Why Don't They Have to Play By the Rules

posted by on Friday, June 06, 2008

Iowa Code Section 321J.15 and 321J.11 (2003) requires the operator of a breath testing device to follow the methods approved by the Commissioner of the Department of Public Safety in order for the breath test result to be admissible at trial. The methods that the operators are required to follow are set out at 661 Iowa Administrative Code Section 157.2 (1) (2007) and include a requirement that the operator shall proceed in accordance with the instructions included in the operational checklist and an operating manual furnished by the division of criminal investigation criminalistics laboratory. Iowa Administrative Code 661-157.2(1) adopts and incorporates by reference the following documents: (1) the operational checklist, and (2) the operating manual for the Datamaster. Each of these documents are available to the public by accessing www.state.ia.us/government/dps.



The above rules and documents set forth the parameters that are supposed to be followed in order to introduce at trial any breath test results in the State of Iowa. Despite these clear rules,the Iowa Supreme Court in State v. Stratmeier, 672 N.W. 2d 817 (Iowa 2003), buried their head in the sand and essentailly said we don't really care if the officers follow the rules or not. The Supreme Court in Stratmeier set forth the following:

"unless it can be demonstrated that the test results are so unreliable as to preclude consideration, the results of the tests taken by methods other than those strictly prescribed by administrative regulation are admissible....any challenge to the procedures used in obtaining the chemical test goes to the weight of the evidence rather than its admissibility."

In addition to the Iowa Supreme Court gutting the procedures that the officers are supposed to follow, Robert Monserrate, the head of the Iowa Division of Criminal Investigation Breath Alcohol Testing Division was recently asked under oath if he had ever testified that an officer's failure to follow the appropriate methods ever made the breath test results unreliable. His response was, "not that I remember." Thus, it becomes merely impossible for a person charged with the crime of operating while intoxicated to argue that the breath test results should be excluded because the apporpriate procedures for obtaining the test were not followed.

This begs the question, if we have these rules why don't the officer's have to follow them especially when we are talking about people's freedoms and ability to make a living? Unfortunately for us, the Iowa Supreme Court did not give a rationale for their decision and seemed to go against prior precedent on this issue. See State v. Wolfe, 369 N.W. 2d 458, 459 (Iowa App. 1985) (holding that "in order to admit the results of a breath test into evidence, the State must demonstrate compliance with the procedural requirements of Chapter 321B (now Chapter 321J), and the accuracy and reliability of the particular test results.")