State of Iowa v. Matthew Robert Sewell

• Court: Supreme Court of Iowa
• Decided: June 4, 2021
• Docket: 20-0445
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 20–0445

Submitted February 17, 2021—Filed June 4, 2021

STATE OF IOWA,

Appellee,

vs.

MATTHEW ROBERT SEWELL,

Appellant.

Appeal from the Iowa District Court for Dickinson County, David C.

Larson, District Associate Judge.

A defendant appeals the denial of his motion to suppress, claiming

that he had a right to a confidential telephone call with an attorney before

deciding whether to take a blood alcohol test. AFFIRMED.

Mansfield, J., delivered the opinion of the court, in which

Christensen, C.J., and Waterman, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed an opinion concurring in part and dissenting in part.

Robert G. Rehkemper (argued) of Gourley, Rehkemper & Lindholm,

P.L.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven (argued),

Assistant Attorney General, and Amy E. Zenor, County Attorney, for

appellee. 2

MANSFIELD, Justice.

We are asked to decide today whether Iowa law or the Iowa

Constitution guarantee a suspected drunk driver the right to a private

phone consultation with counsel before deciding whether to take a blood

alcohol test. We conclude that Iowa law does not provide such a right

because the statute provides that if a call to counsel is made, “it shall be

made in the presence of the person having custody of the one arrested or

restrained.” Iowa Code § 804.20 (2019). We conclude that the Iowa

Constitution does not provide such a right because the right to counsel

under article I, section 10 arises in “criminal prosecutions” and “cases

involving the life, or liberty of an individual,” not in procedures that occur

before such a prosecution or case is commenced. For these reasons, we

hold that the defendant was not entitled to a private phone consultation

with counsel and his motion to suppress was properly denied. We affirm

the defendant’s conviction and sentence.

I. Background Facts and Proceedings.

On January 15, 2019, at 2:49 a.m., dispatch received a call from a

local resident reporting that someone was passed out in a truck in their

driveway in Milford. Dickinson County Sheriff’s Deputy Matt Grimmus arrived at the resident’s home at about 3:00 a.m. Upon arriving, Deputy

Grimmus discovered a silver Ford-150 in the driveway running with its

lights on. There was a male in the driver’s seat sleeping. Deputy Grimmus

reported, “I knocked on the window several times to get the male[’]s

attention. He looked at me once and then closed his eyes. I knocked again

on the window and the male looked at me and flipped me off.”

The man originally denied he had identification, but eventually

produced his driver’s license identifying him as Matthew Sewell. Sewell

admitted he had been drinking, and Deputy Grimmus noticed a strong 3

odor of an alcoholic beverage. Sewell did not know what street he was on

and looked confused. His eyes were watery and bloodshot and his speech

was slurred. Sewell did not perform well on three field sobriety tests and

declined the preliminary breath test.

Deputy Grimmus arrested Sewell at 3:22 a.m. and transported him

to the Dickinson County Jail. Deputy Grimmus and Sewell arrived at the

Dickinson County Jail at 3:46 a.m. Deputy Grimmus read Sewell the text

of the implied-consent advisory and requested a chemical breath test

sample at 3:53 a.m. Following the invocation of implied consent, Deputy

Grimmus gave Sewell the opportunity to contact an attorney or a family

member. Sewell was allowed to use his cellphone to retrieve phone

numbers but not to place calls.

Sewell left a message with Matthew Lindholm, a criminal defense

attorney in West Des Moines. When Lindholm called back at 4:25 a.m.,

Sewell explained they were talking on the jail’s landline, not Sewell’s

cellphone. Deputy Grimmus denied Lindholm and Sewell’s request for a

confidential phone call on Sewell’s cellphone, stating that Sewell and his

attorney could have a confidential meeting at the jail. Deputy Grimmus

also indicated that the jail policy is for all detainee calls to be on the jail landline, which is recorded.

When Lindholm learned that he could not have a private phone

conversation with Sewell, he declined to proceed further.1 Lindholm later

testified at the suppression hearing that he was “not comfortable advising

him” under the circumstances.

At 4:55 a.m., Sewell decided to take the breath test and recorded a

.206 blood alcohol content. He was booked into jail.

1At the time of the call, Lindholm was in Boone, approximately a two-and-a-half hour drive from Spirit Lake. 4

On February 4, Sewell was charged by trial information with

operating while intoxicated (OWI), first offense, in violation of Iowa Code

section 321J.2. Sewell filed a motion to suppress evidence, urging that

his rights under Iowa Code section 804.20, the Fourth and Sixth

Amendments to the United States Constitution, and article I, sections 8

and 10 of the Iowa Constitution had been violated. He also filed a motion

to dismiss alleging due process violations. Both motions centered on the

Dickinson County jail’s refusal to allow Sewell a private, unrecorded

conversation with Lindholm.

The district court held a hearing on the motions on August 15.

Lindholm was one of the witnesses. Lindholm testified that the vast

majority of his criminal practice involves OWIs. In a typical year, he

handles in excess of one hundred such cases. Often, Lindholm receives

calls from people who have been arrested and are in custody and are

looking for advice regarding whether to consent or refuse chemical testing.

In those situations, Lindholm wants to gather information, including: How

much did the person drink and when? How did the person perform on the

field sobriety tests and the preliminary breath test? Does the person have

prior offenses? Was there an injury or death? On November 15, the district court entered a ruling denying both of

Sewell’s motions. Afterward, Sewell waived his rights to a jury trial and

stipulated to a trial on the minutes of testimony. The trial court found

Sewell guilty of OWI on two alternative theories: being under the influence

of alcohol and having a blood alcohol concentration of .08 or more. Sewell

was sentenced to serve in the weekend offender program and to pay a fine

of $1250 plus surcharges. See Iowa Code § 321J.2(3)(a), (c). Sewell

appealed, and we retained the appeal. 5

II. Standard of Review.

The district court’s interpretation of Iowa Code section 804.20 is

reviewed for errors at law. State v. Hellstern, 856 N.W.2d 355, 360 (Iowa

2014). “We affirm the district court’s suppression ruling when the court

correctly applied the law and substantial evidence supports the court’s

fact-finding.” State v. Walker, 804 N.W.2d 284, 289 (Iowa 2011). We review

constitutional claims de novo. State v. Pettijohn, 899 N.W.2d 1, 12 (Iowa

2017).

III. Analysis.

A. Does Iowa Code Section 804.20 Provide the Detainee a Right

to a Confidential Telephone Consultation?

Iowa Code section 804.20 provides,

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.

(Emphasis added.)

Sewell argues that “made in the presence of the person having

custody of the one arrested or restrained” means only that the call shall

be dialed in the presence of the officer. After that, the officer is required to leave and allow the detainee to have a private, confidential conversation.

The State argues that “made in the presence” means that the officer can 6

be present and listen while the detainee talks to any family member or

attorney.

“We begin our inquiry in this case with the language of the statute

as a whole.” Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020). Normally,

when the same term is used repeatedly in the same statute, we give the

term the same meaning each time. See State v. Paye, 865 N.W.2d 1, 7

(Iowa 2015) (“When the same term appears multiple times in the same

statute, it should have the same meaning each time.”).

Iowa Code section 804.20 uses the word “make” or “made” in

reference to phone calls in three separate sentences. If we are to read

“make” or “made” consistently in each of these sentences, the notion

appears to be that the phone calls are brief and for the purpose of

obtaining counsel, not for the purpose of obtaining advice from counsel.

Thus, the second sentence of the statute says that the detainee shall be

permitted to “make a reasonable number of telephone calls as may be

required to secure an attorney.” The third sentence says that if a call is

made, “it shall be made in the presence of the person having custody of

the one arrested or restrained.” And the fourth sentence says that if the

person is intoxicated or a minor, the call “may be made by the person having custody.” To achieve consistency in the meaning of “make” in all

three sentences, “make” must mean something more than “dial” and

something less than “have a substantive discussion to obtain legal advice.”

This reading also accounts for the contrasting terminology of the

fifth sentence. That sentence expressly permits the attorney “to see and

consult confidentially with” the detainee “alone and in private” at the place

of detention. If phone calls came with the same guarantee of

confidentiality as in-person visits, it is odd that no such language—i.e.,

“confidentially . . . alone and in private”—appears in the prior sentences. 7

Presumably, the fifth sentence’s use of “confidentially . . . alone and in

private” is intended to assure that in-person consultations would be

privileged. See Iowa Code § 4.4(2) (setting forth a presumption that “[t]he

entire statute is intended to be effective”).

So, on a once-through, Sewell’s proposed interpretation of Iowa Code

section 804.20 does not seem quite right. Furthermore, we have rejected

that interpretation of the statute on three prior occasions. In State v.

Craney, the defendant was charged with and found guilty of first-degree

murder of a newborn baby. See 347 N.W.2d 668, 671 (Iowa 1984). On

appeal, the defendant argued that the trial court erred in admitting

testimony that, while speaking on the phone with his attorney during the

booking process, the defendant said, “I killed my baby.” Id. at 678. We

ruled that the trial court did not err in admitting the evidence. Id. at 679.

We stated,

[T]he telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian. They are for the purpose of enabling the person to arrange for a legal consultation and assistance.

Id. at 679. More recently, in State v. Walker, we specifically addressed the

different treatment afforded attorney phone calls and in-person attorney

visits under Iowa Code section 804.20. 804 N.W.2d at 291. There, the

arrested defendant had made a total of eight calls, resulting in an attorney

meeting him at the jail. Id. at 286–87. The in-person consultation took

place in “a small detention area with three empty booths with glass

partitions to separate visitors from detainees and intercoms with telephone

style handsets for communication.” Id. at 287. The area was subject to 8

video but not audio recording; the attorney’s requests for a different room

were refused. Id.

We gave the following overview of the rights afforded by Iowa Code

section 804.20:

The statute expressly provides for greater privacy when the attorney personally visits his client at the police station or other place of custody. Indeed, “the telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian.” State v. Craney, 347 N.W.2d 668, 678–79 (Iowa 1984) (allowing into evidence defendant’s statement, “I killed my baby” made in phone call to attorney overheard by police officer during booking process because statement made in the presence of a third person is not protected by attorney–client privilege). For that reason, attorneys who consult by telephone with persons arrested for OWI typically tell their client to answer only “yes” or “no” to the attorney’s questions. By contrast, section 804.20 clearly allows for privileged communications at the place of detention where the attorney shall be permitted to “consult confidentially” with his client “alone and in private.”

Id. at 291. Ultimately, given the video monitoring of the attorney meeting,

we determined that the defendant’s right under section 804.20 to “see and

consult confidentially” and “alone and in private” with his attorney had

been violated. Id. at 296.

In State v. Hellstern, we again discussed Iowa Code section 804.20’s parameters for attorney phone calls. 856 N.W.2d at 357. In Hellstern, a

defendant had been arrested for OWI. Id. at 358. After arriving at the jail,

the defendant was asked if he wanted to make “any phone calls for any

reason.” Id. Following a series of phone calls, voicemails, and text

messages, the defendant finally spoke with an attorney. Id. at 358–59.

During that phone call, the defendant asked the officer, who was sitting

five feet away, “Can I have a moment with my attorney?” Id. at 359. Later

in the same phone call, the defendant expressly requested “attorney–client

privilege.” Id. The officer responded, “You can, but . . . [n]ot on the phone.” 9

Id. (omission in original). The officer failed to specifically inform the

defendant that he could have a confidential and privileged conversation

with his attorney if the attorney came to the jail. Id. Following the denial

of a motion to suppress, the defendant was found guilty of OWI. Id. at

360.

On appeal, the defendant argued that his request for privacy during

the phone call triggered an obligation on the part of the officer to disclose

the defendant’s right to a private attorney–client conference at the jail. Id.

We began our analysis by once again distinguishing a section 804.20

phone call and a section 804.20 in-person attorney consultation:

Section 804.20 requires police to allow the arrestee “to make a reasonable number of telephone calls as may be required to secure an attorney.” Iowa Code § 804.20. The statute, by its terms, affords no privacy to a person in custody during a phone call to their attorney. See id. (“If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained.”).

Id. at 361. “By contrast,” we observed, “the statute expressly provides a

right to a confidential consultation between an attorney and client at the

jail to be conducted ‘alone and in private.’ ” Id. (quoting Iowa Code

§ 804.20); see also id. at 364 (“[S]ection 804.20 permits phone calls ‘in the presence’ of the officer, while providing for confidential in-person attorney–

client conferences at the jail or place of detention.” (quoting Iowa Code

§ 804.20)).

We then ruled that the defendant’s motion to suppress should have

been granted. Id. at 365. We found that the defendant

adequately invoked his statutory right to a confidential consultation with his attorney under section 804.20 by requesting privacy during his phone call, triggering [the officer’s] duty to inform him that the attorney must come to the jail for a confidential conference.

Id. at 364–65. 10

Craney, Walker, and Hellstern all indicate that there is no section

804.20 right to a private phone call. Craney, 347 N.W.2d at 679; Walker,

804 N.W.2d at 291; Hellstern, 856 N.W.2d at 361. Hence, thirty-seven

years’ worth of stare decisis cut against Sewell’s interpretation of section

804.20. See Hellstern, 856 N.W.2d at 363 (discussing the importance of

legislative acquiescence in regard to the statute).

Also, there are practical reasons why the legislature might be

concerned about private phone calls but not private attorney jail visits.

See Iowa Code §§ 4.4 (3) (setting forth the presumption that “[a] just and

reasonable result is intended”), .6(5) (stating that if a statute is ambiguous,

the court may consider “[t]he consequences of a particular construction”).

As the plurality noted in State v. Senn, “Iowa Code section 804.20 applies

to all detainees, not just motorists suspected of impaired driving. It is easy

to imagine detainees taking advantage of private phone calls to inform

confederates to flee or get rid of evidence.” 882 N.W.2d 1, 31 (Iowa 2016)

(plurality opinion). When an attorney comes to the jail for a private

consultation, law enforcement can verify the attorney’s identity and rely

on the attorney’s ethical obligation that no shenanigans will occur. But

when a just-arrested detainee is given the right to conduct phone calls in private, there is no practical way to prevent misuse of the phone.2

2A few comments on the opinion concurring in part and dissenting in part are

warranted here. That opinion states there was no real risk that Sewell would have contacted confederates. But that isn’t the issue. The statute applies to all arrested defendants. The opinion concurring in part and dissenting in part claims that “more than ten states [actually eleven, if you read on in that opinion] permit private conversations in the context of implied consent.” We have some doubts about these numbers. See State v. Griffith, 660 N.E.2d 710, 711 (Ohio 1996) (holding that exclusion of the breathalyzer evidence should not occur even if the police violate the statutory right to counsel); State v. Federov, 355 P.3d 1088, 1093 (Wash. 2015) (en banc) (finding that whether the defendant had a rule-based right to a private conversation involved a “case-by-case determination”). But the other side of this coin is that the vast majority of states do not 11

For all these reasons, we conclude that Deputy Grimmus did not

violate Sewell’s rights under Iowa Code section 804.20 when he denied him

a private and confidential phone call with attorney Lindholm. By way of

caution, we emphasize what is not before us. Sewell is not arguing that

he had a statutory right to have only his end of the conversation

monitored. We noted in Walker that this is the usual practice. See 804

N.W.2d at 291 (“[A]ttorneys who consult by telephone with persons

arrested for OWI typically tell their client to answer only “yes” or “no” to

the attorney’s questions.”). However, in Dickinson County, law

enforcement apparently monitors both ends of the call. Whether section

804.20 permits that level of monitoring is not before us today.3

B. Does the Iowa Constitution Provide the Detainee a Right to

a Confidential Telephone Conversation?

1. Article I, section 10. Alternatively, Sewell argues that an arrested

person has a right under article I, section 10 of the Iowa Constitution to

consult privately with counsel before deciding whether to consent or refuse

chemical testing. Article I, section 10 provides,

In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.

recognize such a right, either by statute or under their state constitutions. See Senn, 882 N.W.2d at 22–27. 3Sewell also argues that the COVID-19 pandemic presents a reason for interpreting Iowa Code section 804.20 to allow confidential attorney–client phone calls. Sewell argues that during the pandemic, many law enforcement agencies and jails have been closed to the public, thus precluding in-person visits. However, this case predates the pandemic, and there is no dispute that the Dickinson County jail would have permitted an in-person confidential attorney consultation in January 2019. The COVID- 19-related issues referenced by Sewell are not before us today. 12 Iowa Const. art. I, § 10.

We considered this issue in State v. Senn, but there was no majority

opinion in the case. A plurality of the court concluded the detainee had

no right to counsel under article I, section 10. See 882 N.W.2d at 31.

Three justices dissented on the basis there was such a right, see id. at 32–

33 (Wiggins, J., dissenting), id. at 68 (Appel, J., dissenting); and one justice

specially concurred on the ground that if even if there was such a right, it

was not violated in the particular case. Id. at 32 (Cady, C.J., concurring

specially). Senn’s facts are similar to the facts here. An individual who had

been arrested for OWI and received the implied consent advisory

telephoned an attorney. Id. at 4 (plurality opinion). While on the phone

with the attorney in the officer’s presence, the individual was instructed

by the attorney to ask the officer for “attorney–client privilege please.” Id.

The officer responded that this individual could not have attorney–client

privilege while on the phone but would be afforded the privilege if the

attorney came to the jail. Id. The attorney was unable to meet in person.

Id. at 5. The individual later consented to taking the test, and the results

showed his blood alcohol concentration was 0.140. Id. After he was charged with OWI, the defendant filed a motion to

suppress. Id. At the suppression hearing, he narrowed his claim to one

for deprivation of the right of counsel under the Iowa Constitution. Id.

The district court denied the motion. Id. at 5–6.

On appeal, the issue was whether

the right to counsel under article I, section 10 of the Iowa Constitution attached before the State filed criminal charges against [the defendant] while he was under arrest for the suspicion of drunk driving and faced with the decision of whether to submit to a chemical breath test that measures his blood alcohol level. 13

Id. at 6. The Senn plurality concluded that the right to counsel did not attach at that stage. The plurality “beg[a]n with the plain meaning of the words of article I, section 10.” Id. at 8. Specifically:

[Article I, section 10] by its terms applies to “criminal prosecutions” and in “cases involving the life, or liberty of an individual.” Section 10 expressly provides “the accused” with eight enumerated rights: (1) a speedy trial, (2) a public trial, (3) a trial by an impartial jury, (4) to be informed of the accusation, (5) to obtain a copy of the accusation, (6) to confront witnesses, (7) to have compulsory process for the accused’s witnesses, and (8) to have the assistance of counsel. The first seven of these enumerated rights make sense only in the context of a formal legal proceeding leading to a trial. The final enumerated right—to counsel—should be construed together with the seven preceding rights in section 10 that ensure a fair trial in criminal proceedings and cases involving the liberty of the accused. We read words not in isolation, but rather in context . . . .

Id. at 8–9. In other words, the plurality pointed out that the other rights

listed in article I, section 10 come into play only in actual court

proceedings, which means that the phrases “criminal prosecutions” and

“cases involving the life, or liberty of an individual” must refer to actual

court proceedings. Id. at 8.

The plurality went on. It noted that the text of article I, section 10 provides rights only to an “accused,” and then only within a “prosecution”

or a “case.” Id. at 9. The plurality also cited early caselaw reinforcing this

perspective. Id.

Turning to the facts of Senn, the plurality observed that when the

defendant asked for an attorney–client privileged conversation, “[t]here

was not yet a prosecution or case against [him].” Id. at 11. The plurality

reasoned, “The State had not filed criminal charges against Senn at the

time he was deciding whether to submit to the chemical breath test. 14

Therefore, he was not entitled to counsel under article I, section 10.” Id.

at 12.

The plurality acknowledged that one early case had applied article

I, section 10 to a noncriminal proceeding—Ex parte Grace, 12 Iowa 208

(1861). See Senn, 882 N.W.2d at 12 (plurality opinion). Grace held that

article I, section 10’s right to trial by jury applied to a contempt proceeding

that resulted in the debtor’s arrest and imprisonment. 12 Iowa at 212.

But, as the plurality noted, there was a pending case in Grace. See Senn,

882 N.W.2d at 12. Grace does not suggest that there can be a

constitutional right to counsel without an actual court proceeding.

The plurality also examined the drafting history behind the “cases

involving the life, or liberty of an individual” language, the added text

which differentiates article I, section 10 from the Sixth Amendment. The

plurality pointed to various statements in the 1857 debates confirming

that the language was meant to provide jury trial rights to fugitive slaves

apprehended in Iowa. Id. at 14–16. “The framers consistently and

exclusively focused on the rights of persons who had already entered the

court system.” Id. at 15–16; see also In re Johnson, 257 N.W.2d 47, 54

(Iowa 1977) (McCormick, J., concurring specially) (“No one can doubt from the convention record that the disputed language was added to Art. I

§ 10 in an effort to nullify the Fugitive Slave Act by giving persons accused

as escaped slaves the right to jury trial in Iowa.”).

The Senn plurality also surveyed constitutional precedents from

other states. 882 N.W.2d at 22–30. It noted that “[t]he vast majority of

courts deciding the issue conclude there is no state constitutional right to

counsel at the time the motorist must decide whether to submit to

chemical testing.” Id. at 22. It approved the reasoning of those courts: 15 These authorities are persuasive. We too want to avoid creating an unworkable rule for determining when the right to counsel attaches. If we expand the right to counsel to include implied-consent chemical breath tests before any criminal case is filed, what is the limiting principle? Why stop there? Why not expand the right further to include noncustodial questioning by police or police requests for consent searches before any charges are filed? The text of our constitution provides a clear starting point for the attachment of the right to counsel—the court filing that commences the criminal proceeding or other case putting liberty at risk. We are unwilling to erase that bright line.

Id. at 26.

Furthermore, the plurality found practical problems with the

defendant’s position in Senn:

[A]ny Iowa constitutionally based right to counsel should apply equally to rich and poor alike. . . . Thus, if we hold an individual is constitutionally entitled to a private consultation with legal counsel at the time the State invokes implied consent, the State would need to ensure that public defenders or court-appointed lawyers are available twenty-four hours a day to field calls from detained motorists, typically late at night.

Id. at 31 (citation omitted). “In addition, we would need to provide

continuous court and public defender access to process applications for

court-appointed counsel.” Id.

Justice Wiggins, dissenting, took issue with the plurality’s reading of the 1857 constitutional debates. In his view, “during the debates, the

framers acknowledged that cases in which individuals have been arrested

implicate physical liberty interests sufficient to trigger rights under the

‘cases’ language of article I, section 10.” Id. at 45 (Wiggins, J., dissenting).

Justice Wiggins pointed out that an opponent of adding the “cases

involving the life, or liberty” language “argued its import would be to extend

the reach of article I, section 10 to ‘any person that may be arrested, who

may be taken up in any shape or way in this state.’ ” Id. (quoting 2 The

Debates of the Constitutional Convention of the State of Iowa 736 (W. Blair 16

Lord Rep., 1857) (remarks of Mr. Harris)). But as the State points out in

its current briefing, this reading of the constitutional debates is

incomplete. Mr. Clark, the sponsor of the amendment, immediately

disagreed with Mr. Harris. Id. at 737 (remarks of Mr. Clark). He explained

that the added language “has no reference to [the defendant’s] being

arrested in preparation for trial.” Id.

Justice Appel, dissenting, also disagreed with the plurality’s

interpretation of the “cases” language in article I, section 10. He said, “[I]t

strains credulity to suggest that the ‘cases’ clause is simply a redundant

passage and that the federal caselaw under the ‘all criminal prosecutions’

clause of the Sixth Amendment is applicable.” Id. at 67 (Appel, J.,

dissenting). Justice Appel added,

[T]he “cases” clause provides ample footing for a right to counsel when implied consent is invoked. In this case, the suspect faces a critical stage that will dramatically affect the subsequent criminal trial and could well lead to revocation of his driver’s license for an extended period of time.

Id. at 68. Yet Justice Appel’s first point is an attack on a strawman; no

one contends that the “cases involving the life, or liberty of an individual”

language is simply redundant. The framers put it in there to assure a right to jury trial in Fugitive Slave Act cases that did not involve a criminal

prosecution. And his second point does not account for the full text of

article I, section 10, which provides that “the accused” shall have the right

to counsel “in cases involving the life, or liberty of an individual.” Iowa

Const. art. I, § 10 (emphasis added.) The right is for an accused within a

case, not for an individual who may or may not end up in a case later.4

4Justice Appel also endorsed the approach taken by a few states that have found a constitutional right to counsel in the implied-consent context. Senn, 882 N.W.2d at 63–65. In today’s opinion concurring in part and dissenting in part, Justice Appel again fails to account for this language—i.e., “cases” and “the accused.” In addition to Grace, 17

On balance, we believe the position taken by the Senn plurality is

more persuasive as a matter of text and history. Accordingly, we adopt it

here. Moreover, in two decisions subsequent to Senn, we have taken the

view that the article I, section 10 right to counsel does not attach prior to

the initiation of a case or prosecution.

In State v. Green, we examined whether the article I, section 10 right

to counsel extended to a murder suspect who had participated in a

noncustodial police interview under the supervision of an Iowa county

attorney. 896 N.W.2d 770, 773 (Iowa 2017). Multiple times during the

interview, one of the officers would leave the interview room to consult next

door with the attorney. Id. It was clear that the attorney facilitated the

interview and directed the officers to ask specific questions. Id.

We ruled that the defendant’s rights under article I, section 10 had

not been violated. As we explained, “[T]he text of the constitution is at the

core of our analysis and is our primary focus.” Id. at 778. “The text tells

us that the right to counsel applies only to the accused and, for the

purposes of this case, only to a criminal prosecution.” Id. We added, “It

is only once a prosecution is commenced that the imbalance [between law

enforcement and the suspect] is corrected through the adversary process and through the right to counsel given by article I, section 10.” Id. at 779.

In the last paragraph of our opinion, we summed up,

There was no right to counsel provided by article I, section 10 of the Iowa Constitution at the time of [defendant’s] voluntary and noncustodial interview with police under the supervision of an Iowa county attorney. The constitutional right to counsel is essential to ensuring a fair trial, but has no

the only Iowa precedent he cites for supporting his views is State v. Newsom, 414 N.W.2d 354 (Iowa 1987). But Newsom involved a defendant who had been arrested on murder charges, taken before a magistrate, had counsel appointed, and then interrogated without that counsel present. Id. at 356. In that case, the defendant was an accused in a pending case. 18 application without a prosecution or case with which counsel could aid the accused.

Id. at 782.

A year later, in Ruiz v. State, we considered whether bad advice from

an immigration attorney to a client, which led to a criminal investigation

and conviction of the client for having previously used a false social

security number, could be ineffective assistance of counsel under article I,

section 10 of the Iowa Constitution. 912 N.W.2d 435, 436 (Iowa 2018).

The defendant was a native and citizen of Mexico who had entered the

United States without permission. Id. After entering the United States, the defendant had obtained vehicle titles in his name using a false social

security number. Id. Subsequently, through the attorney’s efforts, the

defendant was able to get a valid social security number. Id. at 437. At

that point, without inquiring into whether the defendant had used a

fraudulent social security number in the past to title vehicles, the attorney

suggested that his client go to the Iowa department of transportation (DOT)

to obtain a driver’s license. Id.

This trip led to the DOT’s discovery of the defendant’s prior use of a

false social security number to register vehicles. Id. at 438. The defendant was charged with and convicted of fraudulent practices, and faced

deportation. Id. The defendant sought postconviction relief on the ground

that his immigration attorney had provided ineffective assistance of

counsel. Id. The district court granted relief, and the State appealed. Id.

We ruled that the defendant did not have a right to relief for

ineffective assistance of counsel because, at the time of the allegedly faulty

advice, he did not have a right to counsel under either the Sixth

Amendment or article I, section 10 of the Iowa Constitution. Id. at 439–

41. Regarding the latter, we said, “The language of the provision indicates 19

the person claiming the right to counsel must be an ‘accused’ in either a

criminal prosecution or a case involving that person’s life or liberty.” Id.

at 441. We relied on “Green and the text of article I, section 10” in holding

no right to counsel had attached under the Iowa Constitution. Id.

For these reasons, we conclude that Sewell did not have a right to

counsel under article I, section 10 before deciding whether to take the

chemical test on January 15, 2019.

2. Article I, section 9. Finally, Sewell argues that denying him a

confidential telephone conversation with Lindholm violated his right to due

process under article I, section 9 of the Iowa Constitution. It is not entirely

clear what standard Sewell wants us to apply, but clearly the predicate to

his claim is that the State “interfere[d] with the attorney–client

relationship.” The problem is that, as we have already discussed, neither

the Iowa Code nor the Iowa Constitution afforded Sewell the right to a

private consultation with counsel. Thus, the “interference” consisted of

refusing something that Sewell had no entitlement to anyway. Sewell cites

a number of cases, but they involve situations where law enforcement

deceived the defendant. See, e.g., Moran v. Burbine, 475 U.S. 412, 435,

106 S. Ct. 1135, 1148 (1986) (Stevens, J., dissenting) (arguing that deceptive police interference with communications between an attorney

and his client violated due process); Roberts v. State of Maine, 48 F.3d

1287 (1st Cir. 1995) (finding a due process violation where the defendant

was given misleading information about the consequences of refusing

testing, which included a mandatory forty-eight-hour period of

incarceration if convicted, and the defendant’s request to consult with

counsel was denied). Sewell does not claim to have been misled here. 20

IV. Conclusion.

For the foregoing reasons, we affirm Sewell’s conviction and

sentence.

AFFIRMED.

All justices concur except Appel, J., who concurs in part and

dissents in part. 21

#20–0445, State v. Sewell

APPEL, Justice (concurring in part and dissenting in part).

I respectfully concur in part and dissent in part.

I. The Statute.

On the statutory issue, the majority is overwritten but makes some

fair points. It emphasizes that prior caselaw amounts to “thirty-seven

years’ worth of stare decisis [that] cut against Sewell’s interpretation.”

Perhaps so, although I think legislative acquiescence is generally a fairly

weak reed in light of the inertia inherent in the legislative process. But I

note that in State v. Williams, a similar multidecade period of stare decisis

was also at work in determining the meaning of the term “arrest.” 895

N.W.2d 856, 859–67 (Iowa 2017).

Stare decisis, of course, is not at work unless you believe that the

underlying decision was wrongly decided. Youngblut v. Youngblut, 945

N.W.2d 35, 45 (Iowa 2020) (McDonald, J., dissenting). While stare decisis

is often cited as a justification for a belief already held and is mere window

dressing, it is at work here. If I were writing on a blank slate, I would give

serious consideration to driving the interpretation of Iowa Code section

804.20 to avoid the constitutional problems presented below. See, e.g., Simmons v. State Pub. Def., 791 N.W.2d 69, 73–74 (Iowa 2010). There is a

very large body of caselaw suggesting that a statutory right to counsel in

the context of informed consent necessarily means a private consultation.

See Farrell v. Mun. of Anchorage, 682 P.2d 1128, 1130 (Alaska Ct. App.

1984); State v. Holland, 711 P.2d 592, 594–95 (Ariz. 1985) (en banc);

People v. Moffitt, 19 N.Y.S.3d 713, 718–19 (N.Y. Crim. Ct. 2015); Bickler v.

N.D. State Highway Comm’n, 423 N.W.2d 146, 148 (N.D. 1988). Further,

persons arrested in urban areas where lawyers are plentiful and within

short travel distance from the jail will be far more likely to get confidential 22

jailhouse advice than persons arrested in rural areas with more limited

availability of counsel. But this is not an issue of first impression, and it

is probably too late in the day to pursue this path. So, reluctantly, I concur

in the majority’s interpretation of the statute.

II. Imagination.

The majority opinion suggests that the three-judge plurality in State

v. Senn, declared that it is “easy to imagine detainees taking advantage of

private phone calls to inform confederates to flee or get rid of evidence.”

882 N.W.2d 1, 31 (Iowa 2016) (plurality opinion). While the declaration

may be partly accurate, it was supported only by “imagination,” not facts

or empirical evidence. Both state and federal prisons routinely permit

private telephone conversations between attorneys and clients. Further,

more than ten states permit private phone conversations in the context of

implied consent, exactly what Matthew Sewell seeks here today. The

majority has not cited cases related to abuse of phone privileges in the

implied-consent context.

The blanket rule advocated by the majority is thus far overbroad. In

this case, Sewell was found asleep in his car. He had no known

confederates. If he had a confederate, maybe he would have been driven home without mishap. There was no suspicion of any kind that criminality

other than intoxicated driving was afoot. If the majority thinks Sewell was

some kind of escape threat, maybe a trained assassin, or possibly the

mastermind of a criminal conspiracy, it has watched too many movies.

Of course, all rights have the potential to be abused. In fact, there

is always the imaginary possibility that a criminal defense lawyer will

become a secret confederate of a client in some unknown criminal

enterprise. Under the majority view, a theoretical risk of abuse without

any basis in fact means that a right to counsel can never be recognized, 23

even in situations involving people like Sewell. If so, article I, section 10

of the Iowa Bill of Rights has just been effectively repealed.

I do not rule out, in all instances, that the state might make a case

for limiting contact with counsel based on articulate security concerns.

But the burden will be on the state to show that the restriction was

justified. See State v. Penrod, 892 P.2d 729, 732 (Or. Ct. App. 1995). And

the state did not attempt to meet the burden in this case.

III. Implied-Consent Laws and Rochin v. California.

In Rochin v. California, the United States Supreme court considered

a case where police obtained morphine capsules swallowed by a criminal

defendant. 342 U.S. 165, 166, 72 S. Ct. 205, 206 (1952). The defendant

was taken to the hospital, where unpleasant means were used to extract

the swallowed contraband. Id. According to the Supreme Court:

Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.

Id. at 172, 72 S. Ct. at 209–10. In response, legislatures began passing “informed consent” laws to

avoid running afoul of the teaching of Rochin.5 Force was no longer to be

used to obtain evidence from the body of the accused; rather, the threat of

the loss of driving privileges was thought to be enough to do the job. See

State v. Spencer, 750 P.2d 147, 151 (Or. 1988) (en banc). Physical force

5As it turns out, the Supreme Court did not extend Rochin to situations where the

government sticks needles into people to draw blood without their consent. See Schmerber v. California, 384 U.S. 757, 771–72, 86 S. Ct. 1826, 1836 (1966); Breithaupt v. Abram, 352 U.S. 432, 436–37, 77 S. Ct. 408, 411 (1957). 24

was replaced with the substantial penalty of long-term loss of driving

privileges.

IV. Role of Counsel in Implied-Consent Setting.

Before we dive directly into the narrow caselaw, it is important to

understand why the right to counsel is important. Without having at least

a general understanding of the underpinnings of the right to counsel, it

would be difficult, if not impossible, to evaluate the choices facing the court

in this case.

The role of counsel is central to our criminal justice system. The

current criminal justice system is a far cry from that which existed at

common law, with professional police forces and trained prosecutors.

“Even the intelligent and educated layman has small and sometimes no

skill in the science of law.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct.

55, 64 (1932). Given the lack of knowledge and the tremendous power

held by the state, the central role of counsel is to serve “as a medium

between the accused and the power of the [s]tate.” Montejo v. Louisiana,

556 U.S. 778, 809, 129 S. Ct. 2079, 2098 (2009) (Stevens, J., dissenting).

V. Application of Criminal Prosecutions Clause.

Turning to the merits of the constitutional issue under the criminal prosecutions clause, the majority only briefly canvassed its arguments of

the three-justice plurality in Senn, and I will do the same.

With respect to the Criminal Prosecutions Clause, the United States

Supreme Court, under the Sixth Amendment, has declared in a series of

cases that the right to counsel attaches with the filing of an indictment or

other similar court document. See Rothgery v. Gillespie County, 554 U.S.

191, 198, 128 S. Ct. 2578, 2583 (2008); United States v. Gouveia, 467 U.S.

180, 188, 104 S. Ct. 2292, 2297 (1984); Kirby v. Illinois, 406 U.S. 683,

688–89, 92 S. Ct. 1877, 1882 (1972). Collectively, these cases were an 25

unfortunate development. As explained in Senn, I would not apply such a

formalistic approach but would concentrate on function; namely,

determining when counsel is required to limit the coercive power of the

state’s law enforcement machinery and permit an individual to effectively

defend at trial. 882 N.W.2d at 51–54 (Appel, J., dissenting). As noted in

Escobedo v. Illinois, “It would exalt form over substance to make the right

to counsel . . . depend on whether at the time of the interrogation, the

authorities had secured a formal indictment. Petitioner had, for all

practical purposes, already been charged with murder.” 378 U.S. 478,

486, 84 S. Ct. 1758, 1762 (1964).

Further, Justice Brennan noted in United States v. Wade that the

“plain wording of this [Sixth Amendment] guarantee encompasses

counsel’s assistance whenever necessary to assure a meaningful

‘defense.’ ” 388 U.S. 218, 225, 87 S. Ct. 1926, 1931 (1967). Justice

Brennan further emphasized in Wade that any pretrial confrontation of

the accused must be examined to determine the impact at trial. Id. at 227.

And, as later noted by Justice Stevens in Gouveia, the attachment of the

right to counsel “does not turn on the formal initiation of proceedings but

‘rather on the nature of the confrontation between the authorities and the citizen.’ ” Senn, 882 N.W.2d at 53 (quoting Gouveia, 467 U.S. at 195, 104

S. Ct. at 2301).

While Kirby was controversial from the beginning, it is widely

accepted, even in federal courts, that in order to preserve the effectiveness

of counsel at trial, the right to counsel must attach prior to the filing of

court documents in some instances. Post-Kirby federal courts, for

instance, have held that there is a right to counsel for communications

involving prefiling plea bargaining, Chrisco v. Shafran, 507 F. Supp. 1312,

1318–21 (D. Del. 1981), and prefiling Massiah violations, DeAngelo v. 26

Wainwright, 781 F.2d 1516, 1519 (11th Cir. 1986). And, there is some

suggestion in the federal caselaw that a prefiling lineup could be sufficient

to trigger a right to counsel if the suspect had in fact become an accused.

United States ex rel. Hall v. Lane, 804 F.2d 79, 81–82 (7th Cir. 1986).

I now turn to the caselaw regarding whether a right to counsel

attaches after a custodial arrest and the individual is faced with informed

consent. Suffice it to say that there is substantial, and in my view

persuasive, authority accepted in a number of jurisdictions holding that

when an individual is placed under arrest at the station house and is

confronted with the choice of providing a breath test or losing one’s driver’s

license, the power of the state has been sufficiently focused upon the

individual to give rise to a right to counsel designed to protect individuals

in criminal prosecutions. Cases from Oregon, Minnesota, and Washington

State provide support.

For example, the Oregon Supreme Court in State v. Spencer

declared:

A person taken into formal custody by the police on a potentially criminal charge is confronted with the full legal power of the state, regardless of whether a formal charge has been filed. Where such custody is complete, neither the lack of a selected charge nor the possibility that the police will think better of the entire matter changes the fact that the arrested person is, at that moment, ensnared in a “criminal prosecution.”

750 P.2d at 155–56.

A similar approach was taken by the Minnesota Supreme Court in

Friedman v. Commissioner of Public Safety. 473 N.W.2d 828 (Minn. 1991)

(en banc). The Minnesota Supreme Court observed that “the expansion of

the right to counsel is necessary ‘when new contexts appear presenting

the same dangers that gave birth initially to the right itself.’ ” Id. at 833

(quoting United States v. Ash, 413 U.S. 300, 311, 93 S. Ct. 2568, 2574 27

(1973)). Citing Spencer, the Minnesota Supreme Court found implied

consent an example of such a context:

Thus, while we hold that the point at which an individual is asked by law enforcement officials to undergo a blood alcohol test constitutes a critical stage in the criminal process and that article I, section 6 of the Minnesota Constitution guarantees an individual in such a situation the limited right to counsel within a reasonable time before submitting to testing.

Id. at 837.

The Supreme Court of Washington considered the question of right to counsel in the context of informed consent in State v. Fitzsimmons. 610

P.2d 893, 901 (Wash. 1980) (en banc), vacated, 449 U.S. 977, 101 S. Ct.

390 (1980), aff’d on state constitutional grounds, 620 P.2d 999, 1001

(Wash.) (en banc) (per curiam). The Washington Supreme Court noted that

a critical stage requiring right to counsel “arises when the defendant’s right

to a fair trial or other substantial rights may be affected.” Id. at 898. The

Washington Supreme Court went on to observe that

the period immediately after arrest and charging in a driving while under the influence of intoxicating liquor case is a “critical stage” because of the unique character of the evidence to be obtained and the trial strategy decisions which must be made then, if at all.

Id. at 445; see also People v. Gursey, 239 N.E.2d 351, 352–53 (N.Y. 1968);

State v. Welch, 376 A.2d 351, 355 (Vt. 1977).

In addition to the five states that have found a constitutional right

to counsel in the context of implied consent, at least six states have

provided for confidential consultation with counsel in the informed-

consent setting by statute or rule. Kameroff v. State, 926 P.2d 1174, 1178

(Alaska Ct. App. 1996); McNutt v. Super. Ct., 648 P.2d 122, 124 (Ariz. 1982)

(en banc); Roesing v. Dir. of Rev., 573 S.W.3d 634, 638–39 (Mo. 2019)

(en banc); State v. Howren, 323 S.E.2d 335, 336 (N.C. 1984); Kuntz v. State 28

Highway Comm’r, 405 N.W.2d 285, 289 (N.D. 1987); City of Lakewood v.

Waselenchuk, 641 N.E.2d 767, 770 (Ohio Ct. App. 1994).

The notion that counsel is needed to counterbalance the power of

the state against a layperson arrested and charged with drunk driving is

illustrated in the Lakewood v. Waselenchuk case. After being presented

with a form stating her rights, the defendant declared, “I’m scared. This

sounds like I’m up under a real big serious thing and I think I should have

an attorney.” Waselenchuk, 641 N.E.2d at 768. Then the defendant was

read the implied-consent advisory and declared, “God, and I have to decide

this without a lawyer?” Id. The average citizen is not the proverbial Oxford

Don when it comes to parsing the language, and, in any event, the Oxford

Don would be well-advised to call a lawyer too.

The majority cites practical reasons against extending constitutional

protections in this case. Practical issues are said to arise related to

providing counsel to indigent persons confronting implied consent. In

State v. Smalls, an Oregon appellate court ruled that the limited right to

counsel did not require the state to provide a lawyer to indigent drunk-

driving arrestees. 120 P.3d 506, 509 (Or. Ct. App. 2005). On the other

hand, in the state of Washington, rules provide that a person in custody who desires counsel shall at the earliest opportunity be given access to the

telephone number of the public defender. Fitzsimmons, 610 P.2d at 896.

In any event, a number of counties have twenty-four-hour access to

appointed counsel by telephone. Id. at 899 n.1.

Further, the caselaw emphasizes that the right to counsel is limited

so that consultation with a lawyer does not delay the administration of the

test and that if counsel cannot be contacted within a reasonable period of

time, a decision regarding testing must be made in the absence of counsel.

Friedman, 473 N.W.2d at 835 (“[A]n individual has the right, upon request, 29

to a reasonable opportunity to obtain legal advice before deciding whether

to submit to chemical testing.”); see also Gursey, 239 N.E.2d at 353 (“The

privilege of consulting with counsel concerning the exercise of legal rights

should not, however, extend so far as to palpably impair or nullify the

statutory procedure requiring drivers to choose between taking the test or

losing their licenses.”); City of Roseburg v. Dykstra, 854 P.2d 985, 986–87

(Or. Ct. App. 1993) (en banc) (holding that an attorney’s physical presence

is not required during the administration of a breath test, phone

consultation is sufficient); Welch, 376 A.2d at 355 (“[T]he privilege of

consulting with counsel concerning the exercise of legal rights should not

be allowed to interfere with the necessarily expedient procedures requiring

operators to make their choice whether to submit to the test.”).

From Powell v. Alabama to Gideon v. Wainwright, to State v. Young,

state authorities routinely raise “the sky is falling” practical problems in

efforts to defeat providing accused with the right to counsel. But,

fortunately, independent courts have repeatedly held that the right to

counsel is available not only at the state’s convenience.

VI. Application of the Cases Clause.

On the cases clause, the majority claims that I created a strawman by declaring that the plurality in Senn made the cases clause redundant

and merely duplicative of the criminal prosecutions clause. The majority

claims to have defeated the strawman by declaring that the cases clause

was designed to provide trial rights to fugitive slaves. But the majority

gives the cases clause only a sliver of historical meaning and no

contemporaneous application by artificially limiting the cases clause to

Fugitive Slave Act proceedings. And it further undercuts even that sliver

by stating that in order to be within the scope of the cases clause, the

individual must be “an accused,” a concept, according to the majority, 30

from criminal law. In any event, the question of fugitive slaves was

resolved by the Civil War. So, the majority seeks to reduce the cases clause

to at most a historical oddity and a contemporaneous nullity. To that

extent, but only to that extent, I stand corrected.

The majority approach to the cases clause is too narrow. First, the

language itself of the cases clause is not limited to Fugitive Slave Act cases

but is general in nature. If the Iowa Constitutional Convention intended

to limit the concept to fugitive slaves, it could have said so. Now the

majority makes much of the use of the term “accused” in the clause, but

the term “accused” was not used in a narrow or technical sense and should

therefore be broadly construed. For instance, in Ex parte Grace, we applied

the cases clause in a case involving execution remedies involving property.

12 Iowa 208, 212 (1861). Plainly, the contemporaneous understanding of

“accused” was not limited to those accused of crime.

And, to use John Marshall’s famous words, we must not forget “that

it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316, 407 (1819). Or, in the words of our local John Marshall,

Justice LeGrand, “[N]o forced, unnatural, narrow, or technical

construction should ever [be] placed upon the language of a constitution.” Redmond v. Carter, 247 N.W.2d 268, 275 (Iowa 1976) (en banc) (LeGrand,

J., concurring specially) (quoting 16 Am. Jur. 2d Constitutional Law § 76,

at 258 (1964)).

Justice LeGrand’s words resonate. We should not be looking for

narrow constructions of constitutional provisions. Indeed, in Gansen v.

Gansen, we broadly construed a provision in the Iowa Constitution related

to agricultural leases. 874 N.W.2d 617, 626 (Iowa 2016). It would be

unfathomable to broadly construe such a provision, which had a distinct 31

origin in the semi-feudal ways of the Hudson Valley, and yet narrowly

construe the cases provision of the right to counsel.

Our precedents agree with the proposition that the right-to-counsel

provisions should be generously interpreted. In State v. Newsom, we

considered a case where the state claimed a juvenile defendant had waived

his right to counsel and, as a result, admissions during a police

interrogation when the defendant was in custody were admissible. 414

N.W.2d 354, 356–57 (Iowa 1987). We concluded that the state’s

interrogation after he “was represented by counsel[] affirmatively

circumvented defendant’s sixth amendment rights.” Id. at 359.

But we further concluded that, “independent of our sixth

amendment analysis,” the state had also violated “defendant’s right to

counsel under” article I, section 10 of the Iowa Constitution. Id. We

declared that the right to counsel in the Iowa Constitution should be

broadly construed “to effectuate its purpose” of “correct[ing] the imbalance

between the position of an accused and the powerful forces of the State in

a criminal prosecution.” Id.

Those interested in text will find it illuminating that the Sixth

Amendment right to counsel under the Federal Constitution is limited to a criminal proceeding “for his defense.” U.S. Const. Amend. VI. Under the

Iowa Constitution, however, there is no such limitation. In short, the right

to counsel applies in any case, and not just a criminal prosecution, and,

unlike the Sixth Amendment, it does not necessarily need to be “for his

defense” in a criminal prosecution.

The majority enters the parade ground of this case with two cases

mounted on its prosecutorial pikes: State v. Green, 896 N.W.2d 770, 773

(Iowa 2017), and Ruiz v. State, 912 N.W.2d 435, 436 (Iowa 2018). These

cases involved simple investigative actions by law enforcement. They do 32

not involve custodial arrests of persons charged with a crime, under arrest

at the jailhouse, who are faced with informed consent. These cases do not

stand for the proposition that right to counsel never applies prior to

indictment or the filing of court papers. Here, we have a unique situation

involving custodial jailhouse arrest and the accused facing a Hobson’s

choice of providing a breath specimen or losing a driver’s license for an

extended period of time. See Fitzsimmons, 610 P.2d at 900. The

atmosphere is one of coercion and the decision at hand heavy with

important legal implications. Time is of the essence. The guiding hand of

counsel is crucial in permitting the arrestee to make an informed choice

that is irreversible and will largely dictate whether he is convicted of a

crime or loses his driver’s license. The majority does not see it, but the

State held the hammer over the hapless Sewell at 4:56 a.m. in the

Dickinson County jail when he was confronted with informed consent. He

has only himself to blame for his predicament, but he was entitled to legal

advice to help him deal with it. The decisions made that night were

irreversible regardless of the skill of trial counsel. Counsel at trial will do

him little good. The main event affecting his prospects at trial occurred at

the jailhouse. VII. Due Process.

The major state due process case in the area of implied consent is

Sites v. State. 481 A.2d 192 (Md. 1984). In Sites, Sites was arrested for

drunk driving in the early morning hours and taken to the police station.

Id. at 194–95. Sites asked to call his lawyer several times, which the police

refused to allow. Id. at 195. A breathalyzer was administered, and he

tested at 0.17%. Id. Sites was convicted of driving while intoxicated and

appealed his conviction. Id. 33

The Court of Appeals of Maryland, the highest state appellate court,

concluded that Sites did not have a statutory or constitutional right to

counsel. Id. at 195–97. The Maryland court then proceeded to consider a

due process claim that Sites was entitled to counsel prior to administration

of the breath test in the case. Id. at 197.

The Maryland court noted that the Due Process Clause had long

been held to ensure the fairness of proceedings. Id. at 199. The Maryland

court recognized that a number of courts had rejected the notion of a due

process right to counsel before submitting to chemical testing. Id. (citing

Gottschalk v. Sueppel, 258 Iowa 1173, 1180–82, 140 N.W.2d 866, 870–71

(1966); State v. Jones, 457 A.2d 1116, 1119 n.6 (Me. 1983); State v.

Braunesreither, 276 N.W.2d 139, 140 (S.D. 1979) (per curiam)). But the

Maryland court focused on the fact that continued possession of a driver’s

license “may become essential to earning a livelihood; as such, it is an

entitlement which cannot be taken without the due process mandated by

the Fourteenth Amendment.” Id. at 200. According to the Maryland court:

[T]he due process clause of the Fourteenth Amendment, as well as Article 24 of the Maryland Declaration of Rights, requires that a person under detention for drunk driving must, on request, be permitted a reasonable opportunity to communicate with counsel before submitting to a chemical sobriety test, as long as such attempted communication will not substantially interfere with the timely and efficacious administration of the testing process.

Id. The Maryland court, however, determined that Sites failed to show

exactly when he asked for counsel and therefore it could not be determined

whether the failure of the police to honor his request was reasonable. Id.;

see also Heles v. South Dakota, 530 F. Supp. 646, 653 (D.S.D. 1982),

judgment vacated, 682 F.2d 201 (8th Cir. 1982).

An Ohio appellate court also found a due process violation in the

implied-consent context in Waselenchuk. 641 N.E.2d 767. In 34

Waselenchuk, the Ohio appellate court found that law enforcement failed

to honor a request for counsel after the defendant was arrested for drunk

driving. Id. at 768. According to the Ohio appellate court, “[T]he due

process clause applies to the deprivation of a driver’s license by the state.”

Id. (quoting Dixon v. Love, 431 U.S. 105, 112, 97 S. Ct. 1723, 1727 (1977)).

Quoting an unreported case, the Ohio court declared that

due process and fundamental fairness require that a person held on suspicion of drunk driving who requests the opportunity to communicate with counsel before submitting to, or refusing, a chemical test must be permitted to do so, as long as such communication does not interfere with the timely administering of the test.

Id. at 770 (quoting State v. Larson, No. 16–CA–88, 1988 WL 138429, at *1

(Ohio Ct. App. Dec. 12, 1988)).

There is Iowa authority to the contrary. In Gottschalk v. Sueppel, we

considered whether the due process clause triggered a right to assistance

of counsel in the context of implied consent. 258 Iowa at 1180–82, 140

N.W.2d at 870–71. We noted, among other things, that the due process

claim was not urged before nor considered by the district court. Id. at

1181, 140 N.W.2d at 870. In any event, we declared the fallacy of due

process claims related to revocation of a driver’s license is that the “so[- ]called property right is not such in the ordinary sense. It is a privilege

granted to him under certain specific conditions, subject to all laws

pertaining thereto at the time the same is issued or may be later enacted.”

Id. Further, on the facts, the court concluded that the plaintiff would have

refused the test even if he had conferred with his attorney before the

officers requested consent. Id. at 1182, 140 N.W.2d at 871. Justices

Thornton and Becker dissented. Id. at 1186, 140 N.W.2d at 873.

In my view, Gottschalk is a doubtful precedent for a number of

reasons. First, the issue in Gottschalk was not preserved in the district 35

court. Second, the Gottschalk majority disparaged the interest of an

individual in a driver’s license by characterizing it as a “privilege.” Id. at

1181, 140 N.W.2d at 870–71. Such a formalistic doctrine is inconsistent

with the Supreme Court declarations in Dixon v. Love, 431 U.S. at 112, 97

S. Ct. at 1727, and Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589

(1971), that a person has a liberty interest in a driver’s license. Further,

as noted in Sites, “[R]evocation of a driver’s license may burden the

ordinary driver as much or more than the traditional criminal sanctions.”

481 A.2d at 199–200. For some, continued possession of a driver’s license

is essential to earning a living. 481 A.2d at 199–200.

Sewell does cite the above precedents in his brief and appears to

proceed on a different due process theory. Sewell relies on a number of

right-to-counsel cases involving government misconduct in interfering

with the right to counsel. See United States v. Stringer, 535 F.3d 929, 941

(9th Cir. 2008) (discussing trickery or misleading interference with defense

counsel); State v. Ferrell, 463 A.2d 573, 575 (Conn. 1983) (eavesdropping

on attorney after feigning privacy of conversation); People v. McCauley, 645

N.E.2d 923, 926–27 (Ill. 1994) (discussing how government officials misled

attorney to believe that defendant was not present at station when he was in fact being investigated); State v. Sugar, 417 A.2d 474, 476 (N.J. 1980)

(discussing police eavesdropping on conversation between suspect and

attorney).

Responding to the due process argument raised in Sewell’s brief, the

State argues that the precedents are inapplicable. The State suggests that

Sewell is asserting what it labels a “free standing” substantive due process

argument applicable in cases where the state wrongfully invades the

attorney–client relationship. But the State asserts that law enforcement

in this case was completely upfront regarding the monitoring of any phone 36

call between the attorney and the client and followed the terms of Iowa

Code section 804.20.

I agree with the State that the due process cases cited by Sewell

relate to wrongful government invasion of the attorney–client relationship

and employ what seems to be a variant of the “shock the conscience” test

of Rochin. 342 U.S. at 172, 72 S. Ct. at 209. I find these cases

distinguishable as suggested by the State.

But there remains the due process approach presented in Sites,

Waselenchuk, and Heles. Those cases do not deal with police misconduct

but instead focus on fundamental fairness in proceedings involving alleged

liberty or property interests. On this branch of due process, I would

reserve judgment for a later day when the issue is better illuminated by

the parties.

VIII. Remedy.

Having concluded that Sewell was entitled to counsel at the time he

was arrested, taken to the jail, and confronted with the choice of taking

the breathalyzer or having his driver’s license suspended for an extended

period of time, the question remains: What is the proper remedy?

Sewell argues that dismissal of the charges is the only available option. He asserts that the right to counsel is too fundamental to indulge

in nice calculations as to the amount of prejudice from denial of his right

to counsel.

There is some authority supporting the position. In State v. Holland,

the Arizona Supreme Court stated that when the right to counsel is

violated, the conviction obtained must be set aside because “it is

impossible to foresee what advice would have been given defendant had he

been able to confer privately with counsel. It is quite possible that he

would have been instructed to obtain, in some manner, exculpatory 37

evidence.” 711 P.2d at 595. As a result, suppression of the breath test

alone is not sufficient and all drunk-driving charges must be dismissed.

Id. Similarly, in State v. Hill, the North Carolina Supreme Court held that

a prosecution should be dismissed when there is a violation of

constitutional or statutory right to communicate with both counsel and

friends and such denial deprived the defendant of any opportunity to

confront the state’s witnesses. 178 S.E.2d 462, 467 (N.C. 1971).

But, the State contends that suppression is the proper remedy. The

State notes that we have never adopted an automatic dismissal rule for

violations of constitutional or statutory rights impacting a testing decision.

See, e.g., State v. Pettijohn, 899 N.W.2d 1, 38–39 (Iowa 2017) (remanding

for new trial); State v. Walker, 804 N.W.2d 284, 296 (Iowa 2011)

(suppressing evidence wrongfully obtained); State v. Garrity, 765 N.W.2d

592, 597–98 (Iowa 2009) (applying the exclusionary rule to evidence

wrongfully obtained).

Further, the State asserts that any error is harmless. The State

points out that Sewell was charged not only under Iowa Code section

321J.2(1)(b), dealing with driving with BAC over .08%, but also under Iowa

Code section 321J.2(1)(a), which simply requires that the State show driving while intoxicated. Even if the breath test is excluded, the State

claims there was sufficient evidence to convict Sewell under the State’s

alternate theory of drunk driving. See Garrity, 765 N.W.2d at 597–98.

There is authority in support of suppression rather than dismissal

of cases involving violations of right to counsel in implied-consent settings.

But in my view, the question is not subject to a categorical rule but instead

is based on the facts and circumstances of the case. For example, in State

v. Keyonnie, the court held that suppression was the proper remedy when

there was no evidence that the defendant was deprived of the opportunity 38

to gather exculpatory evidence. 892 P.2d 205, 207 (Ariz. Ct. App. 1995).

That seems the correct approach. In order to sustain dismissal, the

burden is on the defendant to show that there was meaningful

investigation or evidence gathering that could realistically have been

impacted by the denial of counsel at the critical time.

In this case, however, the defendant in paragraph 6 of his “Written

Waiver of Jury Trial and Stipulation to Trial on the Minutes” waived his

jury trial rights and stipulated to trial by the minutes only “with respect to

the charge of Operating While Intoxicated while having an alcohol

concentration in excess of .08 in violation of Iowa Code Section

321J.2(1)(b).” The bench trial was expressly based on the stipulation. It

seems clear, then, that Sewell did not waive his right to a jury trial and

stipulate to a bench trial on the minutes on the State’s alternate theory.

Therefore, the error in this case cannot be harmless.

Further, on remand, if the State seeks to proceed on its alternate

theory,6 Sewell should be entitled to attempt to show, if he can, that the

deprival of timely consultation with counsel created a reasonable

probability that Sewell had been deprived of the opportunity to develop

evidence for the defense. If Sewell meets this burden, the State must dismiss remaining charges.

IX. Conclusion.

For the above reasons, I would conclude that the charges against

Sewell under Iowa Code section 321J.2(1)(b) should be dismissed and the

case remanded to the district court for further proceedings on whether the

State may proceed to trial under Iowa Code section 321J.2(1)(a).

6I take no view on any potential additional defenses Sewell may have on remand

to prosecution under Iowa Code section 321J.2(1)(a).