from the Iowa District Court for Cerro Gordo County, Adam D.
Sauer (motion to suppress) and Karen Kaufman Salic
(sentencing), District Associate Judges.
Cheney Jr. appeals the district court's denial of his
motion to suppress and the sentence imposed upon his
conviction of operating while intoxicated, second offense.
C. Murphy of Gourley, Rehkemper, & Lindholm, P.L.C., West
Des Moines, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
before noon on February 24, 2018, Trooper Andrew Albright of
the Iowa State Patrol conducted a traffic stop of a vehicle
driven by Dale Cheney Jr. Ultimately, Cheney consented to a
chemical breath test, which resulted in an alcohol
concentration of .137, which is over the legal limit.
See Iowa Code § 321J.2(1)(b) (2018). Cheney
invoked his statutory right to independent blood testing
under Iowa Code section 321J.11. Albright advised Cheney he
"would take him home and allow him to have somebody take
him wherever he would like to go to have that blood test
performed." After citing Cheney for operating while
intoxicated (OWI), Albright drove Cheney home and released
him upon his signed promise to appear in court. Albright
chose to release Cheney rather than book him in jail so as to
not impede his ability to obtain independent
State formally charged Cheney with second-offense OWI. Cheney
filed a motion to suppress the chemical-breath-test results,
contending Albright interfered with his ability to obtain an
independent chemical test. Following a hearing, the district
court denied the motion, finding "no evidence that
Trooper Albright hindered [Cheney's] ability to obtain an
independent blood test."
a bench trial on the stipulated minutes of evidence, the
court found Cheney guilty as charged. At the time of
sentencing, both parties requested Cheney's sentence to
align with statutory mandatory minimums for the offense,
which would include seven days in jail. See id.
§ 321J.2(4)(a). Instead, the court sentenced Cheney to
ninety days in jail, with all but seven days being suspended.
now appeals the district court's denial of his motion to
suppress and the sentence imposed. As to the court's
denial of his motion to suppress, Cheney essentially argues
the court erred in concluding Albright did not hinder his
ability to obtain independent chemical testing. Cheney takes
the position that when the statutory right to independent
chemical testing is invoked, law enforcement is required to
transport the subject to a local facility for testing or
arrange for the same, and Albright failed to do so. Because
the basis of Cheney's motion to suppress is statutory,
our review of the district court's ruling on the motion
to suppress is for legal error. See State v. Smith,
926 N.W.2d 760, 762 (Iowa 2019). Section 321J.11 provides, in
relevant part, that a
person may have an independent chemical test or tests
administered at the person's own expense in addition to
any administered at the direction of a peace officer. The
failure or inability of the person to obtain an independent
chemical test or tests does not preclude the admission of
evidence of the results of the test or tests administered at
the direction of the peace officer.
supreme court has ruled "'evidence of the results of
the test or tests administered at the direction of the peace
officer' must be suppressed when a detainee's
statutory right to an independent test under Iowa Code
section 321J.11 is denied." State v. Lukins,
846 N.W.2d 902, 911 (Iowa 2014) (quoting Iowa Code §
321J.11). However, "[i]n the absence of police
hindrance, an individual's inability to obtain an
independent chemical test will not preclude admission of the
results from the police-administered test." State v.
Foss, No. 02-0953, 2003 WL 21361556, at *2 (Iowa Ct.
App. June 13, 2003). The statutory mandate is satisfied where
the subject is provided a reasonable opportunity to obtain an
independent test. See Caspar v. Iowa Dep't of
Transp., 506 N.W.2d 799, 803 (Iowa Ct. App. 1993)
(Habhab, J., concurring specially).
Cheney's right to obtain an independent chemical test was
not hindered by Albright, let alone entirely denied. Rather,
Albright took steps to facilitate Cheney's desire to
undergo an independent test-he released him from detainment
and took him home, where he could arrange for his chemical
testing. Cheney was afforded a reasonable opportunity to
pursue an independent test but failed to do so. Such failure
"does not preclude the admission of evidence of the
results of the test or tests administered at the direction of
the peace officer." Iowa Code § 321J.11.
extent Cheney argues the Iowa State Patrol's procedural
manual for OWI investigations imposes additional legal duties
on officers and affords subjects additional statutory rights,
we disagree. Even if the relevant procedure assigned new
legal rights and duties, we find Albright made ...