Opinion
No. 4-192 / 03-0581
April 28, 2004.
Appeal from the Iowa District Court for Clarke County, Gary G. Kimes, Judge.
Defendant appeals from his conviction for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001). AFFIRMED.
Michael Norris of Norris Gourley, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Elisabeth Reynoldson, County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Philip Jay Seaton appeals from his conviction for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2 (2001). He contends the district court erred in denying his motion to suppress because the arresting officer did not have grounds to invoke implied consent, nor did he have probable cause to arrest. We review his claims de novo. State v. Otto, 566 N.W.2d 509, 510 (Iowa 1997).
Iowa State Patrol Trooper Breshears encountered Seaton at 12:30 a.m. on October 2, 2002. He observed Seaton traveling thirty-four miles per hour in a twenty-five mile per hour speed zone. Breshears activated his flashing lights and Seaton promptly stopped his vehicle.
When Breshears approached Seaton, he first smelled the strong odor of perfume emanating from the vehicle. As he conversed with Seaton, Breshears smelled the odor of alcoholic beverage. Breshears placed Seaton in his patrol car and noticed Seaton's eyes were red and bloodshot. He continued to smell the strong odor of alcoholic beverage. When asked, Seaton admitted to drinking a "few beers" that night.
Trooper Breshears asked Seaton to perform several field sobriety tests. Seaton failed each of them. Breshears noticed the maximum clues while performing Seaton's horizontal nystagmus test. Seaton also showed five out of eight clues on the walk-and-turn test. Finally, Seaton put his foot down twice during the one-legged stand, and counted incorrectly. A preliminary breath test performed on Seaton registered .126.
Breshears arrested Seaton for operating while intoxicated. Seaton was transported to the law enforcement center where he consented to a breath test. His blood alcohol level exceeded the legal limit. Seaton was charged with operating while intoxicated, second offense, to which Seaton pled not guilty. Seaton filed a motion to suppress the breath test results. Following a hearing, the district court denied the motion. Following a bench trial, Seaton was found guilty of operating while intoxicated.
Seaton contends the district court erred in denying his motion to suppress because Trooper Breshears did not have reasonable grounds for invoking implied consent. Iowa Code section 321J.6 outlines the requirements that must be met prior to invoking implied consent and requesting a driver submit to a chemical test.
The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321J.2A, and if any of the following conditions exist:
a. A peace officer has lawfully placed the person under arrest for violation of section 321J.2.
. . .
d. The preliminary breath screening test was administered and it indicated an alcohol concentration equal to or in excess of the level prohibited by section 321J.2.
We conclude Trooper Breshears had reasonable grounds to believe Seaton was operating while intoxicated. After stopping Seaton for speeding, Breshears smelled a strong odor of perfume and noticed a bottle of perfume in the passenger seat. However, as Seaton spoke with the trooper, Breshears smelled the odor of alcoholic beverage. While sitting in his patrol car with the dome light on, Breshears noticed Seaton's eyes were red and bloodshot. Seaton's breath smelled strongly of alcoholic beverages and Seaton admitted to drinking a "few beers" that night. At that point, Breshears had reasonable grounds to believe Seaton was intoxicated.
Breshears then conducted field sobriety tests on Seaton. Seaton failed all of the field sobriety tests. Seaton contends the field sobriety tests were not properly performed. However, Seaton did not raise this issue in his motion to suppress. Accordingly, we cannot decide the validity of his claim on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (holding issues must be raised and decided by the district court before they will be decided on appeal).
Breshears administered a preliminary breath test to Seaton, which registered a blood alcohol level above the legal limit. Seaton contends the preliminary breath testing device was not properly maintained or calibrated. He cites Trooper Breshears's testimony that the testing device was not calibrated on a monthly basis if the last day of the month fell on a day Breshears was not working. However, we conclude Breshears substantially complied with the applicable statutes and administrative rules regulating the use of preliminary breath tests. See State v. Bird, 663 N.W.2d 860, 862 (Iowa 2003).
We conclude the evidence is sufficient to support Seaton's arrest. Seaton's preliminary breath test results, his performance on the field sobriety tests, and Trooper Breshears's observations of Seaton all support a conclusion Seaton was operating while intoxicated. Implied consent was properly invoked pursuant to Iowa Code section 321J.6(a). Accordingly, the district court properly denied Seaton's motion to suppress.