No. 4-412 / 03-1474.Court of Appeals of Iowa.
July 28, 2004.
Appeal from the Iowa District Court for Wapello County, Kirk A. Daily, District Associate Judge.
Jerry Stater appeals his conviction for operating while intoxicated, second offense. AFFIRMED.
Steven Gardner of Kiple, Denefe, Beaver, Gardner Zingg, L.L.P., Ottumwa, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Mark Tremmel, County Attorney, and Sara Pettinger, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
MAHAN, P.J.
I. Background Facts Proceedings
On November 17, 2002, Officer Marc Conners of the Ottumwa Police Department stopped Jerry Stater for failing to yield to an emergency vehicle. Conners noticed Stater had a strong odor of alcohol, watery blood-shot eyes, and mumbled speech. Stater failed field sobriety tests. Conners arrested Stater for operating while intoxicated, in violation of Iowa Code section 321J.2 (2001).
At the police station, Conners asked Stater for a breath test. Stater asserted that he wanted to call an attorney. Conners showed Stater the telephone. Stater asked Conners to get him an attorney, and Conners again showed him the telephone. Stater said he wanted to call attorney Steve Gardner, but did not know his telephone number. Conners showed Stater the telephone book.
A jail matron helped Stater look up Gardner’s number in the telephone book and found the number for him. Stater had trouble dialing the telephone and understanding the matron. Finally, the matron dialed the number for Stater, and gave him the telephone. After a few minutes, Stater indicated he was unable to talk to Gardner. Conners asked Stater if he wanted to call anyone else. Stater replied that he did not know anyone. Stater continued to refuse to take the breath test, and this was reported on the implied consent advisory form.
Stater filed a motion to suppress, alleging he had been denied his right to counsel under section 804.20. The district court determined that “by providing the defendant with a telephone book and a telephone, with no limitations on his ability to use it, the defendant was provided an opportunity to consult with counsel, and the duty imposed by the statute . . . was fulfilled. . . .” The court overruled the motion to suppress.
Stater then waived his right to a jury trial and the case was tried to the court on the minutes of evidence. The court concluded State was guilty of operating while intoxicated, second offense. Stater was sentenced to a term of imprisonment not to exceed two years, with all but seven days suspended. Stater now appeals.
II. Standard of Review
Our review of a claim brought pursuant to section 804.20 is for the correction of errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will affirm the district court’s ruling on a motion to suppress if there is substantial evidence supporting the court’s findings of fact. Id. Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Id.
III. Merits
Iowa Code 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. . . . If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody.
Under this statute, an arrested person must be permitted to make a telephone call to an attorney or family member upon request when charged with a violation of chapter 321J, subject to certain limitations. State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978); State v. Carter, 577 N.W.2d 855, 857 (Iowa Ct.App. 1998). Section 804.20 does not provide an absolute right to counsel, but requires a peace officer to provide the arrestee with a reasonable opportunity to contact an attorney. Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997). If the statutory right is violated, the exclusionary rule applies, and any evidence of chemical testing must be suppressed. Krebs, 562 N.W.2d at 426.
Stater contends that he was denied a reasonable opportunity to contact an attorney, and the evidence that he refused a chemical test should be suppressed. He asserts that although he was incapacitated, Officer Connors refused to assist him in calling an attorney. He also points out that even though it was about 1:30 a.m., the jail matron dialed his attorney’s office number.
Stater was permitted to call his attorney, but his attorney was unavailable at that time. Officer Connors asked Stater if he wanted to call anyone else, but Stater did not take advantage of this opportunity. In Bromeland, the supreme court stated:
We have never interpreted section 804.20 as providing an absolute right to talk to one particular attorney if that person is unavailable or unable to be reached. We decline to do so now. When [the attorney] could not be reached, it was incumbent upon Bromeland to select another attorney. Because Bromeland was afforded the opportunity to contact an attorney, but declined to do so, the officer reasonable invoked implied consent.
Bromeland, 562 N.W.2d at 626.
We affirm the decision of the district court denying Stater’s motion to suppress.
AFFIRMED.