STATE v. WAAGMEESTER, 705 N.W.2d 507 (Iowa App. 2005)

No. 04-1639Court of Appeals of Iowa.
Filed September 14, 2005

Appeal from the Iowa District Court for Polk County, William A. Price (Suppression), District Associate Judge, and James D. Birkenholz (Trial), District Associate Judge.

Gary Waagmeester appeals from the district court’s failure to suppress evidence resulting in his conviction for Operating While Intoxicated, First Offense. AFFIRMED.

Randy Waagmeester of Waagmeester Law Office, P.L.C., Rock Rapids, and Curtis J. Krull of Roehrick, Hulting, Krull
Blumberg, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Romonda Belcher Ford, Assistant County Attorney, for appellee-State.

Considered by Mahan, P.J., and Hecht and Vaitheswaran, JJ.

HECHT, J.

Gary Waagmeester appeals from the district court’s failure to suppress evidence resulting in his conviction for Operating While Intoxicated, First Offense. We affirm.

I. Background Facts and Proceedings.

Late on the evening of January 29, 2004, police officers were called to the scene of an accident that occurred when a vehicle driven by Gary Waagmeester slid on the icy interstate, struck a concrete barrier, and was subsequently struck by another vehicle. Neither Waagmeester nor the other driver was seriously injured, but the officers believed Waagmeester had been drinking alcohol. The officers decided to administer the Horizontal Gaze Nystagmus field sobriety test,[1] which they determined Waagmeester failed. When the officers requested a preliminary breath screening from Waagmeester, he refused and was placed under arrest.

After arriving at the Des Moines Police Department, Waagmeester was asked to submit to a breath test. Waagmeester indicated he wished to contact counsel and/or a family member before making his decision and was given access to the department’s phone. He placed a total of nine phone calls, the first and last of which were to his brother Randy, an attorney in Rock Rapids. According to Waagmeester, during the last of these phone calls, Randy left the phone temporarily to search for the home phone number of a Des Moines attorney whom Waagmeester wished to call. When Officer Terrones noticed Waagmeester was no longer speaking into the telephone, he became concerned Waagmeester was stalling. Terrones took the telephone receiver from Waagmeester, listened, heard no one speaking on the other end, and disconnected the call. Waagmeester was subsequently offered an opportunity to place an additional call, but he declined and consented to the breath test approximately one hour and ten minutes after he refused to submit to the preliminary screening test.[2] His breath test showed he had a blood alcohol concentration (BAC) of .088.

Waagmeester moved to suppress the breath test evidence in advance of trial, claiming the actions of Officer Terrones in disconnecting Waagmeester’s call to his brother (1) denied him a reasonable opportunity to contact counsel and/or a family member, and (2) were of such an intimidating nature as to vitiate Waagmeester’s consent to the breath test. After a full evidentiary hearing, the district court determined that in light of the nine calls Waagmeester was able to place to various attorneys, including his brother Randy, Officer Terrones’s actions in disconnecting the final call and demanding a decision on implied consent were reasonable. Because Waagmester was given a reasonable opportunity to seek both familial and legal advice, the district court refused to suppress the breath test evidence. Waagmeester was subsequently convicted of operating while intoxicated, first offense, from which he now appeals, contending the district court committed reversible error when it failed to suppress the breath test evidence on the ground that the State violated Waagmeester’s statutory right to communications guaranteed by Iowa Code section 804.20 (2003).

II. Scope and Standard of Review.

Our review of the district court’s application of Iowa Code section 804.20 in denying Waagmeester’s motion to suppress is for the correction of errors at law. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). On appeal, we will uphold the district court’s suppression ruling if substantial record evidence supports the court’s findings of fact. Id. 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. Discussion.

Where implied consent to a breath test has been invoked, an arrestee is not afforded an absolute right to counsel, but is instead limited to a reasonable opportunity to consult with a family member and/or an attorney before the arrestee is required to decide whether to submit to testing. Iowa Code § 804.20 State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005). Compliance with the implied consent procedures of section 804.20 does not require the arrestee to make actual contact with the attorney and/or family member he attempts to consult nor does it require that he actually receive legal advice from such person or persons. Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997).

Additionally, law enforcement officers need not allow an arrestee facing an implied consent decision the opportunity to deliberate for the full two-hour statutory period within which a valid BAC test must be obtained if it is to serve as the basis for revoking driving privileges. See Moore v. Iowa Dep’t. of Transp., 473 N.W.2d 230, 231 (Iowa Ct.App. 1991) (stating “[t]he two-hour period during which testing must occur does not mean every arrestee is granted two full hours before he or she must consent to testing”). As such, Waagmeester’s right to attempt to confer with counsel and/or a family member before providing the requested specimen was not violated when officers requested Waagmeester’s decision before the two-hour period had expired.

Viewing the circumstances surrounding Waagmeester’s ultimate decision to submit to the breath test in light of these limitations on his statutory right to attempt to confer with counsel and/or a family member, we agree with the district court that Waagmeester’s rights under section 804.20 were not violated. Prior to requesting a decision on the breath test, officers permitted Waagmeester to place nine phone calls to several attorneys, including his brother Randy. See Moore, 473 N.W.2d 232 (stating that generally an arrestee’s right to communications “is satisfied if the arrestee is permitted to make a phone call to his or her attorney”). After concluding the ninth call was not yielding the consultation section 804.20 is designed to afford, Officer Terrones terminated the call.[3] Even were we to hold the manner in which the phone call was terminated by Terrones was somehow unreasonable under the circumstances, the fact Waagmeester subsequently declined the opportunity to place additional phone calls before making his decision to submit to the test leads us to conclude Terrones’s conduct did not substantially interfere with Waagmeester’s rights under section 804.20.

Finding Waagmeester was permitted to exercise and did in fact exercise all the statutory protections afforded an arrestee against whom implied consent has been invoked, we conclude the district court properly denied Waagmeester’s motion to suppress the results of his breath test. We therefore affirm.

AFFIRMED.