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State v. Stratmeier12/17/2003
State appeals from ruling in OWI prosecution suppressing evidence of chemical test results. REVERSED AND REMANDED.
In this appeal the State challenges a district court ruling that the results of a chemical test of a breath sample were inadmissible because the procedure used in conducting the test was not approved by the commissioner of public safety. After reviewing the record and considering the arguments presented, we conclude that the procedures for testing did comply with the approved procedures for sampling breath and that the test results should be admissible with no further foundation pursuant to Iowa Code section 321J.15 (2001).
At approximately 1:40 a.m. on March 30, 2002, Deputy Paul Betsworth stopped Steven Paul Stratmeier's white Ford pickup on Highway 75 in LeMars, Iowa. The deputy had observed him driving seventy-five miles per hour in a sixty-five-mile-per-hour zone and driving onto the east shoulder of the road two times in a half-mile stretch of road. Upon approaching the pickup, the deputy smelled a strong odor of alcohol coming from Stratmeier. His eyes were glassy and his speech slurred. The deputy asked Stratmeier back to his squad car, and as they walked to the squad car, Stratmeier's balance was noticeably poor.
In the car, the deputy asked Stratmeier if he had been drinking that night. Stratmeier admitted to drinking, but claimed he had not had a drink in over an hour. Stratmeier performed poorly on field sobriety tests, and at approximately 2:05 a.m., a preliminary breath test indicated that his blood alcohol level was.13. A second preliminary breath test indicated that Stratmeier's blood alcohol level was.14. The deputy arrested Stratmeier for operating while intoxicated (OWI).
At the jail, the deputy read Stratmeier the implied-consent advisory and requested Stratmeier's consent to a breath sample. Stratmeier consented. After a mandatory fifteen-minute observation period in which the jailer observed Stratmeier, the deputy told Stratmeier he needed to take a deep breath and blow into the tube. I told him the machine has an audible tone that sounds off and lets me know if he is blowing into the tube. If he is blowing it is a continuous tone. If he quits blowing or starts sucking in, it starts to beep.
Stratmeier said he understood. The deputy then changed a disposable mouthpiece at the end of the machine and attempted to obtain a sample of Stratmeier's breath in the chamber of the DataMaster cdm.
Stratmeier blew into the mouthpiece for a short time, but the machine started beeping, which indicated that his blowing had stopped. The deputy instructed Stratmeier to "take a deep breath and blow long into the tube." Defendant gave another "short breath" and again the machine indicated that the sample was still incomplete. The deputy did not replace the mouthpiece in between defendant's two breaths. The deputy then pushed a manual override button on the machine, called the "NV" button (No Volume), and received a printout revealing that the alcohol concentration of the incomplete breath sample was.121. The defendant was charged with OWI, second offense.
We have determined that the DataMaster cdm is an approved device for gauging blood-alcohol concentration and have upheld the instructions for its use issued by the Division of Criminal Investigation Criminalistics Laboratory as required by Iowa Administrative Code rule 661-7.2 (2003). State v. Hornik, ___ N.W.2d ___, ___ (Iowa 2003). The machine on which Stratmeier was tested was certified as required by Iowa Administrative Code rule 661-7.2(1). The deputy was certified to use the machine.
According to the instructions adopted by the criminal
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