                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1618
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CONNER DANIEL CARNEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Paul G. Crawford,

District Associate Judge.



      Daniel Carney appeals the judgment entered following his conviction of

operating while intoxicated, third offense. AFFIRMED.



      Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

      Daniel Carney appeals the judgment entered following his conviction for

operating while intoxicated (OWI), third offense. He challenges the time in which

the State filed the indictment and the manner in which a law enforcement officer

obtained his blood for chemical testing. We affirm.

      I. Background Facts and Proceedings.

      On December 28, 2015, a car crashed into the back of a semi-trailer at a

marked four-way intersection on Highway 30. Boone Police Officer Daniel Lynch

found Carney unconscious in the driver’s seat of the car. After Carney was

transported to the hospital for medical treatment and evaluation, Officer Lynch

observed Carney to have blood-shot eyes, slurred speech, and an odor

consistent with an alcoholic beverage.      The officer also observed Carney

repeatedly asking the medical staff questions they had already answered.

Officer Lynch suspected Carney was impaired, but because Carney was lying on

his back strapped to a hospital bed and undergoing medical treatment, Officer

Lynch was unable to perform standardized field sobriety tests. The officer asked

Carney if he had consumed any form of alcohol, controlled substance, or

medication. Carney responded, “No comment.” The officer left the room and

talked with one of the treating doctors who confirmed that she smelled of an odor

of alcoholic beverage coming from Carney.

      Officer Lynch returned to Carney’s hospital room and asked Carney if he

had “had anything to drink at all?” Carney responded, “No.” The officer asked if

Carney would take a preliminary breath test. Carney said “No.” He refused to

provide a breath sample for chemical testing explaining, “There is no way for me
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to do it.” The officer then requested a blood sample for chemical testing, and

Carney said, “Sure.” The officer again asked if Carney had anything to drink that

evening, and Carney said he had beer earlier. When asked “How much,” Carney

responded, “Not too much,” and said he did not drink beer while he was driving.

Officer Lynch then read the implied consent advisory to Carney. He also read

Carney his Miranda rights. Carney signed the consent form. When it came time

to draw the blood, Carney refused. Officer Lynch again explained the implied

consent law. Carney then said, “Oh, draw the damn blood.” After additional

conversation concerning the implied consent law, Carney consented to the blood

draw. Testing revealed a blood alcohol content of .183. The blood also tested

positive for the presence of THC.

      The State charged Carney with third-offense OWI on March 2, 2016. An

amended trial information was filed on March 14, 2016, to reflect the presence of

a controlled substance in Carney’s blood.       On the same day, Carney was

arraigned and pleaded not guilty.

      Carney filed a motion to dismiss, arguing the State violated his right to a

speedy indictment. He also filed a motion to suppress the results of his blood

test, arguing Officer Lynch obtained the sample in violation of Iowa Code

sections 321J.6(2) and 321J.9 (2015).       The trial court denied both motions,

Carney then waived his right to a jury trial and agreed to trial on the minutes of

evidence. The court found him guilty of third-offense OWI.

      II. Motion to Dismiss.

      Carney appeals, first arguing the trial court erred in denying his motion to

dismiss on speedy-indictment grounds. See Iowa R. Crim. P. 2.33(2) (requiring
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the court to dismiss criminal charges brought against a defendant more than

forty-five days after arrest). Carney claims he was arrested on December 28,

2015, but was not indicted until March 2, 2016—sixty-five days later. We review

his claim for correction of errors at law. See State v. Hart, 703 N.W.2d 768, 771

(Iowa 2005).

       Carney’s claim is based on the holding of State v. Wing, 791 N.W.2d 243,

247-49 (Iowa 2010), in which our supreme court held the clock begins to tick on a

speedy-indictment claim when a reasonable person in the defendant’s position

would have believed an arrest occurred—regardless of whether the defendant is

arrested under the conditions required by statute. After Carney filed this appeal

and the parties’ briefs were submitted, our supreme court overruled Wing. See

State v. Williams, 895 N.W.2d 856, ___, 2017 WL 2291375, at *8 (Iowa 2017).

The court held:

       Arrest for the purposes of the speedy indictment rule requires the
       person to be taken into custody in the manner authorized by law.
       The manner of arrest includes taking the arrested person to a
       magistrate. The rule is triggered from the time a person is taken
       into custody, but only when the arrest is completed by taking the
       person before a magistrate for an initial appearance.

Id.   Carney was not taken into custody in a manner authorized by law until

February 8, 2016. Because the trial information was filed within forty-five days of

this date, Carney’s right to a speedy indictment pursuant to rule 2.33(2) was not

violated. The trial court properly denied Carney’s motion to dismiss on speedy-

indictment grounds.
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       III. Motion to Suppress.

       Carney also argues the trial court erred in denying his motion to suppress

the results of his blood test. He claims: (1) Officer Lynch violated Iowa Code

chapter 321J by obtaining his blood sample after he refused to submit to a breath

test and (2) his consent to the blood test was not voluntary. We review his

claims for correction of errors at law. See State v. Lukins, 846 N.W.2d 902, 906

(Iowa 2014) (“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.”).

       A. Statutory requirements for chemical testing.

       Iowa Code chapter 321J sets forth both criminal and civil OWI

proceedings. See State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010). Section

321J.6, our implied consent statute, provides that drivers under suspicion of OWI

who refuse to submit to chemical testing are subject to the civil penalty of license

revocation. See Iowa Code §§ 321J.6(2), .9. Section 321J.6(2) states that if a

law enforcement officer asks a driver to submit to breath or urine testing, any

refusal to submit is deemed a refusal for the purposes of a license revocation

proceeding; but if an officer asks a driver to submit to blood testing and the driver

refuses, the officer must then offer breath or urine testing.1 See id. § 321J.6(2).

Section 321J.9(1) further states, “If a person refuses to submit to the chemical

testing, a test shall not be given . . . .” In interpreting these statutory provisions in

the context of a license revocation proceeding, our supreme court has



1
 A blood sample is treated differently “primarily [as] an accommodation to those
motorists whose religious beliefs or physical condition make the blood test unsuitable.”
Rodriguez v. Fulton, 190 N.W.2d 417, 419 (Iowa 1971).
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determined that “an initial refusal to consent to chemical testing is binding.”

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 599 (Iowa 2011).

       Relying on the foregoing statutes and law, Carney alleges that once a

motorist refuses to submit to chemical testing of any kind, an officer is estopped

from again requesting chemical testing of any kind. He argues that by requesting

a blood test after he refused a breath test, Officer Lynch violated sections

321J.6(2) and .9, and the results of the blood test should have been suppressed

on that basis.

       In previous cases, this court has addressed similar claims and declined to

hold chapter 321J prevents an officer from requesting a driver provide another

sample after an initial refusal.    See State v. Brown, No. 13-0995, 2014 WL

1999113, at *1-2 (Iowa Ct. App. May 14, 2014) (noting “the one-refusal mandate

articulated in Welch does not necessarily apply to the admission of the test into

evidence in a criminal case”); State v. Morris, No. 13-0080, 2014 WL 467652, at

*5 (Iowa Ct. App. Feb. 5, 2014) (distinguishing “placing a burden on all law

enforcement officers to stand by if an arrested motorist should change their mind

and a single officer who chose to do so”). We have held that, although a law

enforcement officer is not required to honor a driver’s change of mind after an

initial refusal to submit to chemical testing, nothing in chapter 321J prevents an

officer from doing so. See Morris, 2014 WL 467652, at *5. Likewise, nothing in

chapter 321J prevents an officer who is investigating a criminal violation of the

chapter from requesting a different chemical test after a motorist initially refuses.
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       B. Voluntary consent.

       Carney also argues the court erred in denying his motion to suppress

because his consent to the blood test was not voluntary. Consent to chemical

testing must be given freely, without coercion, and be reasoned and informed.

See State v. Overbay, 810 N.W.2d 871, 876 (Iowa 2012).              In determining

whether consent was voluntary, we ask “whether the decision to comply with a

valid request under the implied-consent law is a reasoned and informed

decision.” Id. (citation omitted).

       As stated above, section 321J.6(2) states that if a driver is offered and

refuses a blood test, it is not deemed a refusal to submit; rather, the officer must

then offer a breath or urine test. Carney asserts his consent to the blood test

was not voluntary because Officer Lynch inaccurately represented the

consequences of failing to submit to the blood test by informing Carney that

refusal would result in license revocation. Our supreme court has rejected the

claim that a defendant’s consent to blood testing is not voluntary when the

defendant erroneously believes failure to give consent to the blood test will result

in license revocation. See Overbay, 810 N.W.2d at 878-79; State v. Bernhard,

657 N.W.2d 469, 472-73 (Iowa 2003). Although Carney attempts to distinguish

the facts of his case from those holdings by noting that Officer Lynch’s request

for a blood test was his second request for chemical testing, his argument is

unavailing.

       The trial court did not err in denying Carney’s motion to suppress.

Accordingly, we affirm his conviction for OWI, third offense.

       AFFIRMED.
