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State v. Davis

Court of Appeals of Iowa

May 2, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
ROBERT ARTHUR DAVIS, Defendant-Appellant.

          Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.

         Robert Davis appeals his conviction of operating while intoxicated, second offense.

          Kent A. Simmons, Bettendorf, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Mullins and McDonald, JJ.

          MULLINS, Judge.

         Robert Davis appeals his conviction of operating while intoxicated, second offense, contending the district court erred in partially denying his motion to suppress evidence. He specifically argues his statutory rights under Iowa Code section 804.20 (2015) were violated and such violation requires suppression of the chemical breath test he provided to law enforcement following his arrest.

         I. Background Facts and Proceedings

         The following facts can be gleaned from the suppression record. At approximately 10:30 p.m. on February 25, 2015, Muscatine County Sheriff's Deputy Edward Cardenas responded to a motor vehicle collision. In his testimony at the suppression hearing, Cardenas characterized the weather conditions prevailing at this time as follows: "It was . . . actively snowing. There was about two to three inches of snow on the ground. It was very hard to see. It was slippery, cold." A review of the footage recorded on Cardenas's squad car recording device supports this assessment.

         After arriving on the scene, Cardenas made contact with the occupants of one of the vehicles involved in the collision, Davis and his wife. The Davises were seated together in the back seat of their vehicle when Cardenas approached. While speaking with the couple, Cardenas noticed a slight odor of alcohol emanating from inside the vehicle. Cardenas subsequently concluded the odor of alcohol was coming from Davis upon speaking to him individually outside the vehicle. While Davis was receiving attention from emergency medical technicians in an ambulance, his wife advised Cardenas that Davis was driving the vehicle at the time of the collision and she and Davis had recently consumed alcohol with their dinner. Cardenas then spoke with Davis in the ambulance, who admitted he consumed "about three drinks, " consisting of "rum and Coke." Cardenas observed Davis's "red, bloodshot, watery eyes, " which prompted Cardenas to perform a horizontal-gaze-nystagmus test. Davis exhibited "six signs of impairment out of six possible signs." Cardenas advised Davis he suspected him of driving while under the influence and stated his desire to perform further testing. Due to the prevailing weather conditions, Cardenas advised Davis he would need to transport him to the local jail in order to perform the testing in a controlled environment. Davis directed his wife to contact his attorney. At approximately 10:57 p.m., Cardenas placed Davis in the back seat of his squad car.[1] At this time, Davis was read his Miranda rights, but he was not placed in handcuffs. Shortly after being placed in the squad car, Davis asked Cardenas, "Can I talk to my wife before we leave?" Cardenas responded, "Once we are done you can, not right now." Thereafter, Cardenas retrieved Davis's cell phone from his wife, which Cardenas placed in his pocket, and advised Davis's wife he was transporting Davis to the jail. Cardenas returned to his squad car and transported Davis to the jail. While in transit, Cardenas advised Davis:

I have your cell phone, it's in my pocket, and I will give that to you as soon as we get down to the jail. And basically what we are going to do at the jail is we are using it for their garage, so we can be outside this weather so I can do a couple more tests on you, give you an opportunity to complete those tests, and we can go from there, okay? And if we determine that we don't need to go further, then I can bring you back to your residence.

         Later in the trip, Davis's cell phone began to ring, upon which Cardenas advised, "If that's your phone ringing, I'll give it to you in a second when we get to this facility." Davis responded, "Okay, it sounded like one of my ringtones." At no point during the trip from the scene of the collision to the jail did Davis request his cell phone to call his wife or an attorney.

         Cardenas and Davis arrived at the jail at roughly 11:14 p.m., parking the squad car in the jail's "sally port, " or garage, where the testing was to be administered. Cardenas had Davis perform two standard field sobriety tests in the sally port. At approximately 11:23 p.m., as a result of Davis's performance on the field sobriety tests, Cardenas advised Davis he was under arrest for driving while under the influence and escorted him from the sally port to the jail's "intake room, " which is located immediately adjacent to the sally port.[2] Thereafter, at 11:25 p.m., while in the intake room, Cardenas advised Davis:

The Iowa state law 804.20 . . . requires me to give you an opportunity to make a phone call to whoever you please, and let them know anything you want them to know. So as of right now you have the opportunity to make a phone call to ...

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