State of Iowa v. David Joseph Hellstern

IN THE SUPREME COURT OF IOWA
No. 13–1228
Filed November 21, 2014
STATE OF IOWA,
Appellee,
vs.
DAVID JOSEPH HELLSTERN,
Appellant.
Appeal from the Iowa District Court for Polk County, Joe E. Smith,
Judge.
Defendant appeals from his conviction for operating while
intoxicated (first offense), claiming violation of his right to consult
privately with legal counsel before submitting to chemical testing.
REVERSED AND REMANDED.
Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C.,
West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, John P. Sarcone, County Attorney, and Maurice W.B.
Curry and Jordan A. Roling, Assistant County Attorneys, for appellee.
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WATERMAN, Justice.
In this appeal, we revisit the obligation of an arresting officer under
Iowa Code section 804.20 (2013) to facilitate communications between
an attorney and a person arrested for operating a motor vehicle while
intoxicated (OWI) in violation of section 321J.2. The defendant was
seeking legal advice regarding whether to submit to a chemical breath
test. The officer denied his request for privacy during his teleconference
with a lawyer on the jail phone and stopped short of disclosing that
private, in-person attorney–client consultations were permitted there.
Defendant then took the Breathalyzer test, which showed his blood
alcohol level was .194%, above the legal limit for intoxication (.08%).
Defendant argues the officer was required under section 804.20 to
inform him of his right to a confidential, in-person attorney–client
conference at the jail. Alternatively, he argues he was entitled to a
private teleconference with counsel under article I, section 10 of the Iowa
Constitution. The district court denied his motion to suppress the
breath test and convicted him of OWI (first offense). We retained
defendant’s appeal.
As explained below, based on our precedent interpreting sections
804.20 and 321J.11, we hold that once defendant requested privacy for
his attorney–client consultation, the officer was obligated to inform him
of his right to a confidential, in-person conference at the jail. The
remedy for a violation of section 804.20 rights is suppression of the
chemical test evidence. Accordingly, we reverse the district court and
remand the case for a new trial. We do not reach the constitutional
claim.
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I. Background Facts and Proceedings.
On March 31, 2013, just after 1:30 Sunday morning, Officer
Brandon Dyer of the Ankeny Police Department observed the vehicle in
front of him driving “extremely close to the center median.” He followed
for several blocks and saw the vehicle’s left side tires twice cross over the
solid white line dividing the through lane from left-turning lanes. Officer
Dyer activated his police cruiser’s flashing lights and initiated a traffic
stop at 1:38 a.m. The vehicle was driven by David Joseph Hellstern.
Hellstern is an attorney who practices primarily in family law with no
experience in criminal law.
Officer Dyer asked Hellstern if he knew why he had been stopped.
Hellstern responded he did not. Officer Dyer smelled alcohol and noted
Hellstern had bloodshot, watery eyes. Hellstern twice denied that he
consumed alcohol that evening. When Hellstern was asked for proof of
registration and insurance, Officer Dyer had to ask a second time for the
insurance information, even though the card was sitting on Hellstern’s
lap. Officer Dyer noted Hellstern seemed lethargic, with his eyes
drooping “as if he was falling asleep.” Officer Dyer had to repeat several
more questions that Hellstern initially failed to answer.
Officer Dyer asked Hellstern to step out of his vehicle and
continued to question him about his consumption of alcohol. Hellstern,
at this point, admitted he “had some drinks” and had “been drinking
since one,” but denied drinking after 5:30 p.m. He denied feeling the
effects of the alcohol, and when asked to rate the effects of the alcohol on
a scale of one to ten, he simply responded, “I’m fine.”
Officer Dyer asked Hellstern to take field sobriety tests. Hellstern
at first consented to the testing. He initially denied being under the care
of any doctor; taking any medication; having problems with his hips,
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knees, or back; or having any problems with balance. But, when asked
about his ability to walk in a straight line and balance on one foot, he
claimed he could not because his knee was not “standard.” When asked
to explain what that meant, Hellstern began to speak but stopped.
Hellstern then refused to take any of the field sobriety tests, including
the horizontal-gaze nystagmus test, the walk-and-turn test, and the one-
leg stand. He also refused the preliminary breath test.
About ten minutes after he made the initial stop, Officer Dyer
placed Hellstern under arrest and took him to the Polk County Jail.
There, Officer Dyer read Hellstern the implied-consent advisory at 2:13
a.m. and asked for an official breath sample at 2:15 a.m.
Officer Dyer next asked Hellstern if he wanted to make “any phone
calls for any reason.” Hellstern elected to call the law firm of Gourley,
Rehkemper, and Lindholm at 2:19 a.m.; there was no answer, and
Hellstern left no message. He called the firm’s main number another
three times before calling a different number at the firm and leaving a
message. He next phoned five different attorneys and left voice mail
messages. He also sent a text message to attorney Meegan Keller, a
friend of his from law school who practices family and criminal law.
At about 3 a.m., Keller phoned Hellstern, and they spoke for
thirteen minutes. During that call, Officer Dyer remained in the room
five feet away from Hellstern. Hellstern saw Officer Dyer typing on his
computer keyboard during the phone conversation, perhaps taking
notes. Hellstern asked for privacy during the call, saying to Officer Dyer,
“Can I have a moment with my attorney?” Officer Dyer first told
Hellstern no, but then said, “You can, but . . . Not on the phone.” Later
during the same phone call with Keller, Hellstern asked Officer Dyer for
“attorney–client privilege.” Officer Dyer responded, “Not on the phone.”
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Officer Dyer knew Hellstern had a right to consult confidentially with his
lawyer at the jail, but stopped short of telling Hellstern because “he
didn’t ask.” Officer Dyer did not believe section 804.20 required him to
“tell the detainee that an attorney can come down to the jail” for a
confidential conference. If Officer Dyer had informed him of that option,
Hellstern contends he “would have asked [Keller] to come down and talk
to [him]” at the jail.
At one point during the phone call, Officer Dyer left the room for
about forty-five seconds. Otherwise, he remained within earshot and
could hear Hellstern’s side of the conversation. Officer Dyer followed the
“normal procedure” at the jail to remain in the staff room with Hellstern
during the phone call. He cited “safety reasons,” noting there were
objects in the room, and “to cover ourselves, we always stay close to the
person. So if they were to try to harm themselves or do other things, we
could stop them immediately.” Officer Dyer acknowledged Hellstern
“never got aggressive or belligerent with him” and did nothing to suggest
“he was a safety concern to himself or others.”
After the call, Hellstern again attempted without success to contact
an attorney from the Gourley firm. In total, Hellstern made fourteen
phone calls, left five voice mails, sent one text message, and received a
single phone call from attorney Keller. At approximately 3:18 a.m.,
Hellstern indicated he did not want to make any additional phone calls.
When asked, he agreed that Officer Dyer had not hindered him from
making any calls he wished to make.
Officer Dyer then asked Hellstern yet again if he would take the
Breathalyzer test. Hellstern asked to use the restroom. Officer Dyer
indicated Hellstern could use the restroom after the test, but Hellstern
argued and said he could not wait to use the restroom. Officer Dyer
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reiterated that he could use the restroom once he had made a decision
on the test and completed the test if he chose to take it. After
approximately fifteen minutes of discussing Hellstern’s need to use the
restroom, Hellstern told Officer Dyer he would consent to the test
because Officer Dyer was making him. Officer Dyer repeated that it was
Hellstern’s decision to either consent or refuse and that he could use the
restroom once the decision was made and the test was completed.
Hellstern consented to the test, checked the consent box, and signed the
form at approximately 3:36 a.m. Hellstern took the Breathalyzer test at
that time.
After the test, Officer Dyer offered to take Hellstern to the
restroom, but Hellstern said he wanted to wait to see the results of the
test. The test showed his blood alcohol concentration was 0.194%, more
than double the legal limit for intoxication (.08%). When asked if the
results surprised him, Hellstern replied, “no.”
Officer Dyer read Hellstern the notice of revocation and provided
him with a copy of his test results. Hellstern was charged with OWI, first
offense, and was issued a warning for the improper use of lanes. His
vehicle was impounded, and Officer Dyer took his driver’s license.
Hellstern filed a pretrial motion to suppress evidence and argued,
in part, that Officer Dyer violated Iowa Code section 804.20 by failing to
notify Hellstern that he had the right to consult privately with his
attorney if the attorney met with him in person, as opposed to on the
telephone and that Officer Dyer had violated Hellstern’s rights under the
Sixth Amendment and Iowa Constitution by failing to provide him
privacy for his phone conversation with attorney Keller. That motion was
denied by the district court, which concluded there is no “affirmative
obligation on the officer to notify any defendant that they have the right
7
to request that their attorney come to the jail.” The district court also
denied Hellstern’s motion to reconsider, ruling no right to counsel had
attached under the Sixth Amendment or Iowa Constitution at the time of
the chemical testing.
The case against Hellstern proceeded to a stipulated trial on the
minutes of evidence. Hellstern was found guilty of OWI, first offense;
sentenced to one year in jail, with all but three days suspended; and
fined $1250. Hellstern appealed, and we retained his appeal to decide
whether his statutory or constitutional right to counsel had been
violated.
II. Standard of Review.
“The district court’s interpretation of Iowa Code section 804.20 is
reviewed for errors at law.” State v. Walker, 804 N.W.2d 284, 289 (Iowa
2011). We will affirm a district court’s ruling on suppression of evidence
if the court applied the law correctly and there is substantial evidence to
support the court’s fact-finding. Id.
III. Analysis.
Hellstern argues the district court erred by denying his motion to
suppress his breath-test results. He claims his request for privacy
during his phone call with an attorney triggered the officer’s obligation to
disclose his right to a private attorney–client conference at the jail.
Alternatively, he argues his right to counsel under article I, section 10 of
the Iowa Constitution had attached, entitling him to privacy during his
phone consultation. We are to decide the statutory issue first in order to
avoid unnecessary adjudication of constitutional claims. See Simmons v.
State Pub. Defender, 791 N.W.2d 69, 73–74 (Iowa 2010).
We begin our analysis with the text of Iowa Code section 804.20,
which provides:
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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. If a call is made, it
shall be made in the presence of the person having custody of
the one arrested or restrained. If such person is intoxicated,
or a person under eighteen years of age, the call may be
made by the person having custody. 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.
(Emphasis added.)
In State v. Vietor, we observed Iowa Code section 755.17, now
section 804.20, provides for “a limited statutory right to counsel before
making the important decision to take or refuse the chemical test under
implied consent procedures.” 261 N.W.2d. 828, 831 (Iowa 1978). 1 As we
noted in Walker,
[t]he arrestee’s intoxication impairs his judgment as well as
his driving ability. Such individuals must make a stressful
and time-sensitive decision whether to take or decline the
evidentiary breath test—a choice with significant
consequences for their criminal liability and driving
privileges.
804 N.W.2d at 291. “ ‘The legislative purpose of section 804.20 is to
afford detained suspects the opportunity to communicate with a family
member and [an] attorney.’ ” Id. at 290 (quoting State v. Hicks, 791
N.W.2d 89, 95 (Iowa 2010)). In Hicks, we concluded “the best way to
1The time for consultation is limited by the need to conduct chemical testing
within two hours after defendant stopped driving. See Iowa Code § 321J.2(12)(a)
(providing alcohol concentration established from specimen withdrawn within two
hours of driving will be presumed to be the concentration at the time of driving);
Walker, 804 N.W.2d at 290 (“The time for consultation is, however, effectively limited by
law enforcement’s interest in obtaining the test within two hours of the defendant’s
driving in order to preserve the [statutory] presumption . . . .”).
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further this statutory purpose is to liberally construe a suspect’s
invocation of this right.” 791 N.W.2d at 95.
Section 804.20 requires police to allow the arrestee “to make a
reasonable number of telephone calls as may be required to secure an
attorney.” Iowa Code § 804.20. The statute, by its terms, affords no
privacy to a person in custody during a phone call to their attorney. See
id. (“If a call is made, it shall be made in the presence of the person
having custody of the one arrested or restrained.”). 2 “Indeed, ‘the
telephone calls which section 804.20 assures to persons in custody are
not intended to be confidential as is shown by the provision that they are
to be made in the presence of the custodian.’ ” Walker, 804 N.W.2d at
291 (quoting State v. Craney, 347 N.W.2d 668, 678–79 (Iowa 1984)
(concluding defendant’s statement, “I killed my baby,” is admissible when
made in phone call to attorney that an officer overheard during booking
process because no attorney–client privilege protects statements made in
the presence of a third person)).
By contrast, the statute expressly provides a right to a confidential
consultation between an attorney and client at the jail to be conducted
“alone and in private.” Iowa Code § 804.20; Walker, 804 N.W.2d at 291. 3
“[T]he ‘right of privacy between attorney and client is well recognized and
jealously guarded’ during jailhouse consultations.” Id. (quoting State v.
Coburn, 315 N.W.2d 742, 748 (Iowa 1982)).
2The district court ruled that section “804.20 is clear that the officer is not
required to provide privacy to someone who’s on the telephone.” Hellstern concedes in
his appellate brief that, “[b]ased on the plain language of Iowa Code § 804.20, an
arrestee does not have the statutory right to a confidential consultation with an attorney
over the phone.”
3As we explained in Walker, “[p]hysical separation of the attorney and detained
client and/or visual monitoring of their conference may be required upon a showing by
the State of an individualized safety or security risk justifying such measures.” 804
N.W.2d at 296.
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We have addressed the statutory disclosure obligations of the
arresting officer in several cases. In Didonato v. Iowa Department of
Transportation, 456 N.W.2d 367, 368 (Iowa 1990), a motorist was
arrested for OWI and taken to the police station where he demanded to
call a friend. Id. at 370–71. Section 804.20 provides a statutory right to
call an attorney or family member, but not a friend. The officer declined
to permit the call before Didonato signed an implied-consent form. Id. at
368. His driver’s license was revoked on the ground the urine test
showed a blood alcohol level above the limit for intoxication. Id. He
contested his license revocation on the ground that his statutory right to
a phone call was violated. Id. We noted our prior cases held that section
804.20 did not “require an officer to tell an arrested person that he has a
right to counsel.” Id. at 371 (citing State v. Meissner, 315 N.W.2d 738,
740 (Iowa 1982); Vietor, 261 N.W.2d at 831). However, we went on to
explain disclosure obligations could be triggered by an arrestee’s request:
But when a request to make a phone call is made we do not
believe the statutory purpose is met if the officer stands
mute and refuses the request. Nor would there be any
difference if the request is to call a friend. In these
circumstances the statute is implicated and the officer
should then advise for what purpose a phone call is
permitted under the statute. If the individual still wants to
make a phone call, subject to the [time] limitations
announced in Vietor, the officer must allow the call, or place
it for the arrested individual pursuant to the terms of section
804.20.
Id. 4 (citation omitted).
We applied the Didonato disclosure rule in State v. Garrity, 765
N.W.2d 592, 597 (Iowa 2009). Garrity, arrested for OWI (third offense),
asked the officer at the jail to call a narcotics officer. Id. at 594. Garrity
4We affirmed Didonato’s license revocation because he was allowed to phone his
sister, an attorney, before he provided his urine specimen for chemical testing.
Didonato, 456 N.W.2d at 371.
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hoped he could broker a deal to reveal information about a drug
operation in exchange for a promise of no jail time for his OWI. Id. The
arresting officer informed Garrity he could call the narcotics officer after
he was released. Id. Garrity argued that once he had requested a phone
call the officer had a duty to advise him of the scope of his rights to a
phone call under section 804.20. Id. We concluded, “If, as here, the
officer turns down the arrestee’s phone call request because the request
is to call someone not contemplated in the statute, the officer must
explain the scope of the statutory right.” Id. at 597.
We revisited the arresting officer’s statutory obligations under
section 804.20 in Hicks. Hicks was arrested for OWI and made repeated
requests at the police station to phone his mother, stating he wanted a
ride home. Hicks, 791 N.W.2d at 92. The officer denied his requests,
and Hicks ultimately refused the Breathalyzer test. Id. He moved to
suppress evidence of his test refusal. Id. The district court denied his
motion, and Hicks was convicted of OWI (second offense) after a jury
trial. Id. We reversed his conviction and remanded the case for a new
trial on grounds he was denied his statutory right to place a phone call to
a family member. Id. at 98. We said this about the proper balance to be
struck between the detainee’s statutory rights and law enforcement:
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.
Id. at 95. We noted that “[b]ecause of the disparity in power between
detaining officers and detained suspects during the detention process,”
section 804.20 “requires law enforcement to take affirmative action to
ensure the request for a phone call is honored.” Id. at 97.
 12
The legislature did not amend section 804.20 in response to the
Didonato, Garrity, or Hicks decisions. We can infer by its silence that the
legislature acquiesced in our consistent interpretations of the disclosure
obligations in this statute dating back to our Didonato decision in 1990.
See Ackelson v. Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa
2013) (concluding legislature acquiesced in repeated judicial
interpretations spanning many years that punitive damages are not
recoverable under Iowa Civil Rights Act). Moreover, “[w]e are slow to
depart from stare decisis and only do so under the most cogent
circumstances.” Id.
In Walker, we reiterated 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.’ ” 804 N.W.2d at 291 (quoting State v.
Tubbs, 690 N.W.2d 911, 914 (Iowa 2005)). We read section 804.20
“together with the implied-consent provisions of Iowa Code chapter
321J.” Id. at 290. “ ‘[W]e have continuously affirmed that the primary
objective of the implied consent statute is the removal of dangerous and
intoxicated drivers from Iowa’s roadways in order to safeguard the
traveling public.’ ” Id. (quoting Welch v Iowa Dep’t of Transp., 801
N.W.2d 590, 594 (Iowa 2011)). We must strike the proper balance in this
case, examining our precedent under both section 804.20 and the
implied-consent provisions of chapter 321J.
We most recently summarized an officer’s disclosure duties under
section 804.20 as follows:
Iowa Code section 804.20 does not require a peace officer to
inform the detainee of his or her right to make a telephone
call. In Garrity, we observed nevertheless that a detainee
may be aware he or she has a right to make a telephone call;
however, the detainee may be unaware that a statute limits
to whom such a call may be made. For that reason, if the
13
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. In short, the absence or
shortage of knowledge on the detainee’s part warranted
enabling the detainee to invoke his or her rights by legally
inaccurate requests.
State v. Lukins, 846 N.W.2d 902, 908 (Iowa 2014) (emphasis added)
(citations omitted). In Lukins, the arrestee asked for a “re-check” of his
Breathalyzer test. Id. at 904–05. Iowa Code section 321J.11 allows a
person who submits to a breath test to have an independent blood or
urine test at his own expense, but provides no right to repeat a
Breathalyzer test. Id. at 909–10. We nevertheless held the arrestee’s
imprecise request for a “re-check” adequately invoked his statutory right
to another chemical test. We concluded, based on our cases construing
section 804.20, that “if an imprecise statement, reasonably construed,
implicates the statute, 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. 5
Thus, under Didonato, Garrity, and Lukins, the arrestee’s specific
request was beyond the scope of the statutory right. We nevertheless
held the request could be reasonably construed as invoking a right
conferred by the statute and, thereby, triggering the officer’s duty to
explain to the arrestee what he was allowed to do. Similarly, in this case,
Hellstern unequivocally requested a private attorney–client conference
before he submitted to the Breathalyzer test. He specifically asked for a
private phone consultation. Section 804.20 allows confidential
consultations in person at the jail but not by phone. See Walker, 804
5Three justices dissented. Lukins, 846 N.W.2d at 913–15 (Waterman, J.,
dissenting) (concluding cases requiring disclosures under section 804.20 were
inapplicable to section 321J.11).
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N.W.2d at 291. We must decide whether Hellstern’s request can be
reasonably construed as invoking his statutory right to a confidential
consultation with his attorney, thereby requiring Officer Dyer to inform
him the attorney would have to come to the jail to consult confidentially.
During his phone call with attorney Keller, Hellstern asked Officer
Dyer, “Can I have a moment with my attorney,” indicating he wanted the
officer to step out of earshot. Officer Dyer responded, “You can, but not
on the phone.” Later, during the same phone call, he told Officer Dyer he
wanted “attorney–client privilege.” Officer Dyer responded, “Not on the
phone.” As noted above, section 804.20 permits phone calls “in the
presence” of the officer, while providing for confidential in-person
attorney–client conferences at the jail or place of detention. Hellstern
asked for something the statute did not require law enforcement to
provide—a private teleconference. Officer Dyer’s response to that request
for privacy, “[n]ot on the phone,” was technically correct. Yet, Hellstern
indisputably asked for a private consultation with his lawyer, which the
statute allows at the jail. Hellstern argues, under our precedent, he
adequately invoked his statutory right to a private attorney–client
consultation. Therefore, he contends, Officer Dyer was required to
disclose to Hellstern that the lawyer would have to come to the jail for a
confidential conference. We agree.
The State argues we should not impose such a disclosure duty on
the arresting officer when the arrestee is already on the phone with a
lawyer. It is not uncommon, however, for civil practitioners unfamiliar
with informed-consent procedures to get the late night phone call from a
client who needs quick advice on the consequential decision whether to
take or refuse the Breathalyzer test. Imposing a disclosure obligation on
the officer familiar with section 804.20 addresses this disparity in
15
knowledge with a minimal burden on law enforcement. See Hicks, 791
N.W.2d at 95. The officer’s disclosure obligations should not turn on the
relative sophistication of the detainee and caller, which would require
case-by-case fact-finding. We prefer the clarity of bright-line rules in
time-sensitive interactions between citizens and law enforcement, such
as during informed-consent procedures. Welch, 801 N.W.2d at 601
(“Clarity as to what the law requires . . . is especially beneficial when the
law governs interactions between the police and citizens. Law
enforcement officials have to make many quick decisions as to what the
law requires where the stakes are high . . . . A clear, teachable rule is a
high priority.”).
We hold that Hellstern adequately invoked his statutory right to a
confidential consultation with his attorney under section 804.20 by
requesting privacy during his phone call, triggering Officer Dyer’s duty to
inform him that the attorney must come to the jail for a confidential
conference. Officer Dyer’s failure to explain the scope of the right to a
confidential consultation violated section 804.20. The remedy for such a
violation of section 804.20 is suppression of the chemical test results.
See Walker, 804 N.W.2d at 296; see also Lukins, 846 N.W.2d at 911, 913
(same remedy for nondisclosure violation of section 321J.11). 6
Because our resolution of the statutory question is dispositive, we
need not reach and do not decide the constitutional claim.
6The State argues it was too late for an in-person attorney–client conference, but
concedes the record supports a finding that attorney Keller could have arrived at the jail
before the end of the two-hour period after Hellstern was driving. In any event, we do
not require the defendant to prove he was prejudiced by the violation of his rights under
section 804.20. See Walker, 804 N.W.2d at 296 (“The remedy for this violation is
suppression of the breath-test results, regardless of prejudice or lack thereof.”).
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IV. Disposition.
For the foregoing reasons, we hold the district court erred by
denying Hellstern’s motion to suppress his chemical test results.
Accordingly, we reverse the district court’s judgment and conviction and
remand the case for a new trial.
REVERSED AND REMANDED.
All justices concur except Cady, C.J., and Zager, J., who concur
specially.
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#13–1228, State v. Hellstern
CADY, Chief Justice (concurring specially).
I concur in the opinion of the majority. I write separately to
express my view that it is time to reverse our prior cases and require a
peace officer to advise an arrested person of the statutory right to
counsel.
While we have held that a peace officer is not required to advise an
arrested person of the right to counsel with a family member and
attorney under Iowa Code section 804.20 (2013), we have also held the
officer must advise the arrested person of the right for the purpose of
assisting the person in attempting to exercise the right. Didonato v. Iowa
Dep’t of Transp., 456 N.W.2d 367, 371 (Iowa 1990). Although the second
rule was developed to prevent the lack of knowledge of the statutory right
from becoming a trap impeding the exercise of the right, the application
of the rule has become so nuanced that it has now become a trap for the
state. No rule of law should work as a trap for any person or the
government. To ensure a fair and neutral application of the statute into
the future, our prior cases should be reversed and replaced with a simple
rule that a peace officer must advise every arrested person of the
statutory right to counsel.
Zager, J., joins this special concurrence.