*1 any kind or threat to him to influence plead guilty. per-
decision to Defendant “No,
sonally replied, point At Sir.” agreement
does he maintain there was
to seek sentence concessions which re-
quired approval court or make claim any possible penal- had been advised of
ty other than the maximum and minimum. point
This brief is likewise without merit particular
since the trial court pro- was
tecting rights, defendant’s constitutional
none violated and were defendant has no complaint.
cause for foregoing
III. The points brief are the
only urged ones support of defendant’s
single assignment Nevertheless, of error.
a record pages of 185 was filed in connec- appeal.
tion Approximately
pages wholly contain material irrelevant
the error urged. satisfactory No explana-
tion is offered unnecessary for its length.
Rule Procedure, Rules of Civil 18 of
rule this court.
The case is
Affirmed.
All concur. Justices
Peter RODRIGUEZ, Petitioner-Appellee,
Jack Commissioner of Public FULTON, Safety, Respondent-Appellant.
No. 54857.
Supreme Court of Iowa.
Sept. 27, 1971. Gen., Clayton Turner, Atty.
Richard C. Garretson, Mowers, and C. William W. Gen., respondent-appellant. Attys. Asst. Clarion, Knoshaug, peti- Dewayne A. tioner-appellee. *2 STUART, substances, thereof, and the test or tests Justice. shall be administered at the written Petitioner, charged operat- who was aof peace person such ***.// under the influ- while ing a motor vehicle requests that a not his blood of in beverage violation ence of breath, a his of Code, 321.281, to The refused of section saliva, or urine shall be withdrawn the high- a breath test
take the officer; peace pro- of such attorney ar- his way patrolman. When vided, however, person that if such refused the and learned of minutes later rived five testing, to to submit chemical no test refusal, demanded a blood request and he provisions the of section patrolman The would test for his client. apply. Subject the to of 321B.7 arrangements test. for blood not make person to refuse a to blood test or to testing, submit to petitioner’s The commissioner revoked may of to determine which said failure driving privileges for substances shall be re- Implied tested; and he Consent test under the a breath quires require a breath also The revo- Chapter 321B, The Code. he Law other test one said substances. upheld in an administrative was cation * * (Emphasis dis- appealed supplied) the hearing and motorist the court held The district trict court. Although directly the not statute does revoking motor- in action commissioner’s state a blood test must be offered and not because was illegal was ist’s license proceedings refused before revoke The commis- the test. offered blood first for refusal to license take one other appealed. sioner has instituted, lawfully tests can we believe necessarily this is the implied por- from question sole before us here By tions of the statute underlined above. whether, under section 321B.3 legislature use the word “then” a mo be offered and refused before must said, effect, can be revoked torist’s license drive saliva urine shall not be withdrawn breath, saliva or refusal to take a urine person until has been offered previously have considered test. not We test and he refused it. to take stat question. We now hold the offer and refusal of ute makes leg- It to believe unreasonable a revo precedent blood test condition a distinction be- islature intended make affirm Chapter cation under 321B other chemical tween the blood and the court. district chapter in terms of the speaks tests. The legis- the blood. alcoholic content provides: 321B.3 Section preferred direct may have lature “Implied Any consent to test. secondary tests. It of the blood to in this state operates a who motor than the generally reliable considered more such circum- public highway, under High- Department other tests. State grounds to as to stances ways (1970), 286 Minn. McWhite operating have been believe the 285, 287. 176 N.W.2d the influence a motor vehicle while legislature ac- deemed indication that beverage, shall be One of an alcoholic status with withdrawal tests given corded these different have blood, was their it of his to what believed body specimens reference from by the fact reliability to a chemical is shown urine, if the provides that offi- purpose explicitly statute a breath of his cer to administer content elects determining require the saliva hereinafter either subject provisions test. set out. con- The implication does not
Although the commissioner quotation above statutory language is that arresting would original cede the officer must first offer itself, con- our justify, if it stood test. even legislature intended clusion that To briefly summarize our interpre first, argues test be offered the blood 321B.3, tation of section Code of we *3 into Code section that the sentence inserted set procedure out the followed before Assembly makes 32IB.3 the 63rd General person’s license to drive can be revoked only one test need be it clearer that even under 321B for his refusal to submit to a is the officer’s. offered and the choice chemical test. following language: is to Reference person to refuse “Subject right to the (1) The arresting officer must first re- any to submit to blood test or to refuse quest a blood test. testing, officer chemical such If, (2) only if, and request this is re- shall be determine of said substances which * fused, * he request can then sa- tested; *.” liva, or urine test. Refusal of the arrested motorist any to submit to one of these tests change This amendment does not grounds is for revocation. obligation to first offer the test. provision simply This clear that the makes (3) If chooses breath arrested motorist has an absolute he can request either a saliva or urine provided refuse take test. Refusal to the second test willing secondary to a he is to submit grounds is also for revocation. pri or tests the officer. It is chosen The decision of marily to those the district an accomodation motorists court is af- firmed. religious physical or whose beliefs condi All
tion make the blood test unsuitable. Affirmed. advantage take others can this absolute right. MOORE, RAWLINGS, C. and J., merely codifies our hold amendment REYNOLDSON, BECKER and JJ., con- Sueppel ing (1966), 258 Gottschalk cur. 866. Iowa 140 There N.W.2d offered a blood test arrested motorist was UHLENHOPP, REES, LeGRAND was then which refused. He offered JJ., dissent. It was urine which also refused. argued appeal on the motorist’s MASON, part. J., takes refusal to submit to he had UHLENHOPP, (dissenting). his choice as to which other three Justice tests he would take and unless he refused Petitioner Rodriguez contends legally all to take three his license could not implied requires consent an statute rejected argument be revoked. We request a blood test from a motorist stating: before other chemical test can be required.
“We a fair construction think [section is that arrested re- an motorist 321B.3] provision interpreted to be is 321- § quests of his blood not be B.3, Code, This section consists 1971. the officer five sentence sentences. The first states: saliva urine for testing. Any person chemical as to a motor ve- operates The choice which who officer’s, public highway, of the three this state hicle the motorist’s.’’ at as to Iowa 140 such circumstances (Emphasis supplied) grounds N.W.2d 872. to believe shall withdrawn at operating a motor to have been peace officer; provided, how- influence of while under ever, given that if to have refuses sub- beverage, be deemed testing, mit no test shall from chemical consent to the withdrawal breath, saliva, provisions of section specimens of apply. urine, 321B.7 determining purpose grants This sentence absolute motorist blood, subject of his content power to without out. provisions set hereinafter endangering his driver’s license. But power to grant corresponding has no refuse with- implied constitutes This sentence breath, saliva, specimens drawal by a motorist. of consent speci- subjecting his license without to revocation. of four different *4 saliva, speci- The if the demands Thus officer a urine breath, or urine. mens : exists, men, power of no to specimen absolute refuse of a to withdrawal to breath, power nor does such exist refuse saliva is conditioned saliva, or urine not or breath samples. of blood. specimen for a prior request aon section Petitioner effect add these the would sentence of The second to this third italicized words sentence: states: The must a blood first officer offer substances, body of such withdrawal The person requests specimen and if such and of his blood be withdrawn, thereafter request of a the written breath, saliva, administered specimen a his or urine grounds having reasonable peace withdrawn, difficulty shall be etc. The operat- person to have been to believe the petitioner’s reading is of the sentence high- public a a ing motor legislature did not fit use see to influ- way while under of this state those italicized or add that condition. words only beverage, and McWhite, an alcoholic State, ence of Dep’t Highways Cf. v. placed peace officer has 468, 470, 285, 286 Minn. 287. 176 N.W.2d for offense person under arrest third does motorist while The sentence motor vehicle
operating a beverage. Actually, all tests. right refuse influence burdens, right is not without for exercis- imposed: actually are Here conditions li- ing right subjects motorist his for officer must make 321B.7, except cense to revocation under § substances, must specimen. Perhaps refusal of a blood grounds believe have prevent right granted forcible while operating been saliva, have motorist removal bever- of an California, influence under the or See Schmerber v. urine. placed have the motorist age, and must 16 908. L.Ed.2d 384 U.S. S.Ct. no con- But offense. under arrest states: fourth sentence section imposed that the officer dition tests can any of other before right of a Subject required. to refuse may testing, such third sentence this: of said substances determine which person requests If such requires a breath if he tested; his not be one require a test of test, he other of said substances. legislature Here the expressly grants the Thus the statute contains provision officer the choice of the test to be requiring that a blood test be first offered. subject to these limitations: provision the motorist might Such might not be a has his power absolute good refuse a one, policy but that is a matter for the specimen without jeopardizing legislature. his license has right to refuse all tests judgment should be reversed. without subjecting himself to forcible with- specimen. drawal of a The first words of sentence, REES, “Subject LeGRAND in this JJ., join of a test”, dissent. to refuse a blood are not
statement that “The officer must first
offer a blood test.”
This fourth sentence does not in fact
limit the officer’s choice of tests to the
other three tests requiring prior de-
mand and refusal of the blood test. The
provision is not that the officer deter-
mine which “of remaining three sub- JOHNSTONE, Appellant, Lewis K. stances” tested; shall be it is that *5 determine “which of said sub- al., Appellees. Helen S. JOHNSTONE et stances” shall be tested. No. 54523. If the officer must first offer the blood Supreme Court Iowa. it, accepts the motorist the officer Sept. 27, 1971. would have no choice tests at Then all. “peace how could it be said that the
may determine which said substances
shall be tested” ?
If the officer and obtains a breath selects him also to the fourth sentence allows
demand one other of the said substances
(although may of course abso- the motorist if
lutely specimen). Thus
the officer demands and obtains specimen, may not de- specimens.
mand one other of
The final sentence states:
However, officer fails
provide two hours such test within arrest, required, and no test shall be under the no revocation
there shall be
provisions of section 321B.7. no indication that a
This sentence contains prerequisite to other tests. bar,
(Under in the the evidence case breath could find that the
Commissioner hours.)
test was within two