State of Iowa v. Lisa Marie Denzin ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1127
Filed August 18, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LISA MARIE DENZIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District
Associate Judge.
Lisa Denzin appeals from her conviction for operating while intoxicated, first
offense. AFFIRMED.
Daniel J. Rothman and Nicholas A. Carda of McEnroe, Gotsdiner, Brewer,
Steinbach and Rothman P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2
BOWER, Chief Judge.
Lisa Denzin appeals the district court’s denial of her motion to suppress and
her conviction after a bench trial of operating while intoxicated (OWI), first offense.
Upon our review, we find reasonable suspicion supported the officer’s request for
a preliminary breath test, the district court correctly denied Denzin’s motion to
suppress, and we affirm Denzin’s conviction.
The following recitation of the facts by the district court are fully supported
by the record:
On or about October 11, 2019, at approximately 11 p.m., Deputy
[Joey] Marchant came upon a Honda Pilot, on the west-bound side
of the highway (Highway 6 just east of Adel), pulled over to the left
with its flashers on. Out of concern that the vehicle and driver might
be stranded, Marchant pulled over to do a welfare check of the
vehicle and occupant(s). There was no exhaust coming from the
vehicle, but Marchant could observe that the dash light clusters were
on in the vehicle. When the deputy approached the vehicle, the
occupant of the driver’s seat, [Denzin], rolled down the window at his
request. [Denzin] was the sole occupant of the vehicle. The deputy
noted the vehicle was not running at the time, but located the keys
on the driver’s seat.
[Denzin] exited the vehicle at Marchant’s request, at which
time he noted the odors of alcoholic beverages emanating from her.
[Denzin] indicated that she thought she was on Interstate 80.
Marchant noted other signs of intoxication, including bloodshot and
watery eyes, slow movements, she forgot to take her seatbelt off
before trying to exit, and she dropped her cellphone as she was
exiting. Her balance was unsteady, and Marchant thought she was
going to fall over. Marchant asked if [Denzin] thought she should be
driving, to which she responded, “No.” During this time, the
defendant’s adult daughter arrived to get her. Marchant noticed an
empty bottle of Barefoot Wine on the passenger seat, and a can of
White Claw. Deputy Marchant requested field sobriety tests and a
preliminary breath test, both of which [Denzin] refused. Marchant
placed [Denzin] under arrest for OWI. [Denzin] was given an
opportunity to make calls, and after having been read the implied
consent advisory, [Denzin] refused to take a breath test.
3
Iowa Code section 321J.2(1)(a) (2019) provides: “A person commits the
offense of operating while intoxicated if the person operates a motor vehicle . . .
[w]hile under the influence of an alcoholic beverage or other drug or a combination
of such substances.” Section 321.1(48) provides this pertinent definition:
“‘Operator’ or ‘driver’ means every person who is in actual physical control of a
motor vehicle upon a highway.”
I. Was there reasonable suspicion to support the officer’s request for
preliminary breath test?
“When a defendant challenges a district court’s denial of a motion to
suppress based upon the deprivation of a state or federal constitutional right, our
standard of review is de novo.” State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019)
(citation omitted). “We examine the entire record and ‘make an independent
evaluation of the totality of the circumstances.’” Id. (citation omitted). “In doing so,
we evaluate each case ‘in light of its unique circumstances.’” Id. (citation omitted).
The question presented first is, under the facts and circumstances known
to the officer at the time implied consent was invoked, whether there was
reasonable grounds to believe Denzin had operated the vehicle while intoxicated.
See State v. Boleyn, 547 N.W.2d 202, 205 (Iowa 1996). Denzin does not contest
she was intoxicated while in the vehicle. She argues, however, Deputy Marchant
did not have reasonable grounds to believe she had operated the vehicle while
she was intoxicated. Prior cases provide some guidance.
In Munson v. Iowa Department of Transportation, 513 N.W.2d 722, 723
(Iowa 1994), our supreme court addressed whether an arresting officer, pursuant
to implied-consent law, possessed reasonable grounds to believe Munson was
4
operating a motor vehicle while intoxicated. Munson was found asleep behind the
steering wheel of his vehicle parked in a private parking area. Munson, 513
N.W.2d at 723. The keys were in the ignition and the radio on, but the engine was
not running. Id. The court held there was no substantial evidence the officer had
reasonable grounds to believe Munson was operating a vehicle at the time he was
observed in the parking lot. Id. at 724.
In State v. Braun, 495 N.W.2d 735, 737 (Iowa 1993), an officer discovered
Braun sleeping behind the wheel at 5:23 a.m. “parked on the yellow center line of
Highway F70, a position which required oncoming cars from either direction to
maneuver around it. The car was not running and the headlights were not
illuminated.” Braun challenged the officer’s invocation of preliminary breath test,
contending the officer did not have reasonable grounds to believe he had operated
his car while intoxicated. Braun, 495 N.W.2d at 738–39. The supreme court
disagreed, noting: “[T]he elements of a crime may be proven by circumstantial
evidence as well as direct evidence. Direct evidence and circumstantial evidence
are equally probative. Operation of the motor vehicle by the defendant may be
established by circumstantial evidence.” Id. at 739 (citation omitted). The supreme
court found:
There is an abundance of circumstantial evidence that Braun
had driven his car to the location where Deputy Burmeister found him
and that Braun had driven there in an intoxicated condition. Braun
was asleep in the driver’s seat, with all of the controls within his
reach. The car was dangerously parked in the middle of an
undivided highway. Deputy Burmeister did not see any other person
walking along the highway away from the car. No alcohol containers
were found in the car nor were seen on the ground. Braun appeared
drunk and Burmeister smelled alcohol on his breath. Finally, Braun
admitted at the scene where Burmeister found him and again at the
5
public safety building that he had drunk intoxicants and then driven
to the location on Highway F70.
Id.Unlike Munson and Braun, Denzin was awake when the officer approached.
She was the sole occupant of the vehicle, was buckled into the driver’s seat, and
the dash lights were illuminated. She told the deputy she thought she was on a
completely different highway. There was an empty (or almost empty) wine bottle
on the passenger seat. All these indicia allow the inference she had not been in
that location for an extended time and she drove while intoxicated to come to be
there; we find it unlikely this driver ran out of gas, began drinking, and was in such
a state of intoxication just a few minutes later when her daughter arrived. We find
upon our de novo review there was reasonable suspicion to request a preliminary
breath test.
II. Sufficiency of the evidence to support conviction.
Denzin also maintains there is insufficient evidence she operated a vehicle
to support the conviction.
When reviewing sufficiency-of-the-evidence challenges, we “consider all of
the record evidence viewed ‘in the light most favorable to the State, including all
reasonable inferences that may be fairly drawn from the evidence.’” State v.
Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citation omitted). “In a bench trial, we
review the district court’s findings as we would a jury verdict, meaning we will affirm
the verdict if supported by substantial evidence.” State v. Miller, No. 20-0065, 2021
WL 810837, at *1 (Iowa Ct. App. Mar. 3, 2021) (citing State v. Weaver, 608 N.W.2d
797, 803 (Iowa 2000)).
6
In Boleyn, 547 N.W.2d at 204–05, the defendant argued the State failed to
prove he was operating a vehicle when a police officer found him sleeping in the
driver’s seat of a vehicle parked in a cemetery. The court noted, “Boleyn was
wearing his seat belt, slumped over the steering wheel, with an open bottle of beer
between his thighs. The keys were in the ignition, but the engine was not running.”
Boleyn, 547 N.W.2d at 204. Our supreme court concluded “Boleyn, who was
sleeping in a motionless vehicle with the engine not running, was not operating a
vehicle when he was approached by the officers.” Id. at 205. Boleyn, however,
was “contest[ing] the sufficiency of the evidence supporting the verdict, not the
invocation of the implied consent statute.” Id. “Therefore all the evidence is
considered in determining whether he had operated the vehicle while intoxicated
prior to the arrival of the officers.” Id.The Boleyn court continued its analysis:
At the time of his arrest, Boleyn stated that he had drunk “one
quart” of beer, and had started drinking at home. The only alcohol
container in the vicinity was the three-quarters full thirty-two ounce
bottle of beer between his thighs. At trial, he admitted that he started
drinking at noon and consumed between six and twelve beers before
going to the cemetery. He further admitted that he could feel the
effects of the alcohol when he traveled to the cemetery. There is
substantial evidence that Boleyn was intoxicated while en route to
the cemetery.
....
After our review of the record, considered in the light most
favorable to the State, we find substantial evidence that Boleyn had
driven to the cemetery in an intoxicated condition. The fact that he
shut off the engine before he was observed by officers does not
nullify his prior unlawful operation of the vehicle.
Id. at 205–06.
“[C]urrent case law provides there is no ‘operation’ of a motor vehicle within
the terms of the OWI statute unless the vehicle is in motion or the engine is
7
running.” State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). “The evidence may
fail to prove that an intoxicated defendant was in the process of operating a motor
vehicle when the authorities found him or her. Nevertheless, circumstantial
evidence may establish that the defendant had operated while intoxicated when
driving to the location where the vehicle was parked.” Id. at 377–78.
Circumstantial evidence
is the proof “of one fact, or a set of facts, from which the existence of
the fact to be determined may reasonably be inferred.”
Circumstantial evidence involves two things: (1) “the assertion of
witnesses as to what they have observed,” and (2) “a process of
reasoning, or inference, by which a conclusion is drawn.”
Circumstantial evidence “must be based upon the evidence given,
together with a sufficient background of human experience to justify
the conclusion.”
Id. at 378 (citation omitted).
Here, Denzin was awake when the officer approached. She was the sole
occupant of the vehicle, was buckled into the driver’s seat, and the dash lights
were illuminated. She told the deputy she thought she was on a completely
different highway. There was an empty (or almost empty) wine bottle on the
passenger seat. In addition, Deputy Marchant noted five to six ounces of alcoholic
beverage in a thirty-two-ounce cup in the cup holder. Also found in the car was an
empty can of an alcoholic beverage. We also note Denzin’s daughter indicated
Denzin called her crying and somewhat incoherent. The daughter expressed
some surprise the deputy arrived at the scene before she did. When the daughter
attempted to move the vehicle, they discovered it was out of gas and the battery
was insufficiently charged to start the engine. The daughter indicated the Honda
Pilot had a push-button start, so the fact the keys were on the driver’s seat does
8
not detract from the inference the engine was on and the vehicle had run out of
gas.
Viewing the evidence in the light most favorable to the State and all
inferences arising therefrom, we find there is substantial evidence to support the
conviction. We therefore affirm.
AFFIRMED.