No. 4-411 / 03-1445.Court of Appeals of Iowa.
July 28, 2004.
Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge.
Brian Dunkin appeals from his conviction for operating while intoxicated, third offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Patrick Jackson, County Attorney, and Mona Clarkson and Tyron Rogers, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
HUITINK, J.
Brian Dunkin appeals from his conviction for operating while intoxicated, third offense, in violation of Iowa Code sections 321J.2
(1)(a) and 321J.2(c) (2001). We affirm.
I. Background Facts Proceedings
Dunkin was arrested for operating while intoxicated following a one-car accident in Des Moines County on September 13, 2002. Because Dunkin was injured, the arresting officer took him to a hospital for treatment. While at the hospital, the arresting officer invoked implied consent procedures based on his belief that Dunkin was intoxicated. The implied consent form included the officer’s notation that Dunkin was “unable to sign” the form. The officer would later testify that Dunkin understood his rights and agreed to submit to a blood test. The resulting blood test result indicated Dunkin’s blood alcohol content was .135.
The State charged Dunkin with operating while intoxicated, third offense (Count I), and driving while revoked (Count II). Dunkin moved to suppress the blood test results based on the officer’s failure to obtain his consent, or that his consent was not knowing and voluntary. The court denied the motion. Dunkin was found guilty of Count I and II after a trial by jury. Dunkin was sentenced to a five-year term of imprisonment with all but thirty days suspended and fined $2500 under Count I, and sentenced to a suspended thirty days in jail and fined $1000 under Count II. Dunkin appeals his conviction and sentence under Count I.
On appeal, Dunkin argues the district court erred in failing to suppress the results of his blood test.
II. Standard of Review
When a person subjected to a chemical test asserts that the test was not voluntary, we evaluate the totality of the circumstances to determine whether his or her consent to testing was freely made or coerced. State v. Gravenish, 511 N.W.2d 379, 381 (Iowa 1994). Although we are not bound by the trial court’s factual findings, we give considerable weight to the court’s assessment on the question of voluntariness. Id.
III. The Merits
Dunkin argues the trial court erred in admitting the result of his blood test because the State failed to demonstrate his consent to such testing was voluntary. He cites his missing signature on the implied consent form, as well as evidence that he was able to sign a hospital form approximately fifty minutes later. He accordingly argues that the absence of his signature confirms his nonconsent to testing.
Iowa’s implied consent law authorizes chemical testing of bodily substances for persons suspected of operating a motor vehicle while intoxicated. State v. Albrecht, 657 N.W.2d 474, 476 (Iowa 2003). Valid consent to such testing must be voluntary and uncoerced. Gravenish, 511 N.W.2d at 381. Factors to consider in assessing the voluntariness of Dunkin’s consent include: his age; his prior criminal history; whether he was under the influence of drugs or alcohol; his understanding and responses to questions; and whether any physical punishment or threats of punishment were made against him. Id.
The trial court concluded Dunkin voluntarily consented to the blood alcohol test. The court held:
On the issue of whether the defendant voluntarily consented to the withdrawal of the blood sample, the objective facts show that the defendant was awake, he understood questions, and made appropriate responses. An experienced officer observed him for a considerable time who saw no indication that the defendant did not understand what was happening. The attending nurse stated no reason to believe that the defendant did not understand what was happening. The defendant’s words and conduct gave clear indication that he assented to the withdrawal of the blood specimen. The defendant does have experience with these proceedings. There is no basis in law to require the defendant to sign the implied consent in order for the requested test to be admissible.
We agree with the trial court. The record indicates that both the arresting officer and the nurse who drew Dunkin’s blood testified that Dunkin agreed to provide a blood sample. Dunkin was twenty-seven years old at the time of the accident and was aware of implied consent based on two previous convictions for operating while intoxicated. The officer testified that Dunkin was coherent and understood the questions he asked and the form he read. Moreover, there is no evidence that punishment or threats were used to coerce Dunkin’s consent. We affirm the decision of the trial court.
AFFIRMED.