              IN THE SUPREME COURT OF IOWA
                              No. 18–0305

                           Filed April 26, 2019


STATE OF IOWA,

      Appellee,

vs.

KEEGAN CRAIG SMITH,

      Appellant.



      Appeal from the Iowa District Court for Warren County, Kevin Parker

and Mark F. Schlenker, District Associate Judges.



      Defendant appeals his conviction for operating while intoxicated,

first offense. AFFIRMED.



      Matthew T. Lindholm of Gourley, Rehkemper & Lindholm, P.L.C.,

West Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Zachary Miller, Assistant

Attorney General, Douglas Eichholz, County Attorney, and Justin Rogers,

Assistant County Attorney, for appellee.
                                     2

McDONALD, Justice.

      Following a trial on the minutes of testimony, Keegan Smith was

convicted of operating while intoxicated, first offense, in violation of Iowa

Code section 321J.2 (2017). In this direct appeal, Smith contends the

district court erred in denying his motion to suppress evidence allegedly

obtained in violation of his statutory right under Iowa Code section

321J.11.   Specifically, Smith contends the district court erred in not

suppressing the results of a chemical breath test when the officer

administering the test allegedly violated Smith’s statutory right to obtain

additional chemical testing.

      Iowa Code section 321J.11 regulates the administration of chemical

tests designed to determine blood alcohol concentration. As relevant here,

that provision provides that a detainee or arrestee

      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.

Iowa Code § 321J.11. As apparent from the text, the statute creates a

right for a detainee or arrestee to have an “independent chemical test or

tests administered at the person’s own expense in addition” to any test

administered at the direction of an officer. Id.; see State v. McIver, 858

N.W.2d 699, 705 n.2 (Iowa 2015) (“[I]ndependent chemical testing may be

done at the driver’s cost in addition and subsequent to the testing done at

the direction of the peace officer.”); State v. Bloomer, 618 N.W.2d 550, 553

(Iowa 2000) (discussing relevant law); State v. Mahoney, 515 N.W.2d 47,

50 (Iowa Ct. App. 1994) (“The legislature’s clear intent, by its use of the
                                       3

words ‘in addition to,’ was that a defendant must submit to a state-

administered   chemical    test    before   being   allowed   to   demand   an

independent test.”). The statute does not afford a detainee or an arrestee

the right to take an independent chemical test prior to or in lieu of the

peace officer’s test. See State v. Wootten, 577 N.W.2d 654, 655 (Iowa 1998)

(“A defendant is not entitled to an independent test until after he has taken

the test requested by the officer.”); Mahoney, 515 N.W.2d at 50 (“[A]

defendant must submit to a state-administered chemical test before being

allowed to demand an independent test.”).

      A detainee or arrestee can invoke the statutory right by making “any

statement that can be reasonably construed as a request for an

independent chemical test.”       State v. Lukins, 846 N.W.2d 902, 912–13

(Iowa 2014). When a detainee or arrestee invokes the statutory right, “then

the officer should inform the detainee of his or her right to an independent

chemical test under Iowa Code section 321J.11.”           Id. at 909.   If the

statutory right is invoked and the officer fails to advise the detainee or

arrestee of the right, then “‘evidence of the results of the test or tests

administered at the direction of the peace officer’ must be suppressed.” Id.

at 911 (quoting Iowa Code § 321J.11).

      We turn now to the facts and circumstances of this case. The record

reflects a police officer pulled Smith over in the early morning hours. Field

sobriety tests indicated Smith was intoxicated.        Smith consented to a

preliminary breath test, and the test showed a blood alcohol concentration

in excess of .08. At that point, the officer placed Smith under arrest and

transported him to the county jail. At the county jail, Smith consented to

a chemical breath test.     The test showed Smith had a blood alcohol

concentration of .188. He was charged with operating while intoxicated,

first offense. After being charged, Smith moved to suppress the results of
                                      4

the chemical breath test on the ground the officer violated Smith’s

statutory right. The district court denied the motion, finding Smith “did

not inquire as to an independent test.”

      Our review of the district court’s ruling on the motion to suppress is

for the correction of legal error because the basis for the motion is

statutory. See Lukins, 846 N.W.2d at 906. The district court’s findings of

fact are binding on appeal if supported by substantial evidence. See State

v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). Evidence is substantial when

a reasonable mind would accept it as adequate to reach the same findings.

See id. Substantial evidence review is a deferential standard of review; the

question is not whether the evidence supports a different finding but

whether the evidence supports the finding actually made. See id. at 818–

19 (“There may be substantial evidence to support either the existence or

nonexistence of a fact. If a disinterested witness testifies a vehicle stopped

at an intersection and another disinterested witness testifies the vehicle

did not stop, there would be substantial evidence to support a finding the

vehicle did or did not stop.”).

      Here, with all due deference, substantial evidence supports the

district court’s finding that Smith did not inquire about his right to take

an independent test. The officer testified Smith consented to the chemical

breath test. The officer also testified Smith did not ask for a retest and did

not ask for any other form of test. The video from the officer’s patrol car

confirms the officer’s testimony. At multiple points during the interaction,

Smith made statements predicting the officer would subject him to blood

testing if he refused to cooperate with other tests. For example, Smith

said, “If I deny taking or doing [a field test], then you would just take me

straight up to the jail to do a blood test.” At the suppression hearing, the

officer testified Smith made three or four similar declarative statements
                                      5

regarding what would happen if he refused to cooperate.            The officer

testified Smith did not ask any questions regarding additional testing. The

video from the jail supports the officer’s testimony that Smith only made

declarative statements regarding what would happen if he refused to

provide a breath test. At no point did Smith inquire about his right to

obtain independent testing.

      More important than the form of Smith’s statements is the

substance of his statements. In Lukins, we held the officer was required

to honor the detainee’s statutory right when the detainee’s statements

could be “reasonably construed” to invoke the right.         See Lukins, 846

N.W.2d at 909. Because the statute only provides the right to independent

testing in addition to testing administered by the officer, only statements

regarding additional testing are sufficient to invoke the statutory right.

See State v. Hellstern, 856 N.W.2d 355, 363 (Iowa 2014) (“[Lukins] held the

arrestee’s imprecise request for a ‘re-check’ adequately invoked his

statutory right to another chemical test.”); Lukins, 846 N.W.2d at 909

(explaining the defendant was seeking additional testing); Ginsberg v. Iowa

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

requested that his blood or urine be tested in addition to his breath, the

peace officer should have explained that, after the requested breath test

had been completed, Ginsberg would be able to have other substances

tested.”). Smith’s statements related only to testing in lieu of the testing

administered at the direction of the officer. For example, Smith asked, “If

I refuse, then do you take me to a hospital to take my blood?” Statements

regarding chemical testing in lieu of the officer’s testing are insufficient to

invoke section 321J.11. See Bloomer, 618 N.W.2d at 553 (“The record

before us, though similar to Ginsberg, contains important differences. The
                                    6

trooper first testified that Bloomer insisted on a urine test instead of a

breath test.”).

      For these reasons, we conclude the district court did not err in

denying Smith’s motion to suppress evidence. We affirm the defendant’s

conviction.

      AFFIRMED.

      All justices concur except Cady, C.J., who concurs specially.
                                     7
                                                   #18–0305, State v. Smith

CADY, Chief Justice (special concurrence).
      I concur in the result reached by the majority. However, I would go

further to identify the scope and meaning of the right to an independent

test under Iowa Code section 321J.11 (2017) to provide needed context to

the meaning of the invocation of the right. Until a right is examined to

discover its meaning, the requirements for invoking it are meaningless.

      Section 321J.11 does not make it easy to identify the meaning of the

right to an independent chemical test.          The section contains two

paragraphs. The first paragraph addresses the process for the withdrawal

of a specimen of blood and for the taking of a specimen of a person’s breath

or urine. The second paragraph provides that a person may also have an

independent chemical test or tests administered at his or her own expense

and may request a copy of the results of the test administered by the state.

Yet, the language of the statute does not describe further any obligation of

the state to assist in providing for the independent testing or for the state

to take any affirmative action.

      Thus, the right identified in section 321J.11 could be one that

permits a person to have an independent test of the specimen obtained by

the state for testing pursuant to the implied-consent procedures, or one

that permits a defendant to have an independent test of an independent

specimen, or something entirely different. Whatever the statute means, it

would likely impact what it means to invoke the right. This is the question

that needs an answer and a question that remains unanswered by this

opinion.
