Today in State v. Lukins (No. 12-2221), the Iowa Supreme Court finally announced a straightforward rule as to how an arrestee can assert their right to independent testing following an arrest for OWI (drunk driving) here in the State of Iowa. In reaching this determination, the Iowa Supreme Court concluded that when Mr. Lukins requested to take another breath test after failing the first one, he triggered his right to independent testing under Iowa Code Section 321J.11. The Court specifically found "no reason why a detainee should be required to string together a precise formulation of words mirroring the statutory language in order to invoke his or her statutory right to an independent chemical test." Any request for additional testing should be "liberally construed" and as long as the request can be "reasonably construed" to be a request for an additional test, it will trigger the rights afforded to the detainee pursuant to Iowa Code Section 321J.11 and requires the officer to honor the request.
Additionally, the Court concluded for the first time in a published opinion that when the right to an independent chemical test is denied by police officers, the chemical test obtained by the police officers must be suppressed. In reaching this conclusion, the Court determined that if suppression was not the appropriate remedy for a violation of this statutory right, it would allow "officers to deny with impunity a detainee's request for an independent chemical test and render the right "meaningless." This decision now puts the statutory right to independent test right in line with the statutory right to make telephone calls and is a right that should be exercised following every OWI arrest.
The question that is left unanswered by today's opinion, is what duty is imposed upon the officer when a person does adequately assert their right to independent testing. At the bare minimum, the officer should inform the person of their right to independent testing and how/if the officer will facilitate that request. Questions most certainly will arise as to whether a trained professional can come to the jail to collect a sample if the detainee remains in jail ;whether the officer must transport the detainee to a trained professional for the testing; or even whether letting the detainee submit to another breath sample is sufficient. It is important to remember that the "failure" or "inability" of a person to obtain independent testing will likely not trigger suppression unless the officer contributes to that "failure" or "inability." However, for now, suffice it to say that anyone deciding to submit to a breath sample at the station following an arrest for OWI should be asking to take a second breath test!
Finally, as the writer of this blog, I am forced to eat crow and admit that my law partner and associate correctly predicted the outcome if this appeal ;)