Appeal from the Iowa District Court for Polk County, Joe E. Smith, Judge. Defendant appeals from his conviction for operating while intoxicated (first offense), claiming violation of his right to consult privately with legal counsel before submitting to chemical testing.
Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Maurice W.B. Curry and Jordan A. Roling, Assistant County Attorneys, for appellee.
WATERMAN, Justice. All justices concur except Cady, C.J., and Zager, J., who concur specially.
In this appeal, we revisit the obligation of an arresting officer under Iowa Code section 804.20 (2013) to facilitate communications between an attorney and a person arrested for operating a motor vehicle while intoxicated (OWI) in violation of section 321J.2. The defendant was seeking legal advice regarding whether to submit to a chemical breath test. The officer denied his request for privacy during his teleconference with a lawyer on the jail phone and stopped short of disclosing that private, in-person attorney--client consultations were permitted there. Defendant then took the Breathalyzer test, which showed his blood alcohol level was .194%, above the legal limit for intoxication (.08%). Defendant argues the officer was required under section 804.20 to inform him of his right to a confidential, in-person attorney--client conference at the jail. Alternatively, he argues he was entitled to a
private teleconference with counsel under article I, section 10 of the Iowa Constitution. The district court denied his motion to suppress the breath test and convicted him of OWI (first offense). We retained defendant's appeal.
As explained below, based on our precedent interpreting sections 804.20 and 321J.11, we hold that once defendant requested privacy for his attorney--client consultation, the officer was obligated to inform him of his right to a confidential, in-person conference at the jail. The remedy for a violation of section 804.20 rights is suppression of the chemical test evidence. Accordingly, we reverse the district court and remand the case for a new trial. We do not reach the constitutional claim.
I. Background Facts and Proceedings.
On March 31, 2013, just after 1:30 Sunday morning, Officer Brandon Dyer of the Ankeny Police Department observed the vehicle in front of him driving " extremely close to the center median." He followed for several blocks and saw the vehicle's left side tires twice cross over the solid white line dividing the through lane from left-turning lanes. Officer Dyer activated his police cruiser's flashing lights and initiated a traffic stop at 1:38 a.m. The vehicle was driven by David Joseph Hellstern. Hellstern is an attorney who practices primarily in family law with no experience in criminal law.
Officer Dyer asked Hellstern if he knew why he had been stopped. Hellstern responded he did not. Officer Dyer smelled alcohol and noted Hellstern had bloodshot, watery eyes. Hellstern twice denied that he consumed alcohol that evening. When Hellstern was asked for proof of registration and insurance, Officer Dyer had to ask a second time for the insurance information, even though the card was sitting on Hellstern's lap. Officer Dyer noted Hellstern seemed lethargic, with his eyes drooping " as if he was falling asleep." Officer Dyer had to repeat several more questions that Hellstern initially failed to answer.
Officer Dyer asked Hellstern to step out of his vehicle and continued to question him about his consumption of alcohol. Hellstern, at this point, admitted he " had some drinks" and had " been drinking since one," but denied drinking after 5:30 p.m. He denied feeling the effects of the alcohol, and when asked to rate the effects of the alcohol on a scale of one to ten, he simply responded, " I'm fine."
Officer Dyer asked Hellstern to take field sobriety tests. Hellstern at first consented to the testing. He initially denied being under the care of any doctor; taking any medication; having problems with his hips, knees, or back; or having any problems with balance. But, when asked about his ability to walk in a straight line and balance on one foot, he claimed he could not because his knee was not " standard." When asked to explain what that meant, Hellstern began to speak but stopped. Hellstern then refused to take any of the field sobriety tests, including the horizontal-gaze nystagmus test, the walk-and-turn test, and the one-leg stand. He also refused the preliminary breath test.
About ten minutes after he made the initial stop, Officer Dyer placed Hellstern under arrest and took him to the Polk County Jail. There, Officer Dyer read Hellstern the implied-consent advisory at 2:13 a.m. and asked for an official breath sample at 2:15 a.m.
Officer Dyer next asked Hellstern if he wanted to make " any phone calls for any reason." Hellstern elected to call the law firm of Gourley, Rehkemper, and Lindholm at 2:19 a.m.; there was no answer,
and Hellstern left no message. He called the firm's main number another three times before calling a different number at the firm and leaving a message. He next phoned five different attorneys and left voice mail messages. He also sent a text message to attorney Meegan Keller, a friend of his from law school who practices family and criminal law.
At about 3 a.m., Keller phoned Hellstern, and they spoke for thirteen minutes. During that call, Officer Dyer remained in the room five feet away from Hellstern. Hellstern saw Officer Dyer typing on his computer keyboard during the phone conversation, perhaps taking notes. Hellstern asked for privacy during the call, saying to Officer Dyer, " Can I have a moment with my attorney?" Officer Dyer first told Hellstern no, but then said, " You can, but . . . Not on the phone." Later during the same phone call with Keller, Hellstern asked Officer Dyer for " attorney-client privilege." Officer Dyer responded, " Not on the phone." Officer Dyer knew Hellstern had a right to consult confidentially with his lawyer at the jail, but stopped short of telling Hellstern because " he didn't ask." Officer Dyer did not believe section 804.20 required him to " tell the detainee that an attorney can come down to the jail" for a confidential conference. If Officer Dyer had informed him of that option, Hellstern contends he " would have asked [Keller] to come down and talk to [him]" at the jail.
At one point during the phone call, Officer Dyer left the room for about forty-five seconds. Otherwise, he remained within earshot and could hear Hellstern's side of the conversation. Officer Dyer followed the " normal procedure" at the jail to remain in the staff room with Hellstern during the phone call. He cited " safety reasons," noting there were objects in the room, and " to cover ourselves, we always stay close to the person. So if they were to try to harm themselves or do other things, we could stop them immediately." Officer Dyer acknowledged Hellstern " never got aggressive or belligerent with him" and did nothing to suggest " he was a safety concern to himself or others."
After the call, Hellstern again attempted without success to contact an attorney from the Gourley firm. In total, Hellstern made fourteen phone calls, left five voice mails, sent one text message, and received a single phone call from attorney Keller. At approximately 3:18 a.m., Hellstern indicated he did not want to make any additional phone calls. When ...