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State of Iowa v. Trevor Jerome Abbey

May 15, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
TREVOR JEROME ABBEY, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.

The opinion of the court was delivered by: Mahan, S.J.

Defendant appeals his conviction for operating while intoxicated, first offense. AFFIRMED.

Considered by Tabor, P.J., Mullins, J., and Mahan, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).

I. Background Facts & Proceedings.

On August 21, 2010, at about 11:30 p.m., Officer Colin Boone was on routine patrol in Des Moines when he noticed a vehicle fail to stop at a stoplight. He pulled behind the vehicle and observed it was traveling forty-five miles per hour in a thirty-mile-per-hour zone and it failed to obey another traffic control device. He stopped the vehicle, which was driven by Trevor Abbey. Abbey did not have a valid driver's license.*fn1

The officer, a drug recognition expert, observed Abbey had signs of alcohol or drug use. Abbey had bloodshot, watery eyes; he was restless or fidgety and moving around a lot; he mumbled, had a slow kind of slurred speech; and he smelled of alcohol. The officer looked inside Abbey's mouth and saw he had heat bumps and a green film on his tongue, which he believed could be consistent with marijuana usage.

Abbey failed the horizontal gaze nystagmus test and the Romberg test. Although Abbey's preliminary breath test (PBT) showed a blood alcohol level of .067, the officer felt the result was inconsistent with Abbey's level of impairment.

Abbey was transported to the Des Moines Police Department for the traffic violations and further investigation into whether he had been driving while under the influence of alcohol or a drug. Officer Boone believed Abbey was under the influence of a combination of alcohol and marijuana. At the police station, Officer Boone invoked implied consent pursuant to Iowa Code section 321J.6(1)(f) (2009).

Abbey's breath test at the police station showed a blood alcohol level of .074. His urine test showed the presence of alcohol and marijuana.

Abbey was charged with operating while intoxicated (OWI), first offense, in violation of section 321J.2, a serious misdemeanor. He filed a motion to suppress, claiming the officer did not have reasonable grounds to invoke implied consent. A suppression hearing was held at which Officer Boone testified as outlined above. The district court denied the motion to suppress, finding "this was essentially a textbook case of invoking implied consent both as to the breath and urine specimens." The court determined the officer had fully complied with section 321J.6.

Abbey waived his right to a trial by jury. The court found him guilty of operating while intoxicated. Abbey was sentenced to 365 days in jail, with all but ten days suspended, and he was placed on probation for one year. Abbey now appeals his conviction.

II. Standard of Review. "We review the district court's decision to deny a motion to suppress based on interpretation of a statute for correction of errors at law." State v. Madison, 785 N.W.2d 706, 707-08 (Iowa 2010). This case involves the statutory interpretation of section 321J.6, and we review the district court's decision for the correction of errors of law. See State v. Thompson, 815 N.W.2d 55, 57 (Iowa Ct. App. 2012).

III. Merits.

Abbey contends the district court erred by denying his motion to suppress because Officer Boone did not have reasonable grounds to invoke implied consent. He claims that at the time the officer invoked implied consent there were insufficient facts to provide the officer with reasonable grounds to believe Abbey was under the influence of alcohol and/or a drug. He claims the field sobriety tests did not provide any indication of marijuana usage. Abbey states the heat bumps and ...


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