                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1024
                                 Filed April 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN SHERWOOD BUNCE,
     Defendant-Appellant.
________________________________________________________________

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

District Associate Judge.



      A defendant appeals his conviction for operating while intoxicated.

AFFIRMED.



      Daniel Rothman of McEnroe, Gotsdiner, Brewer, Steinbach, P.C., West

Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jordan Rolling, Assistant

County Attorney, for appellee.



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

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                           2


TABOR, J.

       Steven Bunce challenges the district court’s denial of his motion to

suppress. Bunce claims the state trooper who stopped his vehicle did not have

reasonable grounds to request a preliminary breath test (PBT) under Iowa Code

section 321J.5 (2013). Bunce also claims the court erred in finding probable

cause for an arrest. Because we find reasonable grounds existed for the trooper

to request a breath sample from Bunce, we affirm.

I.     Background Facts and Proceedings

       Just before one a.m. on February 14, 2013, Iowa State Patrol Officer Matt

Papin saw Bunce’s Ford Fusion merge onto Interstate 80 from the ramp at Merle

Hay Road. Papin noticed Bunce’s car begin to pull away from his patrol vehicle.

The trooper clocked the Fusion’s speed at eighty miles per hour, and turned on

his lights to initiate a stop.   Other than the excessive speed, Papin did not

observe any erratic driving, and Bunce responded to the trooper’s lights by

pulling over to the side of the interstate without incident.

       Trooper Papin walked to the passenger side of the vehicle and began a

routine traffic stop. After Papin explained the reason for the stop, the passenger,

not driver Bunce, spoke with the trooper. During the initial interaction, Papin did

not detect signs of intoxication. Then Papin asked Bunce to accompany him to

his patrol car. While sitting with Bunce in the patrol car, Papin noticed an odor of

alcohol that became stronger the longer they sat together. Papin asked Bunce

about the smell, and Bunce admitted he had “one beer.”            Based on these
                                         3


circumstances, Papin asked Bunce to perform standard field sobriety tests: the

horizontal gaze nystagmus (HGN),1 the walk-and-turn, and the one-leg stand.

        Bunce failed the HGN test by exhibiting four of six possible clues of

intoxication. When Papin was administering the HGN test, he noticed Bunce’s

eyes were bloodshot. During the walk-and-turn test, Bunce initially did not follow

the officer’s instructions precisely, but quickly corrected himself. The trooper

checked one clue for impairment, a passing score for Bunce on the walk-and-turn

test.   During the one-leg-stand test, the officer noticed Bunce “swaying

consistently” which became more pronounced toward the end of the test. The

swaying merited Bunce one clue for impairment, but the trooper considered that

a passing test.

        After the field sobriety testing, Papin asked Bunce to submit a breath

sample for the PBT. The PBT measured Bunce’s blood alcohol content (BAC) as

.143. Trooper Papin asked Bunce if he felt the effects of alcohol; Bunch replied

“yeah.” Papin then placed Bunce under arrest. The trooper invoked implied

consent based on both the PBT result and arrest.         The DataMaster testing

indicated a BAC of .129 at 1:53 a.m.

        The State filed a trial information on March 21, 2013, charging Bunce with

operating a motor vehicle while under the influence, in violation of Iowa Code

section 321J.2. Bunce filed a motion to suppress on April 25, arguing Trooper

Papin did not have the reasonable grounds required under section 321J.5 to

request a PBT. After the district court denied the motion, Bunce waived his right


1
 The trooper also administered a vertical gaze nystagmus test; Bunce did not show a
vertical nystagmus.
                                       4


to a jury trial and stipulated to a bench trial on the minutes of testimony. The

court entered a guilty verdict on May 31, 2013. Bunce now appeals.

II.    Standard of Review

       We review a district court’s denial of a motion to suppress on statutory

grounds only to correct errors of law. State v. Owens, 418 N.W.2d 340, 342

(Iowa 1988).

III.   Analysis

       A.     Did Bunce’s speeding in the wee hours of the morning,
       reliance on his passenger to converse with the officer, odor of
       alcohol, admission to drinking, bloodshot eyes, failure of the HGN
       test, and clues of impairment on the remaining field sobriety tests
       give the trooper reasonable grounds to request a breath sample for
       the PBT under Iowa Code section 321J.5?

       Bunce argues because he passed two of three field sobriety tests, the

trooper lacked reasonable grounds to request a PBT. The State responds that a

reasonable grounds determination is based “on the totality of an officer’s

observations rather than dictated by the outcome of the field sobriety tests.” We

agree with the State’s position.

       Iowa Code section 321J.5 allows a peace officer to request a breath

sample for a PBT when the officer has “reasonable grounds to believe” a driver

has operated a motor vehicle while under the influence of an alcoholic beverage

or while having an alcohol concentration of .08 or more.       “The reasonable

grounds test is met when the facts and circumstances known to the officer at the

time action was required would have warranted a prudent person’s belief that an

offense had been committed.” State v. Owens, 418 N.W.2d 340, 342 (Iowa

1988). The “reasonable ground for belief” standard is “tantamount to probable
                                          5

cause.” Cf. State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005) (discussing

“totality of circumstances” test for Iowa Code section 804.7).

       Field sobriety tests allow officers to assess whether a driver is under the

influence of alcohol. See State v. Murphy, 451 N.W.2d 154, 158 (Iowa 1990)

(discussing HGN, walk-and-turn, and one-leg-stand tests as reliable indicators of

intoxication). But the results of field sobriety tests are not the only evidence

available to officers conducting an investigatory stop.       It is the totality of an

officer’s observations that allows him or her to request a breath sample for

preliminary testing.

       For instance, an officer may take into account the manner of driving when

deciding whether to request a breath sample.          Cf. State v. Dominguez, 482

N.W.2d 390, 392 (Iowa 1992) (quoting instruction allowing jury to consider

manner of driving in deciding if defendant was under the influence). Here, the

trooper saw Bunce rapidly accelerating and traveling well over the speed limit on

the interstate. Speeding can indicate impaired mental judgment and may be

considered by an officer deciding if a driver is under the influence. See Zill v.

State, 355 S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011). An officer

may also consider the early morning hour of the stop, “a time notorious for

drunken driving.”      See State v. Rosenstiel, 473 N.W.2d 59, 62 (Iowa 1991),

overruled on other grounds by State v. Cline, 617 N.W.2d 277 (Iowa 2000).

       Furthermore, the driver’s interactions with the officer during the traffic stop

feed into the overall determination of intoxication. In this case, the officer found it

unusual that the passenger did most of the talking during the stop for speeding:
                                        6


      I didn’t think I was getting too many verbal responses from Mr.
      Bunce, just movement and just complying with my actions, not
      really doing any talking or explaining of anything or stating
      anything, it was mostly coming from the passenger. . . . [I]t did
      pique my curiosity why that was.

A reasonable person in the trooper’s situation could have viewed Bunce’s

reluctance to converse with him as an effort to minimize the trooper’s exposure to

any odor of alcohol from the driver’s breath. See Bixenman v. Kansas Dep’t of

Revenue, 307 P.3d 217, 220 (Kan. Ct. App. 2013) (noting officer found driver’s

behavior unusual when he would turn away from the officer when speaking).

      Once the trooper moved Bunce into his patrol car, the odor of alcohol

coming from Bunce was apparent. The trooper then asked Bunce if he had been

drinking alcohol and Bunce admitted having “a little bit to drink.” The trooper

asked how much, and Bunce said he had “one beer.” Both the smell of alcohol

and the admission to drinking contributed to the trooper’s reasonable grounds to

believe Bunce was violating chapter 321J. See State v. Marks, 644 N.W.2d 35,

38 (Iowa Ct. App. 2002) (listing odor of alcohol, bloodshot eyes, and admission to

consuming “some beer” as fueling the finding of reasonable cause to believe

Marks had been driving while intoxicated).

      At this point in the investigation, the trooper secured Bunce’s agreement

to perform the field sobriety tests.   When conducting the HGN test, Trooper

Papin noticed Bunce’s bloodshot eyes, a traditional sign of intoxication. Trooper

Papin also found four of six clues for intoxication on Bunce’s HGN test. The

HGN test, developed by the U.S. Department of Transportation’s National

Highway Traffic Safety Administration (NHTSA), measures the effect of alcohol

consumption on the central nervous system.         Murphy, 451 N.W.2d at 157
                                         7


(explaining despite its “pretentiously scientific name” the test simply measures

the involuntary jerking of the eyeball”). Trooper Papin testified that, according to

his training, the HGN test has been determined by testing in police departments

across the nation to be the most accurate of the field tests to indicate a BAC

exceeding .08.

       Trooper Papin testified Bunce only scored one clue for intoxication on

each of the other two field sobriety tests, which constituted passing scores. On

cross-examination, the trooper said he “couldn’t give a solid reason” why Bunce

passed the walk-and-turn and one-leg-stand tests, but suggested: “Usually

people who are in good condition have good balance generally.” Bunce asserts

on appeal the State should not be able to “overlook” his passing scores on two of

the field sobriety tests, and suggests the HGN test results should have been

considered a “false positive.”

       Bunce’s position has not been universally rejected. The Kansas Court of

Appeals recently discussed the “contentious issue” of whether police officers can

form reasonable grounds to believe a suspect is driving under the influence when

he successfully completes walk-and-turn and one-leg-stand tests, without

reaching a resolution. See Bixenman, 307 P.3d at 220; see also Lefebvre v.

State, 19 A.3d 287, 297–300 (Del. 2011) (Steele, C.J., dissenting) (objecting to

majority’s suggestion that “passed field sobriety tests can be ignored under the

‘totality’ test if, before testing, the police might have had sufficient alternative

evidence to constitute probable cause”).

       But we find more persuasive authority in the majority opinion in Lefebvre,

as well as decisions from Alaska, Minnesota, Pennsylvania, and Tennessee.
                                         8


The majority of the Delaware appeals court rejected Lefebvre’s argument that

“her having passed every properly administered field sobriety test (other than the

HGN and PBT, which the Superior Court determined were not properly

administered) constitutes ‘overwhelming evidence’ that she was not impaired by

alcohol.” Lefebvre, 19 A.3d at 294. The majority held “[f]ield tests results that

are either favorable to the driver or mixed do not . . . negate the probable cause

to arrest that existed before the field tests began.” Id. at 295 (noting NHTSA’s

findings that “an individual may pass field tests and still be under the influence of

alcohol”).

       In State v. Grier, 791 P.2d 627, 628 (Alaska Ct. App. 1990), the court

reversed the suppression of a motorist’s breath test. During the early morning

hours, an Alaska state trooper stopped the motorist for speeding; the motorist

smelled of alcohol, had bloodshot eyes, and admitted having consumed “two or

three beers.” But the motorist was able to satisfactorily complete four out of five

field sobriety tests, only failing the HGN test. Like Bunce, Grier pointed to his

successful performance on the other field sobriety tests and argued the HGN test

was subject to “false positives, i.e. identifying men and women as intoxicated

who are not.” Grier, 791 P.2d at 632 n.3. The Alaska court explained “probable

cause is established even though the facts known to the officer could also be

reconciled with innocence.” Id.

       In State v. Grohoski, 390 N.W.2d 348, 350 (Minn. Ct. App. 1986), the

appellate court considered the prosecution’s appeal. Grohoski was stopped for

speeding on his motorcycle, had bloodshot and watery eyes, emitted a strong

odor of alcohol, and admitted to drinking “a few” alcoholic beverages. The trial
                                         9


court found Grohoski passed all of the field sobriety tests and suppressed the

breath test results.    The appellate court reversed, finding the trial court

improperly focused on the absence of indicia of intoxication, stating: “A DWI

suspect need not exhibit every known sign of intoxication in order to support a

determination of probable cause.” Grohoski, 390 N.W.2d at 351. Similarly, in

Craze v. Commonwealth, 533 A.2d 519, 521 (Pa. Commw. Ct. 1987), the

appellate court determined an officer had reasonable grounds to order a

breathalyzer test despite the fact the motorist successfully completed the heel-to-

toe field sobriety test; the motorist acted in a disorderly manner, had bloodshot

eyes, smelled of alcohol, and admitted drinking one beer.

       In State v. Bell, ___ S.W.3d ___, 2014 WL 644502, (Tenn. 2014), the trial

court suppressed evidence obtained following the motorist’s arrest, finding the

motorist “did pretty doggone good on the field sobriety tests.”            On the

prosecution’s appeal, the court of criminal appeals held once the officer had

witnessed the defendant’s success on a battery of field sobriety tests, there was

not probable cause to arrest based on the totality of circumstances available to

the officer. Bell, __ S.W.3d at ___. On further review, the state supreme court

held “performance on field sobriety tests is but one of the many factors officers

should consider when deciding whether to arrest a motorist for DUI.” Id. at ___

(finding Bell’s “significant moving violation” coupled with the smell of alcohol and

his admission to having imbibed “more than [he] should have” amounted to

probable cause for an arrest).

       We reject Bunce’s implication that reaching a reasonable-ground

determination under section 321J.5 requires a mathematical calculation where a
                                        10


court must tally the field sobriety test clues showing impairment against the clues

not showing impairment.      The conditions leading to a finding of reasonable

grounds or probable cause “are not technical they are the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.” See State v. Dawdy, 533 N.W.2d 551, 555–56 (Iowa 1995).

      Bunce’s speeding in the early morning hours, his hesitation to speak with

the trooper, his bloodshot eyes, his odor of alcohol, his admission to drinking, his

failure of the HGN test, along with slight clues of impairment on the walk-and-turn

and one-leg-stand tests, provided reasonable grounds for seeking a PBT under

section 321J.5. See State v. Wilkes, 756 N.W.2d 838, 845 (Iowa 2008).

      B.    Did the trial court mistakenly find the trooper had probable
      cause for Bunce’s arrest?

      Bunce also challenges his arrest, claiming no probable cause existed

without the PBT results. It is not necessary to decide if probable cause for an

arrest existed without the PBT results because, as discussed above, the trooper

had reasonable grounds to request a breath sample under section 321J.5.

Bunce’s PBT result—showing a BAC of .143—constituted a reasonable basis to

invoke implied consent and to place the defendant under arrest for operating

while intoxicated. Iowa Code § 321J.6; see Wilkes, 756 N.W.2d at 845. The

district court properly overruled Bunce’s motion to suppress.

      AFFIRMED.
