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State v. Rockow

Court of Appeal of Iowa

June 12, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
GARY EDWARD ROCKOW, Defendant-Appellant.

Appeal from the Iowa District Court for Cerro Gordo County, Gregg R. Rosenbladt, Judge.

A defendant appeals his judgment and sentence for operating while intoxicated, contending that the district court erred in failing to suppress evidence of his breath test.

Colin C. Murphy of Law Offices of Colin C. Murphy, P.C., Clear Lake, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Carlyle D. Dalen, County Attorney, and Rachel A. Ginbey, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.

VAITHESWARAN, J.

Gary Rockow appeals his judgment and sentence for operating while intoxicated (first offense). He contends the district court should have suppressed the result of his breath sample provided at the police station.

I. Background Facts and Proceedings

Clear Lake Police Officer Zachary Hall, responding to a citizen complaint of an erratic driver, followed Rockow's motorcycle as he proceeded along city streets. After seeing Rockow weave in his lane, Hall stopped him and administered field sobriety tests, which Rockow failed. Rockow consented to a preliminary breath test (PBT), which revealed an alcohol concentration well over the legal limit.

Hall transported Rockow to the Clear Lake Police Department and began the process of administering a DataMaster breath test. After the machine was calibrated, Rockow mentioned that he needed to remove chewing tobacco from his mouth. Hall waited an additional fifteen minutes before having Rockow provide a breath sample. The test revealed an alcohol concentration of .124.

The State charged Rockow with operating while intoxicated. Rockow moved to suppress the DataMaster test result on the ground that, when the earlier PBT was administered, he had chewing tobacco in his mouth that may have affected the PBT result, precluding subsequent testing. He also asserted that suppression of the DataMaster test result was required because he was not placed under arrest. The district court denied the motion, and the case proceeded to trial, with the jury finding Rockow guilty as charged. This appeal followed the imposition of the sentence.

II. Analysis

A person suspected of operating a motor vehicle while intoxicated is deemed to have consented to the withdrawal of a bodily substance for alcohol testing. Iowa Code § 321J.6(1) (2011). The withdrawal of the substances and the tests shall be administered at the written request of a peace officer (1) who has reasonable grounds to believe that the person was operating a motor vehicle while intoxicated and (2) who has found that any of seven statutory conditions has been met. Id.

Rockow does not dispute that Hall had reasonable grounds to believe he was driving while intoxicated; he contends the second requirement, compliance ...


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