Opinion
No. 5-204 / 04-0237
Filed April 28, 2005
Appeal from the Iowa District Court for Polk County, James Birkenholz, District Associate Judge.
Douglas Thornburg appeals from his conviction and sentence for operating while intoxicated, first offense. AFFIRMED.
Matthew Lindholm of Hoyt Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and John C. Heinicke, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Douglas Thornburg appeals from his conviction and sentence for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2003). We affirm.
I. Background Facts Proceedings
According to the minutes of testimony, on April 25, 2003, at approximately 11:30 p.m., Ankeny police officers Stephanie Brennan and Mark Moeller stopped Thornburg after they observed the vehicle he was driving cross over the centerline twice and swerve back into its lane nearly striking a curb. When the officers activated their lights, Thornburg slowed down, but continued approximately 200 to 300 feet before stopping his vehicle.
As Brennan approached the vehicle, she noted Thornburg smelled strongly of alcohol, and his eyes were watery and bloodshot. Thornburg admitted that he had been drinking. He thereafter failed field sobriety testing and refused to submit to a preliminary breath test at 11:42 p.m. He was then transported to the Ankeny police station for further testing.
Officer Moeller read Thornburg an implied consent advisory at 11:55 p.m. and requested a breath sample. Thornburg refused to provide a breath sample until he talked with an attorney. Thornburg thereafter made and received several telephone calls. Thornburg was unable to contact an attorney before Moeller determined that Thornburg refused to submit to further chemical testing. The implied consent advisory form indicates that Moeller noted Thornburg's refusal at 12:32 a.m. Officer Moeller placed Thornburg under arrest. An inventory search of Thornburg's vehicle uncovered an open beer can containing cold beer behind the driver's seat.
On May 22, 2003, the State charged Thornburg by trial information with operating while intoxicated, first offense. On July 15, 2003, Thornburg moved to suppress evidence of his refusal to submit to chemical testing, arguing he was denied his right to counsel under Iowa Code section 804.20 because the officers failed to provide him a reasonable opportunity to contact an attorney. In denying Thornburg's motion to suppress, the district court held:
Clearly, in the present case [Thornburg] was provided an opportunity to contact an attorney. The evidence established no less than 10 calls were made by [Thornburg] and [Thornburg] received calls during this time. [Thornburg] was further allowed to make a call at the scene. Approximately 50 minutes had elapsed in the two-hour window. [Thornburg] was clearly provided a reasonable opportunity to contact an attorney.
Thornburg was later found guilty following a trial on the stipulated minutes of testimony. During sentencing, the court suspended all but three days of Thornburg's one-year prison term, placed him on probation for one year, and ordered payment of a $1000 fine. Thornburg appeals.
On appeal, Thornburg raises the following issues for review:
I. WHETHER THE ARRESTING OFFICER ALLOWED THE APPELLANT A REASONABLE AND MEANINGFUL OPPORTUNITY TO CONTACT AN ATTORNEY UNDER IOWA CODE SECTION 804.20.
II. A VIOLATION OF DEFENDANT'S RIGHT UNDER IOWA CODE SECTION 804.20 REQUIRES SUPPRESSION OF THE DEFENDANT'S BREATH TEST REFUSAL.
II. Standard of Review
Our review of the district court's interpretation of Iowa Code section 804.20 is for errors of law. State v. Moorehead, ___ N.W.2d ___, ___ (Iowa 2005). "If the district court properly applied the law and there is substantial evidence to support its findings of fact, we will uphold its ruling on a motion to suppress." Id.
III. The Merits
Thornburg argues the court erred in refusing to suppress the evidence of his refusal to submit a breath sample. Specifically, he contends "[t]he arresting officer did not allow [him] a reasonable opportunity to contact and obtain the advice of an attorney in violation of his rights under Iowa Code section 804.20." The State asserts Thornburg was given a reasonable opportunity to contact an attorney, and in the alternative, the State believes any error was harmless.
Iowa Code section 804.20 provides:
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. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.
There is no absolute right to counsel. State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978). Instead, the statute requires that an arrestee be given a reasonable opportunity to contact an attorney. Bromeland v. Iowa Dep't of Transp., 562 N.W.2d 624, 626 (Iowa 1997) (emphasis added). The rights of the arrestee must be balanced with the goals of the chemical-testing statutes. See State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (citing Iowa Code section 321J.6(2) as requiring completion of chemical-testing within two hours of administration or refusal of preliminary breath test, or an arrest, whichever occurs first).
The record reveals that approximately fifty minutes of the two-hour window had surpassed from the time of Thornburg's preliminary breath test refusal to the time officer Moeller determined that Thornburg refused to provide implied consent. Even though close to seventy minutes of the two-hour window remained, we find the minutes of testimony establishes that officers Moeller and Brennan provided more than a reasonable opportunity for Thornburg to contact an attorney.
Thornburg was allowed to make calls on his cell phone before he attempted the one-legged-stand field sobriety test, and while he was on his way to the station. While at the station, Thornburg was given a phone book and made and received over ten calls in an attempt to find an attorney. At one point, Thornburg stated that he was expecting a call back from an attorney in ten minutes, but ten minutes came and went without a call. Officer Moeller asked Thornburg for a breath sample at 12:08 a.m., 12:18 a.m., and 12:32 a.m., and told him "each time that his refusal to make a decision would be interpreted as a refusal if he did not make a decision." Finally, after fifty minutes had elapsed, Officer Moeller concluded Thornburg's "idle time" was a refusal. Officer Moeller stated, "I really didn't interpret [Thornburg's perusing of ads] as a real attempt to be reaching anybody." We find the record demonstrates that Thornburg was given a reasonable opportunity to contact an attorney as required by Iowa Code section 804.20.
Even if we had concluded the court erred in failing to suppress the evidence of Thornburg's refusal, under the facts of this case we find the admittance of the refusal was harmless.
Under Iowa Code section 321J.2(1)(a), the State is required to prove beyond a reasonable doubt that Thornburg operated a motor vehicle "[w]hile under the influence of an alcoholic beverage or other drug or a combination of such substances." We have held that "a person `is under the influence' when the consumption of alcohol affects the person's reasoning or mental ability, impairs a person's judgment, visibly excites a person's emotions, or causes a person to lose control of bodily actions." State v. Price, 692 N.W.2d 1, 4 (Iowa 2005) (quoting State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004)).
The harmless error analysis has been recently applied to a violation of section 804.20. See Moorehead, ___ N.W.2d at ___. In Moorehead, the court stated:
In determining whether error is harmless, the inquiry is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. . . . To establish harmless error, the State must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. . . . We must ask whether the force of the evidence is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same without the erroneously admitted evidence. Only when the effect of the erroneously admitted evidence is comparatively minimal to this degree can we say that there is no reasonable possibility that such evidence might have contributed to the conviction.
Id. (quoting State v. Miranda, 672 N.W.2d 753, 761-62 (Iowa 2003)). Although the court in Moorehead ordered a new trial after concluding the district court's failure to suppress evidence of defendant's breath test results was not harmless, we find Thornburg's case distinguishable.
The record demonstrates that Thornburg never provided a breath sample after the officers invoked implied consent. Accordingly, the only potentially erroneous evidence relied upon by the district court was his refusal, and unlike in Moorehead, there is no indication in the court's findings that it relied on this evidence in reaching its decision. See Iowa Code § 321J.16 (allowing fact finder to consider refusal to provide a breath sample in reaching its decision); see also Moorehead, ___ N.W.2d at ___ (noting district court's reliance on erroneously admitted breath test results). For the reasons cited below, the overwhelming evidence of Thornburg's guilt leads us to conclude beyond a reasonable doubt "that the verdict resting on that evidence would have been the same without the erroneously admitted evidence." Moorehead, ___ N.W.2d at ___.
As mentioned above, officers Brennan and Moeller stopped Thornburg after they observed his vehicle cross the centerline twice, before swerving towards the curb. See State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992) (stating evidence of driving can be used to prove defendant was operating under the influence of alcohol). Thornburg further failed to pull over in a timely manner. When officer Brennan asked for his driver's license, Thornburg originally pulled out his credit card, and he smelled strongly of alcohol and had watery, bloodshot eyes. Thornburg admitted that he had been drinking and told officer Moeller that his last drink was about an hour before. Moreover, Thornburg failed the one-legged-stand field sobriety test. In officer Moeller's report, he wrote:
[Thornburg] lifted his right foot off the ground and lost his balance after about three seconds and put his foot down. He started over but lost count when he got to ten and started counting over. He messed up the count about four times before placing his right foot back down and quitting. During this time he raised his arms for balance and swayed slightly.
Finally, even though Thornburg denied that the opened can of cold beer was his or his passenger's, the fact remains that it was found behind the driver's seat of his vehicle. After weighing the probative force of this evidence against the evidence of Thornburg's refusal to submit a breath sample, we are convinced Thornburg's guilty verdict was "surely unattributable" to the alleged erroneously admitted evidence. See Moorehead, ___ N.W.2d at ___ (citing Miranda, 672 N.W.2d at 761-62)). The decision of the district court is affirmed.