Appeal from the Iowa District Court for Kossuth County, Donald J. Bormann, 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 Eisenhauer, C.J., Tabor, J., and Mahan, S.J. *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
I. Background Facts& Proceedings.
In the early morning hours of June 29, 2009, a police officer in Algona, Iowa, noticed a vehicle that did not have a front license plate. The officer followed the vehicle and saw it fail to stop at a red light before making a right-hand turn. The vehicle, which was driven by William Loehr, stopped in a parking lot, and the officer pulled in beside it.
The officer noticed Loehr had a moderate odor of alcoholic beverage, bloodshot eyes, and slurred speech. The officer administered the horizontal gaze nystagmus test, and Loehr scored five out of six clues, which indicated impairment.*fn1
Loehr was arrested and taken to the Kossuth County Jail. The officer observed Loehr for fifteen minutes to make sure he did not drink, eat, or smoke before a breath test. The test showed Loehr had a blood alcohol level of .171. Loehr was charged with operating while intoxicated (OWI), first offense, in violation of Iowa Code section 321J.2 (2009).
At the jury trial, Loehr testified that in a suicide attempt several years earlier he drank muriatic acid, which had damaged his esophagus and caused problems with regurgitation. He stated he had regurgitated into his mouth before the breath test and believed this had affected the results of the test. Loehr also presented a deposition of Dr. Kenneth Adams, who had treated him for damage to his esophagus.
The jury returned a verdict finding Loehr guilty of OWI. The court sentenced him to thirty days in jail, with all but twenty-eight days suspended and ordered him to pay a fine. Loehr appeals his conviction, claiming he received ineffective assistance of counsel.
We review claims of ineffective assistance of counsel de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied the defendant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). "In determining whether an attorney failed in performance of an essential duty, we avoid second-guessing reasonable trial strategy." Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). In order to show prejudice, a defendant must show that, but for counsel's breach of duty, the result of the proceeding would have been different. State v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011).
III. Ineffective Assistance.
During the trial, the officer testified that after he obtained Loehr's driver's license he ran it through the computer. The following exchange then occurred:
Q. And what did you determine with that check? A. I determined two things. One, that it was a valid driver's license, and, two, that the computer system ...