Opinion
No. 4-754 / 03-1768
Filed December 22, 2004
Appeal from the Iowa District Court for Chickasaw County, J.G. Johnson, District Associate Judge.
Following the grant of discretionary review, the State requests reversal of the district court ruling granting defendant's motion for suppression of evidence. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Mary Tabor and Kristin Guddall, Assistant Attorney General, and W. Patrick Wegman, County Attorney, for appellant.
Richard Stochl, New Hampton, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
Following the grant of discretionary review, the State requests reversal of the district court ruling granting defendant's motion for suppression of evidence. We reverse and remand.
I. Background Facts and Proceedings.
On July 19, 2003, at approximately 9:35 p.m., Deputy Ryan Eichenberger arrested Ryan Kipp for operating a motor vehicle while intoxicated (OWI). Kipp was transported to the Chickasaw County Sheriff's office where Deputy Eichenberger asked permission to perform a breath test. At that point, Kipp requested to speak to his attorney in Swisher, Iowa. However, Kipp did not have the name or telephone number of the particular attorney he wished to contact. Deputy Eichenberger suggested more than once that Kipp contact local counsel. Kipp declined the deputy's offers for local counsel and indicated he wanted to use his own lawyer. Kipp was subsequently permitted to make and receive approximately six or seven phone calls in an attempt to locate his attorney's name and number. Eventually, Kipp obtained the attorney's contact information. Deputy Eichenberger allowed Kipp to call the number he had been provided. Unfortunately, he was unable to reach his attorney because he had received a wrong number. At this point, twenty-eight minutes remained before the expiration of the statutory two-hour period for chemical testing. See Iowa Code § 321J.6(2) (2003). Deputy Eichenberger again asked Kipp to provide a breath sample. Kipp did not make any further requests to contact his attorney or ask to speak with local counsel. He submitted to the breath test and scored over a .10 alcohol concentration.
Kipp was charged by trial information with second-offense OWI in violation of Iowa Code section 321J.2. Kipp filed a motion to suppress the results of the breath test alleging he was denied the right to telephone his attorney pursuant to Iowa Code section 804.20. Following a hearing, the district court sustained Kipp's motion to suppress. The district court determined Kipp should have been afforded a final opportunity to contact local counsel after he discovered he received the wrong number for his attorney. The State filed an application for discretionary review of the district court's suppression ruling. The supreme court granted discretionary review and stayed the proceedings in district court pending disposition of this discretionary review action. The State argues the district court misinterpreted section 804.20 and asserts Kipp was not denied his limited right to consult with an attorney before deciding to submit to chemical testing.
II. Standard 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)).
III. Statutory Right To Contact an Attorney.
Iowa Code section 804.20 states in pertinent 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.
Under this provision, a person has a limited statutory right to counsel before being required to take or refuse a chemical test. State v. Vietor, 261 N.W.2d 828, 831-32 (Iowa 1978). If this statutory right is violated, the exclusionary rule applies, and any evidence of chemical testing must be suppressed. Id. at 832. However, the statute does not provide an absolute right to counsel. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997). Section 804.20 only requires a peace officer to provide the arrestee with a reasonable opportunity to contact an attorney. Id. The right is further limited to circumstances that will not materially interfere with the administration of testing within the two-hour time limit imposed by section 321J.6(2). Vietor, 261 N.W.2d at 831-32; Moore v. Iowa Dep't of Transp., 473 N.W.2d 230, 231 (Iowa Ct.App. 1991). In addition, police have no duty to advise a defendant of this right. State v. Meissner, 315 N.W.2d 738, 740 (Iowa 1982); Vietor, 261 N.W.2d at 831. Ordinarily, the right is satisfied if an arrestee is allowed to make a telephone call to his attorney. Ferguson v. Iowa Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1998); Bromeland, 562 N.W.2d at 626.
We conclude Deputy Eichenberger provided Kipp with a reasonable opportunity to consult an attorney pursuant to the requirements of section 804.20. The record here reveals Deputy Eichenberger not only offered Kipp the opportunity to contact local counsel, but in addition, allowed him to make several phone calls in an attempt to reach his attorney. After Kipp had expended all but twenty-eight minutes of the two-hour period in which testing must occur, the deputy finally invoked implied consent. We disagree with the district court's conclusion that Kipp was not allowed a substantial opportunity to confer with counsel. "`If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel.'" Vietor, 261 N.W.2d at 831 (quoting People v. Gursey, 239 N.E.2d 351, 352 (N.Y. 1968)). The district court, in its decision, indicated it was a "close question," but ultimately determined the deputy should have "offered" or "encouraged" Kipp to contact a local attorney. However, under section 804.20, the deputy did not have an affirmative duty to inform Kipp he could try to contact another attorney before administering the breath test that was consented to by Kipp. See Meissner, 315 N.W.2d at 740 (finding there is no requirement a defendant be told of his right to consult with an attorney, it is only required that any such request be honored). After Kipp realized he could not reach the particular attorney he sought to contact, he did not make any further requests to contact counsel. Given the fact Kipp had twice previously declined the assistance of local counsel and had expended all but twenty-eight minutes of the statutory two-hour testing period by attempting to contact one particular attorney, we find Kipp was not denied his opportunity to consult with counsel. We reverse the district court's ruling on Kipp's motion to suppress and remand for further proceedings consistent with this opinion.