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IN THE COURT OF APPEALS OF IOWA No. 2-374 / 11-1611 Filed June 13, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. MIKEL ROBERT BRILLHART, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Richard Gleason (motion to suppress) and Randall J. Nigg (trial), District Associate Judges.

Defendant appeals an adverse ruling on a motion to suppress and his subsequent conviction. AFFIRMED.

Gina Kramer, Dubuque, for appellant. Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ.

2 DANILSON, J. Mikel Brillhart appeals the district court's denial of his motion to suppress evidence he alleges was obtained after he invoked his right to counsel under Iowa Code section 804.20 (2009), and his subsequent conviction of operating while intoxicated. Substantial evidence supports the court's finding that the

arresting officer made repeated efforts to afford Brillhart the opportunity to place a call to an attorney or relative. Brillhart either declined or failed to respond in an intelligible fashion. We affirm. I. Background Facts and Proceedings. The manager of McDonald's called police to report a confused and incoherent customer at their drive-through window, at 2:00 a.m. on August 12, 2010. Officer Ann Kennedy pulled over the reported vehicle. Driver Mikel

Brillhart's speech was slurred; he had red, watery eyes and dilated pupils; his movements were slow; and he appeared dull and sleepy. Officer Kennedy had to request Brillhart's license and registration several times before he complied. Brillhart failed all field sobriety tests, but denied drinking alcohol. The preliminary breath test resulted in a 0.20 blood alcohol level.1 Once Brillhart was in Officer Kennedy's car, she noticed that he smelled of urine and his shorts were damp in the center. Officer Kennedy transported Brillhart to the Dubuque law enforcement center, gave him a Miranda warning, and read the implied consent warning.2

1

Brillhart claims his breathalyzer results are inaccurate due to bad acid reflux

disease. Brillhart denies receiving a Miranda warning. He testified that he wasn't sure if the implied consent warning was read. Brillhart claims he did not know the
2

3 Next, Officer Kennedy asked Brillhart if he wanted to make a phone call. Brillhart responded that he did not want to make a decision at that time.3 Officer Kennedy gave Brillhart thirty minutes to think before asking him a second time if he wished to contact an attorney or anyone else. Brillhart would only state that Kennedy had forgotten to ask him something. Officer Kennedy asked Brillhart a third time if he wanted to speak with an attorney. Brillhart's subsequent statements were argumentative and nonresponsive to Officer Kennedy's question. Instead, he repeated his accusation that Kennedy did not ask him if he wanted to call an attorney. Officer Kennedy asked Brillhart a fourth time if he wanted to call an attorney or anyone else, showed him the phone book, and asked with whom he wanted to speak. Brillhart's only response was repeating his accusation that Kennedy did not ask him if he wanted to call an attorney. Brillhart then refused all testing, without the benefit of advice of counsel. Brillhart denies Officer Kennedy's assertions that he behaved in a belligerent manner, made repeated nonsensical statements, and failed to respond in an intelligible way to her inquiries. Brillhart claims that he specifically and clearly invoked his right to speak with an attorney, but Kennedy ignored his request.4 Brillhart contends that instead of assisting him, Kennedy repeatedly asked if he was ready to submit to testing. Brillhart allegedly believed he would

consequences of his decision when he refused testing. However, he admitted that Officer Kennedy told him something about the possibility of having a suspended license. 3 Brillhart says this response was in answer to the question of whether or not he would submit to testing. 4 Brillhart does not remember the telephone or telephone book in the detention room. He contends he would not have felt comfortable using the phone without permission.

4 not be allowed to consult an attorney due to Kennedy's failure to assist him and the very early morning hour. II. Error Preservation and Standard of Review. While Brillhart's original claim was a constitutional violation, he subsequently argued a violation of his statutory rights under Iowa Code section 804.20. The district court ruled on the statutory claim and was silent on the constitutional claim. Brillhart failed to file a motion to amend or enlarge the

district court's ruling for a decision on the constitutional issue. Thus, error was not preserved on the constitutional claim. Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002). We review interpretation of section 804.20 for errors at law. State v. Hicks, 791 N.W.2d 89, 93 (Iowa 2010). If the law was correctly applied, we determine whether substantial evidence supports the findings of fact. Id. III. Discussion. Iowa Code section 804.20 guarantees "any person arrested or restrained" the right "to call, consult, and see a member of the person's family or an attorney of the person's choice, or both." The statute also provides that if the arrestee is intoxicated, "the call may be made by the person having custody." Iowa Code

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