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State v. Jones1/28/2004
Randolph Jones appeals from his conviction and sentence for driving while intoxicated, third offense. AFFIRMED.
I. Background Facts & Proceedings
Randolph Jones was charged with driving while intoxicated, third offense, following his arrest by Des Moines police officers Alex Anderson and Gregory Frost on July 18, 2002. After his arrest and again before he was booked, Jones made two telephone calls to his girlfriend. He told her, "to get ahold of my lawyer, get my lawyer down [to the city jail]." Jones made another phone call to his girlfriend after he was booked, but the line was busy. He assumed she was calling an attorney.
Anderson subsequently read Jones an implied consent advisory requesting his submission to a breath test to determine his amount of intoxication. Jones was asked if he wanted to make a phone call, but Jones declined, stating he had made all the calls he needed to make. Jones later refused to provide a breath sample or sign the consent form and stated, "not without my lawyer here." When Officers Frost and Anderson asked whether an attorney was on the way, Jones stated he was unsure. Anderson then determined that Jones refused to provide a breath sample, resulting in revocation of Jones's driving privileges pursuant to Iowa Code section 321J.9 (2001).
Prior to trial, Jones moved to suppress evidence of his refusal to submit to an intoxylizer test because he was denied his statutory right to call an attorney or family member. See Iowa Code § 804.20. The court denied Jones's motion. Jones was found guilty of driving while intoxicated, third offense, following a bench trial on the minutes of testimony.
On appeal Jones raises the following issue for review:
I. Whether the officers of the Des Moines police department violated Mr. Jones's right to consult with an attorney or family member under Iowa Code section 804.20?
II. Standard of Review
Because Jones's motion to suppress is based on a violation of his limited right to counsel afforded by Iowa Code section 804.20, our review is for errors of law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will affirm the trial court's ruling if there is substantial evidence supporting it. Id. Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990).
III. Motion to Suppress
Jones, citing Didonato v. Department of Transportation, 456 N.W.2d 367, 371 (Iowa 1990), argues the officers administering the intoxylizer test were required to inform him of his right to consult with counsel or a family member once they invoked implied consent procedures. Their failure to do so, he claims, necessitates suppression of the resulting evidence of his refusal to submit to testing. We disagree.
A person arrested for driving while intoxicated has a limited statutory right to contact and confer with counsel before submitting to or refusing a chemical test. Ferguson v. Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1988). This right extends to civil proceedings to revoke a license under the implied consent statute. Id. Iowa Code section 804.20 provides:
Any peace officer or other person having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person's family or an attorney of the person's choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney.
The rem
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