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State v. Serrine

Court of Appeals of Iowa

January 11, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DEBRA M. SERRINE, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.

         Debra 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.

          Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          DOYLE, Judge.

         Debra 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.

         I. Background Facts and Proceedings.

         In the 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 following occurred.[1]

         Officer 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 rear window.

         Officer 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.[2] 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.

         Officer 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.

         Officer 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."

         Officer 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.

          While 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 there.
Serrine: Why?
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?
Serrine: 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 you're intoxicated.
Serrine: No. That's not what-
Officer: Okay
Serrine: No, No. That's not-like, that's not why at all
[unintelligible].
Officer: You-you want him down there because he's a lawyer?
Serrine: No. I want him down there because I don't know you.
Officer: Officer Bowers. I am with Davenport Police-
Serrine:-and-and I get that-
Officer: OK.
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-
Serrine: And-
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 ...

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