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State v. Hoose12/28/2001
Appeal from the Iowa District Court for Linn County, Patrick R. Grady (motion to suppress) and David M. Remley (trial and sentencing), Judges.
Lisa Maria Hoose appeals from the judgment and sentence entered upon her conviction for third-offense operating while intoxicated in violation of Iowa Code section 321J.2 (1999).
Lisa Maria Hoose appeals from the judgment and sentence entered upon her conviction for third-offense operating while intoxicated in violation of Iowa Code section 321J.2 (1999). She contends the arresting officer failed to comply with Iowa Code section 804.20 and the district court erred by overruling her motion to suppress breath test evidence. She also claims her trial counsel was ineffective for failing to move to suppress breath test evidence on grounds she was denied a confidential and meaningful opportunity to consult with counsel. We affirm.
Background Facts and Proceedings.
At approximately 6:18 a.m. on June 6, 1999, Linn County Deputy Sheriff Harvey Hall arrested Hoose for operating while intoxicated and transported her to the Linn County Correctional Center. Upon arrival, Deputy Hall requested that Hoose provide a breath sample. As Deputy Hall was reading her the implied consent form, Hoose asked to contact her attorney, David Baumgartner. Another deputy, Allen Rouse, telephoned Baumgartner on Hoose's behalf at 6:45 a.m. and left a message. At approximately 6:50 a.m., Baumgartner returned the telephone call and spoke with Hoose. Baumgartner did request to consult with Hoose in person, but this request was denied due to the time it would take him to arrive in Cedar Rapids. Hoose spoke with her attorney until approximately 7:18 a.m. and then signed the implied consent form and took the intoxilyzer test. The breath test indicated a blood alcohol level of 0.137.
The State charged Hoose with third-offense operating while intoxicated (OWI) in violation of Iowa Code section 321J.2. On August 5, 1999, Hoose filed a motion to suppress requesting the district court to exclude the results of the breath test because she was not afforded a reasonable opportunity to speak with her attorney pursuant to Iowa Code section 804.20. The district court denied the motion on November 4, 1999. Hoose waived her right to a jury trial. After a trial to the court on the minutes of testimony, the district court found Hoose guilty, sentenced her to five years in prison (with all but thirty days suspended), and fined her $2500. Hoose appeals.
Motion to Suppress.
Our review is for errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997). We will uphold the trial court's ruling on a motion to suppress if there is substantial evidence to support the court's findings of fact. Id. Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Id.
In the present case, Hoose argues not only should she have been afforded additional time to consult with her attorney but the consultation should have been private and outside the presence of the two deputies. We disagree.
Iowa Code section 804.20 states in pertinent part:
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. If a call is made, it shall be made in the presence of the person having custody of
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