No. 5-985 / 05-0399Court of Appeals of Iowa.
Filed March 15, 2006
Appeal from the Iowa District Court for Hardin County, Dale E. Ruigh, Judge.
Justin Hoversten appeals the revocation of his driver’s license for driving while intoxicated. AFFIRMED.
David R. Johnson of Brinton, Bordwell Johnson, Clarion, for appellant.
Thomas J. Miller, Attorney General, and Mark Hunacek, Assistant Attorney General, for appellee.
Considered by Miller, P.J., and Hecht, J., and Brown, S.J.[*]
BROWN, S.J.
I. Background Facts Proceedings
Justin Hoversten was arrested on February 29, 2004, for operating while intoxicated, in violation of Iowa Code section 321J.2 (2003). At the Iowa Falls police station, Hoversten agreed to provide a breath specimen for testing. Police sergeant David McDaniel prepared the DataMaster breath-testing device. Hoversten was approaching the DataMaster when his cellular telephone rang. He asked McDaniel if he could answer it. McDaniel replied, “You’d better be quick,” or words to that effect. Hoversten silenced his telephone without answering it. He proceeded to take the breath test, which showed a result above the legal limit for alcohol. Due to the test result, Hoversten’s driver’s license was revoked for a period of one year.
Hoversten contested the revocation, claiming that he had been denied the right to make a telephone call, as provided in Iowa code section 804.20. He claimed his request to answer the telephone was similar to a request to make a telephone call. Hoversten asserted McDaniel had the responsibility to explain that he had the ability to call someone. An administrative law judge (ALJ) determined Hoversten had been denied the rights provided by section 804.20.
The ALJ’s decision was reversed by the Iowa Department of Transportation on appeal. The department noted that McDaniel did not prohibit Hoversten from answering his telephone. The only request made by Hoversten was to answer his telephone; he did not request to make a call. The department reinstated the revocation of Hoversten’s driver’s license. The department’s decision was affirmed by the district court on judicial review. Hoversten appeals.
II. Standard of Review
Our review is governed by the standards found in Iowa Code section 17A.19(10). See Ludtke v. Iowa Dep’t of Transp., 646 N.W.2d 62, 64 (Iowa 2002). On appeal, an agency’s factual findings are binding if supported by substantial evidence in the record, when the record is viewed as a whole. Missman v. Iowa Dep’t of Transp., 653 N.W.2d 363, 366 (Iowa 2002). A driver has the burden to show why the driver’s license should not be revoked. Lee v. Iowa Dep’t of Transp., 693 N.W.2d 342, 344
(Iowa 2005).
III. Merits
Hoversten claims the district court and the department erred in finding that his rights under section 804.20 were not violated. Section 804.20 provides:
Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney.
In the absence of a request to make a telephone call, an officer is not required to inform a person of the right to contact counsel or a family member. See State v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).
Hoversten relies upon Didonato v. Iowa Department of Transportation, 456 N.W.2d 367, 371 (Iowa 1990) (citations omitted), which states:
[W]hen a request to make a phone call is made we do not believe the statutory purpose is met if the officer stands mute and refuses the request. Nor would there be any difference if the request is to call a friend. In these circumstances the statute is implicated and the officer should advise for what purpose a phone call is permitted under the statute.
Hoversten asserts that once he asked if he could answer his telephone, the statute was implicated, and McDaniel should have “advise[d] for what purpose a phone call is permitted under the statute.” See Didonato, 456 N.W.2d at 371.
Didonato provides only that if a request to make a telephone call is made, the officer should explain for what purpose a telephone call is permitted. Id. Here, the department determined, “The pertinent facts in the present case are that the appellant at no time requested to make any telephone calls.” There is substantial evidence in the record to support the department’s factual finding on this issue. McDaniel answered in the negative when asked if Hoversten had asked if he could call anyone. Furthermore, Hoversten was asked, “Did you ever ask Sgt. McDaniel if you could call anyone?,” and he replied, “No, I didn’t.”
The request to answer the ringing telephone cannot be considered the same as a request to make a telephone call. There is no evidence as to who was calling Hoversten, or the purpose of the call. There was no evidence Hoversten was waiting for someone to call him back. In any event, Hoversten was not prohibited from answering his telephone. He voluntarily decided not to take the call.
We conclude the decision of the department is supported by substantial evidence. We affirm the decision of the department and the district court.
AFFIRMED.