from the Iowa District Court for Union County, Patrick W.
Dunphy appeals his conviction of operating while intoxicated.
R. Johnson of Brinton, Bordwell & Johnson, Clarion, for
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Dunphy appeals his conviction of operating while intoxicated.
He contends the district court erred in denying his motion to
suppress evidence allegedly obtained in violation of his
rights under Iowa Code section 804.20 (2016).
Background Facts and Proceedings
following facts can be gleaned from the suppression record.
At 2:03 a.m. on August 20, 2016, Officer Sam Abell of the
Creston Police Department conducted a traffic stop of a
vehicle driven by Dunphy. During the ensuing stop, Dunphy was
subjected to field-sobriety testing. He submitted to a
preliminary breath test at 2:33 a.m., after which he was
arrested and transported to the local law enforcement center.
Upon arrival at the law enforcement center, Abell and Dunphy
proceeded to the "OWI room," entering the room
seconds before 2:41 a.m. Abell presented Dunphy with an
implied-consent advisory form and stated he needed to explain
to Dunphy what would happen if he refused or consented to a
chemical test. Dunphy replied, "No weapons, I don't
have any weapons, I have a cell phone." Abell continued
and requested Dunphy to follow along with him on the form as
he read and explained it to him. Abell then read the advisory
to Dunphy, after which he advised Dunphy:
I don't want you to make any decisions or anything
right now. I'm going to allow you to actually make some
phone calls to get advice or whatever the case may be,
whatever you need to do. You're going to be able to
make phone calls for whatever reason to whoever it may be.
Whether it be family members, friends, lawyers, it
doesn't matter, before you make your decision.
thereafter, at 2:44 a.m., Abell requested Dunphy submit to a
chemical breath test. Dunphy advised, "I'm probably
not going to sign anything until I call." Dunphy then
asked Abell about the reasoning for the traffic stop. Dunphy
and Abell spent the next approximately ninety seconds
discussing the reasoning for the stop, with Dunphy exhibiting
some agitation, after which Abell again advised, "Like I
said, make phone calls to whoever it may be for whatever
reason, family members, friends, lawyers, whatever the case.
. . . Then I will . . . get your decision on everything and
go from there." Abell instructed Dunphy how to use the
office phone and additionally advised Dunphy he could use his
cell phone to make any calls he desired. Abell provided
Dunphy with two phone books.
a.m., Dunphy made a phone call to his mother, Susan. Among
other things, Dunphy advised Susan he was entitled to several
phone calls, and "figured he would call" her.
Dunphy's phone call with Susan lasted just under two and
a half minutes. Dunphy sat in silence for the next nearly
four and a half minutes, which included multiple instances of
Dunphy simply ignoring Abell's questions as to who he
called. At 2:55 a.m., Abell read Dunphy his Miranda
rights. Thereafter, Dunphy sat in silence for another three
minutes and twenty seconds before Abell questioned,
"Okay, so you're not making any more phone
calls?" Dunphy responded, "Uh, I can. I've been
reading is what I've been doing." Abell asked if
Dunphy was prepared to make his decision whether to submit to
chemical testing. Dunphy responded in the negative, stating,
"No, I've been reading. That's what I've
been doing. For the second time. Do I need to let you know
when I'm done reading?" Abell directed Dunphy to let
him know when he was ready to make his decision.
returned to his silent solitude for another three minutes and
forty-five seconds before Susan arrived in the OWI room at
just before 3:03 a.m. Susan spent the next nearly two minutes
reading the advisory and asking questions, during which she
advised Dunphy, "I'm waiting for Jim to text back a
phone number for you." At 3:05 a.m., Susan asked if
Dunphy could wait and talk to someone, presumably a lawyer,
before he made his decision. Abell responded in the
affirmative, stating they could wait "a few
minutes," but advised if no decision was made at some
point he would have to mark it down as a refusal. During the
next nearly four minutes, Abell answered a number of Susan
and Dunphy's questions, Dunphy exhibited his frustration
with his situation by directing a number of confrontational
statements toward Abell, and Susan admonished Dunphy about
his attitude. At 3:09 a.m., Susan directed Dunphy to
"just blow." Dunphy declined, explained he needed
to think about it, and asked Abell how much time he had to
decide. Abell responded, "A few more minutes."
Susan then told Dunphy to just wait and talk to an attorney.
Susan spent the next minute texting on her cell phone while
Dunphy sat in silence. A minute later, Susan advised,
"Jim wasn't available, he was gonna get someone
else's number. I don't know who the person was. I
wasn't listening, because I was driving. And he
hasn't text me back the number yet." Dunphy
responded, "Who?" Susan responded, Jim was getting
her a number for another attorney.
a.m., after more silence and inaction by Dunphy, Abell
advised Dunphy he would give him another fifteen minutes to
make up his mind. The next three and a half minutes largely
involved questioning about Dunphy's
preliminary-breath-test result and more agitation and
questioning by Dunphy about the rationale for the traffic
stop. At 3:16 a.m., Susan again advised Dunphy to "just
blow, and we'll bail you out and deal with this
later." Dunphy again asked how much time he had to
decide to submit to chemical testing. Abell advised,
"About nine now." Thereafter, Dunphy began reading
his Miranda advisory out loud, after which Dunphy
questioned Abell, "Where's my lawyer?" Susan
stated, "I'm trying to find one." Dunphy then
advised Abell, "I'll take my lawyer time, how
'bout that?" then threw the advisory at Abell. Abell
responded, "Sounds good." Dunphy then accused Abell
of never advising him he could talk to a lawyer. Abell
explained to him the advisement would be recorded. Dunphy
replied, "Good," and called Abell an idiot. At
around 3:18 a.m., Dunphy aggressively continued to question
Abell about the rationale for the traffic stop. Abell simply
directed Dunphy to talk to his lawyer. At 3:19 a.m., Abell
redirected Dunphy and Susan to the phonebooks if they wanted
to call "a lawyer or anything like that." Neither
Dunphy nor Susan reached for a phonebook, one of which Dunphy
was resting his elbow on. At 3:20 a.m., Susan left the room,
Dunphy continued his agitation, and Abell advised Dunphy he
would give him another five minutes to make ...