                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0915
                               Filed March 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JORGE MICHAEL DE HOYOS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.

Rosenbladt (motion to suppress), Judge, and Annette L. Boehlje (trial), District

Associate Judge.



       Jorge De Hoyos appeals his conviction for operating while intoxicated.

AFFIRMED.



       Colin C. Murphy, Clear Lake, for appellant.

       Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Anthony Garcia, Student Legal Intern, and Carlyde D. Dalen, County

Attorney, for appellee.



       Considered by Vogel, P.J., and Tabor, J., and Eisenhauer, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VOGEL, P.J.

      Jorge De Hoyos appeals his conviction for operating while intoxicated. De

Hoyos claims the district court erred in denying his motion to suppress the results

of the Datamaster DMT test because the police officer did not honor De Hoyos’s

request for an independent blood test, in violation of Iowa Code section 321J.11

(2011).   Because we conclude De Hoyos failed to actually demand an

independent test, we affirm.

      On April 7, 2012, Iowa State Trooper Nathan Sneider stopped De Hoyos

because of De Hoyos’s failure to obey a traffic signal. Trooper Sneider observed

the odor of alcohol emanating from the vehicle, as well as De Hoyos’s bloodshot,

watery eyes and slurred speech. De Hoyos informed Trooper Sneider that he

had consumed two beers earlier.

      De Hoyos consented to performing field sobriety tests. The first test was a

horizontal gaze nystagmus, during which De Hoyos showed six cues of

intoxication as well as a lack of smooth pursuit in the eyes.          Before the

commencement of the walk-and-turn test, De Hoyos told Trooper Sneider he

would “rather take a blood test, than do this test.” He stated he had worked out

the night before and was still sore. While in the instructional stance, De Hoyos

informed Trooper Sneider he had a cramp in his left calf. After stretching, De

Hoyos performed the test, showing an inability to maintain balance. The third

test was a one-leg stand, which was ended early for safety concerns because De

Hoyos showed four cues and hopped during the test. De Hoyos then agreed to a

preliminary breath test but failed to cooperate by not blowing hard enough during
                                          3


his three attempts to provide a sample. De Hoyos then stated: “I’m not that

drunk.”

         Trooper Sneider placed De Hoyos under arrest and transported him to the

county jail. After invoking implied consent, Trooper Sneider informed De Hoyos

he could telephone someone, but De Hoyos declined. A chemical breath test

was performed on the Datamaster, which showed De Hoyos’s blood alcohol

concentration was .176. De Hoyos made no further references regarding a blood

test or other independent test.

         De Hoyos was charged with operating while intoxicated, in violation of

Iowa Code section 321J.2. He filed a motion to suppress the Datamaster results,

alleging his rights under Iowa Code section 321J.11 were violated. Following a

hearing, the district court denied the motion. On March 1, 2013, a bench trial

was held, after which the district court found De Hoyos guilty.           De Hoyos

appeals.

         We review the district court’s ruling on the motion to suppress for

correction of errors at law. See State v. Hornik, 672 N.W.2d 836, 838 (Iowa

2003).

         Under certain circumstances, Iowa Code section 321J.11 entitles an

intoxicated person to an independent chemical test. Specifically:

         The person may have an independent chemical test or tests
         administered at the person’s own expense in addition to any
         administered at the direction of a peace officer. The failure or
         inability of the person to obtain an independent chemical test or
         tests does not preclude the admission of evidence of the results of
         the test or tests administered at the direction of the peace officer.
         Upon the request of the person who is tested, the results of the test
         or tests administered at the direction of the peace officer shall be
         made available to the person.
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Iowa Code § 321J.11. A defendant is entitled to an independent chemical test

only after submitting to the test requested by the officer. State v. Bloomer, 618

N.W.2d 550, 553 (Iowa 2000).          In determining whether a defendant was

attempting to assert his right to an independent test rather than refusing the

requested test, the court considers “[t]he statements and conduct of the arrestee

and police officer, as well as the surrounding circumstances.” Ginsberg v. Iowa

Dep’t of Transp., 508 N.W.2d 663, 664 (Iowa 1993).

       Here, De Hoyos did not request an independent test either before or after

the Datamaster test. A vague comment that he would prefer a blood test over

the field sobriety test does not amount to an invocation of De Hoyos’s right to an

independent test under section 321J.11. See Bloomer, 618 N.W.2d at 552–53

(holding the defendant’s insistence on taking a urine test instead of the

breathalyzer was a refusal to submit to the test requested by the officer); State v.

Mahoney, 515 N.W.2d 47, 50 (Iowa Ct. App. 1994) (“The legislature’s clear

intent, by its use of the words ‘in addition to,’ was that a defendant must submit to

a state-administered chemical test before being allowed to demand an

independent test.”). Consequently, no violation of section 321J.11 occurred, and

the district court properly denied De Hoyos’s motion to suppress.

       AFFIRMED.
