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State v. Foss6/13/2003
ore limit our focus to any request made by Foss after he submitted a breath specimen.
A. Adequate request. The district court did not address whether Foss made a sufficient request for an independent test. We decline Foss's invitation to imply a ruling on the issue from the court's silence, and instead look to the record. Both Foss and Lindholm testified that Foss plainly and unequivocally made a request for an independent test after he submitted the breath specimen. The State would have us fully discount their testimony on the basis of self-interest. While the testimony of Foss and his friend must certainly be viewed with a critical eye, the fact remains that theirs is the only testimony which speaks specifically to issue of whether the defendant made a sufficient request for an independent test. Officer Meskimen did not contradict their claims, but merely stated he could not remember a request being made. The record before us reveals substantial evidence to conclude Foss properly invoked his right to an independent test.
B. Police interference. In the absence of police hindrance, an individual's inability to obtain an independent chemical test will not preclude admission of the results from the police-administered test. See Iowa Code § 321J.11; State v. Goodon, 443 N.W.2d 74, 76 (Iowa Ct.App.1989). We therefore agree with the district court that Foss's inability to leave jail, or successfully arrange for an independent test, would not alone justify exclusion of the breath test results. We cannot conclude, however, that substantial evidence supports the court's finding that Officer Meskimen did nothing to hinder or interfere with Foss's ability to obtain an independent chemical test.
We have already determined that Foss made a sufficient request for an independent test after submitting to a breath test. The record reveals his request was verbally denied. At the time his request was rejected, Foss was under arrest and in a custodial setting. He was transported to the Polk County Jail shortly after his request for an independent test was denied. We conclude the record in this case established police interference with Foss's right to seek an independent test.
IV. Remedy. While the State argues that a spoliation instruction would be sufficient to cure any error, we cannot agree.
**3 In a criminal prosecution for driving under the influence, proof [that a defendant was denied the opportunity to obtain an independent chemical test by action of the peace officers] ... would require suppression of any police- administered chemical test. Any other interpretation would render meaningless the requirement of the statute that the arrestee be given the opportunity to obtain an independent chemical analysis.
Casper v. Iowa Dep't of Transp., 506 N.W.2d 799, 802 (Iowa Ct.App.1993). We conclude that the district court erred when it failed to suppress the results of the police-administered breath test. We therefore reverse the rulings of the district court, and remand this matter for a new trial.
REVERSED AND REMANDED.
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