the alternative, while having a blood alcohol concentration of 0.10. Defendant moved to suppress "all evidence obtained on the evening in question." The district court denied the motion. The parties agreed to a bench trial on the minutes of testimony and the transcript from the suppression hearing. The district court found Elsberry guilty of operating while intoxicated and sentenced him. He appeals.
II. Motion to Suppress.
Elsberry contends the district court erred in denying his motion to suppress. He contends Deputy Mardesen did not comply with Iowa's implied consent statute in two respects. First, he argues the deputy did not have reasonable grounds to request a breath test. Second, he alleges the officer administered the breath test before obtaining his consent.
We first address whether Deputy Mardesen had legal grounds to invoke implied consent. Iowa Code section 321J.6, Iowa's implied consent law, provides authority for chemical testing of bodily substances from persons suspected of driving while intoxicated. The statute provides in relevant part:
1. A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A is deemed to have given consent to the withdrawal of specimens of the person's blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321J.2A, and if any of the following conditions exist:
a. A peace officer has lawfully placed the person under arrest for violation of section 321J.2.
b. The person has been involved in a motor vehicle accident or collision resulting in personal injury or death.
. . .
d. The preliminary breath screening test was administered and it indicated an alcohol concentration equal to or in excess of the level prohibited by section 321J.2.
Iowa Code § 321J.6(1). The other conditions listed in section 321J.6(1) are not at issue in this case.
We conclude the facts set forth in Divisions I and III of this opinion reveal that Deputy Mardesen had reasonable grounds to believe Elsberry had been operating while intoxicated for purposes of Iowa Code section 321J.6. In addition, the record establishes that three of the conditions listed in section 321J.6 exist in this case: defendant had been arrested for OWI, his preliminary breath test was over .10, and defendant had been involved in a motor vehicle accident in which he was injured. We conclude Deputy Mardesen properly invoked implied consent.
Defendant also claims the deputy did not obtain his consent to the intoxilyzer test until after he took the test. The basis for the defendant's claim is that the printout of the defendant's test result states that the time of the intoxilyzer test was 2:10 a.m. while the implied consent request form indicates that the time of the request was 2:20 a.m. The defendant did not raise the time discrepancy issue in his motion to suppress and defense counsel never asked the deputy about the apparent time discrepancy in the two documents. Deputy Mardesen orally testified that he requested the test and obtained the defendant's written consent prior to administering the breath test. The defendant did not testify at his suppression hearing. The district court concluded the evidence presented at the suppression hearing established that the breath test was performed after the written request was made by Deputy Mardesen. We find the evidence is sufficient to support the district court's conclusion. Accordingly, we reject this assignment of error.
III. Sufficiency of the Evidence.
The defendant also claims the evidence is insufficient to support his conviction. Elsberry waived his right to a jury trial and the matter proceeded as a bench trial. In a bench trial, the court is the fact finder. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). A decision in a bench trial has the same force as a jury verdict. State v. Ross, 512 N.W.2d 830, 832 (Iowa Ct.App. 1993). We review a trial court's findings in a case where the jury is waived as we would a jury verdict. See State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000).
We review sufficiency of the evidence challenges for correction of errors at law. State v. Chang, 587 N.W.2d 459, 461-62 (Iowa 1998). We view the evidence in the light most favorable to the State and uphold the denial of a motion for judgment of acquittal if there is substantial evidence in the record supporting the charges. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa 1996). Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). Direct and circumstantial evidence are equally probative. Iowa R.App.P. 6.14(6)( p ); State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999).
Pursuant to Iowa Code section 321J.2 the crime of operating while intoxicated can be committed in two ways: (1) by operating a motor vehicle while under the influence of alcohol, or (2) by operating a motor vehicle while having an alcohol concentration of .10 or more. Elsberry contends the evidence presented by the State was insufficient to prove either alternative. We disagree. Deputy Mardesen found defendant's abandoned truck in a ditch. See State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992) (stating defendant's manner of driving is relevant evidence to be considered in determining whether he or she was under the influence of alcohol). The driver's side of the windshield had a circular impression of broken glass with traces of blood on it. From experience, Mardesen believed the glass was broken by the impact of the driver's head. Mardesen arrived at defendant's house a mere one-half hour after the accident to find defendant with bloodshot, watery eyes and a strong odor of alcohol on his breath. See State v. Pieper, 432 N.W.2d 701, 704 (Iowa Ct.App. 1988) (finding red and watery eyes and odor of alcoholic beverage were evidence defendant was under the influence of alcohol). Defendant also had an abrasion on his forehead. Elsberry admitted to Mardesen that he drove into the ditch coming home from the beer tent at the Pufferbilly Days in Boone. He also stated that he had only one beer at home after the accident. Elsberry also failed all three of the field sobriety tests administered by Mardesen. See id. (stating an inability to perform field sobriety tests is evidence that subject is under the influence of alcohol).
Defendant admitted to operating the vehicle. He admitted to driving into the ditch after leaving a beer tent. He also admitted to having "too many" sixteen ounce bottles of Miller at the beer tent. Defendant's breath was tested and revealed he had an alcohol concentration of .155. Reviewing the evidence in the light most favorable to the State, we find substantial evidence supports the court's conclusion that Elsberry operated his pickup truck while under the influence and with an alcohol concentration of .10 or more. Accordingly we affirm the defendant's conviction.