Appeal
from the Iowa District Court for Boone County, Paul G.
Crawford, District Associate Judge.
Daniel
Carney appeals the judgment entered following his conviction
of operating while intoxicated, third offense. AFFIRMED.
Andrew
J. Boettger of Hastings, Gartin & Boettger, LLP, Ames,
for appellant.
Thomas
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
DOYLE,
Judge.
Daniel
Carney appeals the judgment entered following his conviction
for operating while intoxicated (OWI), third offense. He
challenges the time in which the State filed the indictment
and the manner in which a law enforcement officer obtained
his blood for chemical testing. We affirm.
I.
Background Facts and Proceedings.
On
December 28, 2015, a car crashed into the back of a
semi-trailer at a marked four-way intersection on Highway 30.
Boone Police Officer Daniel Lynch found Carney unconscious in
the driver's seat of the car. After Carney was
transported to the hospital for medical treatment and
evaluation, Officer Lynch observed Carney to have blood-shot
eyes, slurred speech, and an odor consistent with an
alcoholic beverage. The officer also observed Carney
repeatedly asking the medical staff questions they had
already answered. Officer Lynch suspected Carney was
impaired, but because Carney was lying on his back strapped
to a hospital bed and undergoing medical treatment, Officer
Lynch was unable to perform standardized field sobriety
tests. The officer asked Carney if he had consumed any form
of alcohol, controlled substance, or medication. Carney
responded, "No comment." The officer left the room
and talked with one of the treating doctors who confirmed
that she smelled of an odor of alcoholic beverage coming from
Carney.
Officer
Lynch returned to Carney's hospital room and asked Carney
if he had "had anything to drink at all?" Carney
responded, "No." The officer asked if Carney would
take a preliminary breath test. Carney said "No."
He refused to provide a breath sample for chemical testing
explaining, "There is no way for me to do it." The
officer then requested a blood sample for chemical testing,
and Carney said, "Sure." The officer again asked if
Carney had anything to drink that evening, and Carney said he
had beer earlier. When asked "How much, " Carney
responded, "Not too much, " and said he did not
drink beer while he was driving. Officer Lynch then read the
implied consent advisory to Carney. He also read Carney his
Miranda rights. Carney signed the consent form. When
it came time to draw the blood, Carney refused. Officer Lynch
again explained the implied consent law. Carney then said,
"Oh, draw the damn blood." After additional
conversation concerning the implied consent law, Carney
consented to the blood draw. Testing revealed a blood alcohol
content of .183. The blood also tested positive for the
presence of THC.
The
State charged Carney with third-offense OWI on March 2, 2016.
An amended trial information was filed on March 14, 2016, to
reflect the presence of a controlled substance in
Carney's blood. On the same day, Carney was arraigned and
pleaded not guilty.
Carney
filed a motion to dismiss, arguing the State violated his
right to a speedy indictment. He also filed a motion to
suppress the results of his blood test, arguing Officer Lynch
obtained the sample in violation of Iowa Code sections
321J.6(2) and 321J.9 (2015). The trial court denied both
motions, Carney then waived his right to a jury trial and
agreed to trial on the minutes of evidence. The court found
him guilty of third-offense OWI.
II.
Motion to Dismiss.
Carney
appeals, first arguing the trial court erred in denying his
motion to dismiss on speedy-indictment grounds. See
Iowa R. Crim. P. 2.33(2) (requiring the court to dismiss
criminal charges brought against a defendant more than
forty-five days after arrest). Carney claims he was arrested
on December 28, 2015, but was not indicted until March 2,
2016-sixty-five days later. ...