Lake View Man Pleads Guilty to Amended Charge of Public Intoxication

8/13/2019 Lake View Man Pleads Guilty to Amended Charge of Public Intoxication

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E-FILED 2013 JUL 04 9:55 PM SAC - CLERK OF DISTRICT COURT


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IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTYSTATE OF IOWA, Plaintiff,

vs.

KYLE LOUIS JOHNSON , Defendant.

Case No: 02811 OWCR012350

INITIAL APPEARANCE OWI

Charges:01 - 321J.2(2)(a) - OPERATING WHILE UNDER THE INFLUENCE 1ST OFFENSE

The Defendant herein appears before the undersigned Magistrate in and for Sac County, havingbeen charged with the crime(s) indicated above.

The Court advises the Defendant as follows:

1. That he/she has the right to remain silent. That any statement made by the Defendant can

and would be used against him/her in a Court of Law. That he/she has the right to have an attorneypresent at all stages of the proceeding and , if the Defendant is unable to afford counsel, that, uponproper application, one would be appointed for them.

2. That he/she is charged with a violation(s) as stated above and classified as:

Felony - Class

Aggravated Misdemeanor

Serious Misdemeanor

3. That the maximum punishment for a plea of guilty or conviction of the above charge is:

One Year County Jail - Minimum 2 days

Years Prison

And/Or a fine of not less than $1250 or more than $1250

You will lose your license for a minimum of 180 days and cannot obtain a work permit for30 days.

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E-FILED 2013 JUL 05 10:49 AM SAC - CLERK OF DISTRICT COURT


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4. That to obtain the services of an attorney at the expense of the State of Iowa, application forCourt-Appointed counsel must be completed, reviewed by the Sac County Attorney and filed with thisCourt.

5. (a) You will be released from custody prior to trial on your own promise to appear at allfurther court proceedings. If you willfully fail to appear before any court as required, you shall be guiltyof a Class D felony/serous misdemeanor; or

(b) (If appropriate) Upon consideration of the factors in Section 811.2, the Court is notreasonably assured that you will appear at all court proceedings in the future and therefore the Courtimposes the following conditions on your release:

(1) You must not use alcohol or drugs during the pendency of this matter. (2) You must not drive while your license is under suspension. (3) You must obey the laws of the State of Iowa and the United States. (4) You are ordered to complete a substance abuse evaluation immediately at NewOpportunities (Sac City - 712-662-7921) or Compass Pointe (Storm Lake - 712-732-5136) or a facilityof your choosing AT YOUR EXPENSE with a copy to be sent within 30 days to the Sac County Clerkof Court at 100 NW State Street, Ste. 12, Sac City, IA, 50583. YOU ARE NOTIFIED THAT THIS ISMANDATORY, AND YOUR FAILURE TO COMPLY WILL RESULT IN ISSUANCE OF AN ARREST

WARRANT AND REVOCATION OF YOUR PRETRIAL RELEASE.

6. Defendant is entitled to preliminary hearing unless waived, which hearing is held to determinewhether sufficient evidence exists to justify further prosecution of the Defendant as charged. Priorto a preliminary hearing, the Defendant is informed that a Grand Jury may indict him/her, or a TrialInformation may be filed by the County Attorney of this county.

7. The Defendant is informed of his/her rights to a preliminary hearing and preliminary hearingis:

Waived

Preliminary Hearing is scheduled on at : AM at the .

If a preliminary hearing date has been set, you should contact the county attorney at712-662-4791 before attending this hearing to determine whether or not it will be held.

8. IF YOU HAVE NOT BEEN FINGERPRINTED AND PHOTOGRAPHED FOR THISOFFENSE, YOU MUST REPORT TO THE SAC COUNTY SHERIFF'S DEPARTMENT WITHIN 10DAYS FROM THIS DATE TO DO SO. IF DEFENDANT HAS NOT PRESENTED THEMSELVESWITHIN 10 DAYS FROM THIS DATE, THE SAC COUNTY SHERIFF'S DEPARTMENT ISORDERED AT HIS CONVENIENCE TO PICK UP DEFENDANT TO BE PHOTOGRAPHED ANDFINGERPRINTED.

If you need assistance to participate in court due to a disability, call the disability coordinator at (641)421-0990. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942).Disability coordinators cannot provide legal advice.Copies to:County Attorney

The Court has provided a copy to the DefendantDefendantSac County Sheriff

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State of Iowa Courts

Case Number Case TitleOWCR012350 STATE VS KYLE LOUIS JOHNSON

Type: HEARING FOR INITIAL APPEARANCE

So Ordered

Electronically signed on 2013-07-05 10:49:27

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IN THE IOWA DISTRICT COURT IN AND FOR SAC COUNTY

STATE OF IOWA,

Plaintiff,

v.

KYLE LOUIS JOHNSON,

DOB: 06-17-1991

Defendant.

Case No. OWCR012350

TRIAL INFORMATION

COUNT I

COMES NOW Benjamin John Smith, as Prosecuting Attorney of Sac County,

Iowa, and in the name and by the authority of the State of Iowa, accuses Defendant,Kyle Louis Johnson (defendant) of the crime of OPERATING WHILE INTOXICATED,

FIRST OFFENSE, a Serious Misdemeanor in violation of Iowa Code Section 321J.2

committed as follows: On or about July 4, 2013, in Sac County and State of Iowa,

defendant did unlawfully and willfully operate a motor vehicle by one or more of the

following means: while under the influence of an alcoholic beverage or drugs or a

combination of such substances; while having an alcohol concentration of .08 or

more as measured in the person's breath, blood or urine; and while any amount of a

controlled substance is present in the person as measured in the person's blood or

urine.

A TRUE INFORMATION

/s/ Benjamin John SmithBenjamin John Smith - AT0008834Sac County Attorney

Sac County Courthouse100 NW State St., Suite 9Sac City IA 50583Telephone: 712-662-4791

Facsimile: 712-662-4123Email: [email protected]


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Type: Approval of Trial Information

Case Number Case Title

OWCR012350 STATE VS KYLE LOUIS JOHNSON

On this date, I have reviewed the attached Trial Information and the accompanying Minutesof Testimony and find that they contain evidence which, if unexplained, is sufficient towarrant a conviction by a trial jury. Being satisfied from the showing made that the caseshould be prosecuted, I approve the Trial Information.

Release conditions are set by separate Order of the Court.

So Ordered

Electronically signed on 2013-07-31 11:43:46 page 2 of 2



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STATE OF IOWA,

Plaintiff,

v.

KYLE LOUIS JOHNSON,

Defendant.

Case No. OWCR012350

ATTACHMENT TO TRIAL

INFORMATION: WITNESS LIST

TORY CUDABACK, Deputy, Sac County Sheriffs Office

MICHAEL M. TATE OR JAMES A. BLESKACEK, or other Designated Criminalist,CRIMINALIST, Iowa Department of Public SafetyCriminalistics Laboratory



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STATE OF IOWA,Plaintiff,

VS.

KYLE LOUIS JOHNSON,Defendant.

CRIINAL NO. OWCR!"#$%!

ORDER SETTIN& ARRAI&NENTAND 'OND

T(e TRIAL INFORATION and t(e INUTES OF EVIDENCE in t(i) *atte+ (ae-een ea*ined and f/0nd t/ 1/ntain )0ffi1ient eiden1e, if 0ne2lained, t/ 3a++ant a1/ni1ti/n in a t+ial -4 50+4, t(e+ef/+e, t(i) *atte+ )(all -e )et f/+ A++ai6n*ent.

IT IS ORDERED, t(e Defendant )(all 2e+)/nall4 a22ea+ f/+ A++ai6n*ent at t(e Sa1C/0nt4 C/0+t(/0)e, Di)t+i1t C/0+t+//*, Sa1 Cit4, I/3a /n t(e 13th da4 /f August 2013at9:00 a.m..

T(e Defendant i) adi)ed t(at fail0+e t/ a22ea+ 3ill +e)0lt in t(e i))0an1e /f an a++e)t3a++ant.

IT IS FURTHER ORDERED, t(e Defendant7) -/nd and 1/nditi/n) f/+ +elea)e f+/*10)t/d4 in t(i) *atte+ )(all -e8

Defendant i) +elea)ed /n 2e+)/nal +e1/6ni9an1e.

'/nd i) )et in t(e a*/0nt /f :;;;;;;;;;;;;;;;;.'/nd *a4 -e 0n)e10+ed.'/nd *0)t -e 1a)( /+ )e10+ed in t(e a*/0nt /f t(e '/nd."!< 1a)( *a4 -e 2/)ted.

Bond previously set shall continue.Cle+= /f C/0+t )(all i))0e a )0**/n) f/+ Defendant t/ A22ea+.Cle+= /f C/0+t )(all i))0e an a++e)t 3a++ant.Other Conditions of elease:

!efendant shall o"ey all #ederal$ %tate$ and &ocal la's.

T(e Defendant )(all -e /n 2+e>t+ial )02e+i)i/n t/ t(e Se1/nd J0di1ial Di)t+i1tDe2a+t*ent /f C/++e1ti/nal Se+i1e).

Ot(e+8



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Type: ORDER FOR ARRAIGNMENT



So Ordered



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E-FILED 2013 AUG 12 4:05 PM SAC - CLERK OF DISTRICT COURT


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2RCR02

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA,

PLAINTIFF,

vs.KYLE LOUIS JOHNSON ,

DEFENDANT.

Case No. 02811 OWCR012350

ORDER FOR TRIAL

1. Defendant filed a Written Arraignment and Plea of Not Guilty to all charges onAugust 12, 2013.

2. The Defendant's name as charged in the Trial Information is true and correct.

3. Defendant demands the right to speedy trial.

4. Defendant is represented by David R. Johnson.

IT IS, THEREFORE, THE ORDER OF THE COURT that the jury trial of this caseshall commence on October 2, 2013, at 9 a.m.

IT IS FURTHER ORDERED that a pretrial conference is scheduled on September 24,2013, at 9:00 a.m.

If the Defendant chooses to take depositions of minuted State's witnesses,depositions are ordered pursuant to I.R.Cr.P.2.13(1). If the Defendant takes depositionsof State witnesses, the Defendant shall comply with I.R.Cr.P.2.13(3) and the State may

depose Defendant's witnesses. If Defendant's counsel is appointed, the depositionsshall be at public expense. Upon Defendant's request, the State is ordered to discloseevidence pursuant to I.R.Cr.P. 2.14(2). If the Defendant requests discretionarydiscovery, the State is ordered to comply with the provisions of I.R.Cr.P. 2.14(b). If theDefendant opts to request discretionary discovery and the State requests reciprocaldiscovery, the Defendant shall comply with the disclosure required by I.R.Cr.P.2.14(3).Either party may object to the order for discretionary discovery and have the matter setfor hearing. The State shall disclose any exculpatory evidence, including any evidencerelating to the credibility of minuted witnesses.

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E-FILED 2013 AUG 13 9:03 AM SAC - CLERK OF DISTRICT COURT


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CLERK TO FURNISH COPIES TO:SAC COUNTY ATTORNEYDAVID R JOHNSON

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Case Number Case TitleOWCR012350 STATE VS KYLE LOUIS JOHNSON

Type: ORDER SETTING TRIAL

So Ordered


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E-FILED 2013 SEP 20 11:01 AM SAC - CLERK OF DISTRICT COURT


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STATE OF IOWA,

Plaintiff,

v.

KYLE LOUIS JOHNSON,

Defendant.

Cae N!. OWCR"#$%&"

ORDER SETTIN' HEARIN' ON

DEFENDANT(S )OTION TOSUPPRESS, PRETRIALCONFERENCE, AND TRIAL

IT IS HERE*Y ORDERED +eain- !n defendant( !ti!n t! /00e and 0etial

1!nfeen1e +all 2e 1+ed/led f! ##3%" a.. !n O1t!2e $#, $"#%, at t+e Sa1

C!/nt4 C!/t+!/e, Sa1 Cit4, I!5a.

IT IS FURTHER ORDERED t+e tial f! t+i atte +all 2e and i e1+ed/led t!

N!ve2e &, $"#%, at 63"" a..

T+e defendant i NOTIFIED if defendant fail t! 0e!nall4 a00ea 2ef!e t+i

C!/t at t+e a2!ve71+ed/led date and tie, a 2en1+ 5aant a4 i/e f!

defendant( aet.



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Type: OTHER ORDER



So Ordered




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STATE OF IOWA,

Plaintiff,

v.

KYLE LOUIS JOHNSON,

Defendant.

Cae N!. OWCR"#$%&"

ORDER SETTIN' HEARIN' ON

DEFENDANT(S )OTION TOSUPPRESS, PRETRIALCONFERENCE, AND TRIAL

IT IS HERE*Y ORDERED +eain- !n defendant( !ti!n t! /00e and 0etial

1!nfeen1e +all 2e 1+ed/led f! ##3%" a.. !n O1t!2e $#, $"#%, at t+e Sa1

C!/nt4 C!/t+!/e, Sa1 Cit4, I!5a.

IT IS FURTHER ORDERED t+e tial f! t+i atte +all 2e and i e1+ed/led t!

N!ve2e &, $"#%, at 63"" a..

T+e defendant i NOTIFIED if defendant fail t! 0e!nall4 a00ea 2ef!e t+i

C!/t at t+e a2!ve71+ed/led date and tie, a 2en1+ 5aant a4 i/e f!

defendant( aet.



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Type: OTHER ORDER



So Ordered




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STATE OF IOWA,

Plaintiff,

v.

KYLE LOUIS JOHNSON,

Defendant.

CASE NO. OWCR!"#$

ORDER RESCHEDULIN% TRIAL

IT IS HERE&Y ORDERED t'at t'e T(ial )n t'i* +atte( *'all e and i*

(e*-'edled f)( /0 a.+. )n De-e+e( !1, "!#, at t'e Sa- C)nt2

C)(t')*e, Sa- Cit2, I)3a.

T'e defendant i* NOTIFIED if defendant fail* t) 4e(*)nall2 a44ea( ef)(e t'i*

C)(t at t'e a)ve5*-'edled date and ti+e, a en-' 3a((ant +a2 i**e f)(

defendant6* a((e*t.

E-FILED 2013 OCT 18 12:11 PM SAC - CLERK OF DISTRICT COURT


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Type: OTHER ORDER



So Ordered


E-FILED 2013 OCT 18 12:11 PM SAC - CLERK OF DISTRICT COURT


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Regardless, Defendant twice admitting to swerving off the road; the very conduct

Defendant alleges Deputy Cudaback fabricated. Immediately after Deputy Cudaback

stopped Defendant, Defendant admitted he had swerved off the road because he was

texting. Later, when Defendant was being booked into the Sac County Jail, Defendant

again acknowledged that he drove his car off the road.

2. Reasonable Suspicion

Defendant next argues even if Deputy Cudaback observed Defendant twice

swerve off the road and onto the gravel shoulder, such erratic driving does not

constitute reasonable suspicion to believe criminal activity was afoot. In support of this

argument, Defendant cites the Iowa Supreme Courts decision in Tague where the

Court found that an officers observation of a vehicle crossing over the line of a painted

median dividing a four-lane road for a brief period was not sufficient to give rise to a

reasonable suspicion that the driver was intoxicated or fatigued. Tague, 676 N.W.2d at

201.

A traffic stop is a seizure under the Fourth Amendment.Berkemer v. McCarty,

468 U.S. 420, 436-37 (1984); Delaware v. Prous, 440 U.S. 648, 653 (1979); State v.

Tyler, 830 N.W.2d at 291-92; Heminover, 619 N.W.2d at 357. A traffic violation, no

matter how minor, constitutes probable cause to conduct a traffic stop. State v.

Lauwrens, 792 N.W.2d 649, 651 (2010); State v. Tague, 676 N.W.2d 197, 201 (Iowa

2004); State v. Aderholdt, 545 N.W.2d 559, 563 (Iowa 1996). To the extent that this

constitutional proposition requires normativejustification, some have argued and both

the Iowa Supreme Court and Iowa Court of Appeals have recognized that it is the

ongoing danger to the public at large and the need for police to act fast provides it. See

e.g., Sameer Bajaj, Policing the Fourth Amendment: The Constitutionality of

Warrantless Investigatory Stops for Past Misdemeanors, 109 COLUM.L.REV. 309, 319

(2009) (cited in State v. Tyler, 830 N.W.2d 288, 297 n.5 (Iowa 2013); State v. Leer,

2013 WL 4769391, *3 (Iowa Ct. App. 2013) (unpublished)). This includes traffic stops

justified only by perceived equipment violations, so long as the perception or, more

accurately, misperception is reasonable. Tyler, 830 at 291-92 (reasonable mistake of

fact does not defeat probable cause); State v. Kinkead, 570 N.W.2d 97, 100 (Iowa

E-FILED 2013 NOV 18 10:00 AM SAC - CLERK OF DISTRICT COURT


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1997);Aderholdt, 545 N.W.2d at 563). See also Davis, 131 S.Ct. at 2427 ([W]hen the

police act with an objectively reasonable good-faith belief that their conduct is lawful !

the deterrence rationale [justifying exclusion] loses much of its force.). In the absence

of probable cause, however, a law enforcement officer may seize an individual or

vehicle anyway to investigate so long as the officer suspects that criminal activity is

afoot and the scope of the restraint is reasonable in relation to the suspicion. Terry v.

Ohio, 392 U.S. 1, 22 (1968); State v. Tague, 676 N.W.2d, 197, 204 (Iowa 2004); State

v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002).

The purpose of an investigatory seizure based on reasonable suspicion theory is

to provide a police officer the opportunity to confirm or dispel his suspicion of criminal

activity by way of a brief detention and reasonable questioning. Tyler, 830 N.W.2d at

293; Tague, 676 N.W.2d at 204; Kreps, 650 N.W.2d at 641 (citing U.S. v. Hickman, 523

F.2d 323, 327 (9th Cir. 1975)). If an officer can articulate facts that, along with any

inferences drawn from said facts, demonstrate a rational basis for the suspicion, then

the seizure was reasonable and therefore constitutional. State v. Vance, 790 N.W.2d

775, 781 (Iowa 2010); Hergert, 2013 WL 1751298 at *2. Unparticularized suspicion, or

mere hunch, is not a constitutionally sufficient reason for an investigatory stop.

Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000);Alabama v. White, 496 U.S. 325, 329

(1990); Kreps, 650 N.W.2d at 641. The evidence presented by the State justifying an

investigatory seizure therefore may but need not rise to the level of probable cause

to believe a traffic or equipment violation occurred. Tague, 676 N.W.2d, at 204. The

evidentiary standard, properly applied whenever the state seeks to justify a seizure

under this theory, is obviously less than that required of a probable cause showing,

and considerably less than a showing of wrongdoing by a preponderance of the

evidence. Wardlow, 528 U.S. at 123; White, 496 U.S. at 329; United States v. Sokolow,

490 U.S. 1, 8 (1989); United States v. Montoya de Hernandez, 473 U.S. 531, 541

(1985); Tague, 676 N.W.2d, at 204; State v. Richardson, 501 N.W.2d 495, 496-97 (Iowa

1993). Thus, in the context of suspected drunk driving cases, a vehicle is weaving within

its own lane may or may not justify the stop, depending on the rest of the circumstances

presented to the law enforcement officer. State v. Tompkins, 507 N.W.2d 736, 740

(Iowa Ct. App. 1993) Tague, 676 N.W.2d 197, 205; State v. Otto, 566 N.W.2d 509, 510-



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11 (Iowa 1997).

Because the principal function of an investigatory stop is to resolve the

ambiguity as to whether criminal activity is afoot, a law enforcement officer is not

required to rule out all alternative possibilities of innocent behavior before initiating abrief investigatory stop, even if it is equally probable that the conduct observed is

entirely lawful. Richardson, 501 N.W.2d at 497; Kreps, 650 N.W.2d at 642; United

States v. Holland, 510 F.2d 453, 455 (9th Cir.1975). Kreps, 650 N.W.2d at 642 (citing

Holland, 510 F.2d at 455)). Whether a suspicion is reasonable to justify such an

investigation is determined by an objective, reasonable law enforcement officer

standard, based on the facts and circumstances known to the officer at the time. Id.

(citing U.S. v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Cortez, 449 U.S. 411,

417-18 (1981); Terry, 392 U.S. at 21-22). The question of whether reasonable suspicion

exists to stop a vehicle must be measured by current knowledge of the facts and

circumstances; that is, factual knowledge at the time of the stop. Id. (quoting Lewis v.

State, 504 S.E.2d 732, 734 (Ga.Ct.App.1998)). Finally, the circumstances under which

the officer acted must be viewed through the eyes of a reasonable and cautious police

officer on the scene, guided by his experience and training. Id. (quoting United States

v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976)).

Whether suspicion is reasonable to constitutionally justify an investigatory stop is

determined by an objective, reasonable law enforcement officer standard, based on

the facts and circumstances known to the officer at the time. U.S. v. Arvizu, 534 U.S.

266, 273 (2002); United States v. Cortez, 449 U.S. 411, 417-18 (1981); Terry, 392 U.S.

at 21-22; Kreps, 650 N.W. at 642. The circumstances under which the officer acted

must be viewed through the eyes of a reasonable and cautious police officer on the

scene, guided by his experience and training. Arvizu, 534 U.S. at 274; Kreps, 650

N.W. at 642 (quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976)) Thisinvolves a two-step determination. First, the Court examines the totality of the facts

actually known to the law enforcement officer, and then proceeds to consider whether a

reasonable officer in those circumstances would have reasonably believed that a traffic

offense had already occurred, was occurring, or that other circumstances warranted

further investigation. Heminover, 619 N.W.2d at 361-62.



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At the end of the day, law enforcement officers must be permitted to act before

their reasonable belief is verified by escape or fruition of the harm it was their duty to

prevent: a good test, therefore, is whether the articulated suspicion is such that, upon

an objective appraisal of the situation, we would be critical of the officer had he let the

event pass without investigation resulting in injury or harm, and even then only in

cases where the deterrence benefits of suppression outweighs its heavy societal costs.

Kreps, 650 N.W.2d at 642 (citing Wayne R. LaFave, Search and Seizure 9.4(b) at 148

(3d ed. 1996)). The Iowa Court of Appeals has also cited Professor LaFave favorably

on this point. SeeState v. Fischels-Wordehoff, 2006 WL 782447 (Iowa Ct. App. 2006)

(unpublished); Davis, 131 S.Ct. at 2427.

First, the driving conduct involved in Taguewas deemed, on the whole, almost

completely innocuous. Id. at 205. The context of this case is quite different than Tague,

for it involves driving conduct, that is on the whole completely inappropriate and

troubling, if not illegal. Second, in Tague the actual reason for the stop was the law

enforcement officers mistaken belief of law. This case involves no such mistake. Here,

the stated basis of the stop was the suspicion that criminal activity was afoot based on

Defendants erratic driving conduct over a very brief period of time.

Surprisingly, Defendant also cites Thompkins in support of his position here. In

Thompkins, Iowa Court of Appeals found that a peace officer had reasonable suspicion

to stop a Defendant who weaved from the center line to the right side boundary several

times. Thompkins, 507 N.W.2d at 740. By his own admissions, Defendants conduct in

the instant matter was more egregious than that of the defendant in Thompkins.

A preponderance of the evidence demonstrates Deputy Cudaback had at least

reasonable suspicion to believe criminal activity was afoot when he observed Defendant

twice drive off the road and onto the shoulder. The Defendants erratic driving coupled

with other relevant facts and circumstances acknowledged by Defendant in his motion

(i.e., erratic driving occurred on a busy 4th of July weekend, less than a mile from

Blackhawk Lake).

3. Probable Cause



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Deputy Cudaback not only had reasonable suspicion to believe criminal activity was

afoot, Defendant he had probable cause to believe Defendant had committed a crime.

Any person who drives any vehicle in such manner as to indicate either a willful or a

wanton disregard for the safety of persons or property is guilty of reckless driving. I OWA

CODE 321.277 (2013) In his motion, Defendant falsely states [Deputy Cudaback]

never asserted [Defendant] violated any traffic law, and [Defendant] never violated any

traffic laws, so this exception is not applicable. After informing Defendant that he was

being cited for texting while driving, Deputy Cudaback told the Defendant he could have

also citied Defendant for reckless driving, but was choosing not to do so.

Because the reasonable-suspicion standard is an objective test, the State is not

bound by the reasons given by the law enforcement officer as the basis for the stop.

Instead, if the facts show that a reasonable law enforcement officer could have believed

that a traffic violation occurred prior to the stop, then the stop was constitutionally

justified; that is, the Court may identify the occurrence of a traffic violation where the

facts produced by the State support such a finding even if the law enforcement officer

did not recognize the violation at the time. Because the State will produce such

evidence at the suppression hearing, the objective test will be satisfied, and the stop

constitutionally justified on this basis in addition to the reasonable suspicion theory. The

objective nature of the reasonable grounds test permits the Court, after a sufficient

showing by the State, to reasonably suspect that Defendant violated Iowa Code section

321.277 immediately prior to the stop. This, standing alone, is a sufficient constitutional

basis for the stop. The stop in this case, therefore, may be constitutionally justified

either way.

4. Community Caretaker Function

Defendant correctly states in his motion that peace officers in the State of Iowa are

charged with duties that go beyond investigating and enforcing the criminal laws of this

State. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706,

714-15 (1973). The community caretaking function is applicable in cases where the

police stop vehicles in the interest of public safety. State v. Mitchell, 498 N.W.2d 691,

693-94 (Iowa 1993)



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In addition to the foregoing, the community caretaking function is also certainly

applicable in the instant case. As noted earlier, the Defendant agreed with Deputy

Cudaback that had Defendant swerved in the same manner, but in the other direction,

there would most likely have been a head-on collision between Defendant and

oncoming traffic.

B. VALIDITY OF THE PBT AND IMPLIED CONSENT PROCEDURE

Defendant next argues Deputy Cudaback did not have reasonable grounds to invoke

implied consent because Deputy Cudabacks PBT had not recently been calibrated and,

therefore, Deputy Cudaback is precluded from using the same to establish probable

cause to arrest Defendant. In other words, Defendant argues that without the PBTresult, probable cause did not exist for Deputy Cudaback to arrest Johnson for OWI.

Iowa's implied consent law requires that withdrawal of body substances and a

chemical test must be administered at the written request of a peace officer having

reasonable grounds to believe that person was operating a motor vehicle while

intoxicated. Munson v. Iowa Dep't of Transp., Motor Vehicle Div., 513 N.W.2d 722, 723

(Iowa 1994) (citing IOWA CODE 321J.6). The reasonable grounds test is met when the

facts and circumstances known to the officer at the time action was required would havewarranted a prudent person's belief that an offense has been committed. Id. (quoting

State v. Braun,495 N.W.2d 735, 738-39 (Iowa 1993).

Deputy Cudaback had reasonable grounds to believe Defendant was operating a

motor vehicle while intoxicated without the PBT result. Defendant was stopped for

erratic driving, was observed to have red (bloodshot) watery eyes and slurred speech,

admitted to drinking a lot of beers, and failed all field sobriety tests.

C. DEFENDANTS RIGHT TO AN INDEPENDENT CHEMICAL TEST

Lastly, Defendant argues Deputy Cudaback interfered with his right to an

independent chemical test and such interference was tantamount to a refusal requiring

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An arrestee may request to 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. IOWA CODE 321J.11 (2013) An arrestees statutory

entitlement to an independent chemical test to determine his alcohol concentration is

only applicable when the motorist has submitted to a requested test. State v. Bloomer,

618 N.W.2d 550 (2000) The arresting officer who seeks to perform chemical testing to

determine blood alcohol concentration of motorist who has been arrested is NOT

required to convey to arrestee his / her statutory right to take an independent test after

submitting to a test requested by the officer. Id. In a criminal prosecution for driving

under the influence, proof that denial of an independent chemical test require

suppression of any police-administered chemical test. Casper v. Iowa Dept of Transp.,

506 N.W.2d 799, 801 (Iowa Ct. App. 1993). The failure or inability of the person to

obtain an independent chemical test or tests does not preclude the admission of

evidence of the results of the test or tests administered at the direction of the peace

officer. IOWA CODE 321J.11 (2013) In the absence of police hindrance, an individual's

inability to obtain an independent chemical test will not preclude admission of the results

from the police-administered test. IOWA CODE 321J.11; State v. Goodon,443 N.W.2d

74, 76 (Iowa Ct. App. 1989).

In the instant case, Defendant only knew of his right to an independent chemical

test because Deputy Cudaback informed Defendant of as much. Despite being advised

of his right and being offered the only reasonable means available to exercise the same,

Defendant failed to obtain an independent chemical test and, therefore, pursuant to

Iowa Code section 321J, cannot now ask that his breath specimen from the DataMaster

be suppressed. Further, Defendant spoke with his attorney before providing a breath

specimen in the DataMaster. After learning of his right to an independent chemical test,

Defendant had every opportunity to again call his attorney and discuss the independent

chemical test, but he did not; rather, Defendant relied on the information provided by

Deputy Cudaback.

CONCLUSION



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WHEREFORE, based on the foregoing, the State of Iowa respectfully requests

that following the hearing on Defendants Motion to Suppress Evidence, the Court

DENY Defendants Motion in its entirety and order such other relief the Court deems

appropriate.

____________________________Benjamin John Smith - AT0008834Sac County AttorneySac County Courthouse100 NW State St., Suite 9Sac City IA 50583Telephone: 712-662-4791Facsimile: 712-662-4123

Email: [email protected]



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2RCR04IN THE IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA,

Plaintiff,

vs.KYLE LOUIS JOHNSON ,

Defendant.


COURT REPORTER MEMORANDUM AND

CERTIFICATE

COURT REPORTER MEMORANDUM(The court reporter shall file this memorandum with the district court clerk.)

Appearances:For the State: Ben SmithFor the Defendant: David JohnsonOther:

Information required by Iowa Rule of Civil Procedure 1.903(3):I, Tara Gibson, am providing the following information as required by Iowa Rule of CivilProcedure 1.903(3):

1. The type of proceeding that was reported: Motion to Suppress 2. The date(s) on which the proceeding occurred: November 18, 2013 3. The name of the court reporter who reported the proceeding: Tara Gibson 4. The name of the judge who presided over the proceeding: Gary McMinimee 5. The reporting fee for the proceeding: $40.00 6. We, the undersigned judge before whom the above-entitled case was tried, and the

official court reporter who, by order of the Court, reported the same, do hereby certify that theabove and foregoing is the report of the whole proceedings upon the trial and/or hearing ofthe above-entitled cause made and taken pursuant to the order and direction of the Court, inaccordance with Iowa Code Section 624.10.

/s/ Tara Gibson ___________________________________ District Court Reporter

1 of 2

E-FILED 2013 NOV 18 12:26 PM SAC - CLERK OF DISTRICT COURT


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Case Number Case TitleOWCR012350 STATE VS KYLE LOUIS JOHNSONType: COURT REPORTER MEMORANDUM AND CERTIFICATE

So Ordered


2 of 2

E-FILED 2013 NOV 18 12:26 PM SAC - CLERK OF DISTRICT COURT


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IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA,

Plaintiff,vs.KYLE LOUIS JOHNSON ,

Defendant.

Case No: 02811 OWCR012350

EXHIBIT LIST

Motion to SuppressNovember 18, 2013

Presiding Judge: Gary McMinimee

The following exhibits were offered and admitted by the Court at the hearing as shown above:State's Exhibits

1. Sheriff's report2. DVD

3. DVD4. DOT form.

1 of 2

E-FILED 2013 DEC 09 10:15 AM SAC - CLERK OF DISTRICT COURT


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Case Number Case TitleOWCR012350 STATE VS KYLE LOUIS JOHNSONType: EXHIBIT LIST

So Ordered


2 of 2



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STATE OF IOWA, ))

Plaintiff, ) No. OWCR01230

)!". ) ORDER)

#Y$E $OUIS %OHNSON, ))

D&f&n'ant. )

Defendants Motion to Suppress evidence came on for hearing on

November 18, 2013. he State appeared b! Sac "ount! #ttorne! $en%amin

Smith. he Defendant appeared b! his counse& David 'ohnson. he Defendant

(as stopped on 'u&! ), 2013 in Sac "ount!, *o(a and arrested for +*- he then

submitted to a breath test. he Defendant cha&&enges the stop and the

admissibi&it! of the breath test. he parties submitted the matter on stipu&ated

evidence.

*

+n 'u&! ), 2013, at approimate&! /00 p.m., Sac "ount! Deput!

"udabac (as (est bound on igh(a! 1/ near 4o&f #venue (hen he observeda gra! 2005 onda "46 (estbound approimate&! 178 mi&e ahead of him. e

observed the onda drive off the road(a! and hit the grave& shou&der and then

s(erve bac onto the road(a!. e got c&oser to the onda as it again s(erved

off the road(a! and hit the grave& shou&der near uinc! #venue. e then

initiated his emergenc! &ights as the onda pu&&ed into Spar!s gas station in

9ae 6ie(, *o(a.

"udabacs patro& vehic&e (as e:uipped (ith a video camera and

digita& recorder. he D6D recording sho(s approimate&! 3 seconds of video

before "udabac turned on his emergenc! &ights. he camera (as pointed out

the front of the patro& vehic&e. he parties stipu&ated that ;a&though the 'ohnson

vehic&e is not a&(a!s visib&e


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trave&ing do(n the road(a!.> he Defendant contends the video sho(s that he

(as driving appropriate&!. he State contends the video sho(s a dust p&ume as

the Defendant past uinc! #venue. *n this "ourts vie(, the video is of &itt&e he&p

in ascertaining the manner in (hich the Defendant (as driving. he Defendants

vehic&e is obscured for the most part b! (hat appears to have been a bug that hit

the (indshie&d direct&! in front of the camera. his "ourt does not be&ieve the

video contradicts "udabacs report of observing the Defendants vehic&e t(ice

hitting the grave& shou&der and s(erving bac onto the road(a! and the

Defendant confirmed he had driven off the road(a!.

he State sees to support the stop based on theories of probab&e

cause, reasonab&e suspicion, and7or communit! caretaing. *n this "ourts vie(,

"udabacs observations did not give him probab&e cause to be&ieve that the

Defendant vio&ated an! traffic &a(. o(ever, an officer ma! stop a moving

automobi&e ;in the absence of probab&e cause if the po&ice have reasonab&e

suspicion to be&ieve crimina& activit! is taing p&ace.> State v. Pals, 80 N..2d

/5/, //) ?*o(a 2011@. hen a person cha&&enges a stop on the basis that

reasonab&e suspicion did not eist, the State must sho( b! a preponderance of

the evidence that the stopping officer had specific and articu&ab&e facts, (hich

taen together (ith rationa& inferences from those facts, to reasonab&! be&ieve

crimina& activit! ma! have occurred. State v. Tague, 5/5 N..2d 1A/, 20) ?*o(a

200)@. #&so, an officer ma! stop a driver in the eercise of a communit!

caretaing function (here the facts avai&ab&e to the officer at the time of the stop

(ou&d &ead a reasonab&e person to be&ieve that action taen b! the officer (as

appropriate. State v. Mitchell, )A8 N..2d 5A1, 5A3B) ?*o(a 1AA3@. ere, the

Defendants driving onto the shou&der and bac onto the road(a! on t(o

separate occasions in a re&ative&! short distance provided "udabac (ith reason

to be&ieve crimina& activit! ma! be occurring in the form of operating (hi&e

intoicated and7or to be&ieve that the driver ma! be fatigued or other(ise ma! be

in need of assistance.

he Defendants re:uest to suppress evidence in this case based

upon un&a(fu& stop shou&d be denied.



62/81

II

he Defendant contends that "udabac did not have reasonab&e

grounds to invoe imp&ied consent because the C$ (as inva&id and "udabac

re&ied in part on the C$ as grounds for his arrest.

;*o(as imp&ied consent &a( re:uires that (ithdra(a& of bod!

substances and a chemica& test must be administered at the (ritten re:uest of a

peace officer having reasonab&e grounds to be&ieve that person (as operating a

motor vehic&e (hi&e intoicated.> Munson v. Iowa Dept of Transp., 13 N..2d

/22, /23 ?*o(a 1AA)@. ;he reasonab&e grounds test is met (hen the facts and

circumstances no(n to the officer at the time action (as re:uired (ou&d have

(arranted a prudent persons be&ief that an offense has been committed.> *d.

ere, the C$ device had not been ca&ibrated month&! as re:uired

b! the *o(a #dministrative "ode. he State made no effort to estab&ish

substantia& comp&iance. o(ever, even if the C$ resu&t is not considered,

"udabac had reasonab&e grounds to be&ieve that the Defendant (as operating

his motor vehic&e (hi&e intoicated. e noted the strong odor of a&coho& coming

from the inside of the Defendants vehic&e. e had observed that the Defendant

had red, b&oodshot (ater! e!es and s&o(, s&urred speech. During the horiEonta&

gaEe and n!stagmus test, the Defendant s(a!ed side to side in order to eep his

ba&ance. he Defendant fai&ed the FN test (ith si of si c&ues1. e a&so fai&ed

(a& and turn test and one &eg stand test. *n short, (hether or not "udabac

re&ied upon the C$ test in maing his determination to arrest the Defendant for

+*, he, as a reasonab&e officer, had reasonab&e grounds for arresting the

Defendant for +* (ithout re&iance upon the C$ resu&ts. #ccording&!, the

Defendants re:uest to suppress evidence based upon the contention that

"udabac &aced grounds to invoe imp&ied consent shou&d be overru&ed.

III

he Defendant sees to suppress the breath test on the grounds

that "udabac misrepresented and interfered (ith the Defendants right to an

independent chemica& test.

1"udabacs credibi&it! is not an issue (ith respect to the scoring of the sobriet! tests.



63/81


64/81

"udabac (as incorrect in indicating that the right (as dependent

upon the Defendant be&ieving the breatha&!Eer (as inaccurate and that the

independent test had to be a b&ood test taen in an H4. #&though (hat

"udabac stated ma! (e&& have been, as a practica& matter, the on&! avai&ab&e

independent test in the area, there is no evidence of that in the record.

"udabacs statements of be&iefs regarding insurance coverage and that a b&ood

test (ou&d come bac higher, and his eperience in having had on&! one person

have an independent test in si !ears, imp&ied it (as foo&ish to do so, and

obvious&! discouraged the Defendant from pursuing the matter further as sho(n

b! the Defendants statement to "udabac ;*m not tr!ing to fuc m!se&f over

an! more than * got to.> *n this "ourts vie(, "udabacs erroneous description

of the independent chemica& test coup&ed (ith the statements of his persona&

be&iefs and eperience regarding independent tests (ere such to impede the

Defendant in pursuing such a test to the etent as to amount to a denia& of an

independent test. #ccording&!, the breatha&!Eer test shou&d be suppressed.

ORDER

IT IS THEREFORE ORDERED that the Defendants Motion to

Suppress is sustained to the etent that the breath test in this matter is

suppressed. he ba&ance of the Motion is overru&ed.

Dated this 5th da! of December, 2013.

"&er to provide copies to"ount! #ttorne!David 'ohnson



65/81


Type: OTHER ORDER



So Ordered




66/81

2RCR01


STATE OF IOWA,

PLAINTIFF,

vs.

KYLE LOUIS JOHNSON ,

DEFENDANT.


O R D E R

This matter comes to the Court's attention for rescheduling of trial and pre-trial

conference.

IT IS THEREFORE ORDERED that trial is now scheduled for January 28, 2014 at 9:00

a.m. at the District Associate Court, Sac County Courthouse, Sac City, Iowa. Pre-trial

conference is scheduled for January 15, 2014 at 11:00 a.m. at the District Associate

Court, Sac County Courthouse, Sac City, Iowa.

CLERK TO FURNISH COPIES TO:

SAC COUNTY ATTORNEY

DAVID R JOHNSON

1 of 2

E-FILED 2013 DEC 17 1:33 PM SAC - CLERK OF DISTRICT COURT


67/81


68/81

2RCR01


STATE OF IOWA,

PLAINTIFF,

vs.


DEFENDANT.


O R D E R

This matter comes to the Court's attention for rescheduling of trial and pre-trial

conference.

IT IS THEREFORE ORDERED that trial is now scheduled for January 28, 2014 at 9:00

a.m. at the District Associate Court, Sac County Courthouse, Sac City, Iowa. Pre-trial

conference is scheduled for January 15, 2014 at 11:00 a.m. at the District Associate

Court, Sac County Courthouse, Sac City, Iowa.

CLERK TO FURNISH COPIES TO:

SAC COUNTY ATTORNEY

DAVID R JOHNSON

1 of 2



69/81


Case Number Case TitleOWCR012350 STATE VS KYLE LOUIS JOHNSONType: OTHER ORDER

So Ordered


2 of 2



70/81

E-FILED 2014 JAN 16 3:11 PM SAC - CLERK OF DISTRICT COURT


71/81



72/81



73/81



74/81


STATE OF IOWA,

Plaintiff,vs.


Defendant.

02811 OWCR012350

ORDER

The Court is informed by counsel that the Defendant wishes to submit a Written Plea of Guilty inthis cause.IT IS, THEREFORE ORDERED that the Defendant shall either submit a Written Plea of Guilty to theCourt or personally appear for further proceedings, a Plea Hearing is scheduled on 02/05/2014 at9:30 AM at the Sac Co. Courthouse, 100 NW State St., Sac City, Iowa.

Failure to submit the plea or appear in Court at the scheduled time may result in a warrant of arrestbeing issued.

1 of 2

E-FILED 2014 JAN 17 8:29 AM SAC - CLERK OF DISTRICT COURT


75/81


Case Number Case TitleOWCR012350 STATE VS KYLE LOUIS JOHNSONType: OTHER ORDER

So Ordered


2 of 2



76/81


STATE OF IOWA, No. OWCR012350Plaintiff,

REQUEST FOR LEAVE OF

vs. COURT TO AMEND TRIAL

INFORMATION

KYLE LOUIS JOHNSON,

Defendant.

COMES NOW the State of Iowa and for its request for leave of Court to amend the TrialInformation in the above entitled matter states to the Court:

1. The amendment will not materially change the issues nor work any hardship on the

Defendant.

2. Substantial rights of the defendant are not prejudiced by the attached Amendment.

3. A wholly new and different offense is not being charged.

4. As part of a Plea Agreement, Defendant is pleading to the charge of:

Count I: Public Intoxication, First Offense, a Simple Misdemeanor in violation of IowaCode Section 123.46(2)

5. A copy of the amended and substituted Trial Information is attached.

WHEREFORE, the State of Iowa requests leave of Court to file the proposed substitutedand amended Trial Information.

/s/Benjamin John SmithProsecuting Attorney

Sac County Attorney, Benjamin John Smith

Sac County Courthouse100 NW State St., Suite 9Sac City IA 50583

Telephone: 712-662-4791Fax: 712-662-4123

Email: [email protected] to: PROOF OF SERVICEThe undersigned certifies that the foregoing

instrument was served upon all parties to the above causeto each of the attorneys of record herein at their respective

addresses disclosed on the pleadings on January 17, 2014

by: [ ] U.S. Mail [ ] Fax

[ ] Hand Delivered [ ] Overnight Courier[ ] Certified Mail [x ] EDMS

Signature: /s/Norma Hecht

mailto:[email protected]:[email protected]


77/81


STATE OF IOWA, CRIMINAL CAUSE NO. OWCR012350 Plaintiff,

AMENDED vs. TRIAL INFORMATION

KYLE LOUIS JOHNSON,

DOB: 06/17/1991 Defendant.

COUNT I

COMES NOW Benjamin John Smith, as Prosecuting Attorney of Sac County Iowa and

in the name and by the authority of the State of Iowa, accuses Defendant, Kyle Louis Johnson

of the crime ofPUBLIC INTOXICATION, FIRST OFFENSE, a Simple Misdemeanor in violation

of Iowa Code Section 123.46(2) committed as follows:

The said Defendant, Kyle Louis Johnson, on or about July 4, 2013 in the County of

Sac and State of Iowa, did unlawfully and willfully be intoxicated while being in a public place.

A TRUE INFORMATION

/s/Benjamin John SmithProsecuting Attorney

Sac County Attorney, Benjamin John SmithSac County Courthouse100 NW State St., Suite 9Sac City IA 50583Telephone: 712-662-4791Fax: 712-662-4123Email: [email protected]

mailto:[email protected]:[email protected]


78/81

THE IOWA DISTRICT COURT FOR SAC COUNTYSTATE OF IOWA, )

) CRIM. NO. OWCR012350Plainti, )

)

!". )) #UD$MENT AND SENTENCE

%Y&E &OUIS #OHNSON, ))

D''n(ant. )

E IT REMEMERED t*at +n t*' 1t* (a- + #ana/-, 201, t*' a+!''ntitl'( att'/ 4a'

'+/' t*' C+/t +/ /+"'" + D''n(ant6" l'a + 7ilt- t+ an a'n('( 4*a/7' + Pli4

Int+8i4ati+n, a "il' i"(''an+/, in !i+lati+n + I+9a C+(' S'4ti+n 123.:;2).

T*' D''n(ant a'a/'( - *i" 4+n"'l, Da!i( R. #+*n"+n, an( t*' Stat' 9a" /'/'"'nt'(

- Sa4 C+nt- Att+/n'- 'n Sit*.

T*' C+/t +n t+(a-6" (at' a44't'( D''n(ant6" 9/itt'n l'a + 7ilt-. T*' a/ti'" /'


79/81


Type: OTHER ORDER



So Ordered




80/81

IOWA DISTRICT COURT FOR SAC COUNTY

STATE OF IOWA,

Plaintiff,

vs.

KYLE LOUIS JOHNSON,

Defenant.

Case N!. OWCR"#$%&"

ORDER

NOW, !n t'is #(t'

a) !f Jan*a+), $"#, t'e C!*+t is in +e-eit !f t'e State/s

0!ti!n t! A1en T+ial Inf!+1ati!n an A1ene T+ial Inf!+1ati!n. T'e 0!ti!n t!A1en s'!*l 2e 3+ante.

IT IS THEREFORE ORDERED t'at t'e State/s 0!ti!n t! A1en T+ial

Inf!+1ati!n is 3+ante.

Cle+4 t! f*+nis' -!ies t!5Sa- C!*nt) Att!+ne)Defense C!*nsel



81/81


Type: OTHER ORDER



So Ordered



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Lake View Man Pleads Guilty to Amended Charge of Public Intoxication

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