                     IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1066
                                Filed October 1, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CASSANDRA COLOSIMO,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Odell G. McGhee II,

District Associate Judge (motion to suppress), and Arthur E. Gamble, Judge

(motion in limone and trial).



       Cassandra Colosimo appeals from conviction of operating while

intoxicated. REVERSED AND REMANDED.



       Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Stephen Holmes, County Attorney, and Joseph S. Danielson, Assistant

County Attorney, for appellee.



       Heard by Potterfield, P.J., and Tabor and Mullins, JJ.
                                           2


POTTERFIELD, P.J.

       Cassandra Colisomo appeals her conviction of operating while intoxicated

(OWI) in violation of Iowa Code section 321J.2 (2011). She urges this court to

determine a peace officer invoking the implied consent procedure following a

Miranda warning1 must inform the arrested person that the Miranda rights do not

apply to the request to submit to chemical testing. She argues her test refusal

was not knowing and voluntary because she was not informed the Miranda

advisory did not apply. She also challenges the admission of evidence of her

test refusal and of her invocation of her Miranda rights as violating her due

process rights. She challenges the sufficiency of the evidence to support the

conviction. Finally, she asserts the verdict was against the weight of the credible

evidence.

       Colosimo’s actions constituted a refusal for purposes of implied consent

and the district court did not err in denying the motion to suppress. We agree,

however, Colosimo’s due process rights were violated when the recording of her

repeatedly invoking her right to counsel was admitted into evidence.                 We

therefore reverse and remand for a new trial.

       I. Background Facts and Proceedings.

       At about 1 a.m. on September 6, 2012, Des Moines Police Officers Trudy

Simonson, Brook Budd, and Ben Ihde were on Fourth Street involved in an

unrelated public intoxication arrest.      Officers Simonson and Budd observed

1
  In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme Court
held that a suspect subjected to custodial interrogation must be warned of “the right to
remain silent,” anything said “can be used against [the suspect] in a court of law,” “the
right to the presence of an attorney,” and if the suspect “cannot afford an attorney one
will be appointed . . . prior to any questioning” if so desired.
                                         3


Cassandra Colosimo’s car traveling in the wrong lane on Fourth Street between

Court Avenue and Walnut Street. The officers stopped Colosimo after another

vehicle turning on to Fourth Street had to stop to avoid hitting Colosimo’s car.

       Officer Simonson spoke with Colosimo first. Colosimo initially would not

respond to Officer Simonson’s questions.        The officer smelled alcohol and

observed Colosimo had bloodshot, watery eyes, and slurred speech. Colosimo

admitted she had been drinking. Officer Simonson asked Officer Ihde to assist.

       Officer Ihde approached Colosimo as she sat in her vehicle—she was on

her cell phone. Officer Ihde “note[d] the odor of alcohol” and observed Colosimo

had watery and bloodshot eyes.       The officer asked Colosimo to put the cell

phone down. She stated she was attempting to call her attorney. Officer Ihde

took the cell phone from Colosimo’s hand and dropped it in the lap of Colosimo’s

passenger. He asked Colosimo to step out of the car. He stated he was going to

“have her go through field sobriety tests.” After Colosimo repeatedly stated she

was not going to do anything without the presence of her attorney, Officer Ihde

placed Colosimo in handcuffs, read her the Miranda advisory, and placed her in

the backseat of his squad car. Officer Ihde again asked Colosimo to perform

field sobriety testing. She again responded she would not do anything without

the presence of her attorney.      Officer Ihde asked Colosimo to submit to a

preliminary breath test; she replied she would not do anything without the

presence of her attorney. Officer Ihde then informed Colosimo she was under

arrest for operating a motor vehicle while intoxicated. Officer Ihde again advised

Colosimo of her Miranda rights, arranged to have her vehicle impounded,

advised Colosimo she would be transported to the jail, gave her the implied
                                          4


consent advisory, and requested a breath sample. “The only response she gave

was, ‘I’m not doing anything without the presence of my attorney.’”

       Once transported to the jail, Colosimo was placed in a room and all of the

following was digitally recorded. Officer Ihde again read Colosimo the implied

consent advisory and asked if she was willing to take a breath test. Colosimo

repeatedly indicated that she would not do anything “until her attorney is

present.”

       Colosimo made several attempts to contact her attorney by telephone but

was unsuccessful. Eventually, Officer Ihde informed her she would be required

to either consent to the test or refuse it whether an attorney was present or not.

Colosimo stated, “I’m not doing anything without the presence of an attorney.”

Officer Ihde then explained that “if I got anything other than a yes or consent, I

would have to consider that a refusal.” Colosimo responded, “I’m not refusing.

I’m just not doing anything without the presence of my attorney.” Officer Ihde told

her he was considering her response a refusal and documented her answer as a

test refusal on the implied consent form. Colosimo refused to sign the form.

       Prior to trial, Colosimo filed a motion to suppress seeking to exclude from

trial all evidence of test refusal or other admissions following her invocation of her

rights. She argued, “Officer Ihde . . . never indicated to Colosimo that her right

under Miranda to have her attorney present during questioning did not apply in

the context of his request for chemical testing,” and “[a]s a result of Colosimo’s

confusion about her right to the presence of an attorney during questioning,

including during the request for chemical testing, her decision whether to provide

a breath specimen was not voluntary.” Her motion to suppress was denied. The
                                           5


defendant’s request for discretionary review was denied by the Iowa Supreme

Court.

         Colosimo then filed a motion in limine to exclude from trial any evidence of

Colosimo’s silence or refusal to answer questions. Defense counsel urged,

         I’ve raised today an Iowa constitutional due process issue akin to
         promissory leniency, in that even if Miranda doesn’t apply because
         it’s not a custodial interrogation, when an officer tells her twice and
         she attempts to invoke those, that as a matter of due process that
         can’t be used against her unless it’s clarified that those rights don’t
         apply.

         Relying upon State v. Mannion, 414 N.W.2d 119 (Iowa 1987)—a case in

which the Iowa Supreme Court rejected the defendant’s contentions that his right

to counsel under Miranda, as well as his privilege against self-incrimination, were

violated by the trial court’s admission of the testimony of the arresting officer that

the defendant refused to perform sobriety tests and allowing the jury to view the

videotape of the defendant refusing the tests—the district court denied

Colosimo’s motion in limine. The court stated:

         The fact that Miss Colosimo couched her refusal to field sobriety
         tests, a [preliminary breath test] PBT and the implied consent
         breath test in terms of her right to counsel under Miranda is not
         determinative. The police are not under an obligation to advise a
         defendant concerning the distinction between a non-testimonial
         question, like will you submit to a field sobriety test, versus
         testimonial questions in the form of a custodial interrogation.
         Miranda does not apply to field sobriety tests, preliminary breath
         tests, and implied consent. Therefore, the defendant’s motion in
         limine is overruled.

         Defense counsel then informed the court that the denial of the motion in

limine would “affect my presentation of the evidence in that—at least in

opening—I’m going to have to address her statements on cross-examination. I’m

going to have to ask the officer about her invocation of her rights,” all of which he
                                         6


stated he would not have done otherwise. Defense counsel noted, “I’m trying to

make clear . . . I’m not waiving my objection.”

       At trial, the State presented video and audio recordings of Colosimo’s

traffic stop and the implied consent procedures at the jail during which Colosimo

repeats her unwillingness to do anything without the presence of counsel.

Colosimo was convicted of OWI. She filed a motion for a new trial, arguing the

court erred in allowing the State to use Colosimo’s invocation of her rights after

she had twice been given Miranda warnings as evidence of test refusal, and the

jury’s verdict was contrary to the weight of the evidence. The court denied the

motion and entered judgment and sentence.

       Colosimo appeals, contending (1) her test refusal should have been

suppressed due to “confusion” caused by multiple Miranda advisories, (2) the

admission at trial of her assertion of her rights after receiving Miranda warnings

violates her due process rights under the federal and state constitutions, and

(3) the verdict was against the weight of the credible evidence.

       II. Scope and Standard of Review.

       “We review for correction of errors at law a district court’s ruling on a

motion to suppress based on the interpretation of a statute.” State v. Lukins, 846

N.W.2d 902, 906 (Iowa 2014).

       “‘We review claims the district court failed to suppress evidence obtained

in violation of the federal and state constitutions de novo.’” State v. Baldon, 829

N.W.2d 785, 789 (Iowa 2013) (quoting State v. Dewitt, 811 N.W.2d 460, 467

(Iowa 2012)).     In considering such a constitutional claim, we make an
                                         7


independent evaluation based on the totality of the circumstances as shown by

the entire record. Id.

       A claim that a defendant’s due process rights were violated is reviewed de

novo. State v. Hutton, 796 N.W.2d 898, 901 (Iowa 2011).

       III. Discussion.

       A. Legal principles. Iowa Code section 321J.2 makes it an offense to

operate a motor vehicle while under the influence of an alcoholic beverage or

while having an alcohol concentration of .08 or more.          Iowa Code section

321J.6—entitled “Implied consent to test”—establishes the authority of a peace

officer to test the breath, blood, or urine of any person suspected of driving while

intoxicated. The provision states that when there are “reasonable grounds to

believe that the person has been operating a motor vehicle in violation of section

321J.2 or 321J.2A” a person is “deemed to have given consent to the withdrawal

of specimens.” Id. § 321J.6(1). “The premise of this statute is that a driver

impliedly agrees to submit to a test in return for the privilege of using the public

highways.” State v. Oberbay, 810 N.W.2d 871, 875 (Iowa 2012) (citation and

quotation marks omitted).

       Case law has developed the contours of a valid consent. See State v.

Garcia, 756 N.W.2d 216, 220 (Iowa 2008) (“To be valid, the driver’s decision to

consent to testing must be voluntary, i.e., freely made, uncoerced, reasoned, and

informed.”). It has also established what constitutes a refusal:

              Our previous decisions establish that a broad definition of
       the term “refusal” is more closely aligned with the legislative intent
       underlying the implied consent statute. In addition to explicit,
       unqualified refusals, we have found that failures to cooperate,
       conditional refusals, conditional assents, consents followed by a
                                          8


       failure to provide the requested specimen, and consents followed
       by combative behavior all constitute refusals within the meaning of
       sections 321J.6(2) and 321J.9(1).

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 595 (Iowa 2011); see also

cases cited therein. Evidence of a person’s refusal is admissible at trial. Iowa

Code § 321J.16 (“If a person refuses to submit to a chemical test, proof of refusal

is admissible in any civil or criminal action or proceeding arising out of acts

alleged to have been committed while the person was operating a motor vehicle

in violation of section 321J.2 or 321J.2A.”).

       B. Motion to Suppress. In State v. Bloomer, 618 N.W.2d 550, 552-53

(Iowa 2000), the issue presented to our supreme court was whether the

defendant’s statement “that he was not refusing to take the breath test but that

he wanted his blood or urine tested” was appropriately deemed a refusal under

implied consent procedures and therefore admissible at his trial for OWI. The

court wrote:

       In Ginsberg v. Iowa Department of Transportation, 508 N.W.2d 663
       (Iowa 1993), this court considered an alleged test refusal in this
       context. We observed that factors bearing on the decision included
       the defendant’s and the officer’s words and conduct as well as the
       surrounding circumstances. Ginsberg, 508 N.W.2d at 664. In
       Ginsberg, as here, officers asked the defendant to submit to a
       breath test following his arrest for operating while intoxicated. Id.
       Ginsberg, having said he wanted a blood or urine test, was then
       asked if that meant he was refusing to take the breath test.
       Ginsberg reportedly stated “that he was not refusing to take the
       breath test but that he wanted his blood or urine tested as well.” Id.
       (emphasis added). The officers treated this as a refusal and this
       court reversed, concluding that the record revealed Ginsberg’s
       attempt to assert his right to independent testing rather than a
       refusal of the requested test. Id. We nevertheless reiterated the
       rule that “anything less than unqualified, unequivocal consent is a
       refusal.” Id. (quoting Ferguson v. Iowa Dep’t of Transp., 424
       N.W.2d 464, 466 (Iowa 1988)).
                                        9

              The record before us, though similar to Ginsberg, contains
      important differences. The trooper first testified that Bloomer
      insisted on a urine test instead of a breath test. But he conceded
      on cross-examination that Bloomer stated he did not refuse the
      officer’s test. Bloomer, testifying on his own behalf, essentially
      agreed with this characterization of their conversation. Importantly,
      however, the record reveals that Bloomer’s actions spoke louder
      than his words. After forty-five minutes of discussion, Bloomer had
      neither signed the form nor given a breath test. The officer treated
      the impasse as a test refusal.
              On appeal, Bloomer seeks to justify his inaction on the
      ground that the trooper never told him he could take an
      independent test in addition to the requested breath test. The
      officer, however, was not required to convey that information.
      [State v.] Wootten, 577 N.W.2d [654,] 655 [(Iowa 1998)]. (“Officers
      are not required to advise a defendant of the statutory right to an
      independent test.”). Bloomer exercised his statutory right to consult
      with counsel. See Iowa Code § 804.20. Although Bloomer now
      complains about Trooper Konecne’s emphasis on his right to
      choose the test, the record reveals no denial by the trooper of any
      request by Bloomer to take an independent test. Cf. Casper v.
      Iowa Dep’t of Transp., 506 N.W.2d 799, 802 (Iowa Ct. App. 1993)
      (dicta suggesting that proof of denial would require suppression of
      police-administered chemical test).
              Under this record, we find no error by the court in refusing to
      suppress proof of Bloomer’s test refusal.           Bloomer neither
      consented to the test chosen by the peace officer, nor did he invoke
      his statutory right to an independent test. Thus the court committed
      no error in admitting evidence of his refusal to submit to the
      requested breath test.

Bloomer, 618 N.W.2d at 553 (emphasis added).

      Colosimo acknowledges Miranda protections do not apply to a request to

submit to chemical testing under implied consent procedures. See Swenumson

v. Iowa Dep’t of Pub. Safety, 210 N.W.2d 660, 663 (Iowa 1973) (“Since the

Miranda warning applies to interrogation and the implied consent procedure

relates to submission of a bodily substance to chemical testing, the warning does

not purport to make the Miranda rights applicable during the implied consent

proceeding.”).   She argues, however, her deemed refusal to submit to the
                                        10

requested breath test was involuntary because the two Miranda warnings she

received misled her into believing she had a right to defer her decision whether to

take the breath test until she had the advice of counsel. She asks that this court

adopt the “confusion doctrine” recognized in a minority of states and conclude

that Officer Ihde’s failure to clarify that she had no right to counsel prior to

consenting to or refusing implied consent testing rendered her “refusal”

involuntary.

       When a person asserts their implied consent decision was not voluntary,

“the standard requires an examination of the totality of the circumstances to

determine whether the decision was voluntary or coerced.” State v. Knous, 313

N.W.2d 510, 512 (Iowa 1981). “Proof of knowledge of the right to refuse is not a

prerequisite to proving the decision was voluntary.     It is merely one relevant

circumstance.” Id.

       In Swenumson, the court observed,

              [I]t has been recognized the juxtaposition of the Miranda
       warning, the implied consent procedure, and the request for
       chemical test may raise a question of fact as to whether the
       arrested person was misled or confused by the Miranda warning to
       believe he had a right to the advice of counsel before responding to
       the request for chemical test.

210 N.W.2d at 663 (emphasis added).          To avoid this question of fact, the

Swenumson court suggested: “The peace officer invoking the implied consent

procedure is therefore well-advised to tell the arrested person the Miranda rights

do not apply to the implied consent proceeding.” Id.

       In State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978), our supreme court

was confronted with the seeming contradiction presented to a person arrested for
                                               11

OWI who had been read the Miranda advisory, which includes the right to

counsel, and then given an implied consent advisory, which then specifically

stated the arrestee did not have a right to consult an attorney prior to consenting

or refusing a bodily specimen. The Vietor court noted that Swenumson dealt with

an administrative license revocation proceeding to which Miranda protections “do

not apply.” Vietor, 261 N.W.2d at 830. With respect to the statutorily required

statements under implied consent provisions (now codified at § 321J.82), the

court stated, “[T]he statute did not require the officer to tell [the defendant] he had

a right to counsel. It simply forbade telling [the defendant] he did not have right

to counsel.” Id. at 831.

          In an effort to “reach some accommodation” between implied consent

provisions and the right to contact an attorney—now codified at section

804.203—the court recognized a “limited statutory right to counsel before making


2
    The applicable portions of section 321J.8, entitled “Statement of officer,” provide:
                 (1) A person who has been requested to submit to a chemical test
         shall be advised by a peace officer of the following:
                 (a) If the person refuses to submit to the test, the person’s driver’s
         license or nonresident operating privilege will be revoked by the
         department as required by and for the applicable period specified under
         section 321J.9.
                 (b) If the person submits to the test and the results indicate the
         presence of a controlled substance or other drug, or an alcohol
         concentration equal to or in excess of the level prohibited by section
         321J.2 or 321J.2A, the person’s driver’s license or nonresident operating
         privilege will be revoked by the department as required by and for the
         applicable period specified under section 321J.12.
3
    Section 804.20 provides:
                  Any peace officer or other person having custody of any person
          arrested or restrained of the person’s liberty for any reason whatever,
          shall permit that person, without unnecessary delay after arrival at the
          place of detention, to call, consult, and see a member of the person’s
          family or an attorney of the person’s choice, or both. Such person shall
          be permitted to make a reasonable number of telephone calls as may be
          required to secure an attorney. If a call is made, it shall be made in the
                                           12


the important decision to take or refuse a chemical test under implied consent

procedures.” Id. (emphasis added). The Vietor court “enunciated three statutory

rules.” State v. Garrity, 765 N.W.2d 592, 595 (Iowa 2009).

       First, an arrestee that asks to call his lawyer should be permitted to
       do so before submitting to a chemical test. Second, if that person
       is denied the opportunity to call a lawyer, the evidence of refusal to
       engage in the chemical test is inadmissible. Third, the arrestee’s
       right to prior consultation is limited to circumstances where it does
       not “materially interfere” with the chemical test procedure.

Id. at 595-96 (citations omitted).

       Colosimo was afforded her right to contact an attorney.             Officer Ihde

assisted her in her numerous attempts to reach defense counsel. Eventually,

Colosimo was informed she would have to consent to or refuse testing

regardless of whether she was able to reach her attorney. Colosimo again stated

she would do nothing without the presence of her attorney. Officer Ihde then

explained that “if I got anything other than a yes or consent, I would have to

consider that a refusal.” Colosimo responded, “I’m not refusing. I’m just not

doing anything without the presence of my attorney.” Officer Ihde told her he

was considering her response a refusal and documented her answer as a test

refusal on the implied consent form. Officer Ihde informed Colosimo that refusing

to submit would result in the revocation of her license.

       Colisomo asserts that because she was not told the Miranda rights did not

apply to the implied consent procedures, she could not make a knowing and


       presence of the person having custody of the one arrested or restrained.
       If such person is intoxicated, or a person under eighteen years of age, the
       call may be made by the person having custody. An attorney shall be
       permitted to see and consult confidentially with such person alone and in
       private at the jail or other place of custody without unreasonable delay. A
       violation of this section shall constitute a simple misdemeanor.
                                               13


conscious refusal.         But, it is the rule in this state that “anything less than

unqualified, unequivocal consent is a refusal.” Bloomer, 618 N.W.2d at 553; see

also Welch, 801 N.W.2d at 595 (“In addition to explicit, unqualified refusals, we

have found that failures to cooperate, conditional refusals, conditional assents,

consents followed by a failure to provide the requested specimen, and consents

followed by combative behavior all constitute refusals within the meaning of

sections 321J.6(2) and 321J.9(1).”). Colosimo’s failure to consent to testing after

Officer Ihde informed her she would have to consent to or refuse testing

regardless of whether she was able to reach her attorney was validly deemed a

refusal under Iowa law.4 See Welch, 801 N.W.2d at 594 (citing with approval,

Taylor v. Dep’t of Transp., 260 N.W.2d 521, 524 (Iowa 1977) (finding similar

driver’s conduct amounted to refusal)).

          The district court rejected Colosimo’s motion to suppress, finding:

                 The question is was she confused by the Miranda to such an
          extent that that was the basis for continuing to make an argument
          that she was not going to do anything until she was in touch with
          her attorney. The officer testified that he thought she was
          potentially attempting to delay the process or not cooperate. At this
          point there is no evidence in the record that the Defendant
          specifically was confused other than the statement.



4
    In an analogous situation, Welch, 801 N.W.2d at 597, the court explained:
                   Swenumson and Hoffman preceded our decisions in State v.
          Vietor, 261 N.W.2d 828, 831 (Iowa 1978), and Fuller v. State, 275 N.W.2d
          410, 411 (Iowa 1979), where we made clear that an arrested motorist
          who asks to call his or her attorney shall be afforded a right to do so
          before being required to elect whether to submit to the chemical test. See
          Iowa Code § 804.20 (formerly Iowa Code § 755.17). A motorist is not
          deemed to have refused the test for purposes of the implied consent law
          merely by making such a request.              Fuller, 275 N.W.2d at 411.
          Nevertheless, Vietor and Fuller did not call into question the validity of the
          “one refusal” rule, and Welch concedes that his section 804.20 statutory
          right to attorney consultation is not at issue here.
                                            14

       Colosimo maintains Officer Ihde twice read her the Miranda advisory and

“[f]rom that point forward, Colosimo steadfastly responded to all further

questioning by asserting her right to remain silent until she was at least in the

presence of counsel.” From this premise, she argues she was denied the right to

make a knowing and conscious refusal and denied her due process. Beyond the

Swenumson statement that a fact issue may arise, the Iowa Supreme Court has

never recognized this “confusion doctrine,”5 and we do not believe it is for this

court to do so.     See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014)

(“Generally, it is the role of the supreme court to decide if case precedent should

no longer be followed.”).

       Viewing the totality of the circumstances and precedential case law to

which we are bound, we reject Colosimo’s contention that her refusal was

involuntary.   Colosimo’s actions constituted a refusal for purposes of implied


5
  See Kurecka v. State, 67 So. 3d 1052, 1056-59 (Fla. Ct. App. 2010) (discussing the
“confusion doctrine” and approach taken by several states). The Kurecka court rejected
the doctrine, stating:
        The [implied consent] statute requires only that the person be told that his
        failure to submit to the test will result in a suspension of the privilege to
        drive for a period of time and that a refusal to submit can be admitted at
        trial. The implied consent statute establishes a presumption that those
        who have elected to enjoy the privilege of driving will, in turn, be required
        to submit to chemical testing if they are suspected of driving under the
        influence. See §§ 316.1932, 316.1933, and 316.1934, Fla. Stat.; State v.
        Busciglio, 976 So.2d 15, 19–20 (Fla. 2d DCA 2008) (explaining that by
        exercising the privilege to drive, all drivers have already consented to
        taking a breath test pursuant to section 316.1932). The licensed driver in
        Florida, having already consented to the test, is thus not entitled to secure
        the advice of an attorney. Accordingly, excluding evidence based on a
        suspect’s misconception about the right to counsel prior to taking the
        breath test would be contrary to the legislative intent of Florida’s implied
        consent law.
Id. at 1060. See also State v. Reitter, 595 N.W.2d 646, 654-55 (Wisc. 1999) (noting
Wisconsin has not adopted the confusion doctrine and holding “that where a defendant
exhibits no confusion, the officer is under no affirmative duty to advise the defendant that
the right to counsel does not attach to the implied consent statute”).
                                            15

consent. See Bloomer, 618 N.W.2d at 553; see also Welch, 801 N.W.2d at 600

(“Despite ample opportunities, the general assembly has declined to overturn our

decisions in this [‘refusal to submit’] area.        Thus, it is appropriate for us to

conclude that after more than four decades of legislative quiescence, the

legislature is satisfied with a bright-line interpretation of its statute.”).

       “Proof of a defendant’s test refusal may be submitted in evidence at trial.”

Bloomer, 618 N.W.2d at 552. The trial court did not err in denying Colosimo’s

motion to suppress. See Iowa Code § 321J.16.

       C. Due process claim. Colosimo next contends she was denied due

process when the district court denied her motion in limine. As explained by

defense counsel to the trial court:

       [I]t’s a cornerstone of her Miranda rights that if she exercises them,
       that they cannot be used against her at trial as an indicia of guilt.
       And at no time did Officer Ihde inform her, hey, your Miranda rights
       don’t apply to certain questions such as will you take a test, or any
       other question. So, Your Honor, we ask that her answers to any
       question that he asked in which she is invoking her Miranda rights,
       that those not be admitted at trial because, number one, they
       wouldn’t be relevant; number two, they would violate her rights;
       and, number three, the potential for the jury to interpret that as
       indicia of guilt would violate her rights.

       The State argued that section “321J.16 is very clear that the State can

comment on refusal, and just because refusal is couched as invocation should

not shield the defendant from the State being able to use the refusal as indicia of

guilt.” While we agree the State is allowed to present evidence of Colosimo’s

refusal, it may not do so by the method used here, which included her

invocations of right to counsel.
                                           16

       In State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010), the Iowa Supreme

Court clearly stated, “It is impermissible to use an individual’s exercise of his or

her constitutional rights against them after the State implicitly assured the

individual, through the Miranda warning, that his or her invocation of those rights

would not be penalized.” (Citing Wainwright v. Greenfield, 474 U.S. 284, 292

(1986)).   “Any breach of this implied assurance is a breach of fundamental

fairness required by the due process clauses of the Federal and Iowa

Constitutions.” Lyman, 776 N.W.2d at 878 (emphasis added). Consequently,

Colosimo’s due process rights were violated when the recordings of her invoking

her right to counsel after receiving Miranda warnings were admitted in evidence.

State v. Mannion, 414 N.W.2d 119 (Iowa 1987), upon which the district court

relied, is inapt because the question presented there was whether the person’s

refusal to submit to sobriety tests was admissible.6 But there was no attempt In

Mannion to introduce a recording of the defendant’s invocation of his right to

counsel, was the case here.7 See Mannion, 414 N.W.2d at 120.

       D. Was error harmless? “Most federal constitutional errors, including the

erroneous admission of evidence in a criminal trial in violation of a defendant’s

. . . Fourteenth Amendment rights, do not require reversal if the error is

harmless.” State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009). “To establish

harmless error, the State must ‘prove beyond a reasonable doubt that the error



6
  The officer could testify that Colosimo refused to submit to a breath test. See Bloomer,
618 N.W.2d at 553.
7
   In Mannion, the jury was allowed to view—without audio—the videotape of the
defendant’s field sobriety tests. 414 N.W.2d at 121 (“Standing alone, in the absence of
any evidence of Mannion’s refusal, the videotape was admissible as physical, rather
than testimonial, evidence.”).
                                        17

complained of did not contribute to the verdict obtained.”        Id. (citations and

internal quotation marks omitted).

               To determine whether the State has met its burden under
       the harmless-error standard, the court employs a two-step analysis.
       First, the court asks what evidence the jury actually considered in
       reaching its verdict. Second, the court weighs the probative force
       of that evidence against the probative force of the erroneously
       admitted evidence standing alone. This step requires the court to
       ask “whether the force of the evidence is so overwhelming as to
       leave it beyond a reasonable doubt that the verdict resting on that
       evidence would have been the same without the erroneously
       admitted evidence.”

Id. at 686-87 (citations omitted).

       Here, the jury was instructed that the State had to prove (1) “the defendant

operated a motor vehicle” and (2) “[a]t the time, the defendant was under the

influence of alcohol.” They were further instructed:

                                   Instruction 11
              A person is “under the influence” when, by drinking liquor,
       wine and/or beer, one or more of the following is true:
              (1) Her reason or mental ability has been affected.
              (2) Her judgment is impaired.
              (3) Her emotions are visibly excited.
              (4) She has, to any extent, lost control of bodily actions or
       motions.
              ....
                                   Instruction 14
              The defendant was asked to give a breath sample so it could
       be analyzed to determine the percent of alcohol in her blood. The
       defendant refused.
              A person is not required to give a sample of any bodily
       substance; however, you may consider a refusal in reaching your
       verdict.

       The prosecutor in closing argument stressed the instruction allowing the

jury to consider Colisimo’s “refusal”—in fact it was the theme of the closing:

              When you go back to deliberate it's often helpful to have a
       theme or an issue in mind to consider, and I propose when you go
       back to deliberate, ask yourself did the defendant see the writing on
                                       18


      the wall? And what I mean by that is consider the three refusals.
      The defendant refused to perform field sobriety tests, she refused
      to submit to the preliminary breath test, and she also refused to
      supply a breath specimen for the DataMaster.
             Ask yourself did she refuse because she knew what the
      answer would be if she submitted to any one of those tests—
             One of the jury instructions that you’ll receive is you can, in
      fact, consider these refusals in reaching your verdict.             In
      continuation of that theme of seeing the writing on the wall, ask
      yourself does it make sense for the defendant to refuse everything
      if she was, in fact, not under the influence. And I want you to pay
      special attention to the refusal of the DataMaster, the request for
      the breath specimen at the jail.

Portions of the video recording at the police station were replayed during the

prosecutor’s closing argument—during that portion, Colosimo states at least ten

times that she would do nothing until her attorney was present.

      We acknowledge the jury was instructed:

                                 Instruction 15
             In this case, you have heard evidence that the defendant
      repeatedly invoked her right to remain silent and requested the
      presence of counsel after being advised of her Miranda rights. No
      inference of guilty shall be drawn from the mere fact that she
      invoked her right to remain silent and requested the presence of
      counsel following the Miranda warning. The burden of proof
      remains upon the State to prove the guilt of the defendant.

      We also acknowledge that under applicable case law, nontestimonial

aspects of evidence contained on a videotape may be admissible demeanor

evidence.   See State v. Decker, 744 N.W.2d 346, 355-56 (Iowa 2008).           In

Decker, the court considered whether the admission into evidence of a videotape

showing the defendant’s asserting his right to remain silent “at least five times

and did indeed remain silent for a considerable period of time” required a

reversal of the conviction. Id. at 354. The supreme court found that because the

case was tried to the court and the trial court did not indicate it relied upon
                                           19

impermissible evidence, the defendant’s conviction was allowed to stand. Id. at

356. But, as the Decker court opined:

               Decker argues that it would be extremely difficult for the
       finder of fact to separate out the permissible from the impermissible
       evidence, requiring reversal of his convictions. If this case were
       tried to a jury, Decker would have a strong argument. Before a
       jury, the limited probative value of the admissible features of the
       videotape would in all likelihood be outweighed by its prejudicial
       effect. Even with limiting instructions, it would be difficult for an
       untrained jury to consider only the physical demeanor evidence and
       not consider the fact that the videotape showed Decker invoking his
       Miranda rights and not consider the communicative content of his
       statements. See Robinette v. State, 741 N.E.2d 1162 (Ind. 2001)
       (holding that a trial court’s limiting instruction could not cure the
       wrongful admission of Miranda invocations in a jury trial).

Id. at 355-56 (emphasis added).

       We are not persuaded by the State’s contention that the result here should

be different because Colosimo “had no Miranda right to assert.”              Again, our

supreme court has stated it is “impermissible to use an individual’s exercise of

his or her constitutional rights against them after the State implicitly assured the

individual, through the Miranda warning, that his or her invocation of those rights

would not be penalized.” Lyman, 776 N.W.2d at 878. “Any breach of this implied

assurance is a breach of fundamental fairness required by the due process

clauses of the Federal and Iowa Constitutions.” Id.

       E. Sufficiency of the evidence. On appeal, Colosimo argues the

evidence was insufficient to support the conviction.             Even assuming this

challenge was adequately preserved,8 viewing the evidence in the light most

favorable to upholding the verdict, including all reasonable inferences that may


8
  The motion for new trial raised only a claim that the verdict was against the weight of
the evidence.
                                          20

arise therefrom, see State v. Showens, 845 nw2d 436, 439-40 (Iowa 2014), we

conclude there was substantial evidence from which the jury could find the

defendant guilty of OWI. The evidence showed Colosimo was stopped driving

the wrong way down a one-way street and the officers smelled the odor of

alcoholic beverage when they spoke with Colisomo.              The officers observed

Colosimo had watery, bloodshot eyes and had slurred speech. She admitted

drinking. Colosimo’s deemed refusal may be considered by the jury. We reject

her insufficiency claim.

       IV. Conclusion.

       Because Colosimo’s due process rights were violated and that violation

was not harmless, we reverse the conviction and remand for a new trial.9

       REVERSED AND REMANDED.




9
 We need not address her remaining claim that she is entitled to a new trial because the
verdict was contrary to the weight of the evidence.
