                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0938
                                  Filed May 25, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CRAIG AARON HERMANN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.



      The defendant appeals the district court’s denial of his motion to suppress.

REVERSED AND REMANDED.



      Scott A. Michels of Gourley, Rehkemper & Lindholm, P.L.C., West Des

Moines, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

       Craig Hermann appeals from the district court’s denial of his motion to

suppress.    Hermann maintains the district court erred in denying his motion

because his statutory rights under Iowa Code section 804.20 (2013) were

violated when an officer denied his request for an in-person consultation.

I. Background Facts and Proceedings

       In the early morning hours of October 4, 2014, police officers stopped

Hermann for driving his vehicle without the headlights on. Once the officers

made contact with him, the officers believed Hermann was impaired because of

his bloodshot, watery eyes and the smell of alcohol on his breath.                    At

approximately 1:04 a.m., Hermann was arrested and transported to the local jail

for processing.

       At 1:36 a.m., the arresting officer read Hermann the implied consent

advisory and requested a breath sample from Hermann for testing. Hermann

invoked his right to make a phone call. He was then allowed to sit in a private

room with his cell phone and a phonebook for approximately twenty minutes. At

approximately 2:07 a.m., the officer interrupted Hermann and advised him his

time to make phone calls had ended and he needed to make a decision

regarding the breath test. Hermann told the officer he had someone coming

down to the station to meet with him.1 The officer responded there was not time

to wait for someone to arrive. He did not advise Herman he had the right to meet

with a family member or an attorney in person. At the suppression hearing, the

1
  It is unclear from the record when it occurred, but at some point, Hermann also
indicated to the officer that he was able to speak to an attorney on the phone during the
twenty minutes.
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officer testified he did not allow Hermann to wait because “it was a Friday night

and we had several calls waiting.”

         Hermann consented to provide the breath sample for the test. The test

was conducted at 2:23 a.m., and the result showed Hermann had a blood alcohol

content of .184.

         Subsequently, Hermann asked for an independent test, and he was turned

over to his attorney at the hospital where the independent test was administered.

         Hermann filed a motion to suppress the evidence of the breath test result.

Following a hearing on the matter, the district court denied the motion. The court

ruled:

                 The question asked of the Court is whether the Officer had
         the obligation under 804.20 to inquire if an attorney was actually
         coming to the jail and determine whether or not the attorney could
         get there in time for the test sample to be secured before the 2 hour
         time. But the statute does not give Defendant the right to consult
         with an attorney before deciding to take a breath test. It requires an
         Officer to allow the consultation “without unnecessary delay.” Here,
         the attorney did not arrive or make his/her presence known at all.
         The delay was controlled by the arriving attorney. If an attorney
         arrived at some point, and requested to see the Defendant and the
         officer delayed that to complete the test, then a violation may have
         occurred.

         After the district court denied his motion, Hermann agreed to a trial on the

minutes, and he was convicted of operating while intoxicated, first offense.

         Hermann appeals.

II. Standard of Review

         We review the district court’s interpretation of Iowa Code section 804.20

for correction of errors at law. State v. Lamoreux, 875 N.W.2d 172, 176 (Iowa
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2016). We affirm the district court’s suppression ruling when the court correctly

applied the law and substantial evidence supports the court’s fact-finding. Id.

III. Discussion

      Hermann maintains his statutory right to have an in-person consultation

was violated and, as a result, the evidence of his breath test result should have

been suppressed.

      The pertinent language of 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. . . . 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.

      We believe Hermann’s statement to the officer that “someone” was

coming to the station to see him was an invocation of his right to see a family

member or attorney, as provided by the statute. See State v. Hicks, 791 N.W.2d

89, 95 (Iowa 2010) (ruling where the detainee indicated to officers that he wanted

to call his mom or girlfriend that invoked the detainee’s right under section

804.20, and stating we should “liberally construe a suspect’s invocation” and the

invocation “should not turn on the grammatical clarity of the detainee’s request”).

The district court found that it was not clear whether it was an attorney who was

coming to meet Hermann. First, we note that section 804.20 does not limit a

detainee’s right to an in-person consultation with an attorney; Hermann also had

the right to meet with a family member. See Iowa Code § 804.20. Additionally,
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the officer could not deny Hermann the right to in-person consultation because

the “someone” on the way may not have been a family member or attorney. See

State v Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (holding that an officer may not

turn down an arrestee’s phone call request because the request is to call

someone not contemplated in the statute; rather the officer must explain the

scope of the statutory right); see also State v. Lukins, 846 N.W.2d 902, 908 (Iowa

2014) (“[I]f the detainee suggests calling someone outside the scope of

individuals authorized by the statute, the peace officer, who knows the statutory

scope, must clarify to the detainee the scope of individuals to whom a telephone

call may be made under Iowa Code section 804.20.”).2

       We are not implying Hermann had an absolute right to delay making a

decision about the test until an attorney or family member arrived. See Short v.

Iowa Dep’t of Transp., 447 N.W.2d 576, 578 (Iowa 1989) (“The right to counsel is

limited to situations which will not materially interfere with the taking of a test

within the time specified in the implied consent statute (321J).”). However, there

2
    When a detainee is attempting to invoke a section 804.20 right and simply
misunderstands the parameters of the right, the officer must clarify the scope rather than
denying the invocation. See Garrity, 765 N.W.2d at 597 (“Explaining the scope off this
statutory right will not interfere with the chemical tests. People may be aware they have
the right to make a phone call, but are likely unaware of the specified people they are
allowed to call. . . . [T]he officer must explain the scope of the statutory right.”). On the
flip side, when an officer honors the detainee’s invocation of a section 804.20 right, the
officer does not have an obligation to inform the detainee of the preferred reasons for
making a call or whom to call. See State v. Lyon, 862 N.W.2d 391, 401 (Iowa 2015)
(“We do not believe law enforcement officers must help shape the nature of the
communication with attorneys and family members once they have honored the
accused’s right to communicate with such individuals.”); see also State v. Markley, No.
15-0165, 2016 WL 1680081, at *1–3 (Iowa Ct. App. Apr. 27, 2016) (holding where the
defendant—who had been allowed to make phone calls for any purpose he desired—
argued his section 804.20 rights were violated because the officer “did not inform him
who he could call or for what purposes to make those calls,” no violation occurred
because “the officer . . . did not misstate the law and did not undermine, but honored,
[the defendant’s] right to make phone calls”).
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was still approximately one hour left before the end of the two-hour period for

chemical testing when Hermann told the officer someone was on their way and

the officer responded “there was no time to wait” and Hermann needed to decide.

The officer testified that he did not allow Herman to wait because “it was a Friday

night and we had several calls waiting.” The district court was persuaded by this

testimony, noting in its ruling, “Davenport was busy that night. Several calls for

services were holding and the Officer needed to get back to his patrol duties as

soon as he could.” Notwithstanding, as our supreme court has found:

       By providing detainees this statutory right, the legislature has
       deemed that a detainee’s right to communicate with family or
       counsel to be a tolerable burden upon law enforcement and
       suitably balances the state’s law enforcement needs with the right
       of the accused. Our construction concerning the invocation of
       section 804.20 upholds this balance.

Hicks, 791 N.W.2d at 95.

       We have been instructed that section 804.20 “is to be applied in a

pragmatic manner, balancing the rights of the arrestee and the goals of the

chemical-testing statutes.” Lamoreux, 875 N.W.2d at 177. However, we have

not been tasked with balancing the rights of the arrestee and the need for the

officer to return to the streets.3 As the district court noted at the suppression

hearing, any time an officer is waiting for a detainee to decide whether to submit

to testing, the officer is not out responding to calls. This fact does not erode the

limited statutory right to an attorney consultation provided in section 804.20.




3
  We acknowledge that in Welch v. Iowa Department of Transportation, 801 N.W.2d 590,
601 (Iowa 2011), our supreme court reaffirmed Iowa’s “one refusal” rule and listed one of
the advantages as the “reduc[tion of] the time and cost burdens on law enforcement.”
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        Here, Hermann invoked his right to an in-person consultation with

approximately one-hour left of the two-hour testing window.         Because the

officer’s response was to demand Hermann make an immediate decision

regarding testing rather than clarifying who was coming to meet with Hermann or

when the person might arrive, and the chemical test was completed

approximately thirty-nine minutes before the two-hour window terminated,

Hermann’s statutory rights were violated. As such, we suppress the results of

the breath test and the independent test, and we remand for further proceedings

consistent with this decision.4 See Hicks, 791 N.W.2d at 98 (“The remedy for a

violation of section 804.20 is exclusion of any evidence gathered after invocation

of the right.”).

        REVERSED AND REMANDED.




4
  Hermann also raises other alleged violations of section 804.20 that we need not
consider.
