Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris (motion to suppress), James D. Coil (bench trial), and Joseph M. Moothart (sentencing), District Associate Judges.
Defendant appeals his conviction for operating while intoxicated, third offense.
R. A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jeremy Westendorf, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Doyle, J., and Sackett, S.J. [*]
I. Background Facts & Proceedings
On December 20, 2010, Sean Presnall reported an intoxicated man walked into his home in Cedar Falls, Iowa. Presnall saw the man leave in a black Lexus, and he noted the license plate number. A short time later Cedar Falls police officers received a report that a black Lexus had struck a telephone pole. Officer John Zolondek reported to the scene and found the vehicle, but no driver. The vehicle had the same license plate number as the vehicle reported by Presnall. Officer Zolondek determined the registered owner of the vehicle was Jeremy Pitz. Pitz's cell phone was in the vehicle. Officers found Pitz at a nearby home. He appeared to be intoxicated—he had a strong smell of alcohol, bloodshot, watery eyes, slurred speech, and impaired balance. Another person in the home, Sue Linck, stated Pitz told her he had struck a pole while driving.
Pitz was transported to the Cedar Falls Police Department and interviewed by Officer Zolondek. Officer Zolondek read a Miranda warning to Pitz and asked him to sign a written "Miranda Warning & Waiver." Pitz stated, "What if I want to call a lawyer?" The officer responded, "You can call a lawyer, " and Pitz said, "I don't have to sign?" The officer said, "You can sign and you can call a lawyer. It doesn't matter. This is just acknowledging that you understand your rights." Pitz then went ahead and signed the written Miranda warning.
During the interview Pitz denied driving the car, stating he had loaned it to an acquaintance. Pitz was given a pat-down search, and the Lexus keys were found in his pocket. At one point, Officer Zolondek left, then came back in with a cotton swab and asked, "What would you say if I swabbed your hand with this to see if there is airbag residue on there?" Pitz responded, "I would say call my lawyer." The officer said, "Call your lawyer?" Pitz said, "Yep, " and the officer said, "You don't want to do this?" Pitz then continued with his story that he had loaned his car. The officer did not use the cotton swab on Pitz's hands.
Eventually, the officer took Pitz to another room and asked him to participate in field sobriety tests. Pitz stated he wanted to call his attorney, Richard Bartolomei. An attempt was made to call Bartolomei's office, and the call went to voice mail. Pitz then tried to call his wife, and was able to talk to her. He tried to call her back, but was not able to contact her. He then tried another number for his wife, and was again unsuccessful. The officer asked if Pitz wanted to call anyone else, and he said, "Nobody else, except for my attorney." Another attempt was then made to call Bartolomei's office, but Pitz was unable to contact him. Pitz refused to participate in field sobriety tests or a breath test.
Pitz was charged with operating while intoxicated, third offense, in violation of Iowa Code section 321J.2 (2009). Pitz filed a motion to suppress, claiming he had been denied his right to an attorney during his interview with Officer Zolondek. The court found Pitz never invoked his right to communicate with counsel by making a statement that could reasonably be construed as a request to communicate with counsel. The court also found Pitz had not shown he had been denied his right to contact an attorney under section 804.20. The court denied the motion to suppress.
Pitz waived his right to a jury trial, and the parties stipulated the case would be decided solely on the minutes of evidence. The court found Pitz guilty of operating while intoxicated, third offense. He was sentenced to a term of imprisonment not to exceed five years, with all but ...