from the Iowa District Court for Polk County, Odell G.
McGhee, District Associate Judge.
defendant appeals his conviction for operating while
M. Northfield, Urbandale, for appellant.
J. Miller, Attorney General, and Kelli A. Huser, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Bower, J., and Scott, S.J.
Patrick Brewer appeals his conviction for operating while
intoxicated, first offense, in violation of Iowa Code section
321J.2 (2015). Brewer claims the district court abused its
discretion in imposing its sentence and should have granted
his motion to suppress. He also claims the evidence was
insufficient to convict him of operating while intoxicated.
We find the district court considered an unproven or
uncharged offense during sentencing. We also find the
district properly denied Brewer's motion to suppress and
there was sufficient evidence to convict Brewer. We affirm
Brewer's conviction, vacate Brewer's sentence, and
remand for resentencing before a different judge.
Background Facts and Proceedings
December 2015, Brewer was driving west on interstate 80.
Brewer's vehicle struck the concrete barrier in the
median of the interstate. The vehicle then veered through
three lanes of west-bound traffic, drove into the ditch
dividing the highway and on-ramp, jumped over the on-ramp,
continued to drive through the ditch area of the on-ramp,
across the north-bound lanes of 14th Street, struck a car on
the south-bound lanes of 14th Street, and pushed both
vehicles into the ditch. The driver of the other vehicle
suffered serious injuries.
was transported to the hospital. An Iowa State Patrol trooper
arrived and noted Brewer's eyes were bloodshot and
watery, he had dilated pupils, and his heart rate was
elevated. Brewer admitted to the trooper he had been drinking
alcohol the previous night and had smoked marijuana
approximately four days before the accident. Brewer answered
many of the trooper's questions but was unable to recall
the accident. While being questioned, Brewer had a seizure.
The trooper requested a doctor sign a certification
indicating Brewer was unable to consent or refuse to provide
a sample of bodily fluids, which was granted. The trooper
acquired a sample of urine, which tested positive for
was charged with operating while intoxicated. He filed a
motion to suppress, claiming the urine test should be
excluded from evidence as there were no reasonable grounds to
believe he was operating while intoxicated. The motion was
denied. Brewer agreed to a trial on the minutes of evidence.
Brewer was found guilty on June 9, 2016. Brewer was sentenced
to 365 days imprisonment, and would be eligible for an
electronic monitoring program after serving ninety days.
Brewer now appeals.
Standard of Review
sentence is within the statutory limits, we review a district
court's sentencing decision for an abuse of discretion.
State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015).
"Thus, our task on appeal is not to second-guess the
decision made by the district court, but to determine if it
was unreasonable or based on untenable grounds."
Id. at 553. "In other words, the district court
did not abuse its discretion if the evidence supports the
challenges only the sufficiency of the evidence to invoke
implied consent and does not challenge the seizure's
constitutional sufficiency. Therefore, we review the district
court's ruling on the motion to suppress for the