Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Dunphy

Court of Appeals of Iowa

October 24, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
COLTON EUGENE DUNPHY, Defendant-Appellant.

          Appeal from the Iowa District Court for Union County, Patrick W. Greenwood, Judge.

         Colton Dunphy appeals his conviction of operating while intoxicated.

          David R. Johnson of Brinton, Bordwell & Johnson, Clarion, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          MULLINS, JUDGE.

         Colton 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).

         I. Background Facts and Proceedings

         The 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.[1] 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.

         Immediately 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.

         At 2:48 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.

         Dunphy 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.

         At 3:12 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.