IN THE COURT OF APPEALS OF IOWA
No. 13-1830 Filed August 13, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL LEER JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Gerald W.
Magee, Judge.
Defendant appeals his conviction for operating while intoxicated, second
offense. AFFIRMED.
Brandon Brown of Parrish, Kruidenier, Dunn, Boles, Gribble & Gentry,
L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Sean M. Corpstein, Legal Intern, Carlyle Dalen, County Attorney, and
Steven D. Tynan, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ. 2
BOWER, J.
Michael Leer appeals his conviction for operating while intoxicated,
second offense. He claims the district court erred by finding a breath test was
offered or made available to him within two hours after refusing a preliminary
breath test (PBT). There is substantial evidence in the record to support the
court’s findings that the test was offered to Leer within two hours. We affirm the
decision of the district court denying Leer’s motion to suppress the results of his
breath test.
I. Background Facts & Proceedings
On January 1, 2012, at about 3:00 a.m., Officer Jason Stiles of the Mason
City Police Department stopped a vehicle driven by Leer. Another officer, Duane
Kemna, also appeared at the scene. Leer was observed to have watery,
bloodshot eyes, a strong odor of alcoholic beverages, and he “admitted he had
drunk a few beers.” Leer refused a PBT. One dashboard camera recorded the
time of refusal as 3:08:03 a.m. and another dashboard camera recorded the time
as 3:09:26 a.m. Officer Kemna called in the refusal to computer-aided dispatch,
which recorded the time as 3:15 a.m.
Leer was arrested and taken to the police station. After he made several
telephone calls, Officer Stiles read him the implied consent advisory. The officer
gave Leer a written request for a breath sample. Officer Stiles looked at his
wristwatch and saw the time of the request was 5:05 a.m. Leer signed the
consent form. Officer Stiles testified that about ten or fifteen seconds later he
activated the DataMaster. A printout of the DataMaster shows it was activated at 3
5:16:31 a.m. Leer provided a breath sample which showed his blood alcohol
level was .129.
Leer was charged with operating while intoxicated (OWI), second offense,
in violation of Iowa Code section 321J.2 (2011). Leer filed a motion to suppress,
challenging the stop of his vehicle and claiming the result of his breath test
should be suppressed because the test was made more than two hours after he
refused the PBT. After a hearing, the district court denied the motion to
suppress. The court also denied Leer’s motion to reconsider its ruling.
Leer waived his right to a jury trial. The parties stipulated to a trial based
on the minutes of evidence. The district court found Leer guilty of OWI, second
offense. Leer was sentenced to two years in prison, with all but seven days
suspended. He appealed.
On appeal, the Iowa Court of Appeals affirmed that part of the suppression
ruling addressing whether the officer had reasonable suspicion to stop Leer’s
vehicle. State v. Leer, No. 12-1904, 2013 WL 4769391, *3 (Iowa Ct. App. Sept.
5, 2013). We determined, however, the district court had used an improper legal
standard in determining whether Leer had been offered a breath test outside the
two-hour limitation found in section 321J.6. Id. at *4. The court had improperly
considered the evidence in a light most favorable to the State. Id. We reversed
on this issue and remanded to the district court “for application of the correct
legal standard, placing the burden upon the State.” Id.
On remand, the district court determined the most credible evidence of the
time Leer refused the PBT was 3:15 a.m., the time the refusal was logged into 4
computer-aided dispatch. The court found the times from the dashboard
cameras were not certified nor verified and noted the times from the two
dashboard cameras were different from each other. The court also found Officer
Stiles had offered a breath test to Leer at 5:05 a.m., the time he noted on his
wristwatch. The court determined, “[t]he offer of breath testing is the crucial
factor, not when Defendant signed the consent nor when the machine was
activated.” The court determined the State met its burden of proof to show the
testing was offered or made available to Leer within the two hours required by
section 321J.6. Leer again appeals.
II. Standard of Review
Our review of the district court’s ruling is for the correction of errors at law.
State v. McCoy, 603 N.W.2d 629, 630 (Iowa 1999). We will uphold the district
court’s ruling on the motion to suppress if it is supported by substantial evidence.
State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998). “We will not reverse the
trial court’s ruling on the basis that the evidence is disputed, or that the trial court
could have reached the opposite conclusion.” State v. Laughridge, 437 N.W.2d
570, 572 (Iowa 1989).
III. Merits
Leer claims the district court erred by finding a breath test was offered or
made available to him within two hours. He contends there is not substantial
evidence in the record to support the court’s finding that he refused the PBT at
3:15 a.m. He also contends the evidence does not support the finding Officer
Stiles requested a breath test at 5:05 a.m. Leer asserts the request for a breath 5
test was made outside the two-hour time period, and the results of the breath test
should have been suppressed.
“[I]f the police officer does not offer a chemical test within two hours after
the arrest is made, a test is not required and the driver’s refusal of a test will not
cause the revocation of his license.” State v. Kjos, 524 N.W.2d 195, 196 (Iowa
1994). If a request for testing is made after two hours, and a person is
improperly informed refusal of testing will result in license revocation, as was the
case here, the test results will be excluded. See id. at 197. The State has the
burden to show by a preponderance of the evidence a defendant’s consent to
testing was voluntary. State v. Overbay, 810 N.W.2d 871, 879 (Iowa 2012);
State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991).
Section 321J.6(2) provides, “If the peace officer fails to offer a test within
two hours after the preliminary screening test is administered or refused or the
arrest is made, whichever occurs first, a test is not required, and there shall be
no revocation under section 321J.9.” Under the language of the statute, a test
should be offered within a two-hour period; there is no requirement the test must
actually be taken within that time interval. State v.
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IN THE COURT OF APPEALS OF IOWA
No. 13-1830 Filed August 13, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL LEER JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Gerald W.
Magee, Judge.
Defendant appeals his conviction for operating while intoxicated, second
offense. AFFIRMED.
Brandon Brown of Parrish, Kruidenier, Dunn, Boles, Gribble & Gentry,
L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Sean M. Corpstein, Legal Intern, Carlyle Dalen, County Attorney, and
Steven D. Tynan, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ. 2
BOWER, J.
Michael Leer appeals his conviction for operating while intoxicated,
second offense. He claims the district court erred by finding a breath test was
offered or made available to him within two hours after refusing a preliminary
breath test (PBT). There is substantial evidence in the record to support the
court’s findings that the test was offered to Leer within two hours. We affirm the
decision of the district court denying Leer’s motion to suppress the results of his
breath test.
I. Background Facts & Proceedings
On January 1, 2012, at about 3:00 a.m., Officer Jason Stiles of the Mason
City Police Department stopped a vehicle driven by Leer. Another officer, Duane
Kemna, also appeared at the scene. Leer was observed to have watery,
bloodshot eyes, a strong odor of alcoholic beverages, and he “admitted he had
drunk a few beers.” Leer refused a PBT. One dashboard camera recorded the
time of refusal as 3:08:03 a.m. and another dashboard camera recorded the time
as 3:09:26 a.m. Officer Kemna called in the refusal to computer-aided dispatch,
which recorded the time as 3:15 a.m.
Leer was arrested and taken to the police station. After he made several
telephone calls, Officer Stiles read him the implied consent advisory. The officer
gave Leer a written request for a breath sample. Officer Stiles looked at his
wristwatch and saw the time of the request was 5:05 a.m. Leer signed the
consent form. Officer Stiles testified that about ten or fifteen seconds later he
activated the DataMaster. A printout of the DataMaster shows it was activated at 3
5:16:31 a.m. Leer provided a breath sample which showed his blood alcohol
level was .129.
Leer was charged with operating while intoxicated (OWI), second offense,
in violation of Iowa Code section 321J.2 (2011). Leer filed a motion to suppress,
challenging the stop of his vehicle and claiming the result of his breath test
should be suppressed because the test was made more than two hours after he
refused the PBT. After a hearing, the district court denied the motion to
suppress. The court also denied Leer’s motion to reconsider its ruling.
Leer waived his right to a jury trial. The parties stipulated to a trial based
on the minutes of evidence. The district court found Leer guilty of OWI, second
offense. Leer was sentenced to two years in prison, with all but seven days
suspended. He appealed.
On appeal, the Iowa Court of Appeals affirmed that part of the suppression
ruling addressing whether the officer had reasonable suspicion to stop Leer’s
vehicle. State v. Leer, No. 12-1904, 2013 WL 4769391, *3 (Iowa Ct. App. Sept.
5, 2013). We determined, however, the district court had used an improper legal
standard in determining whether Leer had been offered a breath test outside the
two-hour limitation found in section 321J.6. Id. at *4. The court had improperly
considered the evidence in a light most favorable to the State. Id. We reversed
on this issue and remanded to the district court “for application of the correct
legal standard, placing the burden upon the State.” Id.
On remand, the district court determined the most credible evidence of the
time Leer refused the PBT was 3:15 a.m., the time the refusal was logged into 4
computer-aided dispatch. The court found the times from the dashboard
cameras were not certified nor verified and noted the times from the two
dashboard cameras were different from each other. The court also found Officer
Stiles had offered a breath test to Leer at 5:05 a.m., the time he noted on his
wristwatch. The court determined, “[t]he offer of breath testing is the crucial
factor, not when Defendant signed the consent nor when the machine was
activated.” The court determined the State met its burden of proof to show the
testing was offered or made available to Leer within the two hours required by
section 321J.6. Leer again appeals.
II. Standard of Review
Our review of the district court’s ruling is for the correction of errors at law.
State v. McCoy, 603 N.W.2d 629, 630 (Iowa 1999). We will uphold the district
court’s ruling on the motion to suppress if it is supported by substantial evidence.
State v. Wootten, 577 N.W.2d 654, 656 (Iowa 1998). “We will not reverse the
trial court’s ruling on the basis that the evidence is disputed, or that the trial court
could have reached the opposite conclusion.” State v. Laughridge, 437 N.W.2d
570, 572 (Iowa 1989).
III. Merits
Leer claims the district court erred by finding a breath test was offered or
made available to him within two hours. He contends there is not substantial
evidence in the record to support the court’s finding that he refused the PBT at
3:15 a.m. He also contends the evidence does not support the finding Officer
Stiles requested a breath test at 5:05 a.m. Leer asserts the request for a breath 5
test was made outside the two-hour time period, and the results of the breath test
should have been suppressed.
“[I]f the police officer does not offer a chemical test within two hours after
the arrest is made, a test is not required and the driver’s refusal of a test will not
cause the revocation of his license.” State v. Kjos, 524 N.W.2d 195, 196 (Iowa
1994). If a request for testing is made after two hours, and a person is
improperly informed refusal of testing will result in license revocation, as was the
case here, the test results will be excluded. See id. at 197. The State has the
burden to show by a preponderance of the evidence a defendant’s consent to
testing was voluntary. State v. Overbay, 810 N.W.2d 871, 879 (Iowa 2012);
State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991).
Section 321J.6(2) provides, “If the peace officer fails to offer a test within
two hours after the preliminary screening test is administered or refused or the
arrest is made, whichever occurs first, a test is not required, and there shall be
no revocation under section 321J.9.” Under the language of the statute, a test
should be offered within a two-hour period; there is no requirement the test must
actually be taken within that time interval. State v. Stoneking, 379 N.W.2d 352,
356 (Iowa 1985).
We determine there is substantial evidence in the record to support the
district court’s finding Leer’s refusal of the PBT was at 3:15 a.m. Officer Stiles
testified he relied upon the time logged by computer-aided dispatch, which was
3:15 a.m. There was no evidence the clocks in the two dashboard cameras had
been certified or verified. There was no evidence the clocks in the dashboard 6
cameras had ever been synchronized with any other clock. Officer Stiles testified
he never used the clock from the dashboard camera in his patrol car. Also, as
the court noted, the times from the dashboard cameras from Officer Stiles’s car
and Officer Kemna’s car differed.
We also determine there is substantial evidence in the record to support
the court’s finding Leer had been offered a breath test at 5:05 a.m. Officer Stiles
testified he looked at his wristwatch when he requested a breath specimen and
noted down the time. The court found, “Stiles later testified that from the time
Defendant signed consent to testing until the DataMaster was activated only a
‘few seconds’ or ‘one minute’ elapsed but that it takes that machine ‘a couple of
minutes’ to run its checklist/tests.” The court stated that although a printout from
the DataMaster showed it had been activated at 5:16:31, the relevant time was
when the request for a breath test had been made, not when the machine had
been activated.
The fact the evidence is disputed does not mean the district court’s ruling
was not supported by substantial evidence. See Laughridge, 437 N.W.2d at 572.
We affirm the decision of the district court denying Leer’s motion to suppress the
results of his breath test.
AFFIRMED.