Opinion
No. 5-941 / 04-2065
Filed February 1, 2006
Appeal from the Iowa District Court for Black Hawk County, James Coil, District Associate Judge.
Timothy Miller appeals from the judgment and sentence entered by the district court on a jury verdict finding him guilty of operating while intoxicated. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Charity McDonnell, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Timothy Miller appeals from the judgment and sentence entered by the district court on a jury verdict finding him guilty of operating while intoxicated (OWI) in violation of Iowa Code section 321J.2 (2003). He contends that the trial court improperly admitted evidence that he submitted to a preliminary breath test. We affirm.
I. Background Facts Proceedings
Close to midnight on February 29, 2004, Black Hawk County Deputy Maureen Weber observed a vehicle traveling forty-six miles per hour in a thirty-miles-per-hour zone. She also saw the vehicle wander in its lane of traffic and cross the centerline. Deputy Weber stopped the vehicle.
Timothy Miller, the driver and sole occupant of the vehicle, stated that he had consumed two beers prior to driving. Miller gave several different answers when asked when he had stopped drinking. Miller's eyes were bloodshot and watery, his balance was unsteady, he smelled of alcohol, and he was argumentative and hostile. Deputy Weber administered three field sobriety tests, which Miller failed. Deputy Weber then administered a preliminary breath test to Miller, arrested him, and transported him to jail.
At the jail, Deputy Weber read an implied consent advisory to Miller and requested a breath sample. After Miller insisted that he wanted a blood test, Deputy Weber explained that he could get an independent blood test after he completed the breath test. Deputy Weber asked Miller numerous times for a breath test, but Miller refused to provide an answer to her request and persisted in his demand for a blood test. Eventually, Deputy Weber informed Miller that she would request a breath test one more time and consider it a refusal if he failed to respond. Deputy Weber then made a final request and indicated a refusal on the implied consent form when Miller failed to respond.
Deputy Weber completed a written questionnaire at the jail using Miller's responses. Among other things, Miller claimed he experienced constant pain from a recent biopsy, suffered from industrial bronchitis and asthma, had problems with his left leg and had undergone leg surgery, took nine different medications, and was seeing an eye doctor.
The State filed a trial information charging Miller with OWI. At trial, Miller testified that he has a history of hemorrhage and retina tear caused by coughing and vascular headaches caused by bright lights; he also stated that the biopsy was taken from along his cheek and gum line. Miller claimed that while he was at the jail, he informed Deputy Weber these disabilities physically prevented him from giving a breath specimen.
After Miller testified he was unable to provide a breath sample at the jail, the prosecutor informed the court and opposing counsel that she wished to question Miller about his claim of physical inability to provide a breath sample. After a record was made outside the jury's presence, the district court allowed the State to offer evidence, over defense counsel's objection, that Miller had provided a breath sample during the traffic stop. The State did not attempt to present evidence regarding the results of the preliminary breath test or any indication whether Miller passed or failed the test. Following trial, the jury found Miller guilty of OWI. The court sentenced Miller, and this appeal followed.
II. Scope Standards of Review
To the extent this case involves the district court's interpretation of a statutory requirement, our review is for the correction of errors at law. Iowa R. App. P. 6.4; State v. Guzman-Juaraz, 591 N.W.2d 1, 2 (Iowa 1999). We review evidentiary matters for abuse of discretion. State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985). In order to prove that the district court abused its discretion, Miller must show the court exercised its discretion on clearly untenable grounds or unreasonably. State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976).
III. Discussion
Miller claims that the district court "erred in allowing the admission of evidence regarding law enforcement's employment of the preliminary breath test at trial." He argues the evidence presented regarding the preliminary breath test was irrelevant and highly prejudicial.
Iowa Code section 321J.5(2) prohibits a court from using the results of a preliminary breath test except to prove that a chemical test was properly requested of a defendant. The State argues this statute does not prohibit evidence that a defendant submitted to a test as long as the results of that test are not revealed in any way. Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa Ct.App. 1992) (concluding that evidence a defendant submitted to a preliminary breath test is admissible because no reference was made to the results of the test). Miller argues that Gavlock, a civil case, is not controlling here. For the reasons which follow, we find it unnecessary to resolve the parties' disagreement regarding the applicability of the Gavlock case.
Iowa Code section 321J.5(2) states:
The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to prove that a chemical test was properly requested of a person pursuant to this chapter.
In this case, the record reveals the State did not offer evidence that Miller took a preliminary breath test as part of its case in chief. After the State rested, Miller testified that he was physically unable to give a breath test at the jail after being given the implied consent advisory. To contradict this testimony, the State sought to elicit limited testimony from Miller that indicated he had in fact submitted to a breath test during his traffic stop earlier that evening. The trial court allowed the State to offer evidence that Miller had provided a breath sample to Deputy Weber during the traffic stop. However, the court made clear that neither the results of the preliminary breath test nor any information regarding whether Miller had passed or failed the test would be admitted.
Under the circumstances presented here, we conclude Miller has not established a violation of statutory procedures or an abuse of discretion by the trial court in admitting the challenged evidence. We reach this conclusion because we believe Miller's claim that he refused to submit to a breath test at the jail because he was physically unable to provide a breath sample opened the door to further inquiry regarding his earlier breath test. Accordingly, we affirm Miller's conviction.