                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0995
                              Filed May 14, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JORDAN LEE BROWN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Franklin County, Peter B. Newell,

District Associate Judge.



      Jordan Brown appeals his conviction for operating while intoxicated,

second offense. AFFIRMED.



      Michael L. Lewis of Lewis Law Firm, P.C., Cambridge, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Daniel F. Weichmann, County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.

       Jordan Brown appeals his conviction for operating while intoxicated,

second offense.     He asserts the district court erred in denying his motion to

suppress the results of the breathalyzer test due to his initial refusal to undergo

testing.   We conclude there is no statutory violation that would preclude the

admission of the test into evidence following an initial refusal, and, consequently,

the district court properly denied Brown’s motion to suppress.       We therefore

affirm his conviction.

       On June 16, 2012, Iowa State Trooper Mike Ades found Brown asleep in

his car on the shoulder of Interstate 35. The car was running and the headlights

were on. After some effort in trying to rouse a sleeping Brown, Trooper Ades

noticed a strong odor of alcohol emanating from Brown. Trooper Ades requested

Brown to perform four field sobriety tests, which Brown failed. He was then

placed under arrest and transported to the police station. Trooper Ades read

Brown the implied consent advisory and asked if he would consent to a chemical

test. Brown replied that he wanted to call his attorney before deciding what to

do. He then made various phone calls but fell asleep waiting for his attorney to

call him back. After about thirty minutes had passed, Trooper Ades woke Brown

up to again request if he would consent to a chemical test. Brown refused.

However, Trooper Ades, understanding that Brown was “just coming out of

sleep” when confronted with the request, decided to re-read portions of the

implied consent advisory, “so he could make the best-informed decision that he

could make in that regard.” Brown then consented to the test. The breathalyzer

showed a blood alcohol content of .086.
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       The State charged Brown with operating while intoxicated, second

offense, in violation of Iowa Code section 321J.2 (2011). Brown filed a motion to

suppress the results of the breathalyzer test, which the district court denied. A

bench trial on the minutes was held, and, in a written order filed on May 20,

2013, Brown was found guilty.

       Brown    appeals,   and    relies   on    Welch    v.   Iowa   Department    of

Transportation, 801 N.W.2d 590 (Iowa 2011), and Iowa Code section 321J.9, for

the proposition that once a person refuses to submit to chemical testing, a test

shall not be given. He argues that, because he initially refused to submit to a

test, Trooper Ades should not have repeated his request, and the admission of

the test results from his subsequent consent violated his statutory rights.

Consequently, he asserts the district court erred in denying his motion to

suppress the test’s results.

       When the admission of evidence depends on statutory interpretation, we

review the district court’s decision for correction of errors at law. State v. Palmer,

554 N.W.2d 859, 864 (Iowa 1996).

       The supreme court in Welch held the defendant’s subsequent consent to a

chemical test, following his initial refusal, did not negate his initial refusal for

purposes of the administrative licensure revocation. Welch, 801 N.W.2d at 598–

99. The Welch court did not address this question in the context of a criminal

case. See, e.g., Iowa Dep’t of Transp. v. Iowa Dist. Ct., 504 N.W.2d 897, 898

(Iowa 1993) (recognizing the “clear separation between criminal proceedings

involving    operating-while-intoxicated        prosecutions    and    administrative

proceedings such as the revocation of a motor vehicle license”). Consequently,
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the one-refusal mandate articulated in Welch does not necessarily apply to the

admission of the test into evidence in a criminal case. See generally State v.

Dulaney, 493 N.W.2d 787, 789–90 (Iowa 1992) (noting the police asked multiple

times for a chemical test and the defendant, twice by his silence and finally by his

words, refused).

       Other than Welch and section 321J.9, Brown cites to no authority

supporting his proposition that Trooper Ades was not “authorized to ignore the

initial refusals to submit to chemical testing and permit [Brown] to subsequently

provide a breath sample.” In other words, Brown urges us to affirmatively extend

the one-refusal rule as followed in the administrative licensing context to the

criminal context, that is, to require the exclusion of any test offered after a

defendant initially refuses to undergo testing.      We do not find any authority

requiring such a result.

       Moreover, we do not find Brown’s reasoning persuasive. Our case law

requires law enforcement to employ reasonable efforts to convey the

consequences of refusing to submit to chemical testing. See State v. Garcia,

756 N.W.2d 216, 220 (Iowa 2008) (stating “a driver’s consent to testing may be

considered involuntary, and therefore invalid, if it is coerced or if the driver is not

reasonably informed of the consequences of refusal to submit to the test or

failure of the test”). Nothing in this record would support the finding that Brown

was “coerced.” On the contrary, the record demonstrates that Trooper Ades took

steps to ensure Brown was “reasonably informed of the consequences of refusal

to submit to the test or failure of the test.”     Consequently, none of Brown’s
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statutory rights were violated,1 and the district court properly denied Brown’s

motion to suppress. His conviction is affirmed.

       AFFIRMED.




1
  In his introductory statement, Brown alluded to the fact the test was not voluntary and
uncoerced, thereby implying constitutional violations occurred. However, Brown cited no
authority supporting a constitutional claim, and therefore waived any arguments relating
to the constitutionality of the test. See Iowa R. App. P. 6.903(2)(g)(3).
