Another OWI conviction was reversed yesterday by the Iowa Court of Appeals after they found that the defendant's right to phone calls under Iowa Code section 804.20 was violated when the arresting officer prematurely terminated the defendant's phone call with her father.
On September 17th, the Iowa Court of Appeals, in an unusual en banc opinion ruled 4-3in favor of GRL client in State of Iowa vs. Brandee Pettengill. The operative facts of the case were that the arresting officer terminated Ms. Pettengill's telephone call to her father after only 15 minutes of conversation, claiming that she was talking about something other than whether or not to take or refuse the chemical breath test. The majority in the Court of Appeals concluded that: "Ultimately, we believe that, under a fair reading of section 804.20 and the supreme court's precedents, it was inappropriate to terminate the defendant's middle-of-the-night phone call to her father involuntarily after fifteen minutes where the defendant was not stalling and the overall purpose of the call was to obtain relevant information and advice, where forty-seven minutes still remained to conduct the breath test, and where the defendant was not advised of the right to make any other calls."
In Iowa, an arrested or detained individual has the statutory right to place phone calls and to see and consult with an attorney or family member or both, upon arriving at the place of detention. The arresting officer is not required to advise the person of this right, but when a request is made, it cannot be denied and an officer must advise the person to whom calls may be placed and for what purpose. Contrary to popular opinion, an individual arrested for OWI does not have the legal right to wait two hours before taking the test but they must be allowed a reasonable opportunity to contact and consult with an attorney or family member before making a decision regarding chemical testing. These attempts must be made in good faith and may not jeopardize the officer's two hour window within which he is required to offer the chemical breath test.
When a person, such as Ms. Pettengill requests the place a call and to contact an attorney or family member, the question inevitably arises as to how long the officer must wait or what is a "reasonable opportunity." Here, the facts were very clear. She made one phone call immediately upon being given the opportunity and that phone call was to her father. It was early in the morning and obviously an arrested person must be given some leeway as to what they may discuss with the person on the other end of the line above and beyond whether or not to take the test. A father or concerned parent will obviously first and foremost want to make sure the arrested person is physically ok and get a general reference point as to what happened. That being said, the implied consent advisory that is read to the person advising them of the consequences to their driving privileges takes a minimum of three minutes to read at a quick pace. Then discussion will obviously need to be had regarding sorting out whether the current offense qualifies as a first, second or subsequent offense, and license suspension periods naturally would need to be discussed. There would also need to be discussion regarding work and general life consequences stemming from refusing the test, passing the test or taking the test and failing. The persons decision at this point in time is extremely important and will have enduring if not permanent consequences from that point forward. This all being considered it is simple to see how the majority in the Court of Appeals concluded that the officer's termination of a 15 minute conversation with ones father in the middle of the night, was unreasonable when there was more than ample time remaining in the officers two-hour window.
Interestingly enough and not included in the court's opinion, is that the officer, when pressed as to the nature of the alleged off-topic conversation, the arresting officer could not articulate what inappropriate topics were being discussed. Also, not included in the opinion was the fact that Ms. Pettengill was arrested in the City of Marion. The officer chose, for no specific reason to transport Ms. Pettengill and her friend who was also arrested to Linn County as opposed to taking them to the much closer and more accessible Marion Police Department. This in-turn limited the time with which Ms. Pettengill would have had to place calls.
In conclusion, more litigation is likely immanent not only in this case but other cases relating to Iowa Code section 804.20. The Iowa Court of Appeals issued a rare en banc decision and was split 4-3 on the issue. The Iowa Attorney General's Office will likely request Further Review by the Iowa Supreme Court and it would not be a surprise if the Iowa Supreme Court accepted the case and addressed the issue in further detail, providing a clear and concise ruling clarifying any ambiguity that may exist on this issue.
An interesting discussion revealing at least the vocal general publics opinion on this case and operating while intoxicated cases in general can be found on the Des Moines Register's website.