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IN THE COURT OF APPEALS OF IOWA No. 2-369 / 11-1420 Filed June 13, 2012 STATE OF IOWA, Plaintiff-Appellant, vs. BRIAN DAVID MILLER, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Story County, Lawrence Jahn, Judge.

The State appeals a district court's dismissal of defendant's operating while intoxicated charge based on a violation of the forty-five-day speedy indictment rule. REVERSED AND REMANDED.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Stephen Holmes, County Attorney, and Nicole Proesch, Assistant County Attorney, for appellant. Brian Miller, Mason City, pro se appellee.

Considered by Vogel, P.J., and Tabor and Bower, JJ.

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TABOR, J. The State appeals from the dismissal of Brian Miller's operating while intoxicated (OWI) charge, asserting that the timing of the trial information did not violate the speedy indictment rule. The success of that challenge hinges on whether Miller was "arrested" for OWI on the same day he was cited for interference with official acts. Finding the result was dictated by the supreme court's interpretation of Iowa Rule of Criminal Procedure 2.33(2)(a) in State v. Wing, 791 N.W.2d 243 (Iowa 2010), the trial court decided a reasonable person in Miller's position would have believed he was under arrest for OWI and, accordingly, dismissed the belated trial information. This appeal requires us to consider how Wing applies to a situation where law enforcement arguably had probable cause to place the defendant under arrest for more than one offense. Because officers manifested a purpose to arrest Miller for interference with official acts by issuing him a citation for that offense, but did not communicate an intention to arrest him for OWI, we conclude a reasonable person in Miller's position would not have believed he had been taken into custody on that second offense. Accordingly, we reverse. I. Background Facts and Procedures On October 15, 2010, at around 5:30 p.m., Iowa State Patrol Trooper Brett Tjepkes saw a silver Chrysler sedan with severe front-end damage traveling south on Interstate 35. The trooper had earlier received a dispatch concerning a hit-and-run accident in the vicinity. He followed the car as it wove back and forth

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in the left-hand lane and pulled the vehicle over around mile marker 105 near Ames. Trooper Tjepkes observed that the driver, Brian Miller, "showed obvious signs of intoxication and impairment." Miller appeared to have urinated on

himself, slurred and mumbled when he spoke, appeared disoriented, and smelled like alcoholic beverages. Miller barely pulled onto the right-hand shoulder of the road, leaving only a slight distance between his vehicle and the passing traffic. For safety reasons, Trooper Tjepkes asked Miller to shift to the passenger side so that their encounter would be away from the rush-hour congestion. The trooper also called for assistance from the Story County Sheriff's Department. While the trooper was asking Miller if he had been using alcohol or drugs, Miller tried to open a pack of cigarettes. Because he was concerned that

cigarette smoking could skew a breath test, Trooper Tjepkes warned Miller several times not to smoke and to put the pack down. Miller ignored him and continued reaching for a cigarette. As Trooper Tjepkes tried to confiscate the pack, Miller grabbed and struck the trooper's hand. The trooper pulled Miller out of the vehicle, took him to the ground, and handcuffed his hands behind his back. As the trooper walked Miller to the back of his squad car, Story County Deputy Sheriff Nicholas Lennie arrived on scene. Deputy Lennie noted heavy damage to the front and slight damage to the back of Miller's vehicle, and observed that Miller appeared intoxicated. After Trooper Tjepkes relayed the earlier events to him, Deputy Lennie agreed to take Miller to the Story County jail. Miller's face was scraped from being forced to the ground; he complained of

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"nose pain" and requested medical attention. Miller also told the deputy that he had drugs, which had been prescribed to him, in his car. After reading Miller his Miranda rights, Deputy Lennie transported him to the Story County Medical Center. Miller grew belligerent after his arrival at the hospital. As staff began screening him, he refused to cooperate and seemed confused. Deputy Lennie cuffed Miller's arms to the bed rails and restrained him as he continued to flail on the bed. Miller threatened to hurt or kill the staff. When the medical technicians requested a urine sample, Miller continued to resist and refuse, despite repeated explanations that this sample was for medical purposes and law enforcement would not have access to it. After the medical staff inserted an IV into his left arm, Miller tried to pull it out with his teeth. Deputy Lennie reiterated that the tests were for medical purposes alone, and that they would not be used in a prosecution.1 Because of Miller's continued refusal, staff catheterized him to obtain a urine sample, relying on deputies to hold down his legs. Miller repeated that he was "fucked up," had been drinking, and said several times he would test positive for marijuana use. Staff also performed a CT scan, during which Miller again had to be restrained because of his physical resistance. Throughout his

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In his hearing testimony, Deputy Lennie described his communication with Miller: I wanted to make it clear to him that--that it was for purposes of medical treatment, that we were not--we did not have any--we were not going to get that information, that it was just for his health to make sure he was safe. I just wanted him--my main concern at that point was that his safety--if there was something medical--medically going on with him, I didn't want him to refuse treatment just because he thought we were going to get results on this test.

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screenings he threatened medical personnel, was combative, and struggled to get free. Deputy Lennie tried to read him the implied consent advisory, but Miller interrupted with statements that made "absolutely no sense." Deputy Lennie believed Miller was incapable of understanding the advisory that was read to him. He could not carry on a dialogue with the deputy. When asked whether he would sign the form, he answered in the negative. When asked if he was refusing to give a specimen, he said "no. I'm not refusing." The officers and Miller repeated the exchange a few more times. When asked whether Miller wished to speak with legal counsel or family, he responded he had both but refused to give any information or contact them. Dr. Joshua Rehmann, the on-duty emergency room physician, also testified Miller was more than uncooperative; his conduct showed he was "incapable of making sound medical decisions for himself at that time." 2 The doctor was concerned Miller's involvement in a motor vehicle accident may have resulted in a closed-head injury or some other internal injury that caused Miller to make irrational decisions. sedative to help calm Miller. On two occasions, hospital staff administered a

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When responding to the court's question whether Miller was refusing medical attention, or whether he was incapable of giving consent, Dr. Rehmann explained: At that time I think it was difficult for us to--for myself to discern if this was just him not wanting to cooperate or him being unable to cooperate. I think later on from my standpoint it became more apparent that he was unable to make a rational decision for himself, but not in the initial screening exam. This was in the first 20 minutes that he was in the ER we're talking about, so we don't have a lot of time to evaluate at th is point in a trauma situation.

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The law enforcement officers decided to ask Dr. Rehmann to certify Miller was incapable of consenting to providing a bodily sample at that time. Dr.

Rehmann agreed to sign a form stating it was his opinion that Miller was incapable of giving consent.3 Around 8:00 that night, medical staff withdrew specimens to turn over to law enforcement. Miller remained resistant. Because Dr. Rehmann felt Miller would not be safe in jail given his medical condition, the doctor suggested overnight hospitalization. The doctor obtained a forty-eight-hour committal order. At about 11:00 p.m., deputies transported Miller to Iowa Lutheran Hospital in Des Moines. Before Miller left the Story County medical center, Trooper Tjepkes issued him a citation for interference with official acts.4 The record does not show when Iowa Lutheran discharged Miller. The state crime lab tested specimens of blood and urine taken from Miller. In a toxicology report issued on December 30, 2010, a criminalist documented that Miller's urine specimen screened positive for tetrahydrocannabinol (THC), a psychoactive compound in marijuana. Another lab report dated January 26,

2011, confirmed the presence of THC in Miller's urine specimen. A report dated

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Iowa Code section 321J.7 (2009) authorizes a licensed professional to certify that an individual is "unconscious or otherwise in a condition rendering that person incapable of consent or refusal." 4 A complaint and affidavit filed on November 15, 2010 accuses Miller of interference with official acts in violation of section 719.1 in connection with the October 15 incident. The complaint specifies Miller "did physically grab and strike Trooper Brett Tjepkes while investigating Mr. Miller for driving while intoxicated and leaving the scene of a traffic accident." The trooper's accompanying affidavit explained: "Since smoking cigarettes would hinder the OWI investigation, I reached into the vehicle to remove the cigarettes from him."

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January 14, 2011, indicated Miller's blood sample showed an alcohol content of .246. On March 10, 2011, the State filed a complaint charging Miller with OWI, second offense, in violation of section 321J.2, and issued a warrant for his arrest. He was arrested on April 13, 2011, and made an initial appearance the next day. On April 29, 2011, the State filed a trial information charging Miller with OWI, second offense. The information alleged that Miller operated a motor vehicle while under the influence of an alcoholic beverage or other drug or a combination of such substances, or while having a blood alcohol concentration above the legal limit of .08. Miller's counsel filed a combined motion to dismiss and motion to suppress on June 24, 2011. The motion alleged that Miller was arrested for OWI on October 15, 2010, but the trial information was not filed until April 29, 2011, or 196 days later--well beyond the forty-five-day deadline in rule 2.33(2)(a). The State resisted, alleging that Miller was arrested for interference with official acts on October 15, 2010, but was not arrested for OWI until April 13, 2011 --just sixteen days before the county attorney filed the trial information. The district court dismissed the OWI prosecution on August 10, 2011, concluding the State violated rule 2.33(2)(a). The court relied on Wing, 791

N.W.2d at 243 to determine that a reasonable person in Miller's position would have believed an arrest occurred.5 The State appeals from the dismissal order.6

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The district court mused: "Perhaps the better approach to speedy indictment cases such as this is that which was articulated by Justice Cady in his thorough and wellreasoned dissent in State v. Wing. There Justice Cady analyzes the speedy indictment

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II.

Scope and Standard of Review We review speedy indictment dismissals for correction of legal error.

Wing, 791 N.W.2d at 246. We are bound by the district court's findings of fact, so long as they are supported by substantial evidence. Id. III. Analysis A. Principles Governing Speedy Indictment and Arrests

The State challenges the district court's finding that peace officers arrested Miller for OWI on the same day they arrested him for interference with official acts. It maintains the forty-five-day speedy indictment period on his OWI prosecution did not begin to run until his arrest on April 13, 2011 --after the county attorney received the toxicology reports from the state crime lab and filed a preliminary complaint. Both the federal and state constitutions guarantee a right to a speedy trial. See U.S. Const. amend. XI; Iowa Const art. I,

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