IA High Court Tosses Out OWI Conviction After Ambiguous Request by Defendant

Iowa case law summary by Attorney Richard Clem: OWI, request for independent chemical test.

State of Iowa v. Tony Gene Lukins. IA OWI, request for independent chemical test

Iowa's implied consent law, Iowa Code 321J.11 provides that a person being tested under the statute "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." (Minnesota Statutes 169A.51 contains a similar provision.) The Iowa Supreme Court had previously held that the detainee does not have the right to a second test on the state's Breathalyzer machine. State v. Bloomer, 618 N.W.2d 550, 553 (Iowa 2000). The issue in this case is the effect of an ambiguous request by the detainee.

In the early morning hours of February 9, 2012, Sutherland, Iowa, Police Chief Timothy Rohrbaugh saw a pickup truck run a stop sign. He followed the vehicle and turned on his flashing lights, but the truck failed to stop. Instead it raced away at over 80 MPH. The truck veered into a ditch but was jerked back onto the pavement. After this, the driver came to a stop.

Chief Rohrbaugh went to the truck and suspected that the driver, Tony Gene Lukins, had been drinking. Lukins stated that he "had a few of beers." Lukins did some field sobriety tests, and also stumbled into the ditch. Eventually, he got safely seated in the squad car, where he failed a preliminary breath test. He was arrested and taken to the O'Brien County Jail. Down at the station, he blew a .207 into the Breathalyzer, which was well over the .08 legal limit. After failing the test, the following conversation took place:

LUKINS: I don't mean to be an a** or anything, but can I get a re-check, or anything . . . ?


LUKINS: . . . the way I'm bleeding . . . .

ROHRBAUGH: A rain check?

LUKINS: A re-check. You know, with this blood and that.

ROHRBAUGH: You want your blood checked?

LUKINS (looking at and gesturing toward the Breathalyzer machine): No, can I get a re-check?

ROHRBAUGH (tapping the breath-test machine): A re-check of this?


ROHRBAUGH: And what's the blood gonna make it different, or . . . ?

LUKINS: I don't know. I'm just . . . I didn't know I was bleeding this f***ing bad until you pulled me over and I looked at my hand.

ROHRBAUGH: I don't think we need to do another check because I don't think the blood or the bleeding had anything to do with your breath.

LUKINS: Well, no, I just was . . . I don't know what the heck to really check, to tell you the truth.

Later, he asked Chief Rohrbaugh and a jail deputy again a few times for a "re-blow" or a "re-breathalyzer test." These requests were also denied.

Lukins was charged with operating while intoxicated. He moved to suppress the Breathalyzer results. He argued that his statements at the jail implicated his right to an independent test under Iowa Code 321J.11. The trial court, Judge Charles K. Borth, denied the motion, and Lukins was subsequently found guilty. He appealed to the Iowa Court of Appeals, which reversed the judgment on October 23, 2013. Dissatisfied with this outcome, the State of Iowa took the case to the Iowa Supreme Court, which agreed to hear it.

The Supreme Court agreed with the Court of Appeals and also reversed Judge Borth's ruling. The high court likened the case to earlier cases construing Iowa Code 804.20, the statute giving Iowa arrestees the proverbial one phone call. The court looked at some cases construing that provision, in which similarly ambiguous requests were held to invoke the right. The court held that a similar analysis should apply here, and held that Lukins had invoked his right to an independent test, despite his ambiguous language. As the court put it, "we see no reason why a detainee should be required to string together a precise formulation of words mirroring the statutory language in order to invoke his or her statutory right to an independent chemical test."

The court then went on to determine the proper remedy. Following similar cases from other states, it held that the proper remedy in this case was the suppression of the Breathalyzer test results.

Finally, the state argued that the error in this case was harmless in light of the defendants smell of alcohol, slurred speech, falling down in the ditch, and amission to drinking. But here, the trial court had not specified the exact portion of the OWI statute under which Lukins had been found guilty. For that reason, the high court held that the conviction must be reversed, and the case sent back for a new trial.

Justices Waterman and Mansfield, as well as Chief Justice Cady, dissented. The dissenting justices argued that Lukins' statements could not be reasonably construed as a request for an independent chemical test, and that a conclusion to the contrary was factually inaccurate.

Lukins was represented in the appeal by attorney David R. Johnson of Brinton, Bordwell & Johnson, Clarion, Iowa.

No. 12-2221 (Iowa May 16, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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