               IN THE SUPREME COURT OF IOWA
                                  No. 10–0525

                           Filed September 30, 2011


STATE OF IOWA,

      Appellant,

vs.

CARSON MICHAEL WALKER,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, James D.

Birkenholz, Judge.



      State   seeks      discretionary   review   of   district   court’s   ruling

suppressing appellee’s chemical test results.           COURT OF APPEALS

DECISION VACATED; DISTRICT COURT RULING AFFIRMED; CASE

REMANDED.



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

Attorney General, John P. Sarcone, County Attorney, and David M.

Porter, Assistant County Attorney, and Scott M. Wadding, Student Legal

Intern, for appellant.



      Daniel J. Rothman and William G. Brewer of McEnroe, Gotsdiner,

Brewer & Steinbach, P.C., West Des Moines, for appellee.
                                      2

WATERMAN, Justice.

      Is an attorney able “to see and consult confidentially [with his

client] alone and in private” under Iowa Code section 804.20 (2009) by

talking through an intercom in a booth separated by a glass partition

and watched by a police video camera? In this prosecution for operating

a motor vehicle while intoxicated (OWI), the district court answered “no”

to   this   question   of   first   impression   and    granted   defendant

Carson Michael Walker’s motion to suppress breath-test results obtained

after he met with his lawyer under those conditions. On discretionary

review a divided court of appeals reversed, with the two-judge majority

finding no violation of section 804.20. A concurring opinion found the

statute was violated. All three members of the panel found no prejudice

or intrusion on the attorney-client relationship.      We granted Walker’s

application for further review to decide whether his section 804.20 rights

were violated and, if so, to determine the appropriate remedy.

      This case presents our first opportunity to construe the limited

statutory right to a custodial in-person consultation with counsel. Other

courts have reached divergent conclusions on the extent to which police

and jailors can monitor or regulate attorney visits with clients in custody.

A clear majority of courts allow restrictions—such as a partitioned room

separating the lawyer and client or video monitoring of their conference—

only upon a case-specific, individualized suspicion of a threat to safety or

security. In this case, Walker was cooperative and nonviolent. For the

reasons explained below, we hold the police violated Walker’s section

804.20 rights by restricting his attorney conference to the booth with the

glass partition under videotaped surveillance.         We apply the same

remedy our precedents provide for violation of the section 804.20

statutory right to make timely phone calls to legal counsel or family
                                     3

members—suppression of the subsequent breath-test results or test

refusal, regardless of prejudice. Accordingly, we vacate the decision of

the court of appeals and affirm the district court’s suppression ruling.

       I. Background Facts and Proceedings.

       On December 6, 2009, Ankeny police patrol officer Travis

Grandgeorge saw a Ford Expedition being driven down the center

dividing line on Southeast Delaware Avenue and pulled it over at 2:23

a.m.    Walker, age twenty-eight, was the driver and sole occupant.

Grandgeorge noted Walker had slurred speech, watery bloodshot eyes,

and smelled of alcohol.    Walker admitted he had been drinking and

attempted, but failed, several field sobriety tests—the “Walk and Turn”

and “One Leg Stand.” He refused to take a preliminary breath test (PBT)

but scored a “6,” indicating intoxication, on the Horizontal Gaze

Nystagmus (HGN) test of his ability to keep his eyes focused on the

officer’s finger as it moved across his face. Walker was arrested at 2:39

a.m. and transported to the new Ankeny police station.               There,

Grandgeorge gave Walker an implied consent advisory, requested a

breath sample at 3:16 a.m., and offered Walker the opportunity to make

phone calls. Walker made eight calls, including one to attorney Murray

Gotsdiner.

       Gotsdiner answered the call and referred the matter to attorney

Daniel Rothman, who was more knowledgeable about OWI law.

Rothman arrived at the Ankeny Police Department at 4:42 a.m.

Grandgeorge greeted Rothman and escorted him to a small detention

area with three empty booths with glass partitions to separate visitors

from detainees and intercoms with telephone style handsets for

communication. Rothman saw a black plastic security camera “bubble”

and correctly assumed the booths were monitored by video camera. He
                                   4

was concerned the room or phones were recorded for sound. No signage

indicated whether audio or visual monitoring was in use. Rothman did

not ask any officer about audio or video recording or raise any concern

about such eavesdropping at this time. In fact, the video was streamed

onto a separate monitor and kept for one month. Neither the booth nor

the telephone handsets were audio recorded, nor was any officer in the

booth area or watching the video monitor while Rothman was there.

      Rothman had planned to make his own assessment of Walker’s

intoxication before advising him whether to take the breath test. Walker

was facing a charge of OWI, first offense, and if his blood alcohol level

exceeded .15%, he would be ineligible for a deferred judgment. Rothman

wanted to have Walker privately perform for him several physical

balancing tests, but worried the videotape would create more evidence to

be used against his client at trial. Rothman was trained to administer

the HGN test, but concluded glare on the thick glass from the bright

florescent lighting would prevent him from conducting that test with

Walker on the other side of the partition. Rothman also wanted to smell

Walker’s breath and could not do so through the solid glass barrier.

Accordingly, Rothman, without mentioning the video, asked Grandgeorge

for a different room without the partition for his client conference. His

request was refused, and when he asked again, Grandgeorge checked

with his supervisor, then told Rothman department policy prohibited all

visitors from entering the detention area. It is undisputed Walker was

nonviolent and cooperative.

      Because Rothman’s repeated requests for a different room were

refused, he conferred with Walker from opposite sides of the glass

partition for fifteen minutes using the intercom.    Rothman made no

request to halt any recording while at the station, nor was he told
                                     5

whether video or audio recording was in progress. After conferring with

Rothman through the partition, Walker took the evidentiary Datamaster

breath test at 5:02 a.m.      The breath test measured Walker’s blood

alcohol level at .186%, more than double the legal limit of .08% and

above the .15% maximum for a deferred judgment.

      The State charged Walker with operating while intoxicated in

violation of Iowa Code section 321J.2, first offense.        Walker moved to

suppress the breath-test results based on the alleged violation of his

right under section 804.20 to “see and consult confidentially” with his

attorney “alone and in private.”    Walker contended the booth with the

glass partition and video monitoring violated the statute, and his request

for a different room should have been granted.         The State resisted,

contending Rothman was allowed to consult with Walker in confidence

under reasonable security conditions imposed by the police department.

      The district court conducted an evidentiary hearing on the motion

to suppress. Grandgeorge and Rothman testified. Grandgeorge testified

the purpose of the solid glass barrier and policy denying contact visits

was to prevent visitors from passing contraband or weapons to detainees

and that “the attorney might pose a safety issue.”      The Ankeny police

policy applied to all visitors:   “Not strictly attorneys.    We don’t allow

anyone else into the [detention] area because it could pose a safety issue

if it’s a friend of theirs. You just never know what could happen, so we

don’t allow anyone in there.” The State does not claim Ankeny police had

any individualized, case-specific reason to suspect Walker posed a threat

to Rothman or that Rothman would pass his new client contraband or do

anything to compromise the contemplated breath test.            Nor does the

State contend the new Ankeny police station lacked another room

without a barrier where Rothman and Walker could have met privately.
                                        6

      Rothman testified his ability to give informed legal advice was

impeded. Specifically, he was unable to smell Walker’s breath or perform

the HGN test, and he chose to refrain from asking Walker to do balancing

tests because of the video camera and his belief that video of Walker’s

performance would be admissible against him at trial.              See State v.

Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (allowing into evidence video of

defendant     taken   at   police   station   without   attorney   present   “to

demonstrate Garrity’s body motions, judgment, slurred speech and

inability to communicate”).

      The district court found the officers violated Walker’s section

804.20 rights by prohibiting him from meeting with Rothman “alone and

in private” and granted the motion to suppress the breath-test results.

The district court noted the security camera “bubble is visible, and we all

know what is behind a bubble.          It’s Uncle Sam looking.      There’s no

information given to the people using the required communication

devices that the audio is not being recorded.”             The district court

elaborated:

             In this case we have an experienced attorney who
      clearly understands field sobriety tests, and the video itself
      will be a chilling effect on requesting the defendant to
      perform a one-leg stand or a walk-and-turn type of test.
      Because if he failed, he would be giving the Government
      additional evidence.
              ....
             The glass wall or very large window would clearly
      interfere with the defense counsel performing the HGN test
      potentially because of the glass and the lighting. There was
      no chance to smell any odor of alcohol, and I think clearly
      the request was made that the meeting be in person.

      The State filed an interlocutory application for discretionary review.

Walker resisted. We granted the State’s application and transferred the

case to the court of appeals.       The court of appeals reversed, with the
                                    7

majority opinion concluding the Ankeny Police Department did not

violate section 804.20:

      [W]e agree with the State’s contention that Walker was
      provided an opportunity to consult with Attorney Rothman
      in confidence under reasonable security conditions imposed
      by the police department.
            ....
             We also do not believe communication through a glass
      partition or a phone or intercom system prevents either the
      attorney or client from speaking freely with each other.
      Section 804.20 guarantees a confidential consultation—not
      the ability to smell or touch the client, or the space to
      perform field sobriety tests.

      A special concurrence disagreed with the majority’s conclusion as

to whether section 804.20 had been violated. The special concurrence

stated:

      I disagree with the majority that the physical environment in
      which Walker and his attorney were placed satisfied the
      “alone and in private” requirement of Iowa Code section
      804.20 (2009).     “Alone” means “separated from others:
      isolated.” Merriam-Webster’s Collegiate Dictionary 34 (11th
      ed. 2004). “Private” means “withdrawn from company or
      observation.” Id. at 988. In my view, these terms do not
      encompass videotaped booths such as the ones Walker and
      his attorney were forced to use.

      All three judges on the court of appeals panel agreed that,

regardless of whether section 804.20 was violated, Walker was not

entitled to suppression of the breath-test results because he had made

no showing of prejudice resulting from the refusal to provide a private

consultation room. The court of appeals noted “no inculpatory evidence

was viewed or captured during Walker’s meeting.”          Nor were any

conversations between Rothman and Walker overheard and reported to

the prosecutor.    Given the absence of any actual intrusion on the

attorney-client communications or showing of actual prejudice, the court

of appeals held the breath-test results were admissible against Walker.
                                     8

      We granted Walker’s application for further review.

      II. Standard of Review.

      The district court’s interpretation of Iowa Code section 804.20 is

reviewed for errors at law.    State v. Hicks, 791 N.W.2d 89, 93 (Iowa

2010). We affirm the district court’s suppression ruling when the court

correctly applied the law and substantial evidence supports the court’s

fact-finding. Id.

      III. Iowa Code Section 804.20.

      It is undisputed that Walker’s attorney invoked the statutory right

to “see and consult confidentially” with Walker “alone and in private” at

the Ankeny Police Department and that he repeatedly requested a private

room without the glass partition. It is also undisputed that Walker was

cooperative, not belligerent or violent. The Ankeny police had no case-

specific reason to suspect Rothman would be at risk alone in a room with

physical contact with Walker or that either of them together would do

anything to compromise the impending breath test.           Under these

circumstances, we must decide whether Walker’s section 804.20 rights

were violated by restricting his attorney consultation to the booth with

the glass partition between them under videotaped surveillance. This is

a question of statutory interpretation.

      Iowa Code section 804.20 states:

             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 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
                                     9
      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.

(Emphasis added.)

      When interpreting a statute, “our primary goal is to give effect to

the intent of the legislature. That intent is evidenced by the words used

in the statute. . . . In the absence of legislative definition, we give words

their ordinary meaning.” Anderson v. State, 801 N.W.2d 1, 3 (Iowa 2011)

(quoting State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011) (internal

citation and quotations marks omitted)).          “We seek a reasonable

interpretation which will best effectuate the purpose of the statute . . . .”

State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995).

      “The legislative purpose of section 804.20 is to afford detained

suspects the opportunity to communicate with a family member and [an]

attorney.” Hicks, 791 N.W.2d at 95 (citing State v. Vietor, 261 N.W.2d

828, 831 (Iowa 1978)).        Section 804.20 “is a statute of general

application,” and its scope is broader than OWI cases.              State v.

Moorehead, 699 N.W.2d 667, 674 (Iowa 2005).             Most of our cases,

however, have involved the statutory right to place a telephone call to an

attorney or family member when pulled over for drunk driving. See, e.g.,

State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (“One purpose of

section 804.20, of course, is to allow an arrestee to call an attorney

before deciding whether to submit to a chemical test.”); Vietor, 261

N.W.2d at 831 (“[T]here is a limited statutory right to counsel before

making the important decision to take or refuse the chemical test under

implied consent procedures.”).      As we observed in Vietor, a person

arrested for OWI faces “the necessity of making an immediate decision

which later may be used to convict him of a crime.” Id. The time for
                                           10

consultation is, however, effectively limited by law enforcement’s interest

in obtaining the test within two hours of the defendant’s driving in order

to   preserve    the    presumption       afforded    under     Iowa    Code     section

321J.2(8)(a).     See Iowa Code § 321J.2(8)(a) (providing that the alcohol

concentration, established by the results of a specimen withdrawn within

two hours after the defendant was driving, will be presumed to be the

alcohol concentration at the time of driving); see also Iowa Code

§ 321J.6(2) (“If the peace officer fails to offer a test within two hours after

the preliminary screening test is administered or refused or the arrest is

made, whichever occurs first, a test is not required, and there shall be no

revocation under section 321J.9.”). 1

       Although section 804.20 governs the attorney-consultation rights

of all arrestees, not just drunk drivers, we read it together with the

implied-consent provisions of Iowa Code chapter 321J. In Welch v. Iowa

Department of Transportation, we noted “we have continuously affirmed

that the primary objective of the implied consent statute is the removal of

dangerous and intoxicated drivers from Iowa’s roadways in order to

safeguard the traveling public.”            801 N.W.2d 590, 594 (Iowa 2011).

Nevertheless, we noted precedent “indicating a driver’s decision to
consent to testing must be voluntary—i.e., ‘freely made, uncoerced,

reasoned and informed.’ ” Id. (quoting State v. Garcia, 756 N.W.2d 216,

220 (Iowa 2008)).       The arrestee’s intoxication impairs his judgment as

well as his driving ability. Such individuals must make a stressful and


       1In  addition, the parties do not dispute officers are instructed to observe
suspects for fifteen minutes before administering chemical testing. See Iowa Admin.
Code r. 661—157.2(4) (requiring operator of breath testing device to follow checklist
furnished by the Iowa Department of Public Safety’s criminal laboratory); Division of
Criminal Investigation Alcohol Section, Operating the Datamaster DMT Version 1.0 30
(2009),    http://www.dps.state.ia.us/DCI/lab/breathalcohol/index.shtml         (checklist
providing that arrestee be observed for a fifteen-minute “deprivation” period).
                                     11

time-sensitive decision whether to take or decline the evidentiary breath

test—a choice with significant consequences for their criminal liability

and driving privileges.

      Our cases addressing the right to a telephone consultation with an

attorney make clear that section 804.20 “is to be applied in a pragmatic

manner, balancing the rights of the arrestee and the goals of the

chemical-testing statutes.”    Tubbs, 690 N.W.2d at 914.          Thus, we

recently reiterated that an arrestee who “asks to call his lawyer should be

permitted to do so before submitting to a chemical test,” but that this

right “is limited to circumstances where it does not ‘materially interfere’

with the chemical test procedure.”         Garrity, 765 N.W.2d at 595–96

(quoting Vietor, 261 N.W.2d at 832).

      While we have repeatedly addressed the detainee’s right to make

phone calls under section 804.20, this case presents our first

opportunity to construe the right to “see and consult confidentially” with

an attorney “alone and in private.”       The statute expressly provides for

greater privacy when the attorney personally visits his client at the police

station or other place of custody.     Indeed, “the telephone calls which

section 804.20 assures to persons in custody are not intended to be

confidential as is shown by the provision that they are to be made in the

presence of the custodian.” State v. Craney, 347 N.W.2d 668, 678–79

(Iowa 1984) (allowing into evidence defendant’s statement, “I killed my

baby” made in phone call to attorney overheard by police officer during

booking process because statement made in the presence of a third

person is not protected by attorney-client privilege).     For that reason,

attorneys who consult by telephone with persons arrested for OWI

typically tell their client to answer only “yes” or “no” to the attorney’s

questions.   By contrast, section 804.20 clearly allows for privileged
                                      12

communications at the place of detention where the attorney shall be

permitted to “consult confidentially” with his client “alone and in

private.” We have noted the “right of privacy between attorney and client

is well recognized and jealously guarded” during jailhouse consultations.

State v. Coburn, 315 N.W.2d 742, 748 (Iowa 1982).

      We must now decide whether the Ankeny police violated Walker’s

section 804.20 rights by restricting his attorney visit to the booth with

the   glass    partition   under   videotaped   surveillance   without   audio

recording.

      A. The Glass Partition.        Rothman testified at the suppression

hearing the glass partition that separated him from his client impeded

his ability to give informed legal advice on whether to take the breath

test. Specifically, Rothman was trained to administer the HGN test but

was unable to use it with Walker because of the glare on the thick glass

partition. Rothman also was denied the opportunity to smell his client’s

breath.      The district court, in concluding that section 804.20 was

violated, found the “glass wall . . . would clearly interfere with the

defense counsel performing the HGN test” and that there “was no chance

to smell any odor of alcohol.” Some OWI defense counsel take advantage

of today’s technology by bringing a handheld PBT device to the police

station to measure their client’s blood alcohol level before advising them

whether to take or refuse the breath test.        The glass partition at the

Ankeny station, which lacks any portal or opening, prevents defense

counsel from using such a device.

      The State, however, correctly notes that Rothman and Walker were

able to see each other through the glass and speak through the intercom.

The State contends that this environment is adequate for the limited

statutory right to a consultation with counsel under section 804.20,
                                    13

when balanced against the safety and security needs of the police and

the need to protect the integrity of the breath test.    For example, the

breath test could be compromised if the detainee is given certain

substances to put in his mouth.      Some detainees are arrested for an

assault or disorderly conduct and might pose a threat to a visiting

attorney.   See Slager v. HWA Corp., 435 N.W.2d 349, 357 (Iowa 1989)

(acknowledging “the unpredictable behavior of intoxicated persons”).

While it is said that “God protects drunks and fools,” our cases recognize

that police owe a duty to protect persons arrested. See Hildenbrand v.

Cox, 369 N.W.2d 411, 415 (Iowa 1985).           Walker was intoxicated.

Significantly, however, he was compliant, nonviolent, and cooperative.

Furthermore, the State does not contend Ankeny police had any case-

specific reason to believe that Rothman would be unsafe in a room with

Walker or that, left alone together, the two would do anything to obstruct

justice by compromising the breath test.

      Guidance is provided by other appellate decisions addressing

whether a detainee’s right to counsel is violated by a partition. Colorado

has a statute with operative language equivalent to Iowa’s—allowing

persons in custody to “see or consult, alone and in private [with an

attorney] at the place of custody.” Colo. Rev. Stat. Ann. 16–3–403 (West,

Westlaw through First Reg. Sess. 2011).        In People v. Parsons, the

appellate court held that an inmate’s statutory right to counsel was not

violated by restricting his attorney visit to a room with a glass partition

that had a pass-through. 15 P.3d 799, 805 (Colo. App. 2000). The court

noted this room had “no security cameras or recording devices which

observe or record what occurs in the room,” but guards could look in on

the room through windows. Id. at 804. The court described the visiting

room as follows:
                                     14
            [T]he room is constituted of two portions. The attorney
      occupies one side, and the inmate/client the other side, and
      the two sides are separated by a partition. The partition has
      a pass through for exchange of materials. The attorney and
      the inmate/client can see each other adequately through the
      glass partition. They can communicate by spoken word in a
      normal tone of voice, and in so doing cannot be overheard by
      those who are outside the room, but who may be in the
      immediate area.

Id. Parsons was facing charges of first-degree murder for killing another

inmate.   Id. at 801.   The court found the visiting room sufficient “for

most purposes of private communication.”            Id. at 805.     Parsons

nevertheless contended his attorney-client relationship was impaired

“because he was not free to use ‘physical demonstrations of things that

had taken place or [were] alleged to have taken place.’ ”          Id.   The

appellate court rejected this argument, noting that Parsons did have the

opportunity to meet several times with his attorney in the jury room at

the courthouse where he could perform physical demonstrations without

observation by guards. Id.

      Parsons is distinguishable. Walker is facing a charge of OWI, not

murder. Moreover, the booth at the Ankeny police station had no “pass-

through” opening to allow Rothman to smell his client’s breath or

perform HGN tests.         The Ankeny booth was under videotaped

surveillance; the prison visiting room in Parsons was not.        And most

importantly, Parsons was afforded several opportunities to consult with

his attorney outside of the jail in a jury room suitable for private physical

demonstrations.

      Further guidance is provided by federal appellate decisions holding

inmates’ right to counsel requires allowing “contact” visits with counsel

in a room with no partition or barrier between them. See, e.g., Mann v.

Reynolds, 46 F.3d 1055, 1061 (10th Cir. 1995) (holding that death row

inmates’ Sixth Amendment right to counsel required allowance of contact
                                     15

visit in barrier-free room); Ching v. Lewis, 895 F.2d 608, 609–10 (9th Cir.

1990) (holding prisoner had right to “contact visitation” with his counsel

that was violated by restricting visits to room where he was required to

“yell through a hole in the glass”); Adams v. Carlson, 488 F.2d 619, 630

(7th Cir. 1973) (finding visitation room at Marion Federal Penitentiary

bisected by glass partition denied inmate’s access to counsel; noting the

difficulty of attorneys “behind glass” establishing trust and a satisfactory

working relationship with prisoner, and “the paucity of evidence in the

record to support the Government’s view that Marion officials reasonably

feared importation of contraband by appellants’ attorneys”).

      Commentators surveying the case law note a majority of courts

reaching the question hold an inmate’s right to counsel requires a

visitation room without a physical barrier:

             An issue that has arisen in connection with attorney-
      client visits is whether prison officials may compel inmates
      to have noncontact visits with attorneys. Noncontact visits
      take place with a physical barrier between the inmate and
      the visitor that prevents one from having any physical
      contact with the other. Written material has to be passed
      from the attorney to the inmate by a guard messenger, if at
      all.   While this type of visiting arrangement has been
      sustained for nonlegal family visits, courts have not been as
      willing to sanction noncontact visits with attorneys.
            The majority of courts that have considered the issue
      have held that inmates—even inmates on death row—are
      constitutionally entitled to contact visits with their attorneys.
      These courts have found noncontact visits too impersonal
      and unduly restrictive to comport with the constitutional
      right of inmates to consult meaningfully with their counsel
      ....

Michael B. Mushlin, 3 Rights of Prisoners § 12:27, at 257–59 (4th ed.

2009) (footnotes omitted).

      Walker’s Sixth Amendment right to counsel had not yet attached at

the time he was asked to perform the breath test. See State v. Nelsen,
                                     16

390 N.W.2d 589, 591 (Iowa 1986) (Sixth Amendment right to counsel

“attaches upon the initiation of adversary criminal judicial proceedings

....   In Iowa, a criminal proceeding is commenced ‘by the filing of a

complaint before a magistrate.’ ” (quoting Iowa Code § 804.1 (1983)); see

also State v. Hoch, 500 So. 2d 597, 599–600 (Fla. Dist. Ct. App. 1986)

(detainee had no federal constitutional right to counsel before being

required   to   submit   to   blood/alcohol   test).   Nevertheless,   cases

adjudicating the constitutional right to counsel are instructive in

determining whether a statutory right to counsel is violated by restricting

attorney-client visits to a partitioned room subject to videotaped

surveillance. Section 804.20 applies in some situations in which the

constitutional right to counsel has attached. Accordingly, we interpret

the statutory terms “see and consult confidentially . . . alone and in

private” to provide the same privacy afforded jailhouse visits under the

Sixth Amendment. “This approach makes sound policy sense and would

conform to the presumption of statutory constitutionality and our

mandate to construe statutes in a fashion to avoid a constitutional

infirmity where possible.” In re Young, 780 N.W.2d 726, 729 (Iowa 2010);

see also Simmons v. State Pub. Defender, 791 N.W.2d 69, 74 (Iowa 2010)

(noting need to consider Sixth Amendment right to counsel to guide

interpretation of statute governing payment of attorney fees for

representing indigent defendants); State v. Wiederien, 709 N.W.2d 538,

542 (Iowa 2006) (interpreting section 708.12(2) to avoid constitutional

prohibition).

       Courts have restricted attorney visits to “noncontact” rooms

separating attorney and client when the prisoner had a “demonstrated

propensity toward violence.” Dep’t of Corrs. v. Super. Ct., 182 Cal. Rptr.

294, 299 (Ct. App. 1982).      Courts generally require an individualized
                                    17

suspicion to justify limiting a detainee’s right to meet with counsel in a

barrier-free room:

      Prison officials may ban disruptive attorneys from the prison
      and may prohibit contact, as distinct from noncontact, visits
      by attorneys to prisoner clients, where justified by specific
      security considerations. On the other hand, an arbitrary
      policy of denying a prisoner contact visits with his or her
      attorney unnecessarily abridges the prisoner’s right to
      meaningful access to the courts, where such a policy
      prohibits effective attorney-client communication. Because
      an attorney is considered an officer of the court, there is no
      reason to suspect that he or she would be a threat to prison
      security or discipline.

72 C.J.S. Prisons § 113, at 570–71 (2005) (footnotes omitted).

      We agree with this approach.       In Wemark v. State, we noted,

“Although a strong tradition of loyalty exists between a lawyer and client,

a lawyer is also an officer of the court who is bound by a code of

professional conduct.” 602 N.W.2d 810, 816 (Iowa 1999). Iowa lawyers

may be disciplined for misconduct during conferences with clients in

custodial detention. See Comm. on Prof’l Ethics & Conduct v. Durham,

279 N.W.2d 280, 285–86 (Iowa 1979) (public reprimand for attorney who

engaged in sexual contact with client-inmate in prison visiting room).

The State has made no showing in this case specific to Rothman and

Walker that would justify limiting their conference to a “noncontact”

visitation room under the foregoing authorities.

      We hold on the specific facts of this case that Walker’s section

804.20 rights were violated when the Ankeny police restricted his

attorney’s visit to the booth with the solid glass barrier precluding

contact between attorney and client.

      B. The Videotaped Surveillance.        We next determine whether

Walker’s section 804.20 right to “see and consult confidentially” with his

attorney “alone and in private” was violated by the video surveillance
                                      18

camera trained on the partitioned booths (without audio recording). In

construing statutes, we give words their ordinary meaning.       Anderson,

801 N.W.2d at 3. “Alone” means “separated from others : ISOLATED.”

Merriam-Webster’s Collegiate Dictionary 34 (11th ed. 2004).        “Private”

means “withdrawn from company or observation.” Id. at 988. Persons

visually monitored by a security camera are not “withdrawn from . . .

observation.”   Put simply, people would not believe they are meeting

“alone and in private” in a room monitored by a police surveillance

camera.

      In People v. Dehmer, the Colorado Court of Appeals held that a

statutory requirement to permit an arrested person to “see or consult,

alone and in private at the place of custody” was violated by a

surveillance camera that did not record sound. 931 P.2d 460, 463 (Colo.

App. 1996).     That decision, interpreting the same operative statutory

language, is persuasive here.

      Similarly, Vermont courts have recognized a statutory right to

private legal consultation before a person arrested for drunk driving

must decide to take or forgo the breath test. State v. Sherwood, 800 A.2d

463, 466 (Vt. 2002). The Vermont Supreme Court held that videotaping

a defendant’s consultation with his attorney violated his right to a private

legal consultation.   Id. (“The tape itself is evidence that defendant’s

conversation with counsel was not, in fact, private.”).

      We are to interpret the operative statutory language to “ ‘best

achieve[] the statute’s purpose.’ ”   Welch, 801 N.W.2d at 600 (quoting

State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006)).          The purpose of

section 804.20 is to enable the person arrested to obtain informed legal

advice before deciding whether to take the breath test.         Vietor, 261

N.W.2d at 831. “[I]f a criminal defendant is to receive the full benefits of
                                      19

the right to counsel, the confidence and privacy of communications with

counsel must be assured.”           Wemark, 602 N.W.2d at 816 (noting

“violation of the privilege may implicate the Sixth Amendment right to

counsel”).

      Substantial evidence supports the district court’s finding that the

video surveillance had a chilling effect on Rothman’s consultation with

Walker.      Specifically, as Rothman testified, he refrained from having

Walker perform a one-leg stand or a walk-and-turn balancing test out of

concern a poor performance would be captured on videotape, providing

the government additional evidence to convict. See Garrity, 765 N.W.2d

at 597 (allowing into evidence video of defendant’s conduct at police

station to show his inebriation).

      The State argues that security reasons justify leaving the video

camera running during the attorney consultation. The Kansas Supreme

Court surveyed the case law addressing video monitoring of attorney

conferences with inmates in Case v. Andrews, 603 P.2d 623, 625–26

(Kan. 1979).     There, the attorney met with his client in jail in a room

visually monitored by a permanently mounted camera. Case, 603 P.2d

at 624.      The attorney placed his suit coat over the camera lens for

privacy, but was ordered by a deputy to remove it. Id. at 624–25. The

detainee brought a habeas corpus action alleging the video surveillance

violated his Sixth Amendment right to confer privately with counsel. The

Case court agreed, stating:

            It must be emphasized that attorneys are officers of
      the court.     It should be presumed, absent a contrary
      showing, that an attorney representing an incarcerated client
      will strive to uphold the credibility and standards of the
      judicial system rather than to subvert them. Absent a
      showing of any risk to the order or security of the jail, the
      practice of visually monitoring an attorney-client conference
      when privacy is requested, is unreasonable.             Such
                                     20
       unreasonable interference violates an accused’s Sixth
       Amendment right to effective representation by counsel.
       Accordingly, the writ is allowed and the respondent,
       Daniel R. Andrews, sheriff of Lyon County, is directed to
       permit attorneys consulting clients held in the county jail to
       place their coats over the television camera lens during such
       a conference.

Id. at 627. We find this reasoning persuasive in interpreting the limited

statutory right to an attorney consultation under section 804.20.         We

therefore hold that in the absence of any individualized showing of a

safety or security risk video surveillance violates an arrestee’s right to

“see and consult confidentially” with his attorney “alone and in private.”

       C. The Remedy for a Section 804.20 Violation. We now turn to

the remedy for the violation of Walker’s section 804.20 rights.           The

district court applied the remedy mandated by more than a generation of

our precedent—suppression of the breath-test results. See Moorehead,

699 N.W.2d at 673–74 (reviewing history of exclusionary rule under

section 804.20 adopted in Vietor, 261 N.W.2d at 832). “ ‘Stare decisis is

a valuable legal doctrine which lends stability to the law . . . .’ ” Welch,

801 N.W.2d at 599 (quoting Kersten Co. v. Dep’t of Soc. Servs., 207

N.W.2d 117, 121 (Iowa 1973)).       We see no reason to retreat from our

precedent in this case today. Our prior cases applied the exclusionary

rule for violations of a defendant’s section 804.20 right to telephone a

family member or counsel; as noted above, this statute provides greater

protection for confidential, in-person attorney consultations.      It would

make no sense to provide a lesser remedy.

       The court of appeals, relying on Coburn, erred in holding Walker

was not entitled to suppression because he failed to show prejudice or

that   any   privileged   attorney-client   communication,   in   fact,   was

intercepted and used against him. Coburn is distinguishable. That case

was decided under the Sixth Amendment, and no constitutional violation
                                    21

was found because the police did not eavesdrop or attempt to eavesdrop

on the defendant’s jailhouse conference with his attorney. Coburn, 315

N.W.2d at 748.       Our prior decisions under section 804.20 require

defendants to make no such showing that a privileged communication

actually was overheard and used against defendant.             Prejudice is

presumed upon a violation of section 804.20. Moorehead, 699 N.W.2d at

673 (“This is especially true when the breath test is high—in this case

nearly twice the legal limit.”).

      IV. Conclusion.

      For the foregoing reasons, we hold that Walker’s section 804.20

right to “see and consult [with his attorney] alone and in private” was

violated when the Ankeny police rejected Rothman’s request for a

different room and restricted his consultation with Rothman to the

videotaped booth with a solid glass partition separating the attorney and

client, without any case-specific safety or security reason to justify those

measures. The remedy for this violation is suppression of the breath-test

results, regardless of prejudice or lack thereof.    We reaffirm that this

limited statutory right is limited to timely consultations that do not

materially interfere with implied consent chemical testing procedures.

Those holding custody of arrested persons should honor attorney

requests for a private, barrier-free meeting room. Upon request, video

and audio recordings should be turned off during the attorney

consultation or the attorney should be allowed to temporarily block the

camera.    In any event, audio and video recording of the in-person

attorney consultation shall not be admissible against the accused.

Physical separation of the attorney and detained client and/or visual

monitoring of their conference may be required upon a showing by the
                                    22

State of an individualized safety or security risk justifying such

measures.

      We vacate the decision of the court of appeals and affirm the

district court’s ruling suppressing the breath-test results. We remand

this case for further proceedings consistent with this opinion.

      COURT OF APPEALS DECISION VACATED; DISTRICT COURT

RULING AFFIRMED; CASE REMANDED.
