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Missman v. Iowa Dept. of Transp.11/14/2002
Todd Eric Missman appeals from the district court's judicial review ruling affirming the Iowa Department of Transportation's (IDOT) revocation of Missman's driver's license. The revocation was pursuant to Iowa Code section 321J.9 (1999) for a chemical test refusal. Missman contends there was a lack of substantial evidence to support a finding that the arresting officer had reasonable grounds to believe he--Missman--was operating a motor vehicle while under the influence of an alcoholic beverage. We disagree and therefore affirm.
I. Background Facts and Proceedings.
On March 10, 2001, Officer David Lehman of the Forest City, Iowa Police Department served Missman with a notice of revocation of his driver's license after the officer stopped Missman and Missman refused to submit to a chemical test pursuant to Iowa's implied consent law. See Iowa Code § 321J.9(1). Missman appealed the decision and an administrative law judge (ALJ) held a telephone hearing on the appeal. See Iowa Code § 321J.13. Officer Lehman was subpoenaed to testify but did *364 not appear. Missman was the only witness who testified.
Missman testified as follows. On March 10, 2001, Missman had been to the VIP lounge and the Super Bowl bowling alley in Forest City. His fiancée and a friend's wife were with him. They arrived at the VIP lounge around 9:00 p.m. and then proceeded to the Super Bowl about 10:00 p.m., where they stayed until 2:00 a.m. The Super Bowl is about a mile and a quarter east of Forest City.
After they left the Super Bowl, Missman proceeded west on Highway 9, a two-lane highway, into Forest City. At some point, Missman noticed a police officer stopped at a stop sign. The officer began following Missman. Missman claimed he swerved one time to avoid a dead animal on the road and that the officer did the same thing.
Approximately twenty-two blocks from the point that the officer began following Missman, the officer turned on his lights. Missman pulled into a parking lot. According to Missman, the officer came up to him and said that "I was weaving all over the place." Missman claimed he disputed the officer's claim and said he had swerved one time to avoid the dead animal and that the officer had done the same thing. The officer then ordered Missman out of his vehicle. At this point, Missman reached behind the driver's seat, opened a third door on his truck, pulled out his wheelchair and got into it. (Missman is paralyzed from the waist down as a result of a car accident and drives by means of hand controls.)
Missman claimed the officer gave him no field sobriety tests, but instead took him to the sheriff's department and to jail. Missman did admit that the officer asked him if he had been drinking and that he told the officer he had had "a few beverages earlier that night."
At the sheriff's department, a second officer asked Missman to take a breath test but Missman refused to do so. Later, Officer Lehman, the arresting officer, asked Missman to take a breath test. Missman again refused but said he would take a blood test instead.
When asked at the hearing why he refused to take a breath test, Missman claimed he did not trust the test. In addition, he testified that he had four alcoholic beverages between 9:00 and 11:30 on the evening in question. He also testified that he had taken several different prescription medications including a muscle relaxant and Darvocet. Missman ended his testimony by stating he was not intoxicated.
The IDOT offered no evidence and the ALJ took no judicial notice of any documents. Missman through his attorney argued to the ALJ that "the evidence indicates that there was no probable cause for the stop or for invocation of the implied consent, and we're asking that this suspension be reversed."
The ALJ upheld the r
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