from the Iowa District Court for Madison County, Richard B.
defendant appeals his conviction for operating while
intoxicated, asserting the court should have granted his
motion to suppress the breath test results.
Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., Bower, J., and Scott, S.J.
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
Background Facts and Proceedings.
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.
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
Jones: I've had chew in my mouth the whole f*****g time