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State v. Ness

Supreme Court of Iowa

February 9, 2018

STATE OF IOWA, Appellee,
v.
JOHN WILLIAM NESS, Appellant.

          Appeal from the Iowa District Court for Woodbury County, Timothy Jarman, District Associate Judge.

         The defendant appeals his conviction for operating while intoxicated third offense, contending the district court erred in admitting the results of a breath test administered by his probation officer.

          Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey, & Daane, Sioux City, for appellant.

          Thomas J. Miller, Attorney General, Genevieve Reinkoester, Assistant Attorney General, Patrick Jennings, County Attorney, and Jacklyn Fox and Mark Campbell, Assistant County Attorneys, for appellee.

          MANSFIELD, Justice.

         This appeal requires us to decide whether a conceded error in the admission of evidence was harmless.

         An individual on probation drove himself to the probation office. When he arrived, his probation officer detected the strong smell of an alcoholic beverage. This would have been a violation of the terms of his probation, so the officer gave him a breath test with a device that law enforcement use to perform preliminary breath tests (PBT). The test showed a blood alcohol level of .130. The individual was arrested, booked into jail, and charged with operating while intoxicated (OWI) third offense.

         In the subsequent trial, the district court admitted this test result over the defendant's objection. The jury found the defendant guilty. The defendant now appeals, arguing that admission of the test result was an error in light of language from Iowa Code section 321J.5(2) which reads, "The results of this preliminary screening test . . . shall not be used in any court action except to prove that a chemical test was properly requested of a person pursuant to this chapter." Iowa Code § 321J.5(2) (2016).

         For purposes of this appeal, the State does not dispute that the test results should not have been admitted. However, it argues the defendant failed to preserve error below or, alternatively, any error was harmless.

         We conclude the defendant did preserve error, and the error was not harmless. This is not one of the relatively rare OWI cases where admission of a test showing a blood alcohol level in excess of the legal limit could be considered harmless. We therefore reverse the district court's judgment and remand for a new trial.

          I. Facts and Procedural History.

         On July 11, 2016, at about 1:15 p.m., John Ness drove to a meeting with his probation officer, Nick O'Brien. O'Brien noticed that Ness had to back out and straighten his car before reparking it. Ness kept his footing as he walked toward the building to meet O'Brien, although he did gesticulate quite a bit upon meeting O'Brien in the parking lot.

         During their encounter, which continued inside the building, O'Brien detected the strong odor of an alcoholic beverage. The terms of Ness's probation forbid his consumption of alcohol. When questioned, Ness initially denied consuming alcohol. O'Brien obtained an Alco-Sensor III device, which is often used as a preliminary breath screening device by law enforcement. He asked Ness to breathe into the device. It returned a reading of .130, well above the legal limit of .08.

         At this point, Ness admitted he had been drinking the night before but said he thought he had "sobered up enough to drive to the appointment." Ness's eyes appeared bloodshot and watery. O'Brien's supervisor Karen Borg entered the meeting, and she too noticed a strong smell of alcoholic beverage, bloodshot eyes, and slurred speech. The Sioux City police were contacted.

         Upon his arrival, Sioux City Police Officer Ryan Denney placed Ness under arrest and transported him to the jail. He likewise noticed the strong odor of an alcoholic beverage, bloodshot and watery eyes, and slurred speech. In addition, Ness appeared to Denney unsteady as he walked. Like ...


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