Ginsberg v. Iowa Dept. of Transportation

Supreme Court of Iowa.

John David GINSBERG, Appellee,
v.
IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant.

No. 93-22.

Nov. 24, 1993.

Driver's license was revoked by Department of Transportation due to driver's refusal of breath test following his arrest for operating while intoxicated. The District Court, Polk County, Donna L. Paulsen , J., overturned action and reinstated license. Department of Transportation appealed. The Supreme Court held that driver's request that his blood or urine be tested was not "refusal" of police officer's request for breath test, but instead assertion of his right to independent testing, and thus, driver's license could not be revoked based upon his refusal to submit to test.

Affirmed.

West Headnotes

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· 15A Administrative Law and Procedure

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Supreme Court is bound by agency's findings of fact if those findings are supported by substantial evidence; Supreme Court is not bound by agency's legal conclusions and may correct misapplications of law.

[2] KeyCite Citing References for this Headnote

· 48A Automobiles

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· 48Ak144 Suspension or Revocation of License

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· 48Ak144.1(1.20) k. Refusal to Take Test. Most Cited Cases

Statements and conduct of arrestee and police officer, as well as surrounding circumstances, are considered in determining if chemical test has been "refused" under implied consent statute. I.C.A. §§ 321J.6 , subd. 2, 321J.11.

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Whether driver's conduct following request that he take breath test constituted refusal of breath test under implied consent statute is legal question. I.C.A. §§ 321J.6 , subd. 2, 321J.11.

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Driver's request that his blood and urine be tested was not "refusal" of breath test requested by police but instead was attempt to assert his right to independent testing, and thus, driver's license could not be revoked based upon his refusal to submit to breath test, where officers failed to inform driver that on completion of requested breath test, driver would be allowed to exercise his right to independent testing. I.C.A. §§ 321J.6 , subd. 2, 321J.9, 321J.11.

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Under implied consent procedure, anything less than unqualified, unequivocal consent is "refusal." I.C.A. §§ 321J.6 , subd. 2, 321J.11.

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Arrestee cannot demand that independent tests for alcohol level be performed before test requested by peace officer or that state pay for additional tests. I.C.A. § 321J.11 .

*664 Bonnie J. Campbell , Atty. Gen., and Stephen E. Reno, Asst. Atty. Gen., for appellant.
Dean Stowers , Rosenberg Law Firm, Des Moines, for appellee.

Considered by HARRIS , P.J., and CARTER , LAVORATO , SNELL , and TERNUS , JJ.

PER CURIAM.

The department of transportation appeals from a district court decision overturning the agency's decision to revoke John D. Ginsberg's license. We affirm.

When Ginsberg was arrested for operating while intoxicated, the arresting officers requested that he submit to a breath test at the police station. After telephoning his attorney, he said that he wanted to take a blood or urine test.

The officers asked if he was refusing to take the breath test. Ginsberg said that he was not refusing to take the breath test but that he wanted his blood or urine tested as well. The officers treated this as a refusal. The peace officers did not explain that on the completion of the requested test, Ginsberg would be allowed to exercise his right to independent testing. See Iowa Code § 321J.11 (1991) .

Ginsberg contested the department of transportation's subsequent revocation of his license for test refusal pursuant to Iowa Code section 321J.9 (1991) . After a hearing, the administrative law judge sustained the revocation. The reviewing officer affirmed.

Ginsberg sought judicial review. The district court overturned the agency action, concluding that Ginsberg was asserting his right to an independent chemical test. The court found no substantial evidence of refusal since at all times Ginsberg consented to the breath test.

[1] The principles that govern our review are well established. We are bound by an agency's findings of fact if those findings are supported by substantial evidence; we are not bound by an agency's legal conclusions and may correct misapplications of the law. Sallis v. Employment Appeal Bd., 437 N.W.2d 895, 896 (Iowa 1989) .

The implied consent procedure of the Iowa Code states that after an arrest for driving while intoxicated, the police shall determine which substance to test for alcohol: breath, blood, or urine. Iowa Code § 321J.6(2) (1991) . The police had decided to test Ginsberg's breath.

[2] [3] Whether Ginsberg's conduct constituted refusal pursuant to Iowa Code section 321J.6(2) is a legal question. The statements and conduct of the arrestee and police officer, as well as the surrounding circumstances, are considered in determining if a chemical test has been refused. Ferguson v. Iowa Dep't of Transp., 424 N.W.2d 464, 466 (Iowa 1988) . The record contains no evidence that Ginsberg was uncooperative or abusive, only that he requested a blood or urine test.

[4] Iowa Code section 321J.11 states a "person may have an independent test or tests administered at the person's own expense in addition to any administered at the direction of the peace officer." 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.

[5] [6] We reaffirm that "anything less than unqualified, unequivocal consent is a refusal." Ferguson, 424 N.W.2d at 466 . An arrestee cannot demand that the independent tests be performed before the test requested by the peace officer or that the State pay for the additional tests. See Iowa Code § 321J.11 . We conclude, however, as did the district court, that Ginsberg was attempting to assert his right to independent testing and did not refuse the test requested by the police.

AFFIRMED.

Iowa,1993.
Ginsberg v. Iowa Dept. of Transp., Motor Vehicle Div.
508 N.W.2d 663