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Mark Olberding Oct. 7, 2009

Under Iowa law,804.20, if you are arrested for OWI, you have the absolute right to make telephone calls to your family and to try to find an attorney. Law enforcement does not have to tell you have the right to make a telephone call, however, law enforcement has to tell you who you can call if you ask to make a call to a non family member or non attorney. If the calls are not allowed and if law enforcement does not tell the arrested person who they can call if they ask to make a call to a person not covered by the law, the breathalyser results are not admissible.

In two recent cases, the Iowa Court of Appeals has ruled on what the right to make telephone calls means and what is a violation of the right to make telephone calls. In one case STATE OF IOWA v. SHAUN MICHAEL SHAFFER the police refused to let the Defendant make additional calls to try to find an attorney and the court ruled the refusal was proper and the breathalyser results were admissible and in the other, STATE OF IOWA v. BRANDEE RAE PETTENGILL, when law enforcement terminated a telephone conversation between the Defendant and her father and did not inform her she could make another call, the Court of Appeals reversed the conviction and suppressed the breathalyser results.

In the Shaffer case, Shuan Shaffer was allowed to make calls to two different friends, one call to a cousin, and one call trying to get an attorney. In addition, Shaun received a call on his cell phone while in jail and the arresting officer also made a telephone call for Shaun trying to locate an attorney. When Shaun then asked for a phone book to try and find the attorney’s telephone number, the officer refused and told Shaun he had to make a decision about taking the test.

The Court of Appeals ruled that Shaun’s rights were not violated and the test results were admissible. Their reasoning was that Shaun had the opportunity to talk to several people and made several attempts to contact an attorney. The fact he was not able to talk to an attorney does not mean his rights were violated. Also, the court makes a point of finding that Shaun appeared to be using his phone calls in an attempt to run out the two (2) hour time period for taking the breathalyser and that his attempts to find an attorney were not made “in good faith”.

Brandee Pettengill was arrested and called her father. As it was very late at night and as her father had taken a sleeping pill, it took awhile for him to answer the telephone and awhile for him to focus on what Brandee was telling him. Brandee was told several times by law enforcement to focus the conversation on whether or not she should take the breathalyser test. After talking with him for 15 minutes, the police hung up on the father. Brandee was not told she could make another call. She also had 47 minutes left on the two (2) hour time limit for taking the breathalyser. Because of these factors, and because the trial Judge relied on the breathalyser results to find Brandee guilty, the Court of Appeals suppressed the breathalyser results and ordered a new trial.