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State v. Bindner3/27/2002
A jury convicted Paul Bindner of operating a motor vehicle while intoxicated. On appeal, he contends the district court should have suppressed the results of his Intoxilyzer test because he was not afforded an independent test as authorized by statute. We agree and, accordingly, reverse and remand for new trial.
I. Background Facts and Proceedings
A LeMars police officer responded to a citizen complaint of erratic driving. The officer fell in behind the subject of the complaint and watched as the driver floated back and forth between the center line and the curb. The officer stopped the vehicle, approached the driver, and noticed he had watery, bloodshot eyes, a slight slur to his speech, and smelled of alcohol. He identified the driver as Bindner and asked him to submit to field sobriety tests. Bindner failed the tests. He was arrested and taken to the Plymouth County Sheriff's office.
An officer administered an Intoxilyzer test, which recorded a blood alcohol level of .175. After administering the test, the officer advised Bindner of his right to an independent chemical test and asked if he wanted one. Bindner gave a positive response. The officers mentioned the test again, but a test was not obtained. [FN1]
FN1. Proceedings at the sheriff's office were videotaped and a videotape was introduced into evidence.
The State charged Bindner with operating while intoxicated, first offense. See Iowa Code § 321J.2 (1999). Bindner moved to suppress the .175 test result on the ground he was not afforded an independent chemical test. The district court denied the motion and the case proceeded to trial. A jury found Bindner guilty and the district court pronounced judgment and sentence. This appeal followed.
The sole question on appeal is whether Bindner was denied his right to an independent chemical test. Our review is for errors of law. Iowa R.App. P. 6.4. We will uphold a district court's fact-findings if they are supported by substantial evidence. State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998).
II. Independent Chemical Test
Iowa Code section 321J.11 governs independent chemical tests. It provides:
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.
The district court found: (1) Bindner did not trigger this code provision because he did not really request an independent chemical test; (2) the officers did not deny Bindner a chance to obtain an independent test; and (3) Bindner did not have money to pay for the test. Based on these findings, the court concluded that there was a "failure" or "inability" to obtain the independent test within the meaning of section 321J.11, permitting admission of the Intoxilyzer test result. We do not find substantial evidence to support the court's findings.
A. Request for Independent Test.
*2 Officers told Bindner he had a right to an independent chemical test and asked him if he wanted one. [FN2] Despite his inebriated condition, Bindner lucidly responded, "OK. Call 376-2577. She's a nurse." The officers did not make the call. Instead, they proceeded to book Bindner.
FN2. The officers were not required to do so. State v. Wootten, 577 N.W.2d 654, 655 (Iowa 1998).
While one of the officers was asking Bindner booking-related questions, another officer again mentioned Bindner's right to an independent test. The officer also stated the test would be at Bindner's expense and would be performed by a nurse designated by the officer, whose name and n
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