State of Iowa v. Thomas C. Casper

                                No. 19–0849

          Submitted October 15, 2020—Filed November 20, 2020






      On review from the Iowa Court of Appeals.

      Appeal from the Iowa District Court for Cerro Gordo County,

Adam D. Sauer, District Associate Judge.

      A defendant seeks further review of a court of appeals decision

affirming the denial of his motion to suppress based on a claimed violation

of Iowa Code section 321J.11(2). DECISION OF COURT OF APPEALS


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


      Scott A. Michels (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, Carlyle D. Dalen, County Attorney, and

Brendon D. Moe, Assistant County Attorney, for appellee.


      This appeal requires us to determine if a peace officer violates a duty

under Iowa Code section 321J.11(2) (2018) when the officer agrees to the

detainee’s request for a retest on the machine that has already tested the

detainee’s blood alcohol level, without also informing the detainee of the

statutory right to an independent test at the detainee’s expense.                    We

conclude the officer has not violated section 321J.11(2) in these

circumstances. The statute provides an independent right to a retest but

generally does not require the officer to inform the detainee of that right.
Therefore, in our view, the officer must inform the detainee of the right to

an independent test only in circumstances when the detainee has

reasonably asked about that right or a failure to disclose that right could

be misleading. Neither of those circumstances were present in this case.

Accordingly, on further review, we affirm the denial of the detainee’s

motion to suppress, his conviction and sentence, and the decision of the

court of appeals.

      I. Facts and Procedural History.

      On August 11, 2018, shortly after midnight, Iowa State Patrol

Trooper Nathan Snieder stopped Thomas Casper for speeding on a

highway in Cerro Gordo County while riding his motorcycle. The traffic

stop was initiated after a radar check clocked Casper traveling at 110 miles

per hour.1 While conducting the traffic stop, Trooper Snieder noticed that

Casper had bloodshot and watery eyes, was unsteady on his feet, and

spoke with a slur and thick tongue. After placing Casper in the front

passenger seat of the patrol vehicle, Trooper Snieder could smell the odor

      1The   posted speed limit at the location of the stop was 55 miles per hour.

of an alcoholic beverage. Trooper Snieder’s observations were confirmed

when Casper admitted that he had had a couple of alcoholic beverages.

      Trooper Snieder then administered the “horizontal gaze nystagmus”

field sobriety test. During the test, all clues indicated that Casper was

clearly intoxicated. Casper did not take the remaining field sobriety tests

because of prior leg injuries. As an alternative, Casper volunteered to run

ten miles, stating that he could do so faster than any millennial and no

drunk person would be able to run ten miles. Trooper Snieder advised

Casper that a ten-mile run would not be an appropriate field sobriety test.
Casper then submitted to a preliminary breath test that indicated he was

over the legal limit. At 12:36 a.m., Casper was Mirandized and placed

under arrest for operating while intoxicated (OWI), speeding, and failure to

provide proof of insurance.

      Casper’s wife arrived at the scene, took responsibility for the

motorcycle, and was informed by Trooper Snieder that Casper was being

taken to the Cerro Gordo County Jail. At the jail, at approximately 1:09

a.m., Trooper Snider read Casper an implied consent advisory. Casper

followed along with a copy that was provided to him. Casper was offered

and declined the opportunity to make any phone calls. He confirmed that

he understood by checking the box on the form he would be consenting to

provide a breath specimen for testing. At 1:19 a.m., Casper provided a

breath sample for the Datamaster. The Datamaster indicated Casper had

a blood alcohol content of .113%. After the test was conducted, Casper

answered questions for a standardized OWI interview.           During the

interview, Casper stated that he “had drank six bottles of tequila since the

      Casper showed emotional mood swings while with Trooper Snieder.

He was mad, happy, talkative, abrasive, and indifferent.          After the

interview, Casper was turned over to jail personnel for processing and


      Casper bonded out of jail, and his wife picked him up. While he was

leaving through the building entrance with jail personnel at approximately

2:15 a.m., Casper asked Trooper Snieder if he could “take another test

from the Datamaster.”    Trooper Snieder said, “Sure.”    Trooper Snieder

explained that he needed Casper’s driver’s license (which Casper had in

his hand) so that he could reenter the information in the Datamaster. At

that point, Casper changed his mind and said, “No, no, I don’t want to.”
Capser passed through the entrance with the jail personnel and left.

      Trooper Snieder did not advise Casper at that time that he could get

an independent test done at his expense.

      On September 25, the State filed a trial information charging Casper

with OWI first offense in violation of Iowa Code section 321J.2.       On

November 7, Casper moved to suppress the results of the Datamaster test.

Casper’s motion to suppress argued that Trooper Snieder had violated

section 321J.11 by failing to alert Casper of his right to have independent

chemical testing after Casper had requested a second Datamaster test.

Following an evidentiary hearing, the district court denied Casper’s motion

to suppress.

      Thereafter, Casper waived his right to a jury trial and agreed to a

stipulated trial on the minutes of testimony. On April 19, 2019, the court

entered a written ruling finding Casper guilty. The ruling concluded that

Casper, when operating his motorcycle, both was “under the influence of

an alcoholic beverage” and had “alcohol concentration of .08 or more.”

Iowa Code § 321J.2(1)(a), (b). Casper was sentenced to serve two days in
jail and ordered to pay a $1250 fine plus surcharges.              See

id. § 321J.2(3)(a), (c).


      Casper appealed. He reprised his argument that Trooper Snieder

violated his duty to advise him of his statutory entitlement to an

independent chemical test at his own expense. We transferred the case to

the court of appeals. The court of appeals affirmed Casper’s conviction

without reaching the suppression issue. Instead, it found that any failure

to suppress the Datamaster test results was harmless error because the

district court’s ruling finding Casper guilty based on the “under the

influence” alternative was supported by substantial evidence and that

portion of the ruling did not mention the Datamaster result.
      Casper applied for further review, and we granted his application.

      II. Standard of Review.

      Our review of the district court’s ruling on the motion to suppress is

for the correction of legal error because the basis for the motion is

statutory. State v. Smith, 

926 N.W.2d 760

, 762 (Iowa 2019). The district

court denied Casper’s motion to suppress evidence based on its

interpretation of Iowa Code section 321J.11. We review for correction of

errors at law a district court’s ruling on a motion to suppress based on

that statute. State v. Lukins, 

846 N.W.2d 902

, 906 (Iowa 2014).

      III. Legal Analysis.

      Iowa Code section 321J.11(2) provides, “The person may have an

independent chemical test or tests administered at the person’s own

expense in addition to any administered at the direction of a peace officer.”

Casper claims that his rights under this statute were violated when he was

not told about its existence.

      In a sense, this case is the sequel to another case we decided six

years ago involving section 321J.11(2). See Lukins, 

846 N.W.2d 902

. In
State v. Lukins, the defendant registered at .207% on the Datamaster

breath test.

Id. at 904.

He then made repeated inquiries asking if he could

get a “re-check,” a “re-blow,” or a “re-breathalyzer.”

Id. at 904–05.


officer refused all requests responding with a combination of “no” and “It

isn’t going to be any different.”

Id. at 905.

At no point was Lukins told

about the right to an independent chemical test.

Id. Before the trial,

Lukins moved to suppress the results of the

Breathalyzer test.

Id. at 905.

    The district court denied the motion,

reasoning that “based on the video recording that [the defendant’s]

requests could not reasonably be construed as requesting an independent


Id. at 906.

The district court “concluded Lukins requested a second
test using the Breathalyzer machine.”

Id. On appeal, though,

we upheld the court of appeals’ reversal of the

district court’s decision.

Id. at 904.

  We first summarized the rather

prolific caselaw under Iowa Code section 804.20 involving a detainee’s

right to call, consult with, and see a family member or attorney.

Id. at 907–08.

Like section 321J.11(2), section 804.20 does not itself require

that a peace officer advise the detainee of the detainee’s rights under the


Id. at 908.

      Yet we noted that under the section 804.20


       [I]f the detainee suggests calling someone outside the scope
       of individuals authorized by the statute, the peace officer,
       who knows the statutory scope, must clarify to the detainee
       the scope of individuals to whom a telephone call may be
       made under Iowa Code section 804.20.

Id. We then indicated

that a similar approach should be applied to Iowa

Code section 321J.11(2).

Id. “It is clear

that a detainee may be similarly

unaware of his or her rights under Iowa Code section 321J.11.”

Id. The similarity of

circumstances between the detainee’s
       knowledge of his or [her] statutory right to a telephone call
       and his or her statutory right to an independent chemical
       test indicate the standard for invoking the right should be
       similar as well.

Id. We elaborated, [As]

under Iowa Code section 804.20, any statement that can
      be reasonably construed as a request for an independent
      chemical test is adequate to invoke the detainee’s right to such
      a test under Iowa Code section 321J.11. . . . [A]n officer who
      fields a legally imprecise request for an independent test
      cannot stand mute and deny the request. Rather, if an
      imprecise statement, reasonably construed, implicates the
      statute, then the officer should inform the detainee of his or
      her right to an independent chemical test under Iowa Code
      section 321J.11.

Id. at 909

(citation omitted).

      We    then   concluded     that   “[Lukins’s]   statements,   reasonably

construed, indicated he wanted another test, even if he was mistaken,

unsure, or unaware of the way in which the additional test would be


Id. Therefore, the officer

“should have informed Lukins that

he was entitled to an independent chemical test at his ‘own expense in

addition to’ the Breathalyzer test.”

Id. at 910

(quoting Iowa Code

§ 321J.11(2) (2011)).    Because the officer did not do so, “he violated

Lukins’s statutory right to an independent chemical test.”

Id. The State argues

that Lukins is distinguishable because law

enforcement here agreed to provide the defendant exactly what he wanted;

in Lukins, law enforcement said no. We agree. A defendant who asks for

something law enforcement refuses should be informed of similar

alternatives that would be available. But we fail to see why a defendant

whose request is granted needs to be informed of other alternatives.

      Because Iowa Code section 321J.11(2) does not require the detainee

to be informed of the right to an independent test, see 

Lukins, 846 N.W.2d at 908

; State v. Wootten, 

577 N.W.2d 654

, 655 (Iowa 1998), the guiding
principle is one of fairness, not disclosure. It is arguably misleading and

unfair to say no to a detainee who asks for a certain type of retest without

telling the detainee that he or she can have a different type of retest. But

it is not misleading or unfair to give the detainee exactly the type of retest

the detainee asks for.2

       A refusal to allow a retest on law enforcement’s Datamaster—

without more—can imply that no test of any kind would be permissible.

An agreement to allow a retest on law enforcement’s Datamaster carries

no such implication. If Casper preferred an independent test, he could

have asked for that. Or he and his wife could have arranged such a test,
since he was in the process of walking out the door of the jail when he

made his request of Trooper Snieder for a retest on the Cerro Gordo County

Datamaster. In short, we have no basis on this factual record to conclude

that Casper’s interest in an independent retest from another source would

have been any greater than that of someone who said nothing while

walking out of the jail. For these reasons, the district court did not err in

denying Casper’s motion to suppress.

       Because we resolve Casper’s appeal on this basis, we do not reach

the State’s alternative arguments that any request for independent testing

at 2:15 a.m. on August 11 would have been untimely, see Wootten, 577

       2Ginsberg  v. Iowa Department of Transportation, also involved an unexplained
denial of a request for other testing:
       Ginsberg said that he was not refusing to take the breath test but that he
       wanted his blood or urine tested as well. The officers treated this as a
       refusal. The peace officers did not explain that on the completion of the
       requested test, Ginsberg would be allowed to exercise his right to
       independent testing.

508 N.W.2d 663

, 664 (Iowa 1993) (per curiam). There we upheld a district court order
overturning the agency’s decision to revoke Ginsberg’s driver’s license.

Id. By contrast, in

State v. Smith, we found no violation of Iowa Code section 321J.11(2) where the
defendant “only made declarative statements regarding what would happen if he refused
to provide a breath test[ and a]t no point inquire[d] about his right to obtain independent

testing.” 926 N.W.2d at 762

–63. We added, “Statements regarding chemical testing in
lieu of the officer’s testing are insufficient to invoke section 321J.11.”

Id. at 763. 10

N.W.2d at 656, or that any wrongful admission of the chemical test result

would have been harmless error, see State v. Garrity, 

765 N.W.2d 592


597–98 (Iowa 2009).

      IV. Conclusion.

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

sentence and the decision of the court of appeals.



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