New opinions of the Iowa Court of Appeals were published May 14th. I've culled one to blog on. The first is a license revocation, Hager v. Iowa DOT.



THE FACTS

"Hager was arrested for operating while intoxicated on October 9, 2002. He was initially stopped for speeding. The deputy observed that Hager’s eyes were red and glassy and that there was a strong odor of alcohol inside his vehicle. Hager admitted he had consumed alcohol.[1] In addition, an open container was observed in his vehicle. Accordingly, the deputy requested Hager perform field sobriety tests. Hager told the deputy he had problems with his knees but that he could perform the tests. Hager failed several field tests, including the horizontal gaze nystagmus, the walk-and-turn and the one-leg stand. A preliminary breath screening test (PBT) indicated an alcohol concentration of .10 or more.[2] Hager was not allowed to physically see the results of the PBT. However, the deputy may have informed him the PBT indicated that his alcohol concentration was .10 or more. Hager was read an implied consent advisory and then was asked to submit to an Intoxilyzer test. He was allowed to call and speak with an attorney. He then refused the test and also refused to sign the implied consent form. The DOT revoked Hager’s driver’s license on the basis of his refusal to take the Intoxilyzer test. Hager requested a hearing, which was granted. He argued his refusal to submit to the Intoxilyzer test was invalid because he was not allowed to see the results of the PBT."



THE RATIONALE

On the surface of the case, Hager merely wanted his driver's license back, because he claimed he never got to see the PBT results. But an additional defense tactic behind this argument becomes apparent if you understand that the PBT (preliminary breath test) is not admissible in court. Essentially, this rule would have forced the police to PBT every suspected drunk driver, and also forced them to show the driver the results. If the results are over .08, the legal limit in Iowa, then unless the driver is so intoxicated as to be really stupid, they are going to refuse the intoxilyzer breath test that is admissible in court. The State would then be forced to prove intoxication through circumstantial evidence such as manner of driving, performance on the field sobriety tests, smell and appearance of the defendant, and so on. It’s much harder to prove that someone was drunk that way, even though the law technically allows it:



Iowa Code Section 321J.2:

1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions: a. While under the influence of an alcoholic beverage or other drug or a combination of such substances. b. While having an alcohol concentration of .08 or more.



When there’s no test, the State has to use the first prong of the statute. But if they don’t have a test, the jury tends to be quite skeptical about the amount of alcohol the State can prove the defendant consumed – as well they should.



In my opinion, if the Court had ruled in his favor, Hager would have essentially eviscerated the .08 law, and even a .10 standard in many cases. I saw a video once of one hard-core alcoholic ( a county attorney, by the way) who had been picked up on an OWI. From the behavior of the defendant, you never would have guessed the blood alcohol content was over two and a half the former legal limit of .10. The individual was so used to alcohol that they seemed almost normal, only a bit of swaying.



THE RULING

"Section 321J.5(1) permits, but does not require, an officer to request a PBT for use as an early screening device. State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). A PBT is a “quick, convenient test,” to assist an officer in determining whether an arrest should be made. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987). There is no statutory requirement, nor any authority in Iowa case law, requiring law enforcement to provide PBT results to an individual. . . . [Hager’s] argument is based on supposed public policy principles. We find his argument unpersuasive. We agree with the district court that a PBT is legislatively intended simply as a preliminary investigatory device for use by peace officers to help determine if an individual has engaged in illegal activity and an arrest should be made. Peace officers are under no duty to visually reveal or verbally inform an individual of the results of a PBT. To rule otherwise would negate the legislative intent that a PBT serve as a “quick, convenient test.” We specifically hold that a peace officer is not required, as a condition precedent to implied consent, to provide PBT results to an individual."



So the ruling went well. I also looked up on Iowa Courts Online what happened to the OWI case. Mr. Hager had been charged with OWI second offense, based on a prior conviction of OWI in 1999. His case was pled down to a violation of 123.46, public consumption: "A person shall not use or consume alcoholic liquor, wine, or beer upon the public streets or highways." That's a simple misdemeanor, rather than a serious misdemeanor, and he was given a $500 find and no jail time.



(On a side note: According to the Iowa Courts Online records, for the 1999 OWI he'd been given some jail, some time suspended, probation. He ended up having a contempt hearing for some failure in completing the terms of the probation, for which he was apparently sentenced an additional two days with credit for time served. This should give some idea of the concessions made by the prosecution, though I can't state whether these were based on the lack of an intoxilyzer test.)



Mr. Hager's license was suspended by the DOT for two years for his refusal to submit to the alcohol test based on Iowa Code Section 321J.9 Refusal to submit -- revocation:



"1. If a person refuses to submit to the chemical testing, a test shall not be given, but the department, upon the receipt of the peace officer's certification, subject to penalty for perjury, that the officer had reasonable grounds to believe the person to have been operating a motor vehicle in violation of section 321J.2 or 321J.2A, that specified conditions existed for chemical testing pursuant to section 321J.6, and that the person refused to submit to the chemical testing, shall revoke the person's driver's license and any nonresident operating privilege for the following periods of time: . . .



b. Two years if the person has had a previous revocation under this chapter."



By my count, if Hager had won this appeal he would have gotten his license back a whopping five months before it would have been given back anyway. I hope it was worth the money.