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State v. Foss6/13/2003
Joseph Foss appeals following his conviction for operating while intoxicated, second offense. He contends the district court should have suppressed the results of a police-administered chemical breath test, because he was not afforded an independent test as authorized by statute. We agree, and reverse and remand for a new trial.
I. Background Facts and Proceedings: Joseph Foss was arrested for operating while intoxicated and his passenger, Matt Lindholm, was arrested for public intoxication. Foss and Lindholm were transported to the Urbandale Police Station where Officer Brent Meskimen invoked implied consent and requested a breath specimen from Foss. The test revealed a blood alcohol concentration of . 158. The State charged Foss with operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001).
Foss moved to suppress the test result urging, among other grounds, a violation of his right to an independent test under section 321J.11. At the suppression hearing, Officer Meskimen admitted that Foss had twice indicated his wish to take a blood test, but claimed that he did so before implied consent was invoked. Officer Meskimen stated that he informed Foss he was not being offered a blood test, but, at that time, was only being offered a breath test. Foss denied requesting a blood test prior to providing a breath specimen.
Before agreeing to submit to the breath test, Foss attempted to reach an attorney. When he was unable to do so, he conferred with Lindholm. At the time, Lindholm was a third year law student and had recently completed a prosecuting internship. Lindholm testified he advised Foss that, in the event Foss submitted to a breath test, he should "request a blood or urine test right after that."
Officer Meskimen stated that Foss had not, to his knowledge, requested an independent test after he provided the breath specimen. On cross-examination, however, Officer Meskimen admitted that at an administrative hearing held a few weeks earlier, he had no "independent recollection" as to whether Foss had requested an independent test after implied consent was invoked. Lindholm testified he heard Foss request a urine or blood test after submitting the breath specimen, to which Officer Meskimen replied " 'No, I am not going to give you that, it will just boost my case,' or words to that effect." Foss also testified that, after he was shown the results of the breath test, he asked for a blood test. According to Foss, Officer Meskimen replied, "No, you don't want to do that, that will build my case, and I don't want to give that to you."
The district court denied the motion to suppress. The court did not address the adequacy of Foss's request for an independent test, but found the police did not hinder Foss's "desire to have" an independent test. Foss stipulated to a trial on the minutes of testimony, and was found guilty as charged. He now appeals.
II. Scope of Review. We review the district court's decision on error. Iowa R.App. P. 6.4. The court's findings are upheld if supported by substantial evidence. State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998).
**2 III. Independent Chemical Test. Iowa Code section 321J.11 provides, in pertinent part:
The person may have an independent chemical test or tests administered at the person's own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer.
A person is not entitled to an independent test until after he has submitted to the test requested by police. State v. Bloomer, 618 N.W.2d 550, 553 (Iowa 2000). We theref
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