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State v. Bird11/15/2002
lly our scope of review on evidentiary issues is for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). To the extent resolution of these issues requires interpretation of a statute or an administrative rule, our review is for errors of law. State v. DeCamp, 622 N.W.2d 290, 292 (Iowa 2001).
III. Timeliness of Motion to Suppress.
The State initially contends Bird waived his objection to the admissibility of the intoxilyzer test results because his motion to suppress was not timely filed. We disagree.
Motions to suppress evidence illegally obtained must be filed within forty days after a defendant's arraignment. Iowa R. Crim. P. 2.11(4). In the absence of good cause, an untimely motion to suppress waives the underlying objection. Iowa R. Crim. P. 2.11(3); State v. White, 530 N.W.2d 77, 84 (Iowa Ct. App. 1994), cert. denied, 516 U.S. 88 (1995). Our determination that a motion was not timely filed is dispositive even though the State did not resist the motion on that ground in the district court. State v. DeVoss, 648 N.W.2d 56, 63 (Iowa 2002); State v. Ball, 600 N.W.2d 602, 604 (Iowa 1999), cert. denied, 531 U.S. 867 (2000).
In criminal cases the service and filing of motions are completed in the same manner as civil actions. Iowa R. Crim. P. 2.34(2). Iowa Rule of Civil Procedure 1.442(4) provides in pertinent part:
Whenever these rules or the rules of appellate procedure require a filing with the district court or its clerk within a certain time, the time requirement shall be tolled when service is made, provided the actual filing is done within a reasonable time thereafter.
Service is made for purposes of this rule by mailing a copy of the motion to the opposing party's attorney and is complete upon mailing. Iowa R. Civ. P. 1.442(2).
Bird's motion was actually filed on February 14, 2001, forty-one days after his arraignment on January 4, 2001. However, the certificate of service stamp on the motion indicates it was mailed to the county attorney on February 13, 2001, forty days after Bird's arraignment. In the absence of any claim that a one-day delay between service and filing was unreasonable, we find Bird's motion to suppress was timely filed and proceed to consider the merits of the remaining issues raised on appeal.
IV. The Merits.
In criminal cases involving claims of tainted evidence, the State has the burden to show its evidence is admissible. State v. Hamilton, 335 N.W.2d 154, 158 (Iowa 1983). The purpose of excluding evidence obtained as the result of illegal government activity is to deter police misconduct and protect the integrity of the judicial process. State v. Naujaks, 637 N.W.2d 101, 111 (Iowa 2001). A similar rationale has resulted in the exclusion of chemical test results obtained in violation of Iowa Code section 321J.6, Iowa's implied consent statute. See State v. Christianson, 627 N.W.2d 910, 913 (Iowa 2001); State v. Palmer, 554 N.W.2d 859, 867 (Iowa 1996).
A peace officer having reasonable cause to believe a person is operating a motor vehicle while intoxicated may request that person to provide a breath sample for testing using a PBT device approved by the commissioner of public safety. Iowa Code § 321J.5. If there is reasonable cause to believe a person is operating while intoxicated and the PBT result exceeds .10, the peace officer may invoke statutory implied consent procedures and request withdrawal of a bodily substance for a chemical test of the substance withdrawn. Iowa Code §§ 321J.6(1), 321J.6(1)(d); State v. Lindeman, 555 N.W.2d 693, 695 (Iowa 1996). Both reasonable cause to believe a person is operating a vehicle while intoxicate
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