Preview:

IN THE COURT OF APPEALS OF IOWA No. 9-934 / 09-0512 Filed January 22, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. JUSTIN JOSEPH HUTTON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.

The State seeks discretionary review of a district court ruling granting the defendants motion to suppress. REVERSED AND REMANDED.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Rothman, Assistant County Attorney, for appellant. Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C., Des Moines, for appellee.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ.

2 DOYLE, J. The State sought and was granted discretionary review of a district court ruling granting Justin Huttons motion to suppress evidence of his blood -alcohol concentration in a prosecution for operating while intoxicated (OWI). The State claims the court erred in determining the implied consent advisory given to Hutton was inadequate. We reverse the judgment of the district court and

remand for further proceedings. I. Background Facts and Proceedings. On December 20, 2008, at about 2:09 a.m., police officers responded to a report of an individual passed out behind the steering wheel of a white Ford Bronco parked at a convenience store. While talking to the driver, Hutton, the officers observed he had bloodshot watery eyes, slurred speech, and smelled strongly of an alcoholic beverage. He admitted he had been drinking beer that evening. He could not complete the horizontal gaze nystagmus test

administered by one of the officers, and he failed two other field sobriety tests. A preliminary breath test indicated his blood alcohol concentration exceeded the legal limit. Hutton was arrested for OWI. He was transported to the police station where he was read an "implied consent advisory" that included information regarding possible suspension of his commercial drivers license.1 Hutton

submitted to a Datamaster breath test, which showed his blood alcohol concentration was .205.

At the time of his arrest, Hutton held a commercial drivers license but was found in a noncommercial vehicle.

1

3 The State charged Hutton with OWI, first offense, in violation of Iowa Code section 321J.2 (2007). He pled not guilty and filed a motion to suppress the breath test results, which the State resisted. Hutton challenged the adequacy of the implied consent advisory read to him before he submitted to the breath test. He argued the advisory was inaccurate and misleading because it informed him that his commercial drivers license would be suspended for one year if he submitted to the breath test and failed. Due to that supposed incorrect

information in the advisory, Hutton argued his ",,consent to chemical testing was involuntary" and in violation of his substantive and procedural due process rights. Following a hearing, the district court granted Huttons motion reasoning: The advisory given by the officer and the code section [321J.8] differ in that "submitting to the test and failing it" is omitted in the applicable code section relating to a person such as Hutton who was operating a noncommercial motor vehicle but held a commercial drivers license. Therefore if Hutton had been advised properly he might have elected not to take the test. His refusal would still subject him to disqualification as provided in 321.208(2). However the Court cannot be confident that Huttons decision to submit to testing was unaffected by the inaccurate advisory. The State filed an application for discretionary review that was granted by our supreme court. II. Scope and Standards of Review. When a defendant who has submitted to chemical testing asserts that the submission was involuntary, we evaluate the totality of the circumstances to determine whether or not the decision was made voluntarily. Our review is de novo. While we are not bound by the district courts factual findings, we give considerable weight to the courts assessment of the voluntariness of the defendants submission to the chemical test. To the extent the issue presents a question of statutory interpretation, our review is for correction of errors at law. State v. Garcia, 756 N.W.2d 216, 219-20 (Iowa 2008) (internal citations omitted).

4 III. Discussion. "Iowas implied consent statute establishes the basic principle that a driver impliedly agrees to submit to a test to determine alcohol concentration or presence of a controlled substance in return for the privilege of using the public highways." State v. Massengale, 745 N.W.2d 499, 501 (Iowa 2008) (internal quotation omitted); see also Iowa Code

Download STATE OF IOWA, Plaintiff-Appellee, vs. JUSTIN JOSEPH HUTTON, Defendant-Appellant

Iowa Law