                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0217
                             Filed January 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KEVIN LEON POSTER, II,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

District Associate Judge.



       A defendant appeals his conviction for operating while intoxicated,

challenging the suppression ruling. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Tabor, P.J., Mullins, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                             2


TABOR, Presiding Judge.

       Kevin Poster appeals his conviction for operating while intoxicated (OWI).

He contends the district court should have suppressed his breath test results

because the arresting officer misinformed him about the right to an independent

chemical test under Iowa Code section 321J.11 (2017). Because the record

contains ample evidence to support the district court’s alternative finding Poster

was driving under the influence, we find any error in denying his motion to suppress

was harmless. Accordingly, we affirm.

I. Facts and Prior Proceedings

       Patrolling the 500 block of Welch Avenue in Ames just before 2:30 a.m.,

Iowa State University Police Officer Natasha Greene noticed a red Pontiac almost

ran a stop sign and proceeded dangerously through a busy intersection without

yielding the right of way.1 She pulled over the driver, Poster.

       From the smell of alcohol on his breath and the way he answered her

questions, Officer Greene suspected Poster was intoxicated. Poster admitted

drinking two or three thirty-two ounce mugs of Bud Light in a ninety-minute span.

He described his level of intoxication as a “warm stomach” feeling and “having fun.”

       Officer Greene administered field sobriety tests, during which Poster

exhibited signs of impairment. Officer Greene arrested him for OWI. She took

Poster to the armory building to book him into jail. Video monitors in the building

captured their interactions. Poster agreed to provide a breath sample on the

DataMaster, which showed his blood alcohol content at .138—over Iowa’s legal


1
 In her report, the officer noted others cars were present and the location was “typically a
well-traveled pedestrian intersection due to its close proximity to the bar area of Ames.”
                                           3


limit of .08. The State charged Poster by trial information with OWI first offense, a

serious misdemeanor, in violation of Iowa Code section 321J.2.

       Before trial, Poster moved to suppress the DataMaster result, asserting

Officer Greene violated his right under section 321J.11 to an independent chemical

test by misinforming him when blood and urine tests are available to suspects.

       At the suppression hearing, Officer Greene described Poster as being “very

chatty” while she filled out paperwork—asking her more questions “than I think any

other arrestee or defendant I’ve met.” She estimated he posed twenty questions

on a range of different topics. Greene read Poster the implied-consent advisory.

After several minutes, she asked him to sign the consent form. On the video

recording, Poster can be heard saying he found the advisory to be “super

confusing.” Before he provided a breath sample, Poster broached the subject of

other forms of testing.2

               POSTER: How often do you guys take, like, blood tests or,
       like, urine tests?
               GREENE: Urine tests reasonably often.
               POSTER: [Unintelligible.]
               GREENE: If we think there are other drugs on board.
               POSTER: That’s what I was gonna ask when I was over here.
       I was, like, if someone was, like, high or something what would you
       make them do? [unintelligible] . . . okay. That has to be, like, a
       different—Would they come into this room or what would they?
               GREENE: They wouldn’t pee in this room but, yes, they’d
       come into this room and then we’d go down to the bathroom and get
       a sample.
               POSTER: But blood test wise? You’d, like, [unintelligible.]
               GREENE: Oh no, we don’t do blood tests here.
               POSTER: I was gonna say [unintelligible.]
               GREENE: Blood tests in Iowa, most often, is if they are unable
       to give a breath, like, if they are hospitalized. And if it’s a serious


2
 The conversation was informal, and Greene and Poster occasionally spoke over each
other. There is no transcript, but we can discern the following from the video recording.
                                         4


      accident involving injury or death, then you can request a PBT or
      request a [cough]—
            POSTER: Sure.
            GREENE: —blood sample. Alright [unintelligible].

      Officer Greene testified she did not view Poster’s question as a request for

an independent test. She did not advise Poster further about his right to an

independent chemical test.

      The district court denied the motion to suppress, concluding the

conversation could not reasonably be construed as a request for an independent

chemical test. The court offered this analysis:

      He was making conversation about what happens to people who get
      arrested for operating while intoxicated. I don’t think and I find he
      was not specifically asking or requesting anything about his case in
      particular. It was just a general question about, obviously I’m taking
      a breath test here. When do you do urine and blood tests? And the
      officer gave a relatively decent answer. It wasn’t perfect because
      there are times when you can do an independent blood test and there
      are times you can force people to give blood, but I think she was
      attempting to answer his question. So, first of all, I don’t think that
      his statements could reasonably be construed as a request for an
      independent blood test.
              Then on the second point about whether or not the officer
      gave him such misleading information that he couldn’t even ask for
      an independent blood test that he thought that was impossible,
      again, that conversation I don’t think had anything to do with his case.
      They were all questions and conversations about OWI arrests in
      general. When he was asking about when blood is taken or when
      the police ask for blood or urine, I don’t think that was related to his
      particular case. He was just asking in general when would you do
      blood and urine as opposed to a breath test.

      Poster waived his right to a jury trial and agreed to the district court

adjudicating his guilt based on the minutes of testimony. The court then concluded

“by evidence beyond a reasonable doubt” Poster “operated a motor vehicle on

October 13, 2017, in Story County, Iowa; and, secondly, that when he did so he

was intoxicated.” The court specifically found Poster “was both under the influence
                                        5


of alcohol and had a breath or blood alcohol level of over .08 percent or more.”

Poster appeals, challenging only the suppression ruling.

II. Scope and Standard of Review

       Because the district court based its ruling on Iowa Code section 321J.11,

we review the ruling on the motion to suppress for correction of legal error. State

v. Lukins, 846 N.W.2d 902, 906 (Iowa 2014) (citing State v. Madison, 785 N.W.2d

706, 707–08 (Iowa 2010); State v. Fischer, 785 N.W.2d 697, 699 (Iowa 2010)).

But reversible error may not be predicated upon a ruling admitting or excluding

evidence unless a substantial right of the party is affected. State v. Tyler, 867

N.W.2d 136, 166 n.14 (Iowa 2015) (quoting Iowa R. Evid. 5.103).

III. Analysis

       Poster disputes the suppression ruling for two reasons. First, he asserts

his question about urine and blood testing could be reasonably construed as a

request for an independent chemical test.      Second, he believes his question

obligated Officer Greene to give him accurate information about his right to an

independent test. Because her answer was misleading, Poster maintains the

officer violated his statutory right.

       Under Iowa Code section 321J.11, when a peace officer has reasonable

grounds to believe a person has been operating while intoxicated, the peace officer

“may take a specimen of a person’s breath or urine for the purpose of determining

the alcohol concentration.” The section also provides, “The person may have an
                                              6


independent chemical test or tests administered at the person’s own expense in

addition to any administered at the direction of a peace officer.”3

       Our supreme court interpreted this statutory right liberally in Lukins,

explaining, “[A]ny statement that can be reasonably construed as a request for an

independent chemical test is adequate to invoke the detainee’s right to such a

test.” 846 N.W.2d at 909. A detainee is not “required to string together a precise

formulation of words mirroring the statutory language in order to invoke his or her

statutory right to an independent chemical test.” Id.

       Lukins set out an officer’s obligation when a detainee requests an

independent chemical test in less than precise language.4 Id. When confronted

with a “legally imprecise request,” the officer “cannot stand mute and deny the

request.” Id. “Rather, if an imprecise statement, reasonably construed, implicates

the statute, then the officer should inform the detainee of his or her right to an

independent chemical test.” Id.

       Here, at the point of signing the implied consent form, Poster continued his

inquisitive conversation with Officer Greene by asking “how often” the police take

blood or urine tests. He also asked how those tests were administered.

       On appeal, Poster argues under Lukins his questions about urine and blood

tests “should have been considered a request for independent testing by the


3
   “Officers are not required to advise a defendant of the statutory right to an independent
test.” State v. Wooton, 577 N.W.2d 654, 655 (Iowa 1998).
4
  In Lukins, the court found a detainee who stated, “That seems really f***ing high. For
four f***ing beers that seems . . . that seems really high” and asked, “[C]an I get a re-
check . . . ? . . . . Can I get a re-blow . . . ?” after submitting a breath sample, while not
entitled to a second Breathalyzer test, had adequately conveyed he wanted another test.
846 N.W.2d at 909–10. Under those circumstances, the officer “should have informed
Lukins that he was entitled to an independent chemical test at his ‘own expense in
additional to’ the Breathalyzer test.” Id. at 910.
                                             7


officer.”5 He asserts, “At the very least the officer had an obligation to provide

Poster with accurate information regarding independent testing because of his

questions.”

       The State contends Poster was just “curious” about when police would

request a sample of urine or blood rather than breath and did not request

independent testing under section 321J.11. Officer Greene’s response, in the

State’s view, was appropriate and “she had no duty to digress into other

explanations that did not bear on his actual inquiry.”

       Curiosity or fact-finding—whatever prompted Poster’s questions about

urine or blood testing—the Lukins court was clear it “disapproved of peace officers

impeding detainees’ access to rights guaranteed by the legislature.” Id. But we

need not reach that question here.

       Regardless of whether the district court should have suppressed the

Datamaster result, we accept the State’s argument that reversal is unwarranted.

The district court specifically found the minutes contained proof beyond a

reasonable doubt under two independent theories for OWI.                 See Iowa Code

§ 321J.2(1)(a) (“under the influence of an alcoholic beverage”), (b) (“having an

alcohol concentration of .08 or more”). “[A] person is ‘under the influence’ when

the consumption of alcohol affects the person’s reasoning or mental ability, impairs

a person’s judgment, visibly excites a person’s emotions, or causes a person to


5
   Poster also points to the special concurrence in State v. Daniel, No. 16-0891, 2017 WL
706339, at *3 (Iowa Ct. App. Feb. 22, 2017) (Tabor, J., specially concurring), finding an
officer’s statement that he would only give a blood test “if he thought drugs were involved”
was potentially misleading and suggesting once a suspect asked about the possibility of
independent chemical testing, the officer had an obligation to inform the suspect of his
rights under section 321J.11, or at a minimum, not to provide misinformation chilling any
request for independent testing.
                                           8

lose control of bodily actions.” State v. Truesdell, 679 N.W.2d 611, 616 (Iowa

2004).

         Substantial evidence supported the court’s under-the-influence finding.

Poster’s careless driving caught the officer’s attention. See id. He acknowledged

consuming a significant amount of alcohol in a relatively short timeframe before

the traffic stop. See id. The results of the field sobriety tests indicated intoxication.

And his chatty demeanor at the armory showed a visible excitement of his

emotions. See id. Under these circumstances involving a bench trial on stipulated

minutes of testimony, the district court’s ruling admitting the DataMaster test result

did not affect Poster’s substantial rights. See Tyler, 867 N.W.2d at 166 n.14. Any

violation of Poster’s rights under section 321J.11 was harmless error. Cf. State v.

Garrity, 765 N.W.2d 592, 598 (Iowa 2009) (analyzing violation of Iowa Code

section 804.20). Poster is not entitled to a new trial.

         AFFIRMED.
