               IN THE SUPREME COURT OF IOWA
                                  No. 08–0330

                               Filed May 15, 2009

STATE OF IOWA,

      Appellee,

vs.

PAUL GARRITY,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal      from   the   Iowa   District   Court   for   Scott   County,

Christine Dalton, Judge.



      Defendant appeals his conviction for OWI third offense contending

the district court erred in denying his motion to suppress his breath test

refusal and all evidence of his statements made to police after his request

to contact another officer was wrongfully denied. DECISION OF COURT

OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and David Arthur

Adams, Assistant State Appellate Defender, for appellant.



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

Attorney General, Thad Roche and Meredith Friedman, student interns,

Michael J. Walton, County Attorney, and Marc Gellerman, Assistant

County Attorney, for appellee.
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BAKER, Justice.

      In this application for further review, Paul Garrity seeks to

overturn his conviction for operating while intoxicated (“OWI”) third

offense.   He contends that the Scott County District Court erred in

denying his motion to suppress his breath test refusal and all evidence of

his statements to police after his request to contact another officer was

denied. Specifically, Garrity alleges the State violated his rights under
Iowa Code section 804.20 when the arresting officer denied Garrity’s

request to speak to a narcotics officer and did not explain that Garrity

had a statutory right to speak to an attorney or a family member under

section 804.20.   We conclude that because the officer did not advise

Garrity of the persons he was permitted to call as allowed under Iowa

Code section 804.20, the State violated his rights, but this error was

harmless, and Garrity is not entitled to a new trial.

      I. Background Facts and Proceedings.

      Shortly after midnight on September 17, 2007, Officer Cockshoot

responded to a 911 call. The caller alleged that a man driving a green

Dodge Intrepid was drunk.      Cockshoot found and stopped the driver,

Paul Garrity, for speeding and failure to use a turn signal when changing
lanes. Cockshoot observed that Garrity had slow, slurred speech and the

smell of alcohol on his breath. Cockshoot then put Garrity in the squad

car, while checking his driver’s license.     Another officer arrived and

asked Garrity how much he had been drinking. Garrity claimed he had

two beers.    He later stated he had only one beer and one shot of

sambuka. Garrity then told Cockshoot that he knew he was in trouble

and asked him to call Matt Ehlers, an Iowa state narcotics officer.

Garrity wanted to arrange some type of deal where he would reveal a
                                      3

large drug operation and in return not do jail time. Cockshoot refused to

make the call.

      Garrity voluntarily performed and failed the field sobriety tests. He

did submit to a preliminary breath test during this stop. At that point,

he had a blood alcohol content of .133. Garrity was taken to the Scott

County jail.

      At the Scott County jail, Cockshoot read Garrity the implied
consent advisory form. Garrity refused to give a breath sample. Garrity

then asked Cockshoot if “you guys [could] fix this for me?”           When

Cockshoot questioned Garrity about driving while intoxicated, Garrity

first stated he was not driving and then later said he was driving. During

the questioning, Garrity also claimed he was not drinking. After being

questioned, Garrity said to Cockshoot, “You’re not going to call the guy,

are you?”      Cockshoot replied, “He has nothing to do with this,” and

“What’s he going to do for me?” Cockshoot then told Garrity he could

call the narcotics officer after he was released.

      The State charged Garrity with OWI third offense, driving under

suspension while barred as a habitual offender, and driving while license

denied or revoked. Garrity filed a motion to suppress the refusal to take
the breath test and the videotape based on Iowa Code section 804.20.

The court denied the motion to suppress finding that Garrity was not

attempting to seek advice from an attorney, but merely asked to speak

with the narcotics officer in order to cut a deal and avoid arrest.

      Garrity waived his right to a jury trial, and the court found him

guilty of all three counts. Garrity appeals this conviction. However, on

appeal, Garrity only challenges the OWI third offense conviction. Garrity

claims the State violated Iowa Code section 804.20 by failing to inform

him of his right to call an attorney or a family member when he
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specifically asked to speak to Matt Ehlers, a narcotics officer. The State

argues that Garrity’s request to call the narcotics officer was not a

legitimate request that would invoke this statutory right. The State also

claims even if there was a violation, the trial court’s failure to suppress

the challenged evidence was harmless error because the court could have

concluded Garrity was guilty of operating a vehicle while intoxicated even

without evidence of his test refusal and the videotape of his interrogation,
as that evidence was merely cumulative. The court of appeals affirmed

the district court. Garrity now applies for further review.

      II. Scope of Review.

      We review the district court’s interpretation of Iowa Code section

804.20 for errors at law. State v. Moorehead, 699 N.W.2d 667, 671 (Iowa

2005).   If the district court applied the law correctly, and there is

substantial evidence to support the findings of fact, we will uphold the

motion-to-suppress ruling. Id. Evidence is considered substantial when

reasonable minds could accept it as adequate to reach a conclusion. Id.

      III. Discussion and Analysis.

      A. Invocation and Analysis of Iowa Code Section 804.20. 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
      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.
                                            5

Iowa Code § 804.20 (2007).            The statute requires that arrestees be

allowed to call both an attorney and a family member.                  Requests for

either type of call are equally important. State v. McAteer, 290 N.W.2d

924, 925 (Iowa 1980).

       The court first addressed this statutory right in State v. Vietor, 261

N.W.2d 828, 829–30 (Iowa 1978). In Vietor, the defendant was arrested

and read his Miranda rights, but then told in the informed consent
reading that he was not entitled to consult an attorney before deciding

whether to undergo a chemical test. Id. The court found that although

the statute did not require the officer to tell the arrestee that he had the

right to counsel, the officer could not tell the arrestee that he did not

have a right to counsel. Id. at 831.

       The court also enunciated three statutory rules. Id. at 832. First,

an arrestee that asks to call his lawyer should be permitted to do so

before submitting to a chemical test. Id. Second, if that person is denied

the opportunity to call a lawyer, the evidence of refusal to engage in the

chemical test is inadmissible.        Id.       Third, the arrestee’s right to prior

consultation is limited to circumstances where it does not “materially

interfere” with the chemical test procedure.1 Id. We later stated that the
statute is to be applied pragmatically by balancing the rights of the

arrestee and the goals of the chemical-testing statutes. State v. Tubbs,

690 N.W.2d 911, 914 (Iowa 2005).

       In Didonato v. Iowa Department of Transportation, 456 N.W.2d 367,

371 (Iowa 1990), we further explained an officer’s duty under Iowa Code

section 804.20. In that case, Didonato, the arrestee, demanded a phone

call, but that request was denied.                Didonato, 456 N.W.2d at 368.

       1This rule is particularly important as “a chemical test is to be administered
within two hours of the time of arrest or not at all.” Vietor, 261 N.W.2d at 831; Iowa
Code § 321J.6(2).
                                     6

Didonato continued to ask for his phone call, but eventually signed an

implied-consent form and provided a urine sample. Id.

     In Didonato, the court held that when a request for a phone call is

made, and the officer stands mute and refuses the request, the statutory

purpose of section 804.20 is not met. Id. at 371. The fact that Didonato

requested to call a friend, rather than an attorney or family member, did

not change the duty of the police officer.    Id. (“But when a request to
make a phone call is made we do not believe the statutory purpose is met

if the officer stands mute and refuses the request. Nor would there be

any difference if the request is to call a friend. In these circumstances

the statute is implicated and the officer should then advise for what

purpose a phone call is permitted under the statute.”). The officer must

advise the defendant of the purpose of the phone call under the statute

in a circumstance where the arrestee requests a phone call. Id. If the

arrestee then decides to call a family member or attorney, the police

must allow that phone call. Id.

      Had we stopped at Didonato, the outcome would be clear.

However, we recently decided another case that might suggest an

alternate outcome. In Tubbs, the defendant originally agreed to chemical
testing, but then changed his mind.      Tubbs, 690 N.W.2d at 913.       He

asked to talk to his wife to have her read the document before signing it,

but the officer remembered Tubbs’ wife had a no-contact order, and did

not allow the phone call.    Id. Tubbs did not ask to talk to any other

family member or attorney after being informed that the phone call would

not be allowed because of the no-contact order. Id. Because he did not

ask to contact someone other than his wife, we determined that under

the unique facts of that case the officer had fulfilled the responsibilities

under section 804.20 because Tubbs was not denied the opportunity to
                                     7

talk to another family member or an attorney.        Id. at 914.   Tubbs is

distinguishable because, unlike Didonato where there was confusion as

to the people within the scope of section 804.20 who may be called, there

was no confusion that triggered the duty to clarify the scope of the

persons who may be called. Further, Tubbs made no further request to

call someone else.

      One purpose of Iowa Code section 804.20 is to allow the arrestee to
call an attorney before making the decision to submit to chemical testing.

Tubbs, 690 N.W.2d at 914.       The statute, however, does not limit the

phone call to that purpose. As long as the purpose of the phone call is a

good faith purpose (e.g., not for ordering a pizza), the arrestee may

choose to contact family or a legal representative for advice, or to have

them inform his employer that he is not likely to be at work, pick up

children from school, or arrange to have the dog let out. See generally

Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997).

      Explaining the scope of this statutory right will not interfere with

the chemical tests. People may be aware they have the right to a phone

call, but are likely unaware of the specified people they are allowed to

call. If, as here, the officer turns down the arrestee’s phone call request
because the request is to call someone not contemplated in the statute,

the officer must explain the scope of the statutory right.

      Garrity requested to make a phone call. We have stated when a

request for a phone call is made, the police cannot remain mute and

simply deny the request. That is precisely what Cockshoot did in this

situation.   Once Garrity asked to call a person outside the scope of

section 804.20, Cockshoot had an obligation to advise Garrity of the

purpose of the phone call, i.e., who Garrity could call, and he did not do
                                     8

so. Didonato, 456 N.W.2d at 371. The State violated Iowa Code section

804.20.

       B.   Exclusionary Rule.      We apply the exclusionary rule to

violations of Iowa Code section 804.20, whether it is a violation of the

right to communicate with family or with an attorney.        McAteer, 290

N.W.2d at 925. The exclusionary rule extends to the exclusion of breath

tests, breath test refusals, and non-spontaneous statements obtained
after unnecessary delay in allowing the person the statutory right to

consult with an attorney or family member. Moorehead, 699 N.W.2d at

675.

       Under our rules, the test refusal must be excluded.     Vietor, 261

N.W.2d at 832.     The closer question is whether to exclude the DVD

recording of Garrity taken at the police station. From the district court’s

opinion, it is evident that the court did not use statements from the DVD

as the basis for its decision. Rather, the DVD was used to demonstrate

Garrity’s body motions, judgment, slurred speech and inability to

communicate. Under this record, the exclusionary rule does not extend

to the use of the recording for this purpose.

       C.   Harmless Error.     Even though the district court erred in
admitting evidence of Garrity’s test refusal, Garrity is not automatically

entitled to a new trial.   A violation of Iowa Code section 804.20 is a

nonconstitutional error. See Moorehead, 699 N.W.2d at 672.

              Where a nonconstitutional error [i]s claimed, the test
       for determining whether the evidence [i]s prejudicial and
       therefore require[s] reversal [i]s this: “Does it sufficiently
       appear that the rights of the complaining party have been
       injuriously affected by the error or that he has suffered a
       miscarriage of justice?”

State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004) (quoting State v. Trudo,

253 N.W.2d 101, 107 (Iowa 1977).         In applying this test, we presume
                                         9

prejudice   unless    the      record   affirmatively    establishes   otherwise.

Moorehead, 699 N.W.2d at 673.           However, we can find harmless error

when evidence obtained from a violation of Iowa Code section 804.20

would merely be cumulative.         State v. Enderle, 745 N.W.2d 438, 442

(Iowa 2007).

      The police stopped Garrity after responding to a 911 call that

identified a possible drunk driver. Garrity was actually pulled over for
speeding and failure to use a turn signal.              Cockshoot observed that

Garrity had slurred speech and the smell of alcohol on his breath.

Before Garrity asked Cockshoot to contact narcotics officer Matt Ehlers,

he admitted to drinking. Garrity also failed all three field sobriety tests.

The judge who entered the verdict in this case specifically stated that she

observed the recording taken at the police station and determined that

Garrity was intoxicated based upon his body motions, judgment, slurred

speech, and inability to communicate. There is no indication that she

took into consideration the content of Garrity’s statements on the

recording, and the test refusal was not a factor in her decision.             Cf.

Moorehead, 699 N.W.2d at 673 (“Moorehead’s high breath test result is

the very first fact cited as evidence of guilt.         Mindful of a defendant’s
right to a fair trial and just application of our rules, . . . it cannot be

fairly said that the breath test result did not injuriously affect

Moorehead’s rights. The district court’s error in admitting this evidence

clearly prejudiced Moorehead.”). We find that any violation of Garrity’s

rights under Iowa Code section 804.20 was harmless error. Garrity is

not entitled to a new trial.

      IV. Disposition.

      We conclude that because the officer did not advise Garrity of the

purpose of the phone call allowed under Iowa Code section 804.20, the
                                      10

State violated his rights, and evidence of Garrity’s test refusal should

have been suppressed.        Nonetheless, this error was harmless, and,

therefore, Garrity is not entitled to a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.
