Toby Joseph Welch v. Iowa Department of Transportation, Motor Vehicle Division

801 N.W.2d 590, 2011 Iowa Sup. LEXIS 58
CourtSupreme Court of Iowa
DecidedAugust 12, 2011
Docket10–2029
StatusPublished
Cited by59 cases

This text of 801 N.W.2d 590 (Toby Joseph Welch v. Iowa Department of Transportation, Motor Vehicle Division) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toby Joseph Welch v. Iowa Department of Transportation, Motor Vehicle Division, 801 N.W.2d 590, 2011 Iowa Sup. LEXIS 58 (iowa 2011).

Opinion

MANSFIELD, Justice.

This case presents the question whether a motorist who initially refuses chemical testing for intoxication may change his or her mind, provided the motorist does so within a short and reasonable time and certain other conditions are met. We conclude that a rule treating the motorist’s initial refusal as determinative is supported by our precedents, consistent with the general assembly’s intent, and easier for police and courts to administer. Accordingly, we reject the motorist’s appeal and uphold the revocation of his license.

I. Background Facts and Proceedings.

The essential facts of this case are not disputed. 1 Early on the morning of August 1, 2009, Toby Welch was pulled over by Officer Ryan King of the Des Moines Police Department for driving the wrong way down a one-way street. At 1:54 a.m., Welch consented to and Officer King administered a preliminary breath screening test (PBT). See Iowa Code § 321J.5 (2009). The PBT indicated that Welch’s alcohol concentration equaled or exceeded the statutory limit of 0.08. Welch was arrested for the offense of operating while intoxicated (OWI) in violation of Iowa Code section 321 J.2 and transported to the police station.

At 2:14 a.m., after invoking the implied consent procedures and reading Welch an implied consent advisory, Officer King requested a breath specimen to be used for chemical testing. Officer King provided Welch the opportunity to make phone calls “to seek advice about this test that I’m asking you to take.” Welch left a message for his attorney at 2:15 a.m., spoke with his wife at 2:17 a.m., and left a message for his mother at 2:19 a.m. At 2:20 a.m., the following conversation took place:

OFFICER KING: Anybody else you’d like to call sir?
TOBY WELCH: Nope, I’m going to refuse though.
OFFICER KING: You’re going to refuse?
TOBY WELCH: Yep.

Officer King asked Welch to check the “refuse to submit” box and sign the electronic tablet to confirm his refusal. See State v. Fischer, 785 N.W.2d 697, 706 (Iowa 2010) (determining that the use of a computer screen satisfies the “written request” requirement of section 321J.6(1)). Welch declined both requests. Welch then received a phone call which he was permitted to answer.

At 2:23 a.m., Officer King and Welch continued their discussion of King’s request for a breath specimen:

OFFICER KING: You do want to refuse, is that correct? Toby?
TOBY WELCH: I plead the fifth. OFFICER KING: Ok.
TOBY WELCH: My name is not Toby.
*593 OFFICER KING: Your name is not Toby?
TOBY WELCH: No sir.
OFFICER KING: What’s your name then?
TOBY WELCH: Can’t tell you.
OFFICER KING: Ok. Just so you know, I’ve written in refused to sign and checked the refused box since you don’t want to take the test. You will lose your license for a period of one year.

Welch was placed in a temporary holding area and at some point within the next eight minutes received a return phone call from his attorney. At 2:31 a.m., speaking from the holding area, Welch engaged another officer in the following dialogue:

TOBY WELCH: Can I talk to anybody?
OFFICER: About what?
TOBY WELCH: I’d like to go ahead and blow.
OFFICER: Excuse me?
TOBY WELCH: I refused to blow earlier but I’d like to go ahead and blow.
OFFICER: Who was doing the testing?
TOBY WELCH: What’s that?
OFFICER: The officer in there did your testing? Hey Ryan?
OFFICER KING: Yeah?
TOBY WELCH: I didn’t want to and I refused it.
OFFICER: He refused to test right?
OFFICER KING: Yeah, he refused to even sign the box.

Informed of Welch’s newfound desire to consent, Officer King responded that Welch had already refused to submit to the breath test, and it was now “too late.” At 2:35 a.m., Welch again requested the test. He stated, “My lawyer told me I need to blow tonight.” He then asked Officer King to “throw the paperwork away.” Officer King declined Welch’s request, commenting, “You made your choice not to take the test.”

Based on his refusal to submit to chemical testing, the Iowa Department of Transportation (IDOT) revoked Welch’s driver’s license for one year. Iowa Code § 321J.9(l)(a).

Welch requested an administrative hearing to contest the revocation. See id. § 321J.13(1); Iowa Admin. Code r. 761— 620.4(l)(a)(e). Welch argued revocation was improper because he cured his initial refusal by subsequently consenting to take the requested test within a short period of time. Citing to our decision in Krueger v. Fulton, 169 N.W.2d 875, 878-79 (Iowa 1969), the IDOT’s administrative law judge sustained the revocation. Welch appealed to the director of the department of transportation. See Iowa Code § 321J.13(3); Iowa Admin. Code r. 761-620.4(2)(a)-(/). The reviewing officer affirmed, noting:

While [Welch’s] refusal in words and reluctance to submit in writing could not be clearer, [Welch] claims a subsequent consent rule is more logical and best furthers the purpose of the implied consent statutes. The Iowa Supreme Court disagreed forty years ago and has not waivered [sic] from that conclusion.

Having exhausted his administrative remedies, Welch filed a petition for judicial review with the district court. See Iowa Code § 321J.14; Iowa Admin. Code r. 761 — 620.4(3) (“The decision of the director of transportation shall be the final decision of the department and shall constitute final agency action for purposes of judicial review. No further steps are necessary to exhaust administrative remedies.”). The district court affirmed the revocation.

Welch appeals. We now must determine whether the “one refusal is determinative” rule set forth in Krueger should be abrogated in favor of a more flexible standard permitting a motorist’s subsequent *594 consent to cure a prior initial refusal to submit to chemical testing.

II. Standard of Review.

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Bluebook (online)
801 N.W.2d 590, 2011 Iowa Sup. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toby-joseph-welch-v-iowa-department-of-transportation-motor-vehicle-iowa-2011.