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Iowa Supreme Court Supports Prisoner Suppression Motion

In a case of first impression, the Iowa Supreme Court has reversed an Iowa Court of Appeals decision denying a "limited statutory right to a custodial in-person consultation with an attorney," and suppressed an operating a motor vehicle while intoxicated (OWI) breath test result.

Carson Michael Walker was arrested on December 6, 2009 for driving down the center line of an Ankeny, Iowa street at 2:23 a.m. After the police officer gave Walker an implied consent advisory and requested a breath sample, he permitted Walker an opportunity to make phone calls, including one to attorney Murray Gotsdiner.

Gotsdiner's associate, attorney Daniel Rothman, came to the police station, and, according to the court's decision, was "escorted to a detention area, with partitions...and intercoms with telephone style handsets for communication. Rothman saw a black plastic security camera 'bubble'...and asked...for a different room without the partition... His request was refused." Rothman requested a room without camera surveillance and without a glass partition so he could smell Walker's breath and perform a horizontal gaze nystagmus (HGN) test (which he was trained to perform) to determine his level of intoxication. Walker then took the breath test, which measured his "blood alcohol level at .186%, more than double the legal limit of .08...It is undisputed (that) Walker was non-violent and cooperative."

At the suppression hearing held by the district court, the state testified that the policy denying contact visits was designed to prevent the passing of contraband or weapons to detainees. According to the Supreme Court decision, "The State does not claim Ankeny police had any individualized, case-specific reason to suspect Walker posed a threat to Rothman or that Rothman would pass his new client contraband or do anything to compromise the contemplated breath test...Rothman testified his ability to give informed legal advice was impeded..."

Section 804.20(2009) of the Iowa Code guarantees an attorney the right to "see and consult confidentially (with his client) alone and in private..." The district court found that "glass wall...would clearly interfere with the defense counsel performing the HGN test," and that there "was no chance to smell any odor of alcohol." The fact that Walker, while intoxicated, was "compliant, nonviolent, and cooperative," helped the district court in ruling for Walker and suppressing results of the breath tests.

The Appellate Court reversed the district court decision, finding the case of People v. Parsons, 15 P.3d 799 (Colo. APP. 2000), persuasive, holding that a prisoner's "statutory right to counsel was not violated by restricting his attorney visit to a room with a glass partition that had a pass-through."

The Supreme Court found the fact that federal appellate decisions allowing "contact visits with counsel in a room with no partition or barrier between them more persuasive,” Mann v. Reynold, 46 F.3d 1055 (10th Cir., 1995). It also reviewed articles and cases from other commentators and jurisdictions in finding a right to private legal consultation.

In fashioning a remedy for an 804.20 violation, the Supreme Court reinstated the district court's mandate of suppression of the breath-test results. The court also stated in this decision "that this statutory right is limited to timely consultations that do not materially interfere with implied consent chemical testing procedures." See: State of Iowa v. Walker, 804 N.W.2d 284 (Ia. 2011).

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Related legal case

State of Iowa v. Walker