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IN THE COURT OF APPEALS OF IOWA No. 7-835 / 06-1764 Filed December 28, 2007

MICHAEL LEE SCARBROUGH, Plaintiff-Appellee, vs. IOWA DEPARTMENT OF TRANSPORTATION, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.

The Iowa Department of Transportation appeals from a district court ruling on judicial review reversing a license revocation order. REVERSED.

Thomas J. Miller, Attorney General, and Carolyn J. Olson, Assistant Attorney General, Ames, for appellant. Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C., Des Moines, for appellee.

Considered by Vogel, P.J., and Mahan and Zimmer, JJ.

2 MAHAN, J. The Iowa Department of Transportation (DOT) appeals from a district court ruling on judicial review reversing a DOT order revoking the driver's license of Michael Lee Scarbrough. I. Background Facts and Prior Proceedings On April 7, 2006, a Polk County deputy arrested Scarbrough for operating a motor vehicle while intoxicated. At the Polk County Jail, the deputy read

Scarbrough an implied consent advisory form and requested a breath sample for chemical testing. Scarbrough checked the "consent" box and signed the form. The deputy instructed him to blow a long steady breath into the DataMaster breath analyzer. Scarbrough's first attempt to provide a breath sample was

unsuccessful. After repeated instructions from the deputy to "blow harder," the second attempt produced an alcohol concentration result of only .043. The

deputy placed him in a holding cell and went to discuss the situation with a fellow officer. The deputy returned and said he was going to certify that Scarbrough had refused to take the test because he refused to properly blow in the analyzer. Scarbrough asked to perform the test again, but the deputy would not allow him to do so. Scarbrough requested a hearing to contest the revocation. Scarbrough and the deputy testified at the telephonic hearing before the administrative law judge (ALJ). The deputy testified that Scarbrough purposely tried to sabotage the test. He claimed Scarbrough tensed up his muscles and made his face flush so that it appeared he was blowing very hard. However, his lungs did not deflate and no air moved through the tube. When the deputy told him to "blow harder,"

3 Scarbrough responded by letting out a short burst of air. The deputy told him to blow harder again, and Scarbrough responded with another short burst of air. This process continued three or four times until the DataMaster printed a result. The deputy told him that he did not believe he had blown properly into the machine and put him back in the holding cell. Scarbrough's testimony painted a much different picture. He claimed he followed all of the officer's instructions. When the officer told him to blow harder, he did, and the machine produced the slip of paper. He also said the deputy never accused him of faking the test until forty-five minutes after he had blown into the analyzer. The ALJ concluded Scarbrough did not refuse the test and issued a decision rescinding the revocation of driving privileges. The DOT filed an

administrative appeal. The reviewing officer reversed the ALJ's decision and revoked Scarbrough's driving privileges. The reviewing officer adopted the

deputy's version of events and concluded Scarbrough's uncooperative actions constituted a refusal. Scarbrough filed a petition for judicial review in district court. The district court reversed the agency's decision. The court put particular emphasis on the fact that the DataMaster printed out a result card and concluded there was no evidence Scarbrough "tricked" the DataMaster machine or that the DataMaster test was somehow invalid. The court went on to state [T]here is no substantial evidence to support the [DOT's] claim that [Scarbrough] refused to provide a breath sample. The DataMaster registered a legitimate sample and provided a test result that [Scarbrough's] breath alcohol concentration was below the legal limit. The deputy could have restarted the test or requested a

4 second test. These same facts weigh in favor of [Scarbrough's] claims. Therefore the decision of the agency must be reversed. The DOT appeals from this ruling, claiming there was substantial evidence to support the agency's decision that Scarbrough deliberately failed to comply with the deputy's repeated instructions. II. Standard of Review Iowa Code chapter 17A governs review of license revocation decisions under Iowa Code chapter 321J. See Iowa Code

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