Opinion
No. 4-018 / 03-0297
Filed February 11, 2004
Appeal from the Iowa District Court for Webster County, Frederick E. Breen, District, Associate Judge.
Defendant appeals from the judgment and sentence entered upon his conviction of operating while intoxicated, first offense. AFFIRMED.
David Johnson of Brinton, Bordwell Johnson, Clarion, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Timothy Schott, County Attorney, and Ricki Osborn, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Kent Sutton McWilliam appeals from the judgment and sentence entered upon his conviction of operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2001). He contends the district court erred in denying his motion to suppress evidence of his refusal to submit to a chemical test because his right to call or consult an attorney as provided by Iowa Code section 804.20 was violated. We review his claim for errors at law. State v. Palmer, 554 N.W.2d 859, 864 (Iowa 1996).
On September 27, 2002, McWilliam was observed by Deputy Michael Halligan swerving as he drove his pickup truck on the roadway. Halligan pulled McWilliam over and McWilliam stated he had consumed one beer a few hours earlier. McWilliam refused to submit to field sobriety tests or a preliminary breath test. Halligan observed that McWilliam's balance was poor, and that he needed to hang on to his vehicle as he walked to the patrol car. After McWilliam entered the patrol car, Halligan noticed a strong odor of alcoholic beverage. When they reached the county jail, McWilliam still had poor balance, slurred speech, and was unable to fill out some paperwork. Both Halligan and the jailer believed McWilliam was under the influence of alcohol.
McWilliam was read his Miranda rights. He stated to Halligan he did not wish to speak with him until he had talked with his attorney. The officer asked no more questions about the offense. Halligan then read McWilliam the implied consent advisory. McWilliam responded it would probably be in his best interest to not take the test until he talked to an attorney. Halligan then asked if McWilliam was refusing to take the breath test, and McWilliam responded, "Yes". McWilliam stated he would not sign the implied consent form indicating his refusal, so Halligan wrote on the form that McWilliam refused to sign it.
McWilliam filed a motion to suppress claiming Halligan had violated his right to call or consult an attorney. The district court overruled the motion, finding McWilliam did not make a proper request to call an attorney.
Iowa Code section 804.20 states in relevant 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.
In State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978), our supreme court held a person arrested for OWI has a limited right to contact an attorney under section 804.20. Generally this right to counsel is satisfied by allowing the arrestee to make a telephone call. Bromeland v. Iowa Dept. of Transp., 562 N.W.2d 624, 626 (Iowa 1997). Additionally, any request for counsel must be made in good faith. Id. Whether the request is made in good faith is determined by an objective consideration of the statements and conduct of the arrestee and peace officer, as well as the surrounding circumstances. Id.
In ruling on McWilliam's motion to suppress, the district court concluded McWilliam did not make a proper request for an attorney. The court found McWilliam's statement that he did not wish to speak to the deputy without first speaking to an attorney did not imply he wished to speak to an attorney at that time. The court further found McWilliam's later statement that it would not be in his best interest to take the breath test without talking to an attorney was simply an observation. Because McWilliam never asked to call or consult with an attorney, Halligan did not violate his rights under section 804.20.
Assuming arguendo the district court had erred in denying his motion to suppress, the outcome of the trial would have remained the same. There is ample evidence by which a reasonable jury could conclude McWilliam was under the influence of alcohol.