Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.
Defendant appeals his conviction and sentence for third-offense operating while intoxicated as a habitual offender.
Jesse A. Macro Jr. of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, John Sarcone, County Attorney, and Kevin Bell, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Spencer Colvin appeals his conviction and sentence for operating a motor vehicle while intoxicated, third offense, as a habitual offender. He contends his right to call a family member after being arrested, as guaranteed by Iowa Code section 804.20 (2011), was violated. He argues any evidence obtained after the violation, specifically his refusal to submit to a breath test, should have been suppressed by the district court. He asks that we suppress the evidence and reverse his conviction. Upon review, we affirm.
I. Background Facts and Proceedings.
On January 4, 2012, at approximately 12:25 a.m., Des Moines Police Officer Andrew Becker stopped Spencer Colvin's vehicle after witnessing him take a left turn at a red light. Colvin exited the vehicle and told Officer Becker he was on his way to the Hickman Pub. The officer testified he could smell the odor of alcoholic beverage on Colvin's breath and noted he had bloodshot and watery eyes. Suspecting Colvin was under the influence, Officer Becker radioed for another officer to assist him in his investigation. Officer Mock, an officer with OWI training and a certified drug recognition expert, responded. He was briefed by Officer Becker and then took over the investigation.
Officer Mock also believed Colvin to be under the influence. Besides smelling the odor of alcoholic beverage emitting from him and noting watery, bloodshot eye, Officer Mock also testified that Colvin's speech was slurred and lethargic. Colvin admitted he had consumed "a couple beers" and agreed to participate in field sobriety tests. At some point during the tests, Colvin informed Officer Mock that his brother was "one of them." Officer Mock understood that to mean Colvin's brother was a police officer and asked him his brother's name. Colvin stated he did not remember his brother's name. He was also unable to tell Officer Mock which department his brother worked for. At some point, Officer Mock established that Colvin's brother's first name was Tony and began offering possible last names. Colvin ultimately agreed that his brother was Sergeant Tony Knox, another Des Moines police officer. Officer Mock then completed the field sobriety tests. He testified that Colvin scored six out of six possible clues in the horizontal gaze nystagmus test (HGN), indicating that he failed. Colvin also was unable to complete the walk-and-turn test. Officer Mock then placed Colvin under arrest and transported him to police station.
Once at the police station, Officer Mock read the implied consent advisory to Colvin and advised him of his right to call a friend or family member. Colvin requested to call his wife. Officer Mock escorted Colvin to the phone and, after receiving the number from him, helped dial the number. She did not answer the phone. Colvin then requested to call Sergeant Knox. Officer Mock told Colvin he would be allowed to do so if he was able obtain the number. Officer Mock offered Colvin the phone book and told him he was allowed to call another friend or family member to obtain the number if he would like to do so. Officer Mock testified that, although he did have access to Sergeant Knox's personal number through a police database, he did not provide Colvin with the number. At the suppression hearing, he explained that he believed there may be safety and security concerns with providing a detainee an officer's personal number, especially since he had doubts whether Sergeant Knox was actually Colvin's brother. He also testified he chose not to call Sergeant Knox and ask him whether Colvin was his brother due to the late hour.
Officer Mock asked Colvin several times whether he would consent to a breath test. Colvin refused to answer and continued asking to call Sergeant Knox. After repeatedly inquiring whether he wanted to consent or refuse the test, without an affirmative answer either way, Officer Mock eventually considered Colvin's failure to answer a refusal to submit to testing.
On March 27, 2009, after being charged and arraigned, Colvin filed a motion to suppress his test refusal. The district court heard Colvin's motion on April 17, 2012, and ultimately denied it. Colvin then filed a motion to reopen and reconsider, which was also denied.
The matter was tried before a jury on June 25, 2012. The jury found Colvin guilty of operating a motor vehicle while impaired or intoxicated, third offense, as a habitual offender. He was sentenced to a term ...