No. 78 / 00-0937Supreme Court of Iowa.
Filed July 16, 2001
Certiorari to the Iowa District Court for Johnson County, Stephen C. Gerard II, District Associate Judge.
Writ of certiorari by the State challenging the district court’s decision to consider the preliminary breath test result, ignore the third digit of the intoxilyzer reading, and grant a deferred judgment to an OWI first offender.
WRIT SUSTAINED; CASE REMANDED FOR RESENTENCING.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and Linda M. Paulson, Assistant County Attorney, for plaintiff.
Brandon Wilson, Marion, pro se, for defendant.
Considered by Larson, P.J., and Ternus, J., and Andreasen, S.J.[*]
PER CURIAM.
The State brought this certiorari action to challenge the district court’s authority to use preliminary breath test results and to drop the third digit of an intoxilyzer reading in determining whether to grant a drunk driver a deferred judgment. We determine that a sentencing court does not have the authority to so act and sustain the writ. The case is remanded to the district court for resentencing.
On the night Brandon Wilson was arrested for operating while intoxicated (OWI) he took two preliminary breath tests. One test had a reading of .150 and the other a reading of .141. Later, he took an intoxilyzer test that had a reading of .156. Wilson pled guilty to OWI, first offense, a serious misdemeanor. Iowa Code §321J.2(2)(a)(1999). Wilson requested a deferred judgment.
The sentencing court noted that the results of the preliminary breath tests were .15 and .14. The court further noted that Wilson provided an additional sample of breath for an intoxilyzer test and the result of that test was a reading of .15. The court took judicial notice of the operator’s manual for the intoxilyzer machine and noted that according to the manual the first two numbers of the digital readout and printing device were to be used for a breath test. The court ultimately found that all samples of Wilson’s breath did not exceed .15 and Wilson was, therefore, statutorily eligible for a deferred judgment. See id. §321J.2(3)(a)(1). The State filed a petition for writ of certiorari with this court and the petition was granted.
Our review on writ of certiorari is for corrections of errors at law. Hewitt v. Iowa Dist. Ct., 538 N.W.2d 291, 292 (Iowa 1995). Likewise, when we are required to review a district court’s interpretation of a legislative provision we review for legal error. State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998).
This court recently decided that a “trial court is not at liberty to be persuaded to grant a deferred judgment by considering a preliminary breath test score.” State v. Iowa Dist. Ct., ___ N.W.2d ___, ___ (Iowa 2001); see alsoIowa Code §321J.5(2) (stating preliminary screening tests may be used for only very limited defined purposes). Likewise, a sentencing court is not free to utilize only the first two digits of an intoxilyzer test score in determining a defendant’s eligibility for a deferred judgment. State v. Iowa Dist. Ct.,___ N.W.2d at ___; see alsoIowa Code § 321J.2(3)(a)(1). We therefore sustain the writ of certiorari and remand this case for resentencing.
WRIT SUSTAINED; CASE REMANDED FOR RESENTENCING.
This is not a published opinion.