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State v. Bird11/15/2002
d and a requisite PBT result must be present. Lindeman, 555 N.W.2d at 696 n.2.
Substantial rather than literal compliance with section 321J.6 is sufficient to legally invoke implied consent procedures if the purposes underlying the requirements of that section are not compromised. Id. at 696. These purposes are (1) to protect the health of the person being tested, (2) to guarantee accuracy of the test result used in judicial proceedings, and (3) to prevent citizens from indiscriminate testing or harassment. State v. Hopkins, 465 N.W.2d 894, 896 (Iowa 1991). The foundation for admission of an intoxilyzer test result at trial is satisfied if the State establishes (1) the test was performed by a certified operator (2) using a device intended to determine alcohol concentration, and (3) the methods used were approved by the commissioner of public safety. Iowa Code § 321J.15.
Bird's suppression theory is premised on the unreliability of the PBT results underlying the invocation of implied consent procedures and resulting intoxilyzer test at issue. As noted earlier, Iowa Code section 321J.5 requires testing using a PBT device approved by the commissioner of public safety. The department of public safety rule governing the use and calibration of such devices provides:
7.5(2) Any peace officer using an approved device shall follow the instructions furnished by the manufacturer for use of such a device. Each unit shall be calibrated at least once per month using either a wet alcohol standard or a dry gas standard. The officer or officer's department shall keep a record of each calibration. This record shall include:
a. The officer performing the calibration.
b. Date.
c. The value and type of standard used.
d. Unit type and identification number. Iowa Admin. Code 661-7.5 (2001).
Like other agency rules, rule 661-7.5 should be given the force of law provided it is reasonable and consistent with the legislative enactment from which it is derived. Harlan Sprague Dawley, Inc. v. Iowa State Bd. of Tax Review, 601 N.W.2d 66, 69 (Iowa 1999). We presume, in the absence of more definitive authority, that this rule was adopted to advance the public interest in the proper operation of approved PBT devices and to insure the accuracy and reliability of PBT results. See Iowa Code § 321J.5; cf. State v. Hansen, 203 N.W.2d 216, 223 (Iowa 1972). We also presume that substantial rather than literal compliance with the rules requirements is sufficient if their underlying purposes are not compromised. Cf. Lindeman, 555 N.W.2d at 696.
As noted earlier, Zacharias's compliance with the manufacturer's operating instructions for the Alco-Sensor III was contested at the suppression hearing. The instruction at issue provides:
If the ALCO-SENSOR III is being used as a SCREENER, the subject can be asked if he/she has used any alcohol in the last 15 minutes. If the response is negative, test the subject immediately; if otherwise, wait 15 minutes before testing. If the test result is positive, wait 2 to 5 minutes and take a second test. A similar result indicates true blood alcohol level. A much lower result strongly suggests mouth alcohol was present at the time of the first test.
If the ALCO-SENSOR III is being used EVIDENTIALLY, the subject must be kept under observation for 15 minutes as previously described.
The undisputed record indicates Zacharias failed to administer a second PBT when the express language of the instructions required him to do so. Although the State's expert testified a failure to administer a second test did not compromise the device's intended purpose of screening fo
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