Dаnny Fay CASPER, Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellee.
No. 92-408.
Court of Appeals of Iowa.
Sept. 2, 1993.
508 N.W.2d 727
In Bagley, the Supreme Court remanded the case to the Court of Appeals “for a determination whether there is a reasonable probability that, had the inducement offered by the Government to O‘Connor and Mitchell been disclosed to the defense, the result of the trial would have been different.” Id., 473 U.S. at 684, 105 S.Ct. at 3385, 87 L.Ed.2d at 495. Upon remand, the Court of Appeals found that by failing to advise defense counsel of the inducements offered to these witnesses, the government unconstitutionally interfered with Bagley‘s right to a fair trial.
The rule laid down by the Supreme Court in Bagley requires us to determine whether a reasonable likelihood exists that the result would have been different had the fact of the false testimony been made known to the defendant. In that determination, we must decide if the failure to disclose the “deals” made or the pеrjured testimony undermines the confidence in the outcome of the trial.
At Swartz‘s trial, the important issue was whether Swartz was compelled by McMurray to commit the robbery involved in this case. Smith, the only other participant in the robbery, was not available to testify since he claimed the benefit of his right to refuse to incriminate himself. Smith was scheduled for trial at the time. Smith‘s defense, like that of Swartz, was that he was compelled to commit the robbery due to his fear of the consequences to himself and his family.
McMurray had also refused to testify in Swartz‘s trial. McMurray did, however, agrеe to testify in rebuttal as a State‘s witness, and McMurray‘s testimony directly conflicted with Swartz‘s evidence on the compulsion issue. Thus, McMurray was the only witness available to testify about whether Swartz and Smith were willing participants in the robbery, and McMurray‘s testimony in opposition to Swartz‘s testimony wаs crucial, both to the State and to the defense.
When considering the entire record and the totality of the circumstances, we hold that the false testimony, going as it did to the credibility of the only witness who disputed Swartz‘s compulsion testimony, was material and interfered with Swartz‘s constitutional right to a fair trial. The use of false testimony by the prosecutor in this case undermines confidence in the outcome of Swartz‘s criminal trial and raises a reasonable probability that without such perjured testimony the result would have been different.
Accordingly, we reverse the postconviction court and remand the case to the district court for a new trial on the original criminal charge.
REVERSED AND REMANDED.
John A. Pabst of Clements, Pabst, Hansen & Maughan, for appellant.
Bonnie J. Campbell, Atty. Gen., David A. Ferre, Special Asst. Atty. Gen., and John W. Baty, Asst. Atty. Gen. for appellee.
Considered by SCHLEGEL, P.J., and HAYDEN and HABHAB, JJ.
SCHLEGEL, Presiding Judge.
The plaintiff, Danny Fay Casper, appeals
Casper was stopped by a police officer for speeding sixty-seven miles per hour in a fifty-five-mile-per-hour speed zone. Based upon observations of the police officer, Casper was given a preliminary breath test, which indicated an alcohol concentration in his blood greater than the legal limit. Based upon this screеning test, Casper was placed under arrest and was transported to the police station. While there, he was permitted to talk to his lawyer by telephone and was given a breath test. The breath test showed an alcohol concentration of .118, indicating Casper‘s intoxiсation.
Casper claims he requested the opportunity to obtain a blood test to determine the concentration of alcohol in his blood, and he claims he was denied the opportunity to obtain that test. He was placed in jail and was not released until 11 a.m. the following morn
As a result of the breath test results, Casper‘s driving privileges were revoked. Casper requested an administrative hearing to contest the revocation of his operator‘s privilege. The administrative law judge upheld the revocation. Appeal was taken to the director of the department of transportation, and the revocation was affirmed. Casper sought judicial review; the decision of the department was affirmed. We affirm the district court.
Little dispute exists regarding the facts of this case. While the police officer and the petitioner disagree on the details, both admit that the petitioner was told about the possibility of an independently acquired blood test for which the petitioner would be required to pay. There is no dispute аbout the petitioner having funds in his possession, presumably in a large enough amount to bear the cost of such a test. Nor is there any dispute about the fact that the petitioner was placed in jail and held there, or the fact that the petitioner was not transported to а place to have the independent blood test done.
It is true the petitioner was held in such a manner as to make it impossible for him to acquire the independent blood test. The question before us—and the question before the department and the district court prior to this point in the appeal process—is whether these facts cause a necessity to suppress the results of the breath test administered to the petitioner, which indicated a blood alcohol concentration in petitioner‘s blood of .118 milligrams percent.
Casper has cited several cases from other jurisdictions which indicate the breath test would be suppressed upon these facts. These cases involve such tests in the context of a prosecution in criminal trial for operating while intoxicated. None of the cited casеs deal with the administrative procedure of license revocation resulting from a test which indicates driving while intoxicated. For example, in Lockard v. Town of Killen, 565 So.2d 679 (Ala.Crim.App.1990), the court held that the requirement that an arrestee be given an opportunity to obtain an independent chemical analysis meаnt the arrestee must have been given the chance to obtain the test. The failure to afford him that opportunity resulted in a suppression of the test administered by the law officer.
In State v. Batista, 128 Misc.2d 1054, 491 N.Y.S.2d 966 (1985), the court dealt with the question of what constituted a demand for an independent blood test. Both оf these cases involved trials on the charge of driving while intoxicated. Neither is helpful in this case.
Casper seeks suppression of the test administered by the police officer at the police station based on his right to have an independent blood test under
The persоn 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 dоes not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer. [Emphasis added.]
The emphasized portion of this statute has been considered in State v. Goodon, 443 N.W.2d 74 (Iowa App.1989). In Goodon, the department of transportation had supрressed the test administered by the officer in the license revocation proceeding that preceded the defendant‘s trial on an OWI charge. The defendant claimed the ruling constituted issue preclusion since the validity of the test had been litigated in the administrative actiоn.
We rejected that argument, as well as defendant‘s argument that the test should have been suppressed because “defendant was denied a meaningful opportunity to obtain an independent chemical test.” Id. at 76. We held that the emphasized portion of the above-quotеd statute permitted consideration of the results of the test administered by the officer, even if the defendant was unable to obtain the independent blood test.
We do not wish to be understood as holding that in a criminal prosecution for driving under the influence of alcohol or drugs, the fаcts of this case would not cause
However, as the State points out, this hearing was carried out under the provisions of
The hearing . . . shall be limited to the issues of whether a peace officer had reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 and either of the following:
* * * * * *
b. Whether a test was administered and the test results indicated an alcohol concentrаtion as defined in section 321J.1 of .10 or more.
As we stated in Goodon:
Under section 321J.13 the only issues which are considered in a driver‘s license revocation hearing are whether an officer had reasonable grounds to believe the person was operating a motor vehicle while intoxicatеd and whether the person submitted to a test and either failed or refused it.
Under the statutory authority cited above, we do not believe the defendant‘s failure to obtain an independent blood test requires the suppression of the results of the breath test administered by the police officer and voluntarily taken by the petitioner. Accordingly, we affirm the trial court‘s refusal to suppress the breath test administered in this case.
AFFIRMED.
HABHAB and HAYDEN, JJ., specially concur.
HABHAB, Judge (specially concurring).
While I agree with the majority‘s result, I write separately to expound on my interpretation of
The person 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.
Iowa Code § 321J.11 (1991) (emphasis added).
As the majority notes, we interpreted this statute in State v. Goodon, 443 N.W.2d 74, 76 (Iowa App.1989). In Goodon, the defendant argued that his breath test should have been suppressed because he “was denied a meaningful opportunity to obtain an independent chemical test.” Wе held that the emphasized portion of section 321J.11 permits consideration of the results of the test administered by the officer, even in situations where the defendant has requested and was unable to obtain the independent blood test. Goodon, 443 N.W.2d at 76. I write separately to make it clear that I reject any interpretation of Goodon which would imply that, even when police misconduct is involved,
I find other states have construed similar statutes the same way. See Lockard v. Town of Killen, 565 So.2d 679, 680-82 (Ala.Crim.App.1990); City of Blaine v. Suess, 93 Wash.2d 722, 612 P.2d 789, 790-91 (1980); State v. Hilditch, 36 Or.App. 435, 584 P.2d 376, 376-77 (1978); State v. Dressler, 433 N.W.2d 549, 550 (N.D.App.1988); Smith v. Cada, 114 Ariz. 510, 514, 562 P.2d 390, 394 (App.1977); Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1128 (1983).
To construe
I vote with the majority because I agree with them that suppression of the breath test is not the appropriate remedy here. The purpose of excluding the breath test on these facts would be to deter the ignoring of the arrestee‘s request for an independent test. Criminal prosecutions for driving while intoxicated and civil license revocation proceedings which, though “arising from the same incident” are nevertheless “separate and distinct.” Heidemann v. Sweitzer, 375 N.W.2d 665, 668 (Iowa 1985).
The imposition of an exclusionary sanction in this license revocation proceeding would have little force as a deterrent of unlawful police action because the department [of transportation] does not contrоl the actions of local police officers. If application of the rule does deter police officers from engaging in unlawful conduct, its use in criminal proceedings should be sufficient to accomplish that purpose. Westendorf v. Iowa Dep‘t. of Transp., 400 N.W.2d 553, 557 (Iowa 1987).
HAYDEN, J., joins this special concurrence.