State of Iowa v. John Scott Miller ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1469
Filed March 30, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHN SCOTT MILLER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,
District Associate Judge.
John Miller appeals the district court’s finding that he refused chemical
testing requested in accordance with Iowa Code section 321J.6 (2021).
AFFIRMED.
D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,
Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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VAITHESWARAN, Judge.
“A person is not eligible for a deferred judgment under section 907.3 if the
person has been convicted of a violation of [operating while intoxicated] . . . and . . .
the defendant refused to consent to testing requested in accordance with section
321J.6.” See Iowa Code § 321J.2(3)(b)(2) (2021). This appeal implicates that
provision.
John Miller was charged with and pled guilty to operating a motor vehicle
while intoxicated, first offense. He requested a deferred judgment, which the State
resisted. The district court accepted the plea, adjudged Miller guilty, and declined
his request for a deferred judgment, instead imposing a one-year jail sentence with
all but three days suspended. The court reasoned in part that anything “[o]ther
than a[n] unequivocal consent” to chemical testing was “a refusal” and a video
depicted Miller refusing the chemical test.
Miller appealed.1 The parties agree our review is for errors of law. See
State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017) (“We review for ‘correction of
errors at law . . . when the defendant challenges the legality of a sentence on
nonconstitutional grounds.’” (citation omitted)).
Miller argues the district court “erred . . . in concluding anything ‘[o]ther than
a[n] unequivocal consent is a refusal’ to submit to chemical testing under Iowa
Code section 321J.2” and “erred . . . in concluding” he “refused chemical testing
requested in accordance with Iowa Code section 321J.6.”
Section 321J.6 states:
1Miller has good cause to appeal his sentence. See State v. Damme, 944 N.W.2d
98, 104 (Iowa 2020).
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A person who operates a motor vehicle in this state under
circumstances which give reasonable grounds to believe that the
person has been operating a motor vehicle in violation of section
321J.2 or 321J.2A is deemed to have given consent to the
withdrawal of specimens of the person’s blood, breath, or urine and
to a chemical test or tests of the specimens . . . . The withdrawal of
the body substances and the test or tests shall be administered at
the written request of a peace officer . . . .
(Emphasis added.) In Miller’s view, the provision requires a signed written consent
form and he executed such a form “expressly and clearly indicating he consented
to . . . chemical testing.”
To the contrary, section 321J.6 simply requires “a written request to
withdraw the driver’s blood, urine, or breath to determine the specific concentration
of alcohol.” State v. Fischer, 785 N.W.2d 697, 701 (Iowa 2010). The motorist need
not be handed or given the written request. Id. The “writing” requirement is
satisfied if an officer reads from a paper. Id. at 704. The writing may also be in
electronic format. Id. “[T]he officer does not need to call the driver’s attention to
the request that appears on the screen for the request on the screen to satisfy the
definition of ‘written.’” Id. at 706. It is sufficient that the defendant can see the
screen, even if the text containing the request is in “small font and at an angle from
[the defendant].” Id. at 705; State v. Madison, 785 N.W.2d 706 (Iowa 2010). A
motorist’s signature is not required to satisfy the statutory “written request”
requirement. See State v. Cook, No. 19-1101, 2020 WL 6157789, at *4–5 (Iowa
Ct. App. Oct. 21, 2020) (“The statute does not require the written request be signed
by the arrestee, and we do not read a requirement into a statutory scheme when
none exists because it is not our province to write such a requirement into the
implied consent statute.” (cleaned up)).
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We have the benefit of video footage in determining whether the “written
request” requirement was satisfied. The arresting officer’s body camera captured
him giving Miller a paper copy of an implied consent advisory and reading the
advisory to him from a computer screen. The screen was in Miller’s line of sight,
but Miller focused on the copy he was given. The officer encouraged Miller to read
his copy as the officer read the document aloud and he told Miller any portions
could be reread. He afforded Miller the opportunity to seek clarification from his
son or an attorney. While the video does not capture the precise language
contained on Miller’s form, we have no trouble concluding the writing, reading, and
paper review comported with the “written request” requirement of section 321J.6
and fulfilled the purpose behind that requirement. See Fischer, 785 N.W.2d at 704(“The written request requirement ensures an accurate and reliable record that a
pretest request was made.”); see also State v. Meissner, 315 N.W.2d 738, 740
(Iowa 1982) (“This [requirement] promotes accuracy and furnishes a record for
subsequent review.”).
We turn to whether Miller refused a chemical test. “[A]fter a written request
is properly given to the driver, a finding that the test has been refused is premised
on the statements and conduct of the arrestee and police officer, as well as on all
the surrounding circumstances.” Fischer, 785 N.W.2d at 701 (citing Ginsberg v.
Iowa Dep’t of Transp., 508 N.W.2d 663, 664 (Iowa 1993)). Contrary to Miller’s
assertion, a conditional consent or refusal is a refusal to take the test. See Morgan
v. Iowa Dep’t of Pub. Safety, 227 N.W.2d 155, 157 (Iowa 1975); Swenumson v.
Iowa Dep’t of Pub. Safety, 210 N.W.2d 660, 662 (Iowa 1973). The supreme court
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underscored that point in Welch v. Iowa Department of Transportation, 801 N.W.2d
590 (Iowa 2011). The court stated:
Our previous decisions establish that a broad definition of the term
“refusal” is more closely aligned with the legislative intent underlying
the implied consent statute. In addition to explicit, unqualified
refusals, we have found that failures to cooperate, conditional
refusals, conditional assents, consents followed by a failure to
provide the requested specimen, and consents followed by
combative behavior all constitute refusals within the meaning of
sections 321J.6(2) and 321J.9(1).
Welch, 801 N.W.2d at 595–96. “[O]ne refusal is determinative.” Swenumson, 210
N.W.2d at 662.
Here, there were three. After reading Miller the implied consent advisory,
the officer asked, “So John, with that implied consent advisory and everything are
you willing to take the chemical test, the DataMaster breath test, with that advisory
and everything are you willing to take the test?” Miller asked if he should. The
officer answered that he could not advise him. Miller responded, “Then I have to
say, I mean, no.”2 He twice confirmed his initial “No” by saying “probably no” and
“I pass, I pass.”
We recognize the form Miller ultimately signed indicated he consented to
withdrawal of a specimen. But the video clarifies that this was a mistake. The
officer told Miller he was checking the “refuse” box based on Miller’ statement that
he wanted to refuse a chemical test. He specifically stated: “Just go ahead and
sign there for me, John. Sign that little digital box. That little dotted line, er, up
here. I’ve already marked the refuse box because that’s what you said you wanted
2The record does not contain a formal transcription of the statements on the video.
We have done our best to listen and transcribe the pertinent portions.
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to do. So if you can go and sign there.” Miller signed where he was told. Although
his signature appeared following language consenting to the test, the form shows
that the “refuse” box was checked.
We conclude Miller refused a chemical test. We further conclude the error
on the form that was signed does not nullify the earlier refusals. Indeed, those
refusals are dispositive even if Miller did not sign in error but in fact changed his
mind. See Welch, 801 N.W.2d at 596 (“[O]nce a licensee has refused chemical
testing, he is not entitled ‘to defeat revocation of his driving privilege by showing
he thereafter changed his mind.’” (quoting Krueger v. Fulton, 169 N.W.2d 875, 879
(Iowa 1969))). Miller’s refusals to undergo chemical testing precluded entry of a
deferred judgment. Accordingly, we affirm Miller’s sentence.
AFFIRMED.