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State v. Marks3/27/2002
Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.
The State was granted discretionary review of a district court ruling suppressing the results of field sobriety tests and a breath specimen test. REVERSED AND REMANDED.
The district court ruled that Lowell Marks' field sobriety tests and Intoxilyzer test results should be suppressed as the former was given under threat of arrest and the latter conducted without reasonable grounds to invoke implied consent. The State was granted discretionary review and appeals both suppressions. We reverse.
Background Facts.
At approximately 2:00 a.m. on May 11, 2000, Officer Fleckenstein observed a speeding vehicle driven by Marks. The officer stopped the car and asked Marks to produce his driver's license, registration, and proof of insurance. During that discourse, Officer Fleckenstein smelled an odor of alcohol and noticed Marks had bloodshot and watery eyes. Marks admitted he had consumed, "a couple, maybe three" beers. The officer asked Marks to perform some field sobriety tests, which Marks refused, because he requested his attorney be present. The officer informed Marks that he would arrest him unless he chose to perform the tests and that following an arrest, he would be allowed to contact his attorney. Marks eventually agreed to perform the tests, but failed all administered. Marks then refused to give a preliminary breath sample and was arrested. Prior to submitting to the Intoxilyzer breath test, Marks was allowed to and did consult with an attorney. The Intoxilyzer test result was .134, and Marks was charged with operating while intoxicated in violation of Iowa Code section 321J.2 (1999).
District Court Ruling.
The district court ruled the results of the field sobriety tests should be suppressed because the officer told Marks he would arrest him if he did not agree to perform the tests. The court found this to be coercive and therefore Marks' consent was involuntary. The State filed a motion to reconsider arguing the district court's decision turned on the voluntariness of Mark's consent rather than the Fourth or Fifth Amendment issues raised by Marks in his motion to suppress. The district court, without addressing the State's assertions, entered a subsequent ruling affirming its prior decision to suppress the field sobriety tests based on the involuntariness of the consent. It then went a step further and suppressed the results of the Intoxylizer test, concluding that without the results of the field sobriety tests, the officer lacked reasonable grounds to invoke implied consent.
On appeal the State again asserts the district court erred by elevating non-testimonial evidence, field sobriety testing, into testimonial evidence with attendant Fifth Amendment protections against self-incrimination. It also asserts no Fourth Amendment violations occurred. We agree with the State on both points and therefore conclude the district court erred in suppressing the field sobriety tests and Intoxilyzer results.
Standard of Review.
In assessing alleged violations of constitutional rights, our standard of review is de novo; we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).
Fifth Amendment.
The Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, provides that no person, "shall be compelled in any criminal case to be a witness against himself". U.S. Const. Amend. V. However, this protection is only afforded to testimonial as opposed to non-t
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