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State v. Cleave

Court of Appeal of Iowa

July 10, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
KIMBERLY SUE VAN CLEAVE, Defendant-Appellant.

Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.

Defendant appeals her conviction, following a non-jury trial on the minutes of evidence, of operating while intoxicated, third offense. AFFIRMED.

Priscilla E. Forsyth, Sioux City, for appellant.

Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Patrick Jennings, County Attorney, and David C. Skilling, Bobbier A. Cranston, and Rachael Edmundson, Assistant County Attorneys, for appellee.

Considered by Danilson, P.J., Mullins, J., and Miller, S.J. [*]

MILLER, S.J.

Kimberly Sue Van Cleave appeals her conviction, following a non-jury trial on the minutes of evidence, of operating while intoxicated, third offense. She contends the district court erred in (1) denying a motion to suppress evidence, the results of a Datamaster breath test, (2) finding her guilty of operating while intoxicated. We affirm.

Van Cleave was stopped by a Sioux City police officer after he observed Van Cleave driving the wrong way on a one-way street at about 3:15 a.m. on July 21, 2010. Following an initial investigation, the officer suspected Van Cleave was driving while intoxicated. He administered a preliminary screening test (PBT). The result indicated an alcohol concentration of 0.204. The officer arrested Van Cleave for driving the wrong way on a one-way street and transported her to the Woodbury County jail complex. He subsequently administered a "Datamaster" breath test to Van Cleave. The result indicated an alcohol concentration of 0.172.

The State charged Van Cleave with operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (2009). Van Cleave pled not guilty and filed a motion to suppress evidence, resisted by the State. Following an evidentiary hearing the district court overruled the motion.[1] Van Cleave waived her right to a jury trial. The parties stipulated to a trial to the court on the trial information and supplemental trial information, the minutes of evidence and supplements thereto, and attachments to those documents. The court found Van Cleave guilty as charged and imposed sentence. Van Cleave appeals.

Van Cleave raises two claims of district court error. She first asserts: "The district court erred in denying the motion to suppress based on a violation of [Iowa Code section] 321J.6(2)." Her arguments in support of this assertion implicate the interpretation and application of that statute. We review issues of statutory interpretation and application for correction of errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).

Van Cleave's second assertion of error is: "The district court erred in finding the defendant guilty of violating Iowa Code section 321J.2." She argues that without the Datamaster test result (the admissibility of which she challenges in her first assertion of error) there was not sufficient evidence to find her guilty of operating while intoxicated. We review challenges to the sufficiency of the evidence in a criminal case for the correction of errors at law. State v. Heuser, 661 N.W.2d 157, 165 (Iowa 2003). The fact-finder's verdict will be upheld if it is supported by substantial evidence. Id. at 165-66. Substantial evidence means evidence that could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). In reviewing challenges to the sufficiency of the evidence we give consideration to all the evidence, not just that supporting the verdict, and view the evidence in the light most favorable to the State. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).

Van Cleave first asserts the district court erred in not suppressing the Datamaster test result because that test was not administered within two hours after the officer administered the PBT. Implicit in this claim of error is a contention that section 321J.6(2) requires the Datamaster test be administered within that time limit. As part of this claim of error Van Cleave asserts the officer improperly delayed administration of the Datamaster test. The State asserts error was not preserved on this issue, arguing the claim made in the district court was that the Datamaster test was not offered within two hours of the PBT. Van Cleave asserts that if error was not preserved, counsel rendered ineffective assistance. Although we doubt that error has been preserved on this issue, because we find Van Cleave's position to be contrary to both the facts and the law we prefer to address the substance of her claim of error, need not rest our determination on error preservation grounds, and find it unnecessary to address her alternative claim of ineffective assistance of counsel.

At the start of his shift the arresting officer had synchronized his watch with the clock on a video camera in his squad car so that the two were within a minute of each other. They indicated he administered the PBT at 3:40 a.m.

The Datamaster machine has its own clock or timing device. It shows that the 0.172 test result occurred at 5:38 a.m. Other evidence shows that the time on the arresting officer's watch was "behind" the time on the Datamaster by up to but no more than ten minutes. From these facts Van Cleave asserts the PBT was actually given at 3:30 a.m. (Datamaster time) and the Datamaster breath test was thus administered about two hours and nine minutes after the PBT. She concludes this constitutes a violation of the two-hour limit of ...


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