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State v. Bindner3/27/2002
of a request for an independent test and police denial of the test, we conclude there was no "failure" or "inability" by Bindner to obtain the independent test. See Casper, 506 N.W.2d at 802 (police denial of independent test does not constitute "failure" or "inability" to obtain the test). The only remaining question is what the remedy should be. Bindner argues that the Intoxilyzer test result should be suppressed. The State responds that a spoliation instruction will cure the error.
Our highest court has not yet addressed the issue. See State v.. Wooten, 577 N.W.2d 654, 656 (Iowa 1998) (noting it did not need to resolve the question, as the record did not contain evidence of a request for an independent chemical test). Our court, however, has. In Casper, the court stated, "[i]n a criminal prosecution for driving under the influence, proof of that denial [of an independent chemical test] would require suppression of any police-administered chemical test." Casper, 506 N.W.2d at 802. As Casper was a license revocation proceeding, this language was dicta. Nevertheless, we find it to be persuasive dicta. Section 321J.11 provides that "[t]he 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." (emphasis added). This language suggests that, conversely, where police officers deny the independent test, the appropriate sanction would be suppression. Accordingly, we conclude that the result of Bindner's Intoxilyzer test must be suppressed.
IV. Disposition
The jury was instructed that it could find Bindner guilty of operating while intoxicated under either of two alternatives: (1) by operating a motor vehicle while under the influence and/or (2) by operating a motor vehicle while having a blood alcohol concentration of .10 or more. At oral arguments the State argued there was sufficient evidence to affirm the conviction under the first alternative even if the Intoxilyzer test was suppressed. We disagree. We cannot determine from the verdict whether the jurors found Bindner guilty under the first alternative. See State v. DeWitt, 597 N.W.2d 809, 812 (Iowa 1999). Therefore, we reverse and remand for new trial.
*4 REVERSED AND REMANDED FOR NEW TRIAL.
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