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State v. Jones

Court of Appeals of Iowa

January 10, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
BRETT EDWARD JONES, Defendant-Appellant.

         Appeal from the Iowa District Court for Madison County, Richard B. Clogg, Judge.

         A defendant appeals his conviction for operating while intoxicated, asserting the court should have granted his motion to suppress the breath test results.

          R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., Bower, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE.

         Following a bench trial, Brett Jones appeals his conviction for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (2016). He asserts on appeal the district court should have granted his motion to suppress the breath test results because implied consent, outlined in section 321J.6(1), was improperly invoked. Because we conclude Jones communicated his refusal of the preliminary breath test (PBT) by his actions and silence, the deputy sheriff properly invoked implied consent, and the district court correctly denied Jones's motion to suppress.

         I. Background Facts and Proceedings.

         While on patrol in Truro, Iowa, a Madison County deputy sheriff initiated a traffic stop of Jones's pickup truck after observing him repeatedly squeal his tires and rev his engine. The deputy observed the classic signs of intoxication after making contact with Jones-"He had bloodshot, watery eyes, slurred speech, and smelled of an alcoholic beverage." The deputy also observed an open beer can in the center console of Jones's truck. Jones had a slightly unsteady gait upon leaving his truck, and the deputy observed he had chewing tobacco in his mouth. The deputy instructed him to remove the tobacco, and Jones complied. The deputy then initiated three field sobriety tests, and Jones failed all three tests.

         The deputy then advised Jones he had not passed any of the tests and he believed Jones was intoxicated. He advised Jones he would offer Jones a PBT: "I will offer you a PBT, which is a breath test I give you here. Is that something you want to take? It is up to you. You do not have to take it; it is not admissible in court." Jones did not respond for approximately eighteen seconds, and then, according to the deputy's testimony, Jones got his chewing tobacco out of his pocket. The following exchange took place as Jones put chew in his mouth:

The deputy: "No chew."
Jones: "What do you mean no chew?"
The deputy: "You cannot have anything in your mouth."
Jones: I've had chew in my mouth the whole f*****g time we've ...

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