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State v. Poster

Court of Appeals of Iowa

January 23, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KEVIN LEON POSTER, II, Defendant-Appellant.

          Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.

         A defendant appeals his conviction for operating while intoxicated, challenging the suppression ruling.

          Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., Mullins, J., and Carr, S.J. [*]

          TABOR, PRESIDING JUDGE.

         Kevin Poster appeals his conviction for operating while intoxicated (OWI). He contends the district court should have suppressed his breath test results because the arresting officer misinformed him about the right to an independent chemical test under Iowa Code section 321J.11 (2017). Because the record contains ample evidence to support the district court's alternative finding Poster was driving under the influence, we find any error in denying his motion to suppress was harmless. Accordingly, we affirm.

         I. Facts and Prior Proceedings

         Patrolling the 500 block of Welch Avenue in Ames just before 2:30 a.m., Iowa State University Police Officer Natasha Greene noticed a red Pontiac almost ran a stop sign and proceeded dangerously through a busy intersection without yielding the right of way.[1] She pulled over the driver, Poster.

         From the smell of alcohol on his breath and the way he answered her questions, Officer Greene suspected Poster was intoxicated. Poster admitted drinking two or three thirty-two ounce mugs of Bud Light in a ninety-minute span. He described his level of intoxication as a "warm stomach" feeling and "having fun."

         Officer Greene administered field sobriety tests, during which Poster exhibited signs of impairment. Officer Greene arrested him for OWI. She took Poster to the armory building to book him into jail. Video monitors in the building captured their interactions. Poster agreed to provide a breath sample on the DataMaster, which showed his blood alcohol content at .138-over Iowa's legal limit of .08. The State charged Poster by trial information with OWI first offense, a serious misdemeanor, in violation of Iowa Code section 321J.2.

         Before trial, Poster moved to suppress the Data Master result, asserting Officer Greene violated his right under section 321J.11 to an independent chemical test by misinforming him when blood and urine tests are available to suspects.

         At the suppression hearing, Officer Greene described Poster as being "very chatty" while she filled out paperwork-asking her more questions "than I think any other arrestee or defendant I've met." She estimated he posed twenty questions on a range of different topics. Greene read Poster the implied-consent advisory. After several minutes, she asked him to sign the consent form. On the video recording, Poster can be heard saying he found the advisory to be "super confusing." Before he provided a breath sample, Poster broached the subject of other forms of testing.[2]

POSTER: How often do you guys take, like, blood tests or, ...

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