from the Iowa District Court for Black Hawk County, Joseph M.
Moothart, District Associate Judge.
defendant appeals from his conviction for operating while
Kimberly A. Voss-Orr, Ames, for appellant.
J. Miller, Attorney General, and Elisabeth Reynoldson,
Assistant Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Todd appeals from his conviction for operating while
intoxicated (OWI), first offense. Todd maintains there is
insufficient evidence to support the conviction, claiming the
State did not present substantial evidence he was under the
Background Facts and Proceedings.
Justin Brandt testified the local dispatch received two calls
from concerned citizens about the defendant and his vehicle.
The first call was received at approximately 11:00 p.m., and
the caller indicated there was a vehicle stopped on the
street outside of his apartment building that was running and
had been sitting there "over an hour." The second
call took place at approximately 11:20 p.m., and the second
caller reported a parked silver SUV outside of the same
apartment building. The caller expressed concern about the
driver, reporting, "It looks like someone is in there
and they're not moving."
Brandt arrived at the scene at approximately 11:35 p.m. When
he arrived, he noticed the vehicle was stopped three to four
feet from the curb, in front of the entrance of a driveway,
and directly beside a "no parking" sign. He then
approached the vehicle and looked inside, finding Todd with
his chin resting on his chest and apparently sleeping. Todd
did not respond when the officer shined his flashlight in the
window and appeared to awake only after Officer Brandt
knocked on the window. Todd rolled down the vehicle's
window, and Officer Brandt saw Todd's eyes were bloodshot
and watery. Additionally, Todd was slurring his speech and
was "very thick tongued." When asked how long he
had been stopped there, Todd told the officer "not too
long" and later that he was "just looking at a
book." At another point, he indicated to the officer
that he was sitting there waiting for someone to arrive.
officer asked Todd to step out of the vehicle; as Officer
Brandt patted him down to check for weapons, he noticed the
odor of alcohol emanating from Todd's person. When asked,
Todd reported he had not consumed any alcohol. Officer Brandt
then conducted the horizontal gaze nystagmus (HGN) test. Of
six possible clues, Todd's performance during the test
provided two clues. At trial, both Officer Brandt and Officer
Ryan Muhlenbruch-the second responding officer-testified that
of the three standardized field sobriety tests, HGN is the
most reliable and most objective. Further, it takes four
clues to "fail" the test. Officer Muhlenbruch
agreed that having only two clues "means you're
probably under .08." After the HGN, Officer Brandt tried
to administer the second field sobriety test, the
walk-and-turn test. Officer Brandt attempted several times to
get Todd in the correct starting position, standing with one
foot directly in front of the other, but Todd was unable to
maintain his balance in that position. Officer Brandt then
asked Todd how long it had been since he last consumed
alcohol, and Todd responded, "It's not that,
it's my balance, my legs." Because of Todd's
inability to maintain his balance during the walk-and-turn
test, Officer Brandt did not administer the one-leg-stand
Brandt then asked Todd to complete the preliminary breath
test (PBT). Todd indicated he would not, claiming he had been
sick and was taking medicine for his illness. The officers
told Todd they believed he was intoxicated and that he could
take the PBT to prove them wrong; Officer Brandt indicated he
would drive Todd home if he took the PBT and "blew
zeroes." Todd once again refused. Officer Brandt then
placed Todd under arrest and placed him in the back of his
jury was allowed to see the video of the encounter between
Todd and the officers and then of Todd as he sat in the squad
car while being transported to the local jail. During the
short ride, Todd appears to fall asleep in the back seat.
the station, Officer Brandt asked Todd to complete the breath
test using the DataMaster. Todd was read the implied consent,
which included the advisement that if he refused to submit to
testing, he would lose his driving privileges for one year,
as opposed to losing them for six months if he took the test