from the Iowa District Court for Scott County, Cheryl E.
Traum, District Associate Judge.
Serrine appeals her conviction of operating a motor vehicle
while intoxicated, arguing the district court erred in
denying her motion to suppress the result of the chemical
breath test and other evidence because her statutory and
constitutional rights were violated. AFFIRMED.
R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
Serrine appeals her conviction of operating a motor vehicle
while intoxicated (OWI), first offense, in violation of Iowa
Code section 321J.6 (2013). She asserts the district court
erred in denying her motion to suppress the result of her
chemical breath test and other evidence because her
constitutional and statutory rights were violated. Because
Serrine's performance in field sobriety tests does not
constitute testimonial evidence, her constitutional privilege
against self-incrimination was not implicated. Serrine's
section 804.20 rights to communicate with an attorney or
family member were not violated. We affirm.
Background Facts and Proceedings.
early morning hours of May 10, 2014, Davenport Officer Ryan
Bowers was on patrol in his squad car, parked in a parking
lot between Oneida Avenue and Bridge Avenue, facing east.
Both avenues are one-way streets, with traffic driving south
on Oneida Avenue and north on Bridge Avenue. Around 3:00
a.m., Officer Bowers observed a car turn north on Bridge
Avenue, then west towards him through the parking lot, and
then go north-the wrong way-on Oneida Avenue. He decided to
follow the car, and, from that point in time, the encounter
was recorded by the squad car's cameras and the
officer's microphone. The video recordings show the
Bowers pursued the car on Oneida Avenue as it traveled a
short distance before turning right into an apartment
building parking lot. He activated his squad car's top
lights just before turning into the parking lot behind the
car. The car pulled into a parking spot, and the officer
pulled in behind, blocking the car from leaving. The car had
a dealer's plate and a temporary registration tag in the
Bowers got out of his squad car and went to the car's
driver-side window. In the driver's seat was defendant
Debra Serrine, and in the passenger seat was her friend-and
licensed Iowa attorney-Kurt Spurgeon. The officer asked
Serrine for her driver's license, which she provided. He
asked Serrine if the car had just been purchased, and she
explained her father had just bought it. He asked whether she
had insurance-she stated she did-and he asked to see the
information. When she could not locate it, he asked for the
purchase agreement. While Serrine was gathering the
information, the officer asked where they were coming from,
but neither occupant answered. He asked who lived there, and
both occupants answered that Spurgeon lived there. He again
asked where they were coming from, and Spurgeon answered,
"Downtown." The officer told them it was the second
time that night that he saw the car "pull in there"
the wrong way. The officer then asked, "You been
drinking tonight?" Spurgeon answered, "I have
been." The officer told Spurgeon he was not interested
in his answer since he was not driving. Serrine did not
volunteer an answer.
Bowers asked Serrine if she found "the rest of the
paperwork, " and Serrine apologized, stating she knew
who the insurance agent was. The officer responded she needed
to show proof. Serrine continued looking through documents in
the car. The officer obtained some information from the
temporary registration tag in the window, and after a
conversation with Spurgeon and Serrine, he asked Serrine to
sit in the back of his squad car. After placing Serrine in
the squad car, the officer went back to her car and spoke to
Spurgeon. After the officer returned Spurgeon's
identification he told Spurgeon he was "welcome to go
inside." Spurgeon got out of the car but stayed near it.
Bowers had Serrine exit the car and told her, "We're
gonna do a quick test, and how you do on that will determine
whether we go any further." He then conducted the
horizontal gaze nystagmus test, off camera. He told Serrine,
"Your eyes are all over the place, " "Your
eyes are just jumping from one side to the other." When
he says, "I know you've been drinking, "
Serrine responds, "Yes." Among other things,
Serrine and the officer then discussed a mutual acquaintance.
Finally, the officer told Serrine, "Here's the deal.
We can go down here to the parking lot to finish the test,
where the ground's flat and the pavement's smooth, or
we can go to the county." Serrine agreed to go to the
parking lot conditionally, stating, "so long as
[Spurgeon] comes with us. Cause he's the lawyer. So I
kinda need that." The officer refused, stating Spurgeon
had "nothing to do with this" and Serrine was
"not under arrest."
Bowers walked to Serrine's car to get her jacket, and on
the way he talked to Spurgeon. He told Spurgeon he wanted to
take Serrine down to the parking lot to finish the test,
stating Serrine "was showing signs." Spurgeon asked
how Serrine was doing and if she was okay, and the officer
told him, "She seems fine." Spurgeon and the
officer then discussed the field sobriety test.
in the squad car, Serrine banged on the window to get
Spurgeon's attention. The rear-facing interior camera
video shows Serrine making the "call me" gesture.
The squad-car door was opened and Serrine then talked to
Spurgeon. Serrine told Spurgeon they would be in the parking
lot, and she asked him to come with her. He told her yes, and
Officer Bowers responded, "I told her no." Spurgeon
answered, "Oh, okay." After some conversation,
unintelligible from the recording, the officer gave Serrine
her coat. While putting it on, she asked, "Will you call
him? Please?" She then said, "Kurt!" She told
him to "call him and then come down there." The
following exchange occurred:
Officer: Okay, I'm not sure if you're not
understanding what I'm saying. He is not allowed down
Officer: Because he'll be interfering with my job.
I'll have to watch him and you at the same time, and
I'm not gonna have that. Okay? You don't need him
there. I don't care if he's a lawyer. He's not
allowed down there. Okay?
Officer: Okay? He understands that.
Serrine: [sounds like] I don't really understand that.
Officer: I don't know why, maybe it's because
Serrine: No. That's not what-
Serrine: No, No. That's not-like, that's not why at
Officer: You-you want him down there because he's a
Serrine: No. I want him down there because I don't know
Officer: Officer Bowers. I am with Davenport Police-
Serrine:-and-and I get that-
Serrine:-and I completely appreciate that.
Officer: So you don't trust me?
Serrine: No I don't. [Unintelligible] 'cause I
don't know you.
Officer: That's sad. That's very sad. So I want-
Officer:-we're gonna continue this-
Serrine:-But at the same time, I don't understand why he
can't be there.
Officer: I just explained that to you.
Serrine: But why can't he be there? 'Cause you
don't want him to be there.
Officer: I don't want him to be there 'cause I
don't wanna have to worry about him-
Serrine: Okay, but legally-
Officer: I don't know him, and I don't know you-
Serrine: I know exactly-
Officer: [Unintelligible] pay attention to what you're