Opinion
No. 3-709 / 02-1149
Filed November 17, 2003
Appeal from the Iowa District Court for Cerro Gordo County, Carlynn D. Grupp, District Associate Judge.
Kim Kevin White appeals following his conviction for operating while intoxicated, second offense. AFFIRMED.
Michael Byrne of Winston Byrne, P.C., Mason City, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Paul Martin, County Attorney, and Steven Tynan, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Defendant Kim Kevin White appeals following his conviction for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2001). He claims the district court erred in overruling his motion to suppress a breath test and statements he made following a traffic stop. He also claims the State failed to prove the existence of a prior OWI conviction for sentencing enhancement purposes. Because we find no merit in any of his claims, we affirm.
I. Background Facts Proceedings
On January 18, 2002, at approximately 12:55 a.m., Cerro Gordo Deputy Lon Johnson stopped White for speeding. While speaking with White, Deputy Johnson noticed an odor of alcohol coming from White's vehicle. Johnson had White come back to his squad car and ran a driver's license check on the defendant. While Deputy Johnson was waiting to receive information from dispatch regarding White's license, he again detected the odor of alcohol. After confirming that White had a valid driver's license, Johnson and White discussed how much White had to drink that night. Deputy Johnson then informed White that he wanted him to perform some field sobriety tests, so he could determine whether it was safe for White to drive.
Deputy Johnson then had White perform several field sobriety tests. During the tests White made several statements. White told Deputy Johnson that he had a prior OWI conviction two years earlier and that Johnson had been the arresting officer. White also admitted that although he did not think he was "that drunk," he knew he "was over" the legal limit. During the tests Deputy Johnson noticed that White's eyes were extremely bloodshot. White failed all of the field sobriety tests. Deputy Johnson then asked White to take a preliminary breath test (PBT). White refused to take the test and was subsequently arrested at approximately 1:13 a.m.
After White's car was towed away from the scene, Deputy Johnson transported White to the sheriff's office. When they arrived at the sheriff's office at 2:00 a.m., White asked to call his attorney. White placed a call to his attorney at around 2:05 a.m. White and his attorney talked for about thirty minutes. At approximately 2:35 a.m. Deputy Johnson read White the implied consent advisory, but did not require the defendant to decide whether to take the test. White's attorney arrived at the sheriff's office about ten or fifteen minutes later. He spoke with White for another ten minutes. After talking with his attorney, White asked if he could call his wife. When Deputy Johnson asked him why he wanted to talk with his wife, White looked at his attorney and said nothing. Deputy Johnson decided not to allow White to call his wife. At approximately 3:02 a.m. White agreed to take the breath test. The test revealed that White had a blood alcohol content of .145.
On February 6, 2002, the State filed a trial information charging White with OWI, second offense. White filed a motion to suppress raising a Miranda challenge and a challenge based on Iowa Code section 804.20. The district court denied the motion. On May 2, 2002, a jury found White guilty of OWI. On May 17, 2002, a bench trial was held to determine if White was subject to enhanced punishment because of a prior OWI conviction. The district court found that White had been convicted of a prior OWI offense and entered a verdict against White for OWI, second offense. White was subsequently sentenced to six months in county jail, with all but seven days suspended, and was ordered to pay a fine of $1,500. White appeals. He contends the trial court erred in: (1) overruling his motion to suppress a breath test because the arresting officer failed to allow him to call a family member in violation of section 804.20 of the Code, (2) failing to suppress statements he made during the traffic stop which resulted in his arrest, and (3) concluding the State offered sufficient evidence to establish his prior conviction for OWI.
II. Standard of Review
Our review of section 804.20 is for errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will uphold the district court's ruling on a motion to suppress if there is substantial evidence to support the court's findings of fact. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). Evidence is substantial when a reasonable person would accept it as adequate to reach the same findings. Id.
We review the district court's refusal to suppress statements allegedly made in violation of constitutional guarantees de novo. State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997). Therefore, we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give deference to the district court's fact-findings due to its opportunity to assess the credibility of witnesses, but we are not bound by them. Id.
The review of an insufficient evidence claim is for correction of errors at law. State v. McFarland, 598 N.W.2d 318, 320 (Iowa Ct.App. 1999). A verdict of guilty is binding on appeal unless no substantial evidence in the record exists to support it. State v. Forsyth, 547 N.W.2d 833, 834 (Iowa Ct.App. 1996). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. McFarland, 598 N.W.2d at 320. In determining the sufficiency of the evidence we review the record in a light most favorable to the State. Id.
III. Statutory Right to Contact a Family Member
White claims that he was wrongfully denied his statutory right to contact his wife prior deciding whether to submit to a chemical test. As a result, he contends the results of his breath test should not have been allowed into evidence at his jury trial.
Iowa Code section 804.20 addresses communications by arrested persons. It states:
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 this right is violated, the exclusionary rule applies, and any evidence of chemical testing must be suppressed. Krebs, 562 N.W.2d at 426. The right to contact a family member under section 804.20 is neither more nor less qualified than the right to contact an attorney. Id. However, it is well established that the statutory right to contact counsel or a family member is limited for persons arrested for OWI. State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978). The right is limited to circumstances which will not materially interfere with the administration of testing within the two hour time limit imposed by Iowa Code section 321J.6(2). Moore v. Iowa Dep't. of Transp., 473 N.W.2d 230, 231 (Iowa Ct.App. 1991). In other words, section 804.20 must be balanced against the practical consideration that a chemical test is to be administered within two hours of the time of arrest or not at all. Vietor, 261 N.W.2d at 831. An arrested person should not be allowed to sabotage the purpose of the two-hour limitation by delay. Id. The two hour period during which testing must occur does not mean every arrestee is granted two full hours before he or she must consent to testing. Moore, 473 N.W.2d at 231.
Additionally, any request to contact an attorney or a family member must be made in good faith. Bromeland v. Iowa Dep't. of Transp., 562 N.W.2d 624, 626 (Iowa 1997). We determine whether the request is made in good faith by objectively considering the statements and conduct of the arrestee and police officer, as well as the surrounding circumstances. Id.
Iowa Code section 321J.6(2) states:
If the peace officer fails to offer a test within two hours after the preliminary screening test is administered or refused or the arrest is made, whichever occurs first, a test is not required, and there shall be no revocation under section 321J.9.
The record does not reveal the precise time White refused the PBT. However, it is undisputed that Deputy Johnson arrested White at 1:13 a.m. Deputy Johnson read White the implied consent advisory at the sheriff's office at 2:35 a.m., but did not require White to make a decision whether to take the test until White spoke with his attorney. Although requirements of section 321J.6(2) were satisfied for license revocation purposes, the State still had a significant interest in having White perform the breath test as soon as possible due to the evidentiary presumption described in section 321J.2(8)(a) and because the defendant continued to metabolize alcohol.
Iowa Code section 321J.2(8)(a) states:
The alcohol concentration established by the results of an analysis of a specimen of the defendant's blood, breath, or urine withdrawn within two hours after the defendant was driving or in physical control of a motor vehicle is presumed to be the alcohol concentration at the time of driving or being in physical control of the motor vehicle.
To obtain the benefit of the evidentiary presumption contained in section 321.J.2(8), the breath test had to be taken by 2:55 p.m. The following timeline is not in serious dispute. Deputy Johnson stopped White at approximately 12:55 a.m. White was arrested at 1:13 a.m. He was then transported to the sheriff's office. He arrived at the sheriff's office around 2:00 a.m. White requested to speak to an attorney and was permitted to call one at about 2:05 a.m. White and his attorney talked for thirty minutes. Johnson read the implied consent advisory to White at 2:35 a.m. White's attorney then came to the sheriff's office approximately ten to fifteen minutes later. Once White's attorney arrived he talked with his client for an additional ten minutes. At that point, White asked to call his wife. White's request came right when the two hour time period, for purposes of section 321J.2(8)(a), was about to expire. Deputy Johnson denied White's request and White subsequently consented to the breath test. The test began at approximately 3:02 a.m. and was completed at 3:04 a.m., a few minutes after the two-hour limit for the evidentiary presumption expired.
The State is not barred from using test results just because they are obtained more than two hours after the person was operating a motor vehicle. Iowa Code § 321J.18. However, the State is barred from utilizing the presumption provided by section 321J.2(8)(a).
It is clear that the State had a significant interest in seeking to have White perform a breath test within the two-hour limitation provided for in section 321J.2(8)(a). However, even if the test could not be administered within the two-hour time limit, the State still had a strong interest in having the test performed as soon as they could due to the metabolization of alcohol. See Vietor, 261 N.W.2d at 831 (it is common knowledge that the human body dissipates alcohol rapidly).
We find that there is substantial evidence in the record to support the district court's decision to admit White's test results during his jury trial. The State allowed White to speak with his attorney for thirty minutes on the phone and ten minutes in person prior to deciding whether to take the breath test. White did not ask to call his wife until nearly two hours after he was stopped. By then, the two-hour limit for the evidentiary presumption was near and time was of the essence. We conclude the district court correctly determined that the State's significant interest in proceeding with the test without further delay outweighed White's interest in talking with his wife.
IV. Admissibility of Inculpatory Statements
White contends that he was in Deputy Johnson's custody as soon as the deputy smelled alcohol on his breath. Therefore, he claims that any statements he made to Deputy Johnson during the field sobriety tests or while he was in the back seat of the squad car should not have been admitted at his trial because he did not receive Miranda warnings prior to making those statements.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court found that because of the "compulsion inherent in custodial surroundings, no statement obtained from [a] defendant can truly be the product of his free choice[,]" unless adequate protective measures are employed. (citations omitted). Therefore, the Court held that before an individual who is in custody can be subject to interrogation, he must be advised of certain constitutional rights. Id. at 478-79, 86 S.Ct. at 1630, 16 L. Ed.2d at 726. The Miranda requirements are not triggered unless there is both custody and interrogation. State v. Turner, 630 N.W.2d 601, 607 (Iowa 2001). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.
"Persons temporarily detained pursuant to [a traffic stop] are not `in custody' for the purposes of Miranda." Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 335 (1984). Furthermore, requesting that a motorist perform field sobriety tests is not the equivalent of a formal arrest requiring Miranda warnings. Id. at 441-42, 104 S. Ct at 3151-52, 82 L. Ed.2d at 335-36. Therefore, it is clear that White was not in custody during the field sobriety tests and any statements he made at that time were properly admitted by the court at his trial. While Deputy Johnson may have decided to take White into custody as soon as he smelled alcohol on his breath, he never communicated his intention to White. "A policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time." Id. at 442, 104 S.Ct. at 3151, 82 L. Ed.2d at 335. After a de novo review of the record we conclude that White was not taken into custody for the purposes of Miranda until Deputy Johnson handcuffed him, placed him in the back of the squad car, and told him that he was under arrest for OWI.
White also argues that any statements he made after being handcuffed and placed in the back of the squad car should not have been admitted at trial since they were prompted by interrogation from Deputy Johnson and he had not received Miranda warnings prior to making those statements. The district court found that the statements White made when he was sitting in the back of the squad car, "were voluntary and not in response to custodial interrogation."
The court stated:
The tapes clearly show Johnson's statements were in response to those of the Defendant and not vice versa. Johnson did not even recall his prior arrest of the Defendant. Johnson did not make inquiries at that point regarding what the Defendant had been consuming, the amount, the timeframe or what effects the alcohol may have had upon the Defendant. To the contrary, it was the Defendant who volunteered the statements regarding his prior arrest and conviction for Operating While Under the Influence, his curtailment of drinking alcoholic beverages since that time and the implications of the current situation. The Defendant spoke of where he had been drinking, how much and with whom.
In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the United States Supreme Court found that Miranda is triggered when officers engage in express questioning of a defendant or its functional equivalent, which they defined as any conduct reasonably likely to elicit an incriminating response. Deputy Johnson testified that it is standard procedure to leave the audiotape running as long as an arrested person remains in the squad car. Moreover, the record demonstrates that Deputy Johnson did not initiate the statements made by White while he sat in the back of the squad car. Instead, it appears that White made the statements in an attempt to persuade Deputy Johnson not to arrest him.
Upon review of the record, we agree with the district court that the "statements made by the Defendant while the Defendant was alone in the squad car and later to Johnson were voluntary statements and were not the result of custodial interrogation." Therefore, it was unnecessary for Deputy Johnson to give White Miranda warnings and the court properly admitted defendant's statements into evidence at trial.
V. Sentencing Enhancement Issue
Following White's jury trial, the district court determined that he had a prior OWI conviction for purposes of enhancing his sentence. White claims the State failed to prove beyond a reasonable doubt that he is the same person who previously pled guilty to OWI on September 6, 2000, and therefore the district court erred in enhancing his sentence. He also argues that the enhancement determination was based on improperly received evidence.
Our Supreme Court has held that the State must prove the existence of a prior OWI conviction for sentencing enhancement purposes by proof beyond a reasonable doubt. State v. Talbert, 622 N.W.2d 297, 301 (Iowa 2001). A person's name alone is insufficient to establish a person's identity for enhancement purposes. State v. Sanborn, 564 N.W.2d 813, 815 (Iowa 1997). However, in Sanborn our Supreme Court found that when a person's name, social security number, and date of birth, match someone with a previous conviction, a jury could reasonably infer identity. Id. at 816.
The district court considered the testimony of two witnesses and three exhibits in determining beyond a reasonable doubt that White was the same person who previously plead guilty to OWI on September 6, 2000. The court heard testimony from Janet Bechtel, a judicial clerk in Cerro Gordo County, who provided the court with two documents. The first document was a Judgment and Sentence entered September 6, 2000 in a case is entitled State of Iowa vs. Kim Kevin White. The document lists the defendant's address and date of birth, which is 220 South Fifth, Sheffield, IA and 7-29-55. Finally, the document states that the defendant was convicted of Operating While Under the Influence. The second document introduced through Bechtel was a written plea of guilty, which was entered September 6, 2000. This document repeats White's name, date of birth, and address, and matches the information provided in the first document perfectly.
White contends the district court improperly considered the written plea in determining his identity. We disagree. The minutes of testimony alert the defendant to the judgment and sentence in the prior case. The judgment refers to the defendant's plea on September 6, 2000. The written plea comes from the same proceeding and the minutes contain sufficient information to put the defendant on notice that the written plea, which preceded his sentence, could be used at trial.
The court also heard testimony from Deputy Johnson. He testified that when he stopped White on January 18, 2002, he recalled calling White's drivers license number into dispatch. Dispatch replied that the license was valid and belonged to a Kim Kevin White, a white male, whose date of birth is 7-29-55, and who lives in Sheffield, Iowa. Deputy Johnson also testified that during the stop White brought to his attention that he had been previously arrested and convicted for OWI, and that Johnson was the arresting officer of the previous offense.
In reviewing the record in a light most favorable to the State we find that substantial evidence supports the district court's conclusion that White is the same person who plead guilty to OWI on September 6, 2000. Accordingly, we reject this assignment of error.