from the Iowa District Court for Woodbury County, Timothy
Jarman, District Associate Judge.
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.
J. Miller, Attorney General, Genevieve Reinkoester, Assistant
Attorney General, Patrick Jennings, County Attorney, and
Jacklyn Fox and Mark Campbell, Assistant County Attorneys,
appeal requires us to decide whether a conceded error in the
admission of evidence was harmless.
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.
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).
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.
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.
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
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.
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.
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