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State v. Jones1/28/2004
edy for a violation of the statutory right is exclusion of evidence subsequently obtained. State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978). In Didonato, the court held section 804.20 does not require an officer to inform an arrested person of the right to counsel. Didonato v. Dep't of Transp., 456 N.W.2d 367, 371 (Iowa 1990). The court went on to state:
But when a request to make a phone call is made we do not believe the statutory purpose is met if the officer stands mute and refuses the request. Nor would there be any difference if the request is to call a friend. In these circumstances the statute is implicated and the officer should then advise for what purpose a phone call is permitted under the statute.
Id.
In denying Jones's motion to suppress, the district court held in part:
In this case the Court finds that the officer offered to allow Mr. Jones to call anyone that he wanted to call, not limiting the calls only to a lawyer or family member. The Court finds that the officer has complied with the intent of that statute in allowing Mr. Jones to call anyone.... Mr. Jones had an obligation to assert his rights under Iowa Code Section 804.20. Although Mr. Jones was given that opportunity he chose not to exercise that right. Consequently, Mr. Jones's rights under Iowa Code Section 804.20 were not interfered with and his refusal to submit a breath specimen will stand.
The record includes abundant evidence supporting the trial court's findings. As Jones was being transported to the station, he called his girlfriend on his cellular phone. He again called her on his cellular phone when he arrived at the station and told her to get an attorney to the city jail right away. Jones then made another call to his girlfriend after he was booked. When the line was busy, Jones told the jailer that she was probably calling his attorney. Officer Anderson again asked Jones if he wanted to call anyone after the implied consent advisory was read. Jones stated that he made all the calls he needed. We agree with the trial court's conclusion rejecting Jones's claims that the officers failed to advise him of his statutory rights. See id. (holding that when a phone call is requested, an officer must explain the right to call an attorney or family member before submitting to, or refusing a chemical test).
Jones further argues that when he stated that he would not sign the consent form without his attorney present, the officers were then under a duty to advise him of his right to contact a family member or counsel. However, Jones made this statement when he assumed his attorney was on the way. It was not made as a request to contact one. The officers were under no obligation in this instance to tell Jones he could call a family member or counsel, and we accordingly affirm the district court's denial of Jones's motion to suppress.
AFFIRMED.
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