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Boyer v. Iowa Department of Transportation11/16/2001
Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.
Agency appeals from the district court order overturning its decision revoking the petitioner's license for chemical test failure. REVERSED.
Petitioner appellee Ethan Wendall Boyer was arrested for OWI in violation of Iowa Code section 321J.2. Respondent appellant the Iowa Department of Transportation motor vehicle division revoked his license. The district court reversed the department's revocation of petitioner's license and this appeal follows. We reverse.
On March 17, 2000 petitioner was stopped by a trooper who claimed petitioner was driving sixty-eight miles per hour in a fifty-five mile-per-hour zone. The trooper testified he smelled beer on petitioner after the stop and that petitioner admitted he drank a couple of beers. According to the trooper petitioner failed three field sobriety tests. Petitioner was given a preliminary breath test which indicated he had an alcohol concentration of .10 or more. Defendant was arrested for violation of Iowa Code section 321J.2.
The implied consent advisory was read to petitioner, and he consented to a breath test on the Intoxilyzer 4011A. In administering this test the trooper turned on the intoxilyzer and ran it through its pre-operational procedure. He let it warm up and give the ready light, a green light, and ran it through its checklist. He then asked petitioner to give a breath sample. The trooper testified he had switched the testing device from "air blank" to "breath" just as petitioner started blowing in the tube. The trooper said his switching the device would not have affected the results. He stated the result was a reading of .144.
Petitioner was notified his driver's license was revoked and petitioner requested an administrative hearing contesting the revocation. The administrative law judge issued a proposed decision sustaining the revocation. The proposed decision was affirmed on administrative appeal. The matter was appealed to the district court. In reversing the agency action the district court judge said:
Here . . . we deal with two instruments of modern electronic wizardry used to calculate the biology of breath, to wit: the preliminary breath testing device, Alco Sensor II; and the venerable Intoxilyzer 4011A.
Despite Respondent's protest, the issue of validity of testing, because that requires application of fact to law, is not a factual finding of the administrative court but is a legal conclusion after consideration of the facts. The facts as found are that the subject law enforcement officer relied upon the results of preliminary testing to both satisfy the requirements of Iowa Code Section 321J.6 and to pursue what he believed to be a lawful arrest, also in satisfaction of 321J.6. Inherent in theses findings are the fact that the trooper did not follow operation guidelines of the device [transcript p. 34] and that the device was not in compliance with Iowa law as regards calibration record, i.e.: calibration record did not identify the device or the methods of calibration as required by Iowa Administrative Code Section 7.5(2), and the device had not been calibrated for over one month prior to its use in violation of Iowa Administrative Code Section 7.5(2). Respondent's advancing of arithmetical gymnastics to support a conclusion of compliance with administrative requirements are not well taken and were erroneously relied upon by the administrative court in forming a conclusion of compliance. In order to rely on the findings of devices like that used herein by law enforcement, at least some semblance must be made of adherence to the rules. This trooper makes no pretense of c
Page 1 2 3 4 Iowa DUI Attorneys
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