Opinion
No. 3-420 / 02-1827
Filed July 10, 2003
Appeal from the Iowa District Court for Appanoose County, Kirk A. Daily, District Associate Judge.
Defendant appeals OWI conviction claiming the district court erred in denying his motion to suppress. AFFIRMED.
Matthew Lindholm of Hoyt Law Firm, P.C., Des Moines, and James Sinclair of Sinclair Associates, P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, and Robert Bozwell, County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Daniel Heffron appeals his operating while intoxicated (OWI) conviction claiming the district court erred in denying his motion to suppress alleging his right to counsel was violated. We affirm.
Background Facts. On January 6, 2002 at about 1:45 a.m., Heffron was stopped and arrested for operating a vehicle while intoxicated. Heffron was taken to the Appanoose County Jail. Before deciding whether to submit to a breath test, Heffron requested to speak to attorney James Sinclair. Officer Jarrod Kirby, aware that Sinclair lived in Des Moines, retrieved a telephone book to look for Sinclair's telephone number. Officer Kirby found three office telephone numbers in the yellow pages for Sinclair. He dialed all three numbers, two of them twice, and he left a couple of messages on Sinclair's answering machine. After not reaching Sinclair, Officer Kirby offered Heffron a list of attorneys he could call instead. Heffron refused, stating he only wanted to speak with Sinclair and continued to refuse to submit to the breath test. At 2:56 a.m., with one hour and twelve minutes left in the two hour statutory period, Officer Kirby indicated on the implied consent form that Heffron refused to submit to the chemical test.
Heffron filed a motion to suppress claiming he was denied his right to counsel under Iowa Code section 804.20 (2001). The motion was denied. Heffron stipulated to a trial on the minutes of testimony. At the trial, the motion was renewed and denied. Heffron was found guilty of operating a vehicle while intoxicated. Heffron appeals.
Scope of Review. When the admission of evidence depends on the interpretation of a statute, we review for correction of errors at law. State v. Palmer, 554 N.W.2d 859, 864 (Iowa 1996) (citing State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994)). Thus, we review the district court's ruling on Heffron's motion to suppress to decide whether it was based on a correct interpretation of Iowa Code section 804.20.
Discussion. Heffron claims his statutory right to counsel under Iowa Code section 804.20 (2001) was violated in three particulars: Officer Kirby 1) did not attempt to locate Sinclair's home telephone number, 2) did not allow Heffron to personally use the telephone, and 3) did not inform Heffron he could contact a family member. As such, Heffron argues suppression of his refusal to submit to the chemical test is appropriate.
Iowa Code section 804.20 provides in 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. If a call is made it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody.
Iowa Code § 804.20 (2001). An OWI arrestee has a limited right to contact an attorney under section 804.20. State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978). This limited right is satisfied by allowing the arrestee to make a telephone call. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 625 (Iowa 1997) (citing Ferguson v. Iowa Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1988); Short v. Iowa Dep't of Transp., 447 N.W.2d 576, 578 (Iowa Ct.App. 1989)). "Section 804.20 does not provide an absolute right to counsel, but requires a peace officer to provide the arrestee with a reasonable opportunity to contact an attorney." Id.
Officer Kirby called Sinclair, upon the request of Heffron, at three separate office numbers listed in the yellow pages for a total of five calls, leaving two messages. When it became apparent to Officer Kirby that he was not going to reach Sinclair at the office numbers at such a late hour, he offered to contact another attorney for Heffron. Officer Kirby had a list of attorney names and telephone numbers for Heffron to choose from but he declined, stating he only wanted to speak to Sinclair.
Though Officer Kirby knew Sinclair lived in Des Moines and could have called directory assistance to obtain his home telephone number, we do not believe this is a necessary step to satisfy the reasonableness required under section 804.20. Sinclair listed three telephone numbers in the yellow pages for his law offices, all having a recorded message and the ability for the caller to leave a message. None offered an after-hours telephone number. Finding no success with the numbers listed for Sinclair, Officer Kirby then offered Heffron, "the sheet of attorneys" to call and seek counsel. When Heffron refused to consider any other attorney other than Sinclair, he effectively cut off his options. Officer Kirby did not deny Heffron his right to seek counsel under the statute. Heffron next asserts that his rights were violated because Officer Kirby made the telephone calls for him. The State argues this claim was not preserved for appeal and we tend to agree but proceed to address this point. The statute specifically allows a peace officer to make telephone calls on behalf of an arrestee where the arrestee is intoxicated. Iowa Code § 804.20. Heffron, in his brief, claims there was not sufficient evidence he was intoxicated when the telephone calls were made. Heffron was arrested for driving his vehicle while intoxicated and was stopped because he ran up on a curb. He admitted to consuming at least four beers in the hour and a half prior to the stop, failed the field sobriety tests and had difficultly keeping his balance. The officers involved reported Heffron smelled of alcohol and his eyes were bloodshot. In addition, the booking procedure was recorded on video tape and made part of the record. Clearly there was enough evidence at the time for Officer Kirby to make a preliminary determination that Heffron was intoxicated such that he should place the calls rather than Heffron. In addition, Officer Kirby used the speaker phone so that Heffron could hear the recorded message on Sinclair's answering machines.
Heffron further asserts Officer Kirby failed to inform him of his right to contact a family member, thereby violating his rights under section 804.20. The State argues that his invocation of the right to counsel did not require Officer Kirby to inform Heffron of his right to contact a family member. Heffron relies on Didonato v. Iowa Dep't. of Transp., 456 N.W.2d 367 (Iowa 1990), in which the defendant requested to call a friend prior to signing the implied consent form. However, Didonato stands for the proposition that if an arrestee requests to call a friend, the officer may not stand mute and refuse the request. Didonato, 456 N.W.2d at 370. Heffron did not request to call a family member, rather he requested he be allowed to call an attorney and was allowed to do so. Officer Kirby did not violate Heffron's rights by not further informing him that he had the right to contact a family member. See State v. Meissner, 315 N.W.2d 738, 740 (Iowa 1982) (finding there was no requirement defendant be told of this right to consult with an attorney, it was only required that any such request be honored).
Heffron finally asserts that he sought advice from Sinclair because he knew Sinclair handled numerous OWI cases. During the hearing on the renewed motion Sinclair took the stand himself testifying that he specializes in OWI cases as they represent ninety-nine percent of his caseload. Sinclair further stated he considers himself to have a particular expertise in OWI defense and would be able to do a better job of explaining implied consent to Heffron than the attorneys on the list provided by Officer Kirby. While it may be true that Sinclair has more experience in OWI cases, section 804.20 provides for a right to an attorney, not an attorney who holds himself out as an expert in the field.
Occurred concurrently with the Stipulated Trial on the Minutes.
We find that the district court did not err in denying Heffron's motion to suppress. Officer Kirby afforded Heffron a reasonable opportunity to contact an attorney prior to invoking implied consent. "We have never interpreted section 804.20 as providing an absolute right to talk to one particular attorney if that person is unavailable or unable to be reached." Bromeland, 562 N.W.2d at 625.