Opinion
No. 5-865 / 05-0289
Filed January 19, 2006
Appeal from the Iowa District Court for Polk County, Odell McGhee, II [Trial] and James D. Birkenholz [Suppression], District Associate Judges.
Shantell Leeney appeals from her conviction and sentence for operating while intoxicated, first offense. AFFIRMED.
Matthew T. Lindholm of Hoyt Law Firm, P.C., Des Moines, and Robert Rigg of the Drake Legal Clinic, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall and Mary Tabor, Assistant Attorneys General, John P. Sarcone, County Attorney, and John C. Heinicke, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Shantell Leeney appeals from her conviction and sentence for operating while intoxicated (OWI), first offense. We affirm.
I. Background Facts and Proceedings.
In the late evening hours of June 25, 2004, Officer Betts of the Des Moines police force responded to a two-car accident involving Shantell Leeney's vehicle. Upon approach, Officer Betts detected the odor of alcohol on Leeney, who admitted she had been drinking earlier that evening. Leeney subsequently failed two field sobriety tests conducted by Officer Betts. Officer Betts then obtained Leeney's consent to a preliminary breath test, which registered a blood alcohol concentration (BAC) of .189. On the basis of these tests, Officer Betts arrested Leeney on suspicion of OWI and transported her to the county jail.
At the jail, Officer Betts read Leeney the implied consent advisory, and the parties agree that Betts then asked Leeney if she would like to make a phone call. Leeney used the jail's telephone to contact her friend, Emily Eckman. Leeney made no other requests to use the jail's telephone, nor did she request access to a phone book from which phone numbers for an attorney could be located. Leeney subsequently consented to a breath test, which registered a BAC of .140.
In advance of trial, Leeney filed a motion to suppress the results of her breath test, alleging Officer Betts violated her statutory right to communications guaranteed by Iowa Code section 804.20 (2003). Leeney claimed Officer Betts (1) did not inform her that she had the right to contact an attorney or a family member, (2) expressly limited her to a single phone call, and (3) denied her request for access to her cell phone, which was present at the jail at the time she consented to a breath test.
In addition to Leeney's own testimony concerning her understanding of the events leading up to her consent to testing, Emily Eckman testified at the suppression hearing that during her phone conversation with Leeney on the night of the arrest, Leeney remarked "[t]his is the only call I can make." Eckman further testified that Leeney requested Eckman to make phone calls to attorneys on Leeney's behalf after the arrest, but that Eckman had responded that she did not know of anyone to call.
Officer Betts, however, provided a very different version of his communications with Leeney. Although Betts testified on direct examination that he asked Leeney if she "would like to make a phone call," on cross-examination he clarified that while he could not recall his exact words, he did inform Leeney that "she could call an attorney or relative." Officer Betts described his usual practice of explaining an OWI suspect's statutory right of communications and stated that he tries to "tell the same thing to each person that [he deals] with every time." Noting that there was no temporal urgency motivating him to require Leeney to make a decision to take or refuse a breath test, Betts further testified that he didn't limit Leeney to a single phone call. Moreover, Betts testified that his usual practice is to allow a suspect to make as many phone calls as they wish within the two hours in which chemical tests must be offered for purposes of implied consent. See Iowa Code § 321J.6(2). Betts also denied that Leeney made a request for access to her cell phone and claimed he has obtained cell phones on other occasions for detainees who made such requests.
The district court denied Leeney's motion to suppress, finding no violation of section 804.20 had occurred. The district court found that while the statute entitled Leeney to make more than one phone call if she requested to do so, Leeney did not request to make more than one call. The district court also found Leeney's claims that she (1) was not informed of her right to contact both an attorney and/or a family member, and (2) was expressly limited to a single phone call, were inconsistent with Leeney's claim that her request for access to her cell phone was denied. The district court found that Leeney "felt additional phone calls would be granted if she located additional numbers," and that she "was attempting to secure additional phone numbers for attorneys," and thus must have understood she was entitled to contact a family member or an attorney, or both.
Following the denial of her motion to suppress, Leeney waived jury trial and was found guilty of OWI. Leeney now appeals from her conviction and sentence, claiming the district court erred in failing to suppress the evidence of her breath test because substantial evidence did not support the district court's finding that no violation of Leeney's statutory right to communications had occurred.
II. Scope and Standard of Review.
We review alleged violations of section 804.20 for correction of errors at law. See State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will uphold the district court's refusal to suppress breath test evidence where substantial evidence supports the district court's findings of fact. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). Evidence is substantial when a reasonable mind would accept it as adequate to reach a finding. Id. III. Discussion.
Where a factual dispute exists, we believe the district court is in a far better position to assess the relative veracity of the testimony proffered by opposing witnesses, and we therefore accord great deference to the credibility findings of the district court. See Grinnell Mut. Reins. Co. v. Voeltz, 431 N.W.2d 783, 785 (Iowa 1988). (stating that review for errors at law does not include an independent assessment of the relative credibility of the witnesses).
The district court did not expressly find Officer Betts's version of the events leading to Leeney's submission to a breath test to be more credible than Leeney's testimony. However, in finding no violation of section 804.20, we believe the district court impliedly credited the testimony of Officer Betts that he, in conformance with his usual practice, (1) informed Leeney of her right to communication with family members and/or an attorney, (2) did not limit Leeney to a single phone call, and (3) would have retrieved Leeney's cell phone if access to it had been requested. See State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997) (explaining that while it is preferable for the district court to make express credibility findings, such findings may be inferred from its ruling) (overruled on other grounds). The district court also impliedly found implausible Leeney's testimony that (1) she was not informed of her statutory right of communications, and (2) her request for access to her cell phone was denied or her number of phone calls was otherwise curtailed. We therefore turn to the question of whether the district court's findings, as influenced by the court's assessment of the credibility of the witnesses, are supported by substantial evidence. Frake, 450 N.W.2d at 818.
After reviewing the record, we believe substantial record evidence supports the district court's conclusion that section 804.20 was not violated. Officer Betts, a six year veteran of the Des Moines police force, credibly testified concerning his usual practice when dealing with OWI detainees. Leeney's opposing testimony is belied by the fact that she enlisted Eckman's aid in an effort to obtain additional phone numbers before Officer Betts invoked implied consent. Substantial evidence supports the district court's conclusion that Leeney was informed of her right to make a reasonable number of phone calls to family members and/or attorneys before deciding whether to submit to a request for a breath test, and was in no way precluded from doing so by any police action. See Iowa Code § 804.20.
We note that the district court did not directly address the question of whether section 804.20 would be violated if Officer Betts did in fact deny Leeney's request for her cell phone from which she could retrieve phone numbers and call family members and/or attorneys. The district court did find that if such a request had been made, it would have been inconsistent with Leeney's separate claim that she was not properly informed of her statutory right of communications. We decline to reach whether section 804.20 guarantees an OWI suspect access to a cell phone under the circumstances of this case because substantial evidence supports the district court's finding that Leeney failed to request, and Officer Betts did not refuse, access to her cell phone.
Even if Emily Eckman's recollection is accurate that Leeney had remarked during her phone conversation that "[t]his is the only call I can make," such a statement only evidences Leeney's belief at the time of the call. The statement does not directly rebut Officer Betts's claims that he informed Leeney of her right to contact her family or an attorney and that he in no way limited Leeney's number of phone calls. Given Officer Betts's testimony, the district court could reasonably find Leeney's apparent misapprehension of her rights was a product of her own confusion and not a result of any breach of duty by Betts. See Moore v. Iowa Dep't of Transp., 473 N.W.2d 230, 231-32 (Iowa Ct.App. 1991) (stating that the mere fact that two inconsistent conclusions may be drawn from the evidence does not mean the district court's findings of fact are unsupported by substantial record evidence).
Because substantial record evidence supports the district court's finding that Leeney was not denied rights guaranteed by section 804.20, we conclude the district court properly admitted the evidence of Leeney's breath test. As Leeney was operating a vehicle while maintaining a BAC well above the legal limit, we affirm Leeney's conviction and sentence.