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  • Writer's pictureDavid A. Cmelik Law PLC

Court: police must clarify independent test right only if breath re-test denied

supreme court chairs in ornate courtroom
high court rules police must clarify independent test right only if they deny an imprecise request for a retest

Friday, November 27, 2020—The Iowa Supreme Court held in State v. Thomas Christopher Casper, a week ago today that police need only clarify the right to an independent chemical test when a defendant imprecisely requests a second breath test and police deny same.

Writing for the Court, Justice Mansfield noted that a police officer “must inform the detainee of the right to an independent test only in circumstances when the detainee has reasonably asked about that right or a failure to disclose that right could be misleading. Neither of those circumstances were present in this case.”

In Casper, an Iowa State Patrol officer stopped a motorcyclist for speeding 110 mph in a 55 mph zone just after midnight. The State Patrol officer listed the usual signs of insobriety they cite in reports—bloodshot watery eyes, unsteady gait, and slurred or thick tongued speech. The trooper placed the motorcyclist in his patrol car and, after doing so, smelled alcohol coming from him. When asked, the motorcyclist admitted to having a “couple” of alcoholic beverages.

The motorcyclist agreed to the Horizontal Gaze Nystagmus, or, HGN, drunk driving sobriety test—but did not agree to further sobriety testing. The motorcyclist told the trooper that he could, alternatively, run ten miles and that he could do so faster than any millennial—thus proving he was sober. However, he did consent to a preliminary breath test, or, PBT, and provided a test over the presumptive level of intoxication in the State of Iowa, which is .08 g ETOH/210 L breath.

The trooper thus arrested him for Operating While Intoxicated, or, OWI, speeding, and failure to provide proof of insurance. The motorcyclist’s wife arrived on scene and took possession of the motorcycle. The trooper took his DUI arrestee to the jail for further testing.

At the jail, the arrestee declined to make any phone calls and, after the trooper read to him an implied consent advisory, consented to an evidentiary breath test via the Datamaster DMT. This yielded a DMT test result of .113 g ETOH/210 L breath.

The trooper noted that the cyclist was mad, happy, talkative, abrasive, and indifferent at various times during his investigation—thus showing wide mood swings.

The cyclist was booked in and then bonded out. Before he left the jail, he asked the trooper if he could “take another test from the Datamaster.” The trooper answered in the affirmative but the motorcyclist changed his mind. The trooper did not inform him that he could obtain an independent chemical test at his own expense—a right to the test is cemented in Iowa Code § 321J.11(2).

The State charged the defendant with Operating While Intoxicated—First Offense, or, OWI-1st.

The Defendant moved to “suppress,” or, exclude, evidence of the Datamaster DMT test result, on the grounds that he asked imprecisely for a second breath test and should have been informed at that point that he had a right to an independent chemical test. The Court denied the motion to suppress.

The defendant stipulated to a trial on the minutes—an expedited trial without a jury and evidence, relying solely on an attachment to the indictment that includes a list of likely witnesses and their predicted testimony. This is a common tactic to preserve the right to appeal.

The Court found him guilty of OWI and sentenced him to two days in jail and a $1,250 fine. He appealed. The Court of Appeals denied the appeal stating that any failure to inform him of the right to an independent chemical test was harmless error because the trial court had used Model Criminal Jury Instruction 2500.5—“under the influence,” which does not take into account the Datamaster DMT test result.

He sought further review from the Iowa Supreme Court, the next and final level of appeal in Iowa state court. The Iowa Supreme Court granted further review and denied the appeal, stating that its 2014 decision in Lukins did not apply in Casper.

In Lukins, the defendant asked for a “retest” or a “reblow” and was not informed that he had a right to an independent chemical test. The Lukins court compared Iowa Code § 321J.11(2) to Iowa Code § 804.20. When a detainee makes an imprecise request to make a telephone call, law enforcement must clarify their rights under Iowa Code § 804.20. Similarly, in Lukins, the Court held that when a test subject who makes an imprecise request for a re-test on the Datamaster DMT and is denied, the officer must nevertheless make the test subject aware of the right to an independent chemical test at their own expense.

In Casper, the case at bar, Justice Mansfield wrote that the trooper volunteered to do another Datamaster DMT test—but that the defendant changed his mind and left the jail after bonding out. There was, therefore, no requirement that the trooper inform him of the right to an independent chemical test at that time. The Court thus affirmed the conviction.

The Court has also opined, however, that a defendant has no right to a do-over.

NOTE: David A. Cmelik Law PLC took no part in the Casper case.

If you or a loved one have been arrested for a criminal charge in Cedar Rapids, Iowa City, or other Iowa community, contact us for a free initial consult. Remember, however, that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.


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