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State v. Depaz Colocho

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
RUDY DANILO DEPAZ COLOCHO, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.

         A defendant appeals his conviction for third-offense operating while intoxicated challenging the suppression ruling.

          Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman P.C., West Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Heard by Doyle, P.J., and Tabor and Schumacher, JJ.

          Tabor, Judge.

         Rudy Colocho appeals his conviction for third-offense operating a vehicle while intoxicated. During a traffic stop, a police officer accommodated Colocho's request to urinate before he performed field sobriety tests. The officer took Colocho to the police station, but after he used the restroom he refused sobriety testing and instead requested an attorney. The officer spurned the request, saying "you don't call your lawyer in the middle of a traffic stop." Colocho moved to suppress evidence from the stop, and the district court found the officer violated Iowa Code section 804.20 (2018). But the court also found the officer cured that violation by later advising Colocho of his rights. The court found Colocho's refusal to take the DataMaster test to be admissible. Colocho stipulated to the minutes of testimony, and the court found him guilty. He now appeals contesting the suppression ruling.

         Because the officer's delayed advisory of Colocho's rights satisfied the purpose of section 804.20 and, alternatively, because any violation was harmless error, we affirm.

         I. Facts and Prior Proceedings

         Around 2:00 a.m. on a Saturday in April 2018, West Des Moines Police Officer Blake Mills saw a Hyundai Sonata strike a raised median as the car turned onto Mills Civic Parkway. As the officer followed the car, he noticed it swerving within the lane of traffic and even leave the lane a few times. Once the car neared the interstate, it came to a full stop at a yellow light-half in the turning lane and half into the curb marked by white lines. The driver-who the officer later identified as Colocho-then negotiated a U-turn but veered too wide and "both passenger tires went up and over the curb and began riding through the grass on the outskirts of the road."

         At that point, Officer Mills turned on his blue lights, and Colocho pulled over. The officer asked Colocho to perform field sobriety tests. But, according to Mills, Colocho was "very uncooperative and continually stated he had to pee and would not move beyond that train of thought." The officer told Colocho he would take him to the police station so he could use the restroom. Officer Mills testified he did not want Colocho to urinate on the side of the road in public. The officer patted Colocho down, handcuffed him, and placed him in back of the patrol car.

         Upon arriving at the police station, the officer's body camera showed him usher Colocho through two sets of secured doors. Another officer opened a third door for them to enter. Once inside the station's hallway, Mills again patted down Colocho before removing his handcuffs. Mills then allowed Colocho to use the restroom under his close supervision.

         After that, the officer moved Colocho further inside the station where he again asked Colocho to perform field sobriety tests. Colocho first complied by placing his feet together and arms to his sides. Officer Mills asked Colocho to maintain that position. In response, Colocho said he did not understand the directions. Colocho then started speaking Spanish and asked for a lawyer.

         Officer Mills told Colocho he was asking him to perform the same tests he would have conducted at the roadside and he could not call his lawyer in the middle of the traffic stop. The officer informed Colocho ...


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