In State v. Garrity, an Iowa Supreme Court case released last week, the Court clarified the duties of police officers when a defendant requests to make a phone call. Iowa law requires police officers who have someone in custody to allow that person to call, consult or see a member of the person’s family, or an attorney, or both. (Iowa Code §804.20.) In Garrity, the Court further explained that when a person in custody asks to call someone other than a family member or their attorney, police officers must advise the person of the purpose of the phone call – that is, they must tell DUI / OWI suspects who it is they are allowed to call and why. If the police don’t give such advice, the appropriate remedy is the exclusionary rule, which extends to the exclusion of breath tests, breath test refusals, and non-spontaneous statements made after too long of a delay in allowing the person to consult with an attorney or family member.
As background on this issue, the first time the Iowa Supreme Court addressed the right of someone in custody to make phone calls was in
State v. Vietor, a 1978 case in which the defendant was arrested and read his Miranda rights, but then told that he was not entitled to consult an attorney before deciding whether to submit to a chemical test. The Court found that although the statute did not require the officer to tell the arrestee that he had the right to counsel, the officer could not tell the arrestee that he did not have a right to counsel.
In Vietor, the Court also enunciated three rules: One, an arrestee that asks to call his lawyer must be allowed to do so before submitting to a chemical test. Two, if that person is denied the opportunity to call a lawyer, the evidence of refusal to take the chemical test is inadmissible. Three, the arrestee’s right to prior consultation with an attorney or family member is limited to circumstances where it does not “materially interfere” with the chemical test procedure. This comes into play because Iowa law also mandates the chemical test be given within two hours after a preliminary screening test is administered (or refused), or after the arrest. (Iowa Code §321J.6.)
The Iowa Supreme Court further explained a police officer’s duty regarding the right to phone calls in 1990. In Didonato v. Iowa Department of Transportation, the Court held that when a request for a phone call is made, the officer cannot stand mute and refuse the request. The fact that the defendant there requested to call a friend, rather than an attorney or family member, did not change the duty of the police officer. The officer should have advised the defendant of the purpose of the phone call, and if he decided to call a family member or attorney, the police must have allowed that phone call.
State v. Tubbs, a 2005 Iowa Supreme Court case, seemed to muddy the waters a little. The defendant originally agreed to chemical testing, but later changed his mind. He asked to talk to his wife, but after the officer remembered the defendant’s wife had a no-contact order, he did not allow the phone call. Since the defendant did not ask to talk to any other family member or an attorney, the court held under those “unique facts,” the officer had fulfilled his legal responsibilities; the defendant was not denied the opportunity to talk to any other family member or a lawyer.
In the Garrity decision from last week, the court explained how Tubbs may be distinguished from Didonato. In Tubbs there was no confusion as to who the defendant could call. He knew he could call a family member, so there was no need for the officer to clarify the scope of who a person in custody is allowed to call. The court in Garrity further explained some of the reasoning behind the law allowing phone calls. One reason is so the person may consult with a family member or attorney before deciding whether or not to submit to chemical testing. However, the law does not limit the phone call to that purpose. The reason for the phone call must be a good faith reason – for example, not calling Pizza on Dubuque for a snack – but the arrestee may choose to contact family or a legal representative not just for advice, but also to have them inform his employer that he is not likely to be at work, to arrange someone to pick up kids from school, or let the dog out, and so forth.
The court added that requiring officers to explain the scope of this right will not interfere with chemical tests. People may be aware they have the right to a phone call, but are likely unaware of the specified people they are allowed to call. If an 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.
As mentioned above, if there is a violation of the right to communicate with a family member or an attorney, the exclusionary rule comes into play, and can lead to the exclusion of breath tests and breath test refusals. Unfortunately for the defendant in Garrity, although the court held that his test refusal should have been excluded – the police officer failed to explain who the defendant could call – the court also held the error was harmless. Garrity had been pulled over after the police received a phone call identifying him as a possible drunk driver. The police officer stopped him for speeding and failing to use a turn signal, and observed slurred speech and the smell of alcohol on his breath. The defendant failed all three field sobriety tests. The judge who entered the initial guilty verdict of Operating While Intoxicated also specifically stated that she found the defendant was intoxicated based on his body motions, judgment, slurred speech and inability to communicate on the video from the police station the night of his arrest. His refusal to take a breath test was not a factor in the judge’s decision to convict.