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State v. Todd

Court of Appeals of Iowa

June 7, 2017

STATE OF IOWA, Plaintiff-Appellee,
CLARSELL ANTHONY TODD, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Joseph M. Moothart, District Associate Judge.

         The defendant appeals from his conviction for operating while intoxicated. AFFIRMED.

          Kimberly A. Voss-Orr, Ames, for appellant.

          Thomas 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.

         Clarsell 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 influence.

         I. Background Facts and Proceedings.

         Officer 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."

         Officer 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.

         The 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 test.

         Officer 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 squad car.

         The 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.

         Once at 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 and ...

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