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IN THE COURT OF APPEALS OF IOWA No. 2-334 / 11-1098 Filed June 27, 2012 STATE OF IOWA, Plaintiff-Appellee, vs. MARK TODD CAREY, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.

Defendant appeals his conviction and sentence for operating while intoxicated asserting the district court should have granted his motion to suppress. AFFIRMED.

R. A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John Criswell, County Attorney, and Doug Eichholz and Brent Hinders, Assistant County Attorneys, for appellee.

Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ.

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MULLINS, J. Defendant, Mark Todd Carey, appeals his conviction and sentence for operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (2011), asserting the district court erred in denying his motion to suppress his refusal to submit to chemical testing. He claims the implied consent advisory he was read failed to comply with the statutory requirements, and as a result, he claims he was denied substantive due process rights. For the reasons stated below, we affirm the district court. I. BACKGROUND AND PROCEEDINGS. On January 8, 2011, a 911 phone call was made in Warren County to report a possible intoxicated driver. Deputy Sheriff Lisa Ohlinger was dispatched to the scene. When she arrived the vehicle in question was stopped, and she observed Carey sitting in the driver's seat with a cut above his eye. The vehicle had damage to the front end, which restricted Carey's ability to open the driver's side door and exit the vehicle. Deputy Ohlinger learned from Carey he struck a pole somewhere in Des Moines. She assisted Carey in getting out of the vehicle by holding the driver's side door open. After Carey got out of the vehicle, Deputy Ohlinger had to steady him as he "kind of fell into [her] a little bit." Carey refused to take field sobriety tests, though Deputy Ohlinger observed he smelled of alcohol and had bloodshot eyes. Deputy Ohlinger also offered Carey the preliminary breath test, which he refused. Carey was then placed in the back of Deputy Ohlinger's patrol car as she and another officer on the scene inventoried Carey's vehicle. They discovered one empty beer can

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along with several full cans inside the car and one empty beer can outside the vehicle. The other officer on the scene had seen Carey throw the can out of the window after the officer arrived. transported to jail. After arriving at the jail, Deputy Ohlinger read the implied consent advisory to Carey from a form entitled "Revised Instructions for Request and Notice Form." The portion of the form challenged in this appeal states, If you hold a commercial driver's license the department will disqualify your commercial driving privilege for one year if you submit to the test and fail it, you refuse to take the test, or you were operating while under the influence of an alcoholic beverage or other drug or controlled substance or a combination of such substances. The disqualification shall be for life if your commercial driving privilege was previously disqualified. These actions are in addition to any revocation under Iowa Code Chapter 321J. Deputy Ohlinger also read Carey the form entitled, "Right to Consult an Attorney or Family Member," which detailed Carey's right to call, consult, and see an attorney or family member before making the decision of whether to provide a breath specimen for chemical testing. Carey indicated he did not want to call anyone but also asserted he was not waiving his right to anything. After several minutes inquiring whether Carey would like to call anyone and Carey asserting he did not want to call anyone but was not waiving his rights to anything, Deputy Ohlinger moved on to ask whether Carey was willing to provide a breath specimen for chemical testing. Carey again began saying he was not refusing to take the test but refused to affirmatively say he would take it. Deputy Ohlinger finally told him she would ask him one more time whether he would like to take the test, and if he answered anything but "yes" or "no," she Carey was read his Miranda rights and

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would interpret that as a test refusal. When he was asked one final time, he responded "other." Deputy Ohlinger informed him that his response would be considered a refusal and then completed the forms and delivered Carey to jail for booking. The State filed a trial information charging Carey with operating while intoxicated on January 18, 2011. Carey filed a motion to suppress alleging

among other things that the implied consent advisory did not comply with the statutory requirements and rendered his decision to refuse testing involuntary. He sought to suppress his refusal to submit to chemical testing. After an

evidentiary hearing, the district court denied the motion to suppress, finding, "The language used by the deputy allowed the Defendant to make a reasoned and informed decision and substantially complied with the law at the time of the Defendant's arrest." The case proceeded to a stipulated bench trial on the

minutes of testimony on June 28, 2011. The court found Carey guilty as charged and sentenced him to thirty days in jail with all but two days suspended. Carey was placed on probation for one year and ordered to pay the required fines and costs. II. SCOPE OF REVIEW. To the extent Carey challenges whether the advisory read to him complied with Iowa Code section 321J.8, our review is for correction of errors at law as this implicates questions of statutory interpretation. State v. Hutton, 796 N.W.2d 898, 901 (Iowa 2011). However, Carey also asserts he was denied his substantive due process rights as his decision to refuse the chemical test was not reasoned,

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voluntary, or informed. We review this claim de novo making an independent evaluation of the totality of the record. State v. Overbay, ___ N.W.2d ___, 2012 WL 512635, at *3 (Iowa 2012). "While we are not bound by the district court's factual findings, we give considerable weight to the court's assessment of the voluntariness of the defendant's submission to the chemical test." Garcia, 756 N.W.2d 216, 219

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