State of Iowa v. Rachael Overbay , 810 N.W.2d 871 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 10–1955
Filed February 17, 2012
STATE OF IOWA,
Appellant,
vs.
RACHAEL OVERBAY,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Cynthia M.
Moisan, Judge.
The State seeks further review of a court of appeals decision
affirming a district court ruling granting defendant’s motion to suppress
the results of a chemical blood test. COURT OF APPEALS DECISION
VACATED; DISTRICT COURT RULING REVERSED AND CASE
REMANDED.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, John P. Sarcone, County Attorney, and Brendan E.
Greiner, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant State Appellate Defender, for appellee.
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MANSFIELD, Justice.
This case presents the question whether a motorist is entitled to
suppression of her blood alcohol test results because she was informed,
incorrectly, that her refusal of the requested chemical test would have
automatically led to revocation of her driving privileges, when in fact her
refusal of the blood test would not have been deemed final but would
have led to her being offered a different chemical test. Consistent with
our precedents, we conclude that inaccurate information does not render
a driver’s consent involuntary when the record indicates that the
inaccuracy did not affect the driver’s decision. For this reason, we
reverse the district court’s decision to grant the driver’s motion to
suppress, vacate the decision of the court of appeals, and remand for
further proceedings.
I. Factual Background and Procedural History.
On June 25, 2010, at approximately 12:43 in the morning, Trooper
Tyson Underwood of the Iowa State Patrol was dispatched to the scene of
a single-vehicle accident on Interstate 80. Emergency medical personnel
from Altoona Fire and Rescue were already attending to the injured
party, Rachael Overbay, as she lay in a grassy area of the median.
According to Underwood, Overbay “was very loud, crying [and]
screaming.” She did admit to being the driver of the vehicle.
Trooper Underwood noticed that Overbay emitted a “strong
alcoholic beverage odor” and her speech was “very slurred and
mumbled.” Overbay admitted she had been drinking at the Yankee
Clipper in Ankeny. The trooper did not request field sobriety tests at the
scene of the accident because he was uncertain as to the extent of
Overbay’s injuries and whether she would be able to perform the tests in
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her condition. Overbay was transported by ambulance to Mercy
Hospital.
Trooper Underwood met Overbay in the emergency room of the
hospital about fifteen minutes later and continued his investigation.
When he arrived, Overbay was being treated by medical personnel. At
that time, she was strapped to a backboard on a hospital bed, with a
brace on her neck and tubing in her nose. Overbay also had a urinary
catheter inserted, although Underwood was not aware of this. According
to Underwood, Overbay was “still very loud” and “out of sorts,” and the
nurses were trying to calm her down.
Trooper Underwood asked Overbay to submit to a horizontal gaze
nystagmus test. She declined. Underwood did not ask Overbay to
perform the other field sobriety tests (the walk and turn test or the one-
leg stand test) because of her medical condition. Underwood also asked
Overbay for permission to conduct a preliminary breath test (PBT) under
Iowa Code section 321J.5 (2009), but she apparently refused this test.
Trooper Underwood invoked implied consent under Iowa Code
section 321J.6. He requested a blood sample from Overbay and read the
implied consent advisory required by section 321J.8 out loud to her,
handing her a copy. Although the form itself is not in the record, it is not
disputed that Overbay received the standard advisory based on the
statutory language of section 321J.8. This advisory told Overbay that if
she refused to submit to the chemical test, her license would be revoked
for one year if she had no prior revocations within the previous twelve
years, or two years if she had. The advisory also told Overbay that if she
submitted to the test and an alcohol concentration of eight hundredths
or more was found, her license would be revoked for 180 days if she had
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no previous revocations within the previous twelve years, or one year if
she had.
State law provides that “refusal to submit to a chemical test of
blood is not deemed a refusal to submit, but in that case, the peace
officer shall then determine which one of the other two substances [urine
or breath] shall be tested and shall offer the test.” Iowa Code
§ 321J.6(2). However, Underwood did not specifically tell Overbay that if
she refused the blood test, he would then have requested a urine test
before deeming her refusal to be final. Instead, as noted, Underwood
provided an advisory which tracks the language of section 321J.8 and
simply refers to “chemical” testing without distinguishing the types of
chemical tests.
Overbay verbally agreed to provide the blood sample. The sample
was tested by the DCI Criminalistics Laboratory. The results showed a
blood alcohol content of .178, more than twice the legal limit.
On September 1, 2010, the State filed a trial information charging
Overbay with operating a motor vehicle while under the influence of
alcohol (OWI)–second offense, an aggravated misdemeanor in violation of
Iowa Code section 321J.2(2)(b). On October 15, 2010, Overbay filed a
timely motion to suppress the result of her blood test. An evidentiary
hearing was held on October 29, 2010. Overbay did not testify at the
suppression hearing. Trooper Underwood testified, as did a friend of
Overbay’s who had visited Overbay that night at the hospital.
Underwood confirmed that the official consent notice he read did not
state that if the defendant refused to provide a blood sample, this alone
would not lead to revocation.
However, Trooper Underwood testified that if the defendant had
refused a blood test, he would then have requested a urine test. (A
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breath test would not have been feasible because there was no
DataMaster at the hospital.) Underwood stated that it is the policy of the
Iowa State Patrol to request a blood sample first in this instance:
Q. Did you request a urine sample? A. No, in this
instance we request blood first and then if they refuse the
blood, then I would have requested urine.
....
Q. Did it seem to you it would have been—she was in
a condition where a urine sample would be easily obtained?
A. I’m not quite sure. I didn’t pay attention to that because
she consented to the blood sample, so I proceeded with a
blood sample, therefore, I didn’t pay any attention to the
possibility of a urine specimen.
Q. Prior to requesting the blood sample, did you even
consider requesting a urine sample? A. I would have
considered it if she would have refused the blood because
that’s our procedure, but up to that point, no, I didn’t think
of anything about a urine specimen.
Q. You didn’t even consider it prior to asking for
blood? A. No, because our procedure, like I said, is blood
first. If they refuse that, then I would go to urine.
Q. Is that written procedure? A. That’s what the DCI
lab requests, that’s the way I’ve been trained.
On November 9, 2010, the district court granted Overbay’s motion
to suppress, finding that although the trooper had reasonable grounds
for invoking implied consent, Overbay’s consent to the blood test was not
voluntary because it was based on “misleading information.” On
December 3, 2010, the State filed an application for discretionary review.
On December 16, 2010, we granted the application and ordered a stay of
the district court proceedings. We subsequently transferred the case to
the court of appeals.
On August 24, 2011, the court of appeals issued a decision, with
one judge dissenting, that affirmed the district court’s suppression order.
The court of appeals majority first noted Overbay had been given a
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“misleading” implied consent advisory because the advisory failed to
inform her a refusal to provide the blood sample would not have been a
basis by itself for license revocation. The court then turned to the State’s
argument that the misleading advisory was of no consequence.
According to the State, if Overbay had refused the blood test she would
have been asked to provide a urine sample. Her refusal or consent to
that test would have been dispositive, and if she had consented, the test
results would have been the same as for blood. Thus, in the State’s view,
failing to tell Overbay that her refusal to consent to blood testing would
not have been deemed a refusal of consent to all testing did not matter.
The court of appeals, however, rejected this argument. It noted
that the State failed to present evidence that it “could have obtained
urine” from Overbay under the circumstances. Accordingly, based on
the misleading advisory, that court found that Overbay’s consent to the
blood test was involuntary.
We granted the State’s application for further review.
II. Standard of Review.
“When a defendant who has submitted to chemical testing asserts
that the submission was involuntary, we evaluate the totality of the
circumstances to determine whether or not the decision was made
voluntarily.” State v. Garcia, 756 N.W.2d 216, 219 (Iowa 2008). Our
review is de novo, State v. Hutton, 796 N.W.2d 898, 902 (Iowa 2011);
therefore, we make an independent evaluation based on the entire
record, State v. Ochoa, 792 N.W.2d 260, 264 (Iowa 2010). We give
considerable weight to the district court’s assessment of voluntariness
but are not bound by its factual findings. State v. Gravenish, 511
N.W.2d 379, 381 (Iowa 1994). Where questions of statutory
7
interpretation arise, we review for correction of errors at law. Garcia, 756
N.W.2d at 220.
III. Analysis.
A. Iowa’s Implied Consent Law. The operation of a motor vehicle
while under the influence of an alcoholic beverage or while having an
alcohol concentration of .08 or more is an offense under Iowa law. Iowa
Code § 321J.2. Iowa Code section 321J.6, titled “Implied consent to
test,” establishes the authority of a peace officer to test the breath, blood
or urine of any person suspected of driving while intoxicated. It provides
that when there are “reasonable grounds to believe that the person has
been operating a motor vehicle in violation of section 321J.2 or 321J.2A
[that person] is deemed to have given consent to the withdrawal of
specimens.” Id. § 321J.6(1) (emphasis added). The premise of this
statute is that a driver “impliedly agrees to submit to a test in return for
the privilege of using the public highways.” State v. Hitchens, 294
N.W.2d 686, 687 (Iowa 1980).
The primary purpose of the implied consent statute is the removal
of intoxicated drivers from Iowa’s roads in order to protect public safety.
Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 594 (Iowa 2011). The
law “was enacted to help reduce the appalling number of highway deaths
resulting in part at least from intoxicated drivers.” State v. Wallin, 195
N.W.2d 95, 96 (Iowa 1972); see also Severson v. Sueppel, 260 Iowa 1169,
1174, 152 N.W.2d 281, 284 (Iowa 1967) (“It is obvious the purpose of the
Implied Consent Law is to reduce the holocaust on our highways part of
which is due to the driver who imbibes too freely of intoxicating liquor.”).
We have held that the procedures provided by the implied consent
statute “are reasonably calculated to further this objective.” State v.
Knous, 313 N.W.2d 510, 511–12 (Iowa 1981).
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Although drivers are deemed to have impliedly consented to
testing, they nonetheless generally have the statutory right to withdraw
that consent and refuse to take any test. State v. Massengale, 745
N.W.2d 499, 501 (Iowa 2008), abrogated on other grounds by Hutton, 796
N.W.2d at 904 n.4. “If a person refuses to submit to the chemical
testing, a test shall not be given . . . .” Iowa Code § 321J.9(1). Valid
consent therefore must be given voluntarily with the decision to submit
to a chemical test being “freely made, uncoerced, reasoned, and
informed.” Garcia, 756 N.W.2d at 220. “The ultimate question is
whether the decision to comply with a valid request under the implied-
consent law is a reasoned and informed decision.” State v. Bernhard,
657 N.W.2d 469, 473 (Iowa 2003).
“[B]ecause there are both administrative and criminal
repercussions for submitting to or refusing a chemical test, section
321J.8 requires an officer to advise the person of certain consequences
that may result from the decision.” Hutton, 796 N.W.2d at 902. Iowa
Code section 321J.8 provides:
1. A person who has been requested to submit to a
chemical test shall be advised by a peace officer of the
following:
a. If the person refuses to submit to the test, the
person’s driver’s license or nonresident operating privilege
will be revoked by the department as required by and for the
applicable period specified under section 321J.9.
b. If the person submits to the test and the results
indicate the presence of a controlled substance or other
drug, or an alcohol concentration equal to or in excess of the
level prohibited by section 321J.2 or 321J.2A, the person’s
driver’s license or nonresident operating privilege will be
revoked by the department as required by and for the
applicable period specified under section 321J.12.
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Thus, the officer must inform the motorist of the potential periods of
license revocation associated with refusal to take the test or with a
positive test result. Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 211
(Iowa 2001).
The clear intent of section 321J.8 is to provide a
person who has been required to submit [to] a chemical test
a basis for evaluation and decision-making in regard to
either submitting or not submitting to the test. This
involve[s] a weighing of the consequences if the test is
refused against the consequences if the test reflects a
controlled substance, drug, or alcohol concentration in
excess of the “legal” limit.
Id. at 212 (internal quotations marks omitted).
The peace officer, not the accused driver, has the authority to
choose which type of chemical test is administered. Iowa Code
§ 321J.6(2) (providing that “[t]he peace officer shall determine which of
the three substances, breath, blood, or urine, shall be tested”);
Gottschalk v. Sueppel, 258 Iowa 1173, 1183–85, 140 N.W.2d 866, 872–73
(Iowa 1966) (noting the concern that a driver could insist upon an
unavailable test and observing that “[a]ll the starch would be taken out of
the law if arrested drivers could pick and choose the type of test to be
taken”). Thus, section 321J.6(2) provides, “Refusal to submit to a
chemical test of urine or breath is deemed a refusal to submit, and
section 321J.9 applies.”
However, the same is not true with blood: “A refusal to submit to a
chemical test of blood is not deemed a refusal to submit, but in that case
the peace officer shall then determine which one of the other two
substances shall be tested and shall offer the test.” Iowa Code
§ 321J.6(2) (emphasis added). An accused driver has an “absolute right
to refuse to take a blood test provided that he is willing to submit to a
secondary test or tests chosen by the officer.” Rodriguez v. Fulton, 190
10
N.W.2d 417, 419 (Iowa 1971). This exception was added by the
legislature “primarily [as] an accommodation to those motorists whose
religious beliefs or physical condition make the blood test unsuitable.”
Id. However, if the driver refuses the blood test, the officer is required by
law to offer another test. Iowa Code § 321J.6(2).
B. State v. Bernhard. The central issue raised by Overbay is the
apparent inconsistency between the language of the implied consent
advisory mandated by section 321J.8 and the freedom to refuse a blood
test granted by section 321J.6(2). The implication of the consent
advisory required by section 321J.8 is that license revocation will result
from the refusal to submit to any one of the three tests. However,
section 321J.6(2) specifically exempts a stand-alone blood test refusal
from the penalty of revocation, since it “is not deemed a refusal to
submit.” Id. Overbay maintains that she was misinformed about her
rights under section 321J.6(2) because the language of the implied
consent advisory implied she was required to submit to a blood test or
face license revocation. Because of this misinformation, she claims her
consent was not voluntary and that to hold otherwise would undermine
the purpose of section 321J.8, which guarantees the accused an
opportunity to make a reasoned and informed decision about chemical
testing.
In Bernhard, we addressed this issue under similar facts.
Bernhard was injured in an accident, and evidence at the scene indicated
that he had been driving while intoxicated. Bernhard, 657 N.W.2d at
470. He was “immobilized in a C-collar and on a backboard” and taken
by ambulance to a hospital emergency room. Id. He complained of
numerous pains and was described by the nurse as “very agitated,
nervous, and beset with rapid speech patterns.” Id. A state trooper
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requested a blood sample and read the implied consent advisory, but did
not give the defendant a copy. Id. at 471. Although Bernhard was
unable to sign as he was being treated for injuries, he extended his arm
and consented to the blood test. Id.
Bernhard later argued that “because his consent to providing a
sample of blood was obtained by an unwarranted threat of license
revocation, the results of the chemical test should have been
suppressed.” Id. at 472. We disagreed, stating:
Although we recognize that the general admonition
concerning license revocation that was read to defendant
was misleading when given with respect to a request for
blood, it was correct within the context of the complete
statutory procedure that defendant was facing.
Id. As we explained:
If . . . defendant had refused to provide a sample of blood the
implied consent procedure would have merely shifted to a
request for a urine or breath sample. Defendant would have
been required to provide a sample of one of those substances
or face the revocation of his license. Defendant conceded at
the suppression hearing that he was motivated to agree to a
blood test because of the desire not to lose his license. We
find no reason to assume that his choice would have been
different had he been requested to provide a sample of one of
the other two substances. Nor is there reason to believe that
a chemical test of an alternative substance would not have
revealed a similar concentration of alcohol in defendant’s
system.
Id. We concluded that “the only real detriment that may have befallen
defendant was unwittingly consenting to a blood test when he may have
preferred one of the alternative tests” and that this was insufficient to
justify suppression of the test results. Id. at 472–73.
We also reiterated our previously stated view that “not every
inaccurate depiction by law enforcement officers that might bear on a
subject’s election to submit to chemical testing is a basis for suppressing
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the test results.” Id. at 473 (citing Gravenish, 511 N.W.2d at 381).
Accordingly, we concluded that Bernhard’s consent to a blood test was
voluntary and that the district court had correctly denied Bernhard’s
motion to suppress. Id.
C. Applying Bernhard to Overbay’s Claim. As we have noted,
this case bears many factual similarities to Bernhard. Both defendants
were injured, extremely agitated, and immobilized in hospital emergency
rooms. Both were read the statutorily required implied consent advisory,
and both agreed to submit to a blood test.
Overbay, however, argues that her case is ultimately
distinguishable from Bernhard and is more similar to an unpublished
court of appeals decision on which the district court relied. See State v.
Michaloff, No. 09–1413, 2010 WL 2080113 (Iowa Ct. App. May 26, 2010).
In particular, Overbay argues there is no evidence she was motivated to
take the blood test out of fear of losing her license. Cf. Bernhard, 657
N.W.2d at 472 (noting that Bernhard conceded this point). Also, Overbay
maintains it is speculative whether a urine sample could have been
obtained from her because she had a catheter inserted.
Overbay’s involuntary consent argument, therefore, must run
something like this: If I had known that a refusal to consent to the blood
test would not have triggered an immediate revocation of my license, I
would have refused that test. Assuming that Trooper Underwood would
have then requested a urine sample (which is undisputed on this record),
I would have consented at that point but the police might have been
unable to obtain a sample because of my medical condition. The
resulting situation would be one where the State had no sample even
though I had not “refused” the test. See McCrea v. Iowa Dep’t of Transp.,
336 N.W.2d 427, 430 (Iowa 1983) (holding that a driver’s consent to test
13
accompanied by a failure to provide a urine specimen was a refusal in
the absence of a valid medical reason); see also State v. Stanford, 474
N.W.2d 573, 574–75 (Iowa 1991) (holding that a urine sample provided
under threat of catheterization was obtained voluntarily because there
was no coercion at the time the consent was given). Therefore, my
consent to the blood test was involuntary. 1
We are unwilling to engage in this kind of “House That Jack Built”
reasoning here. First, based on common experience, we believe the
presence of a urinary catheter makes it more likely urine could have been
obtained, assuming Overbay consented for her urine to be tested.
Second, while the State did not offer affirmative evidence that Overbay
was motivated to consent to the blood test by fear of losing her license
(not surprisingly, since Overbay exercised her right not to testify at the
suppression hearing), no other reason appears in the record why
Overbay would consent to the test. In short, we see no real basis for
distinguishing this case from Bernhard. If Bernhard’s consent was
voluntary, so was Overbay’s.
We draw further support for this conclusion from our recent
opinion in Hutton. There, we considered a claim that a driver’s consent
to a chemical breath test was involuntary because the advisory
“inaccurately represented the consequences of his decision to submit to
the test or not.” Hutton, 796 N.W.2d at 902. In that case, additional
language in the advisory incorrectly overstated the potential adverse
consequences of taking the chemical test. Specifically, it warned Hutton
that his commercial driver’s license (CDL) would be revoked for one year
if he took the chemical test and failed it. Id. at 904. Despite this
1As previously noted, there was no DataMaster unit available at the hospital to
conduct a breath test.
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language, Hutton agreed to take the test anyway—and registered a .205
blood alcohol concentration. Id. at 901. We held under these facts that
Hutton had no basis for arguing his consent to the test was involuntary.
As we explained:
[W]e are confident Hutton was not induced to consent to the
test by the inclusion of the incorrect excess verbiage in the
advisory. The excess verbiage should have discouraged
Hutton from submitting to the test as he did. Accordingly,
we find no grounds to conclude Hutton’s consent was
coerced or uninformed.
Id. at 906. 2
This case is like Hutton in that the advisory was partially
inaccurate. It failed to inform the motorist that refusal of the blood test
would not result in automatic revocation of driving privileges but would
instead result in the motorist being asked to take a different chemical
test. Thus, the advisory slightly overstated the possible consequences of
refusing to take the blood test. But as in Hutton, “we are confident” the
motorist was not induced to take the blood test because of anything
incorrect in the advisory. Had Overbay declined the blood test, she
would have been immediately presented with the same choices with
respect to a urine test. Overbay does not argue that her decision process
at that point would have been any different.
We reiterate what we said in Hutton: “[I]t is optimal to include only
perfectly accurate information in the advisory.” Id. at 905–06. Still, a
less-than-optimal advisory does not automatically render a consent
involuntary. Id.
2In Hutton, we considered two arguments in addition to the defendant’s claim
that his consent to the testing was not voluntarily given. The defendant also
maintained that the advisory he was given violated section 321J.8 and that the advisory
violated his due process rights. See Hutton, 796 N.W.2d at 904–06. Neither of these
arguments has been asserted by Overbay, either here or below. Overbay’s only
contention is that her consent was not voluntarily given.
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We have also said before that the State has the burden to prove a
consent to testing was voluntary. Stanford, 474 N.W.2d at 575; see also
Gravenish, 511 N.W.2d at 381. However, if the record as a whole shows
the defendant would have made the same choice to undergo (or not
undergo) chemical testing even if provided a more accurate advisory, the
State has met its burden. See Hutton, 796 N.W.2d at 906 (denying relief
because “we are confident Hutton was not induced to consent to the test
by the inclusion of the incorrect excess verbiage in the advisory”);
Bernhard, 657 N.W.2d at 472 (denying relief because “[w]e find no reason
to assume that [Bernhard’s] choice would have been different had he
been requested to provide a sample of one of the other two substances”);
Gravenish, 511 N.W.2d at 381–82 (denying relief despite a factually
misleading statement by the officer concerning the status of a victim
injured by the defendant, noting that the defendant’s “argument implies
that, had he known Kautman’s true condition, he would have withheld
consent” but “[n]othing in the record . . . bears out this contention”);
Smith v. Iowa Dep’t of Transp., 523 N.W.2d 607, 610 (Iowa Ct. App. 1994)
(upholding revocation because “we find the mistake did not influence
Smith’s decision nor was he prejudiced thereby”); cf. Massengale, 745
N.W.2d at 503–04 (granting relief where the defendant’s decision could
have been influenced by the misleading advisory that omitted all
information regarding consequences for the defendant’s CDL); State v.
Kjos, 524 N.W.2d 195, 197 (Iowa 1994) (granting suppression where the
officer told the defendant that he had to submit to a test on pain of
license revocation even though more than two hours had already passed
since his arrest and therefore the defendant’s license would not have
been revoked if he had refused testing).
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In sum, the lesson of our cases is that voluntariness of a consent
is determined at the time consent is given, Stanford, 474 N.W.2d at 575,
and voluntariness is not undermined by inaccurate information if the
record indicates the information would not have affected the motorist’s
decision to submit to or refuse chemical testing. See Hutton, 796 N.W.2d
at 906; Bernhard, 657 N.W.2d at 472; Gravenish, 511 N.W.2d at 381–82.
IV. Conclusion.
For the reasons stated, we vacate the decision of the court of
appeals, reverse the ruling of the district court granting Overbay’s motion
to suppress, and remand for further proceedings consistent with this
opinion.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
RULING REVERSED AND CASE REMANDED.