No. 4-017 / 03-0279Court of Appeals of Iowa.
April 14, 2004.
Appeal from the Iowa District Court for Howard County, John G. Bauercamper, Judge.
Charles Gregory Lichty appeals from a district court decision affirming an administrative revocation of his driving privilege for refusing to submit to a chemical test pursuant to Iowa Code section 321J.9 (2001). AFFIRMED.
Kevin Schoeberl of Story, Schoeberl Kowalke Law Firm, Cresco, for appellant.
Thomas J. Miller, Attorney General, and John Baty, Assistant Attorney General for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
HECHT, J.
Charles Gregory Lichty appeals from a district court decision affirming an administrative revocation of his driving privilege for refusing to submit to a chemical test pursuant to Iowa Code section 321J.9 (2001). We affirm.
I. Factual and Procedural Background.
A reasonable person could find the following facts on the record in this case: A law enforcement officer stopped Lichty’s vehicle after observing it cross the center line of the roadway once and the fog line several times in the early morning hours of September 15, 2002. When the officer approached the driver’s side of Lichty’s vehicle, he smelled the odor of alcohol and observed Lichty’s eyes were bloodshot. At the officer’s request, Lichty attempted and failed field sobriety tests. A preliminary breath test was administered, producing a result in excess of .10. Lichty was arrested and transported to the Howard County Law Enforcement Center. A videotape was made of the proceedings after Lichty’s arrival at the Law Enforcement Center, but the recording equipment’s audio capability was disabled, and the conversation between Lichty and the officer is therefore inaudible.
After the officer read the implied consent advisory to him, Lichty spoke to his attorney by telephone for approximately ten minutes. When the telephone conversation with his counsel was completed, Lichty advised the officer that he would provide a breath specimen. The officer then prepared the Datamaster machine to collect the specimen at approximately 2:46 a.m. and asked Lichty to approach. Lichty walked toward the machine, but then stopped and returned to a table, sat down, and picked up the consent form. The officer again asked Lichty to mark his consent or refusal to provide a breath specimen. When Lichty failed to execute the consent form and step up to the machine, the officer concluded Lichty had refused to provide a specimen at approximately 3:00 a.m.
Lichty appeals, contending substantial evidence does not support a finding that (1) the officer had reasonable grounds to believe Lichty was operating a vehicle in violation of Iowa Code section 321J.2 before the request for a specimen was made and (2) he refused to provide a breath specimen.
II. Scope and Standards of Review.
Our review is at law. The agency’s fact-findings are binding on the court if supported by substantial evidence in the record Missman v. Iowa Dep’t of Transp., 653 N.W.2d 363, 366 (Iowa 2002). Substantial evidence is “the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue.” Id.
III. Reasonable Grounds.
Lichty asserts the evidence would only support a finding that the officer lacked reasonable grounds to believe a violation of section 321J.2 occurred. In making this argument, Lichty focuses entirely on the videotape which he claims does not evidence erratic driving or unsuccessful completion of the sobriety tests. His argument must fail, however, because a reasonable person could find that the videotape depicts erratic driving and failed sobriety tests. In addition, the arresting officer provided sworn testimony that supplemented the videotape of Lichty’s driving and affirmed that the vehicle moved erratically. The agency could have reasonably credited the officer’s testimony that Lichty smelled of alcohol and appeared to have bloodshot eyes at the scene of the arrest. Accordingly, we affirm on this issue.
IV. Sufficiency of the Evidence Supporting Finding ofRefusal.
Lichty asserts that after consulting with his counsel he expressly informed the officer he would provide the specimen, but also articulated his wish to reread the consent form before doing so. Moreover, Lichty claims the officer ignored his offer to provide the specimen and arbitrarily and unreasonably interpreted his desire to reread the consent form as a refusal. In short, Lichty contends the agency’s finding that he refused to provide a specimen is unsupported by substantial evidence in the record.
“The determination of compliance [with a request for a chemical specimen] must be based on objective standards: `the licensee’s words, acts, overall conduct and other manifestations of a willingness or unwillingness to take the [chemical] test will be considered . . .'” McCrea v. Iowa Dep’t. of Transp., 336 N.W.2d 427, 430 (Iowa 1983) (quoting Hoban v. Rice, 267 N.E.2d 311, 315 (Ohio 1971)). A licensee’s uncooperativeness with an appropriate request for a specimen may constitute a refusal. See Buda v. Fulton, 157 N.W.2d 336, 342 (Iowa 1968). Anything less than an unqualified and unequivocal consent to provide a specimen will be viewed as a refusal. Ferguson v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988). A request by a law enforcement officer for a chemical specimen is not an occasion for “debate, maneuver or negotiation, but rather for a simple `yes’ or `no’ to the officer’s request.” Swenumson v. Iowa Dep’t of Pub. Safety, 210 N.W.2d 660, 662 (Iowa 1973) (quoting State v. Pandoli, 262 A.2d 41, 42 (N.J. 1970)).
The agency found Lichty refused to provide a specimen when he insisted upon reading the consent form after it had been read to him by the officer and after his counsel had advised him to consent to the test. The administrative law judge who heard the evidence aptly described this factual issue as “close.” While we conclude substantial evidence would have supported a finding that Lichty did not refuse to provide a specimen, our standard of review does not permit this court to substitute its judgment for that of the agency. A reasonable fact-finder could also determine on this record that Lichty’s failure to provide the specimen at the officer’s request at approximately 3:00 a.m. was less than an unqualified and unequivocal consent. Our conclusion is heavily influenced by the fact that the consent form had been read to Lichty before he consulted his counsel by telephone. A reasonable fact-finder could view Lichty’s request to read the form under the circumstances as tantamount to equivocation or an effort to delay production of the specimen. Accordingly, the agency’s finding that Lichty refused to provide a breath specimen is supported by substantial evidence, and we must affirm.
AFFIRMED.