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State v. Bindner3/27/2002
umber were on a bulletin board. The officer asked Bindner whether he still wanted the test. Bindner again answered affirmatively. This constitutes substantial evidence of a request for an independent chemical test.
B. Refusal of Test.
There is also substantial evidence showing the police officers denied Bindner's request for an independent test. Cf. Casper v. Iowa Dep't of Transp., 506 N.W.2d 799, 801 (Iowa Ct.App.1993), (noting licensee was "held in such a manner as to make it impossible for him to acquire the independent blood test."). As noted, the officers did not call the number initially provided by Bindner. Later, when Bindner reaffirmed his desire to have the test, the officers again did not make the call. Instead, one of them said, "get on the horn and call a nurse." The problem with this instruction was that Bindner could not gain access to the phone, as it was located on a wall behind a counter, and he was handcuffed to a rail in front of the counter. Indeed, when Bindner had asked to make two other calls, the officers dialed the phone and then stretched the telephone cord to get the receiver to Bindner. The record reflects there was no way Bindner could make the necessary phone call absent assistance from the officers. That assistance was not forthcoming.
In addition to not placing the call, the officers impeded Bindner's efforts to obtain an independent test by telling him he could only call their own nurse rather than a nurse of his choosing. The State argues this was all the statute required. We disagree. Section 321J.11 plainly and unambiguously prescribes an "independent" test. The term "independent" is defined as "free from the influence, guidance, or control of others; self reliant." AMERICAN HERITAGE DICTIONARY 353 (2d ed.1983). Using this common definition, a test performed by an agent of the State is not "independent."
Our conclusion finds support in the balance of section 321J.11 which states that the independent test is "in addition to any administered at the direction of a peace officer." This language clearly envisions a test given by someone other than a state agent. See also Wootten, 577 N.W.2d at 656 (noting witness who had some laboratory experience was called by the defendant to ask about the test); Casper, 506 N.W.2d at 801 (noting licensee was not transported to a place to have independent test). To hold otherwise would render the word "independent" and the remaining cited language meaningless. See State v. McSorley, 549 N.W.2d 807, 810 (Iowa 1996); cf. Daggett v. Nebraska Eastern Exp., Inc. 252 Iowa 341, 349, 107 N.W.2d 102, 107 (1961) (independent contractor is one who is "free to determine for himself the manner in which the specified result shall be accomplished."). Given the absence of ambiguity in the statute, we need not resort to principles of statutory construction and, accordingly, need not address the State's arguments concerning the legislative history of section 321J .11. See State ex. rel. Miller v. Midwest Pork, L.C., 625 N.W.2d 694, 700 (Iowa 2001).
C. Ability to Pay.
*3 Finally, we do not find substantial evidence to support the district court's finding that Bindner lacked the ability to pay for an independent test. The person Bindner wanted to call to administer the test was his sister-in-law. There was no indication in the record as to what her charge for the test would have been, if anything. The only evidence of Bindner's financial resources related to whether Bindner could raise bail. After talking to his sister, Bindner decided to stay in jail overnight rather than pay to get out. This evidence is insufficient to draw an inference that Bindner could not have paid for an independent test, had he been allowed to obtain one.
III. Remedy
Having found substantial evidence
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