No. 4-419 / 03-1830.Court of Appeals of Iowa.
July 14, 2004.
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, and Odell G. McGhee, II, District Associate Judges.
Defendant alleges the trial court erred in denying his motion to suppress breath alcohol test results obtained from a DataMaster breath alcohol instrument. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and John C. Heinicke, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
EISENHAUER, J.
In the early afternoon of January 12, 2003, Michael R. Mick was involved in an automobile accident in Des Moines. While responding to the accident, Des Moines police noticed Mr. Mick had watery and bloodshot eyes, slurred speech, and a strong odor of alcohol. After administering field sobriety tests and a preliminary breath test, the police transported Mr. Mick to the city jail for further testing using the DataMaster device, which revealed that Mr. Mick’s blood alcohol content was above the legal limit. Mr. Mick was charged with operating while intoxicated, third offense, in violation of Iowa Code section 321J.2
(2003).
James A. Bleskacek, of the Division of Criminal Investigation’s Criminalistics Laboratory, examined the DataMaster at the Des Moines police department on September 17, 2002. On September 18, 2002, the Criminalistics Laboratory certified this DataMaster was operational. Robert Monserrate, the senior criminalist in the Breath Alcohol Section of the Criminalistics Laboratory, signed the September 18 report as the “Laboratory Analyst.” This report also bears Mr. Bleskacek’s signature. The State concedes Mr. Monserrate never examined the Des Moines Police Department’s DataMaster. The DataMaster’s maintenance record reflects that Mr. Bleskacek examined and recertified the DataMaster on January 3, 2003, although Mr. Bleskacek apparently did not prepare a new certificate. On February 7, 2003, Mr. Bleskacek and Mr. Monserrate signed “Supplemental/Corrected Report” that certified the DataMaster as operational, as of September 17, 2002.
After unsuccessfully moving to suppress the DataMaster test results, Mr. Mick stipulated to a trial on the minutes of testimony. The trial court found him guilty, and he appeals. Mr. Mick argues the trial court erred in overruling his motion to suppress the test results. His chief arguments supporting suppression are 1) the September 18, 2002 report certifying the DataMaster as operational was defective and 2) the DataMaster was inspected at the Des Moines police station, rather than at the Criminalistics Laboratory as required by statute. He also argues his counsel was ineffective, in case we find that an amended motion to suppress was untimely filed. We affirm the judgment of the district court.
I. Scope of Review
We conduct a de novo review of claims of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). As the motion to suppress is based on alleged statutory violations, we review for the correction of errors at law. State v. Stratmeier, 672 N.W.2d 817, 820 (Iowa 2003).
II. Timeliness of Mr. Mick’s Amended Motion to Suppress
Mr. Mick filed his motion to suppress within the time allowed by Iowa Rule of Criminal Procedure 2.11(4); however, his amended motion to suppress was filed late. In his timely motion to suppress, Mr. Mick informs the district court that Mr. Monserrate did not examine the DataMaster in September 2002 and argues that such failure requires suppression of the test results. This is sufficient to preserve that issue for our review.
In contrast, Mr. Mick first argued that the test results must be suppressed because the DataMaster was not tested at the Criminalistics Laboratory in his amended motion to suppress. As the amended motion was late, that issue is not preserved for our direct review. We will, however, address whether Mr. Mick’s trial counsel was ineffective in failing to timely raise this argument.
III. “Defects” in the DataMaster’s Certification
Mr. Mick argues the September 18, 2002 report, which certifies that the DataMaster is operational, is defective and must be suppressed because it bears Mr. Monserrate’s signature. It would follow that the State could not demonstrate the DataMaster was in working order and yielded valid results when Mr. Mick was tested on January 12, 2003. We disagree.
The applicable regulations provide that a report from the Criminalistics Laboratory must contain “findings of the examining person and the examining person’s signature.” 661 Iowa Admin. Code r. 12.8(g). In this case, it is undisputed that the September 18, 2002 report contains Mr. Bleskacek’s findings and contains his signature, indicating that he reviewed this report. This is all that rule 12.8(g) requires. Mr. Monserrate’s signature is surplus matter that does not call into question the accuracy of the report’s findings or the validity of the DataMaster’s test results. There is no basis in law or fact to suppress this report.
IV. “Failure” to Certify the Device at the Criminalistics Laboratory
Mr. Mick argues the certification of the DataMaster at a setting outside the Criminalistics Laboratory is contrary to Iowa Code section 691.2 and requires suppression. While this issue was not preserved for appellate review, we conclude the record is adequate to consider Mr. Mick’s ineffective assistance of counsel claim. A person claiming ineffective assistance of counsel must rebut the presumption that counsel was effective by showing both a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). To show that prejudice resulted from counsel’s breach of an essential duty, a defendant must show that, absent the breach, the outcome “would reasonably likely have been different.” Id. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
Mr. Mick bases his argument on the following sentence from Iowa Code section 691.2:
“It shall be presumed that any employee or technician of the criminalistics laboratory is qualified or possesses the required expertise to accomplish any analysis, comparison, or identification done by the employee in the course of the employee’s employment in the criminalistics laboratory”
(emphasis added). Relying on the italicized clause, Mr. Mick would have us restrict the activities of criminalists to their laboratory. The State contends, with good reason, that the italicized language is equivalent to “employment with the criminalistics laboratory” or “employment by the criminalistics laboratory.”
For the moment, we will assume that Mr. Mick’s reading of the statute is plausible. The State’s reading is also plausible, to say the least. Even if we were to find that Mr. Mick’s reading of the statute is conceivable, we need not consider which reading is correct because regulations issued by the Division of Criminal Investigation eliminate any support for Mr. Mick’s argument. The legislature directed the Commissioner of Public Safety to “make rules defining the capabilities of the criminalistics laboratory.” Iowa Code § 691.3. The Commissioner adopted such a rule, which in relevant part provides: “The laboratory’s mobile units may provide crime scene analysis and evidence collection capability.” 661 Iowa Admin Code r. 12.1 (emphasis added). This rule, which is within the Commissioner’s power to adopt and which corresponds with a sensible reading of section 691.2, unmistakably authorizes investigatory activities outside of the walls of the Criminalistics Laboratory. We defer to the Commissioner’s regulatory interpretation of section 691.2. The recertification of the DataMaster at the Des Moines Police Department, rather than at the Criminalistics Laboratory, is permitted. Mr. Mick’s argument is without merit. Thus, his counsel was not ineffective by first raising it in an untimely motion.
V. Conclusion
Because we find the certification procedure was proper we need not address the appellant’s constitutional claims. We affirm the judgment of the district court.
AFFIRMED.