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IN THE COURT OF APPEALS OF IOWA No. 2-367 / 11-1359 Filed June 13, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. CONNIE JAE EMGARTEN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Audubon County, J.C. Irvin, Judge.

Connie Emgarten appeals a district court's order denying a suppression motion. AFFIRMED.

Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Francine O'Brien Andersen, County Attorney, and Grant Wilson, Student Legal Intern, for appellee.

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

2 VOGEL, P.J. Connie Emgarten appeals a district court's order denying her motion to suppress the results of a chemical test. Because the State complied with the administrative guidelines regarding the collection of the urine sample and adhered to the general purposes of Iowa's implied consent law, we affirm the district court under Iowa Code section 321J.15 (2011). Further, because the chemical test results were competent evidence bearing on whether Emgarten was under the influence of a controlled substance or other drug, such evidence was admissible under Iowa Code section 321J.18. We therefore affirm. I. Background Facts and Information On January 26, 2011, Connie Emgarten was stopped by Deputy Sheriff Kent Gries in Audubon County for failure to display registration plates. During the stop, Gries's observations of Emgarten indicated that she might be under the influence of a drug or stimulant. Gries transported Emgarten to the sheriff's

office where Emgarten failed several field sobriety tests. Gries ultimately decided to invoke implied consent and requested a urine specimen from Emgarten; Emgarten consented. Gries unwrapped a sealed, sterile container, which he gave to a female jailer to collect a urine sample from Emgarten. After the sample was collected, Gries unwrapped a sealed "iScreen drug abuse dipstick," removed the protective covering, and inserted the dipstick into the urine sample for a preliminary determination of the presence or absence of drugs. The dipstick registered positive for the presence of cocaine, amphetamines, and THC (marijuana). The urine sample was then transferred to a smaller test-kit cup,

3 sealed, labeled, and sent to the Iowa Division of Criminal Investigation (DCI) laboratory for further testing. Emgarten was placed under arrest. On March 9, 2011, Emgarten was charged by trial information with operating while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2(1) and 321J.2(2)(a). On June 15, Emgarten filed a motion to suppress the lab results of the chemical test performed on her urine sample, alleging the testing procedures did not comply with the Iowa Department of Public Safety's administrative rules. A hearing was held on August 12, and the district court denied the motion. The district court clarified that the only issue before it was whether the use of the dipstick for the preliminary test contaminated the collected sample. It found the use of a dipstick is neither provided for nor prohibited by the administrative rules. From the testimony offered, it then found the use of the dipstick did not contaminate the sample and that sufficient foundation was laid for the introduction of the lab test results under Iowa Code section 321J.18. Our supreme court granted Emgarten's application for interlocutory appeal. II. Standard of Review Our review of a district court's decision to deny a motion to suppress based on its interpretation of a statute is for errors at law. State v. Madison, 785 N.W.2d 706, 707

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