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State v. Bird11/15/2002
David Bird appeals his conviction of operating a motor vehicle while intoxicated (OWI), second offense. REVERSED AND REMANDED.
David Bird appeals his conviction of operating a motor vehicle while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (1999).
I. Background Facts and Proceedings.
Shortly before 1 a.m. on November 21, 2000, Iowa City police officer Darren Zacharias stopped a vehicle Bird was driving after Bird made a prohibited right turn on a red light. While speaking with Bird, Zacharias detected an odor of alcohol. Bird admitted drinking and that he consumed his last drink within fifteen minutes before the stop. After Bird failed a field sobriety test, Zacharias requested a preliminary breath test (PBT) from Bird using an Alco-Sensor III testing device. The result of Bird's PBT was 0.114.
Zacharias then asked Bird to accompany him to the police station for more sobriety testing. After Bird failed additional sobriety tests, Zacharias invoked statutory implied consent procedures based on his belief Bird was driving while intoxicated and the PBT results earlier obtained. The resulting intoxilyzer test indicated Bird's blood alcohol level was 0.129. Bird was arrested and subsequently charged with OWI.
Prior to trial Bird filed a motion to suppress, challenging the admissibility of the intoxilyzer test results. Bird claimed Zacharias had no authority to invoke the implied consent procedures because the statutory requirements for invoking implied consent procedures and related testing were not satisfied. Bird argued that the PBT result upon which Zacharias relied was obtained in violation of department of public safety rules governing the use and calibration of such devices. He specifically cited Zacharias's failure to follow the manufacturer's operating instructions by administering one instead of two PBTs after learning Bird consumed alcohol within fifteen minutes before he was stopped. Bird also cited omissions in the Iowa City Police Department's log relating to the value and standard used to calibrate the PBT device. The trial court rejected Bird's arguments, stating:
Defendant does not contest that the arresting officer had reasonable grounds to request a PBT. He argues that the officer is required to follow the procedures as set forth in Ex#1 (copy of the manual for the Alco-Sensor III). The Court's review of the manual finds that an ambiguous reference is made to circumstances where a second test should be used.
Testimony of the manufacturer of this device, Mr. Forrester, confirms that this device is sold for different purposes and where used as a screening device, as it is in the State of Iowa, a second test is not required to fulfill the purpose for which it is intended.
Following the same analysis regarding the challenge based on the machine's manual, it is this Court's finding that if the log kept on this PBT device was not in strict compliance with the Administrative Code requirements, it would not support suppressing the Intoxlyzer results. The PBT device as used in this state is a screening device and the results are by statute inadmissible as evidence of OWI. The facts and circumstances of this case support a finding of a proper stop and reasonable grounds to arrest. The parties have stipulated to the same. There is no admission into evidence and this Court finds that substantial compliance with section 321J.6 has been shown and that the underlying requirements "were not compromised."
Bird's motion was denied. Bird was subsequently convicted of OWI, second offense, resulting in this appeal.
II. Scope of Review.
Genera
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