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STATE v. DENNISON11/26/1997
The State appeals the district court's dismissal of the defendant's operating-while-intoxicated (OWI) charge on speedy indictment grounds. The issue before us is whether the defendant was "arrested" for purposes of the speedy indictment rule after law enforcement officers tested him to determine whether he was under the influence of alcohol and/or drugs. If the defendant was arrested at that time, the district court properly dismissed the trial information under Iowa Rule of Criminal Procedure 27(2)(a). We find he was not and reverse the district court's dismissal of the trial information.
I. Background Facts and Proceedings.
On April 6, 1996, at approximately 2:30 p.m., Officer Trobaugh saw the defendant, Michael Dennison, driving a vehicle into a parking lot. Trobaugh knew Dennison's driver's license was revoked. He approached Dennison, spoke with him, noticed an open can of beer in his car, and smelled a slight odor of an alcoholic beverage and a very strong odor of marijuana coming from him. At approximately 2:35 p.m., the officer informed Dennison that he was under arrest for driving while his license was revoked and open container. Trobaugh asked Dennison whether he had been drinking or smoking marijuana, and Dennison indicated he had not. Trobaugh handcuffed Dennison, placed him in his patrol car to await a back-up officer, and read him his Miranda rights. While in the patrol car, Trobaugh requested that Dennison perform the horizontal gaze nystagmus test and submit to a preliminary breath test (PBT). The PBT result was .04. Due to the smell of marijuana, the officer requested a drug recognition expert (DRE) meet him at the jail to determine whether Dennison was under the influence of a drug other than alcohol.
At the jail, Trobaugh escorted Dennison to the alcohol safety action project office (ASAP office), rather than the booking room. There, Dennison voluntarily submitted to a series of tests administered by the DRE, deputy James Bauerly. Bauerly invoked implied consent, and Dennison gave a urine sample, which was sent to the Division of Criminal Investigation (DCI) for testing. Although not free to leave because he was arrested on the other charges, Dennison was not required to participate in the tests. After completing the testing, Bauerly believed Dennison was under the influence of marijuana; however, he did not charge him with OWI because he did not have the urine test result. Bauerly believed the test result would not be returned for six or eight weeks. The estimated time of detention for the OWI testing was approximately fifty-five to sixty-five minutes.
Following the testing, Dennison was booked for driving while revoked and open container, but not for OWI.
On June 28, 1996, Bauerly received the toxicology report, showing a positive test result for marijuana. On July 16, 1996, deputy Bauerly filed a complaint and affidavit charging Dennison with second-offense OWI. See Iowa Code ยง 321J.2 (1995). Dennison was [571 NW2d Page 494]
arrested on July 26, 1996. The State filed the trial information on July 31, 1996.
On October 24, 1996, Dennison filed a motion to dismiss, arguing the OWI arrest occurred on April 6, 1996, and the speedy indictment rule was violated because the trial information was not filed until July 31, 1996. Following a hearing, the court sustained Dennison's motion and dismissed the trial information. Relying on State v. Davis, 525 N.W.2d 837 (Iowa 1994), it determined the OWI arrest occurred on April 6, 1996, and the trial information was not filed within the required forty-five days.
The State appealed.
II. Contentions of the Parties.
The Stat
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