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State v. Sable2/28/2001
Appeal from the Iowa District Court for Polk County, Thomas A. Renda, District Associate Judge.
Defendant appeals from the judgment and sentence entered following his conviction of second-offense operating while intoxicated. AFFIRMED.
Richard Dean Sable appeals from the judgment and sentence entered following his conviction of second-offense operating while intoxicated. See Iowa Code ' 321J.2 (1999). He contends the arresting officer violated Iowa Code section 804.20 by denying his request to call an attorney, and consequently, the district court erred by overruling his motion to suppress breath test evidence. We affirm.
I. Factual Background and Proceedings.
On May 1, 1999, Polk County Sheriff's Deputy Cass Bollman arrested Sable for operating while intoxicated ("OWI"), second offense and transported him to the Polk County Jail. Sable requested an opportunity to make a phone call to his sister in West Des Moines. He informed Deputy Bollman his sister's husband, Kenneth Benhart, was an attorney. When Sable called his sister's residence, Benhart answered the phone and Sable asked him for advice. Benhart informed Sable of his lack of expertise in the practice of criminal law and his inability to provide legal advice. Benhart gave him the phone number of another attorney, Joseph Bertogli, who is experienced in OWI cases. Sable requested a piece of paper and a pencil from Deputy Bollman and wrote down Bertogli's number. Sable then signed the implied consent form and took the intoxilyzer test. The breath test indicated a blood alcohol level of .211. On July 7, 1999, Sable filed a motion to suppress requesting the district court to exclude the results of the breath test because he had not been afforded his right to speak with an attorney pursuant to Iowa Code section 804.20. The district court denied the motion on August 2, 1999. After a trial to the court on the minutes of testimony, the district court found Sable guilty, sentenced him to two years in prison, all but seven days suspended, and fined him $1500. Sable appeals.
II. Standard of Review.
The review of section 804.20 is for errors at law. See 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. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Id.
III. Merits.
Sable contends the deputy violated his right to call an attorney by not allowing him a reasonable opportunity to place a call to a second attorney after speaking to his brother-in-law. Iowa Code section 804.20 states in relevant 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 a person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. Iowa Code § 804.20.
A person arrested for OWI has a limited right to contact an attorney under this section. State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978). Generally, this right to contact counsel is satisfied by allowing the person arrested for OWI to make a telephone call. Short v. Iowa Dep't of Transp., 447 N.W.2d 576, 578 (Iowa Ct. App. 1989). Section 804.20 does not provide an absolute right to counsel, but requires a peace officer to provide the arrest
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