Opinion
No. 2-499 / 01-1847.
Filed August 14, 2002.
Appeal from the Iowa District Court for Cass County, GORDON C. ABEL, Judge.
The Iowa Department of Transportation appeals from the district court's ruling on judicial review reversing the revocation of Ryan Hollinrake's driving privileges. REVERSED.
Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Mark Hunacek, Assistant Attorney General, for appellant.
John Trewet of Rutherford, Trewet Knuth, Atlantic, for appellee.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
The Iowa Department of Transportation (IDOT) appeals from the district court's ruling on judicial review reversing the IDOT's revocation of Ryan Hollinrake's driving privileges. It contends the district court erred in overturning the revocation order based on the fact that Hollinrake was not under continuous observation for fifteen minutes prior to the administration of the preliminary breath test. We review for errors at law. Wieslander v. Iowa Dep't. of Transp., 596 N.W.2d 516, 520 (Iowa 1999).
Officer Dan Sitzman stopped Hollinrake's vehicle on April 10, 2001, upon learning the registration did not match the vehicle's make and model. At the time, Officer Sitzman observed that Hollinrake's eyes were bloodshot and watery. Officer Sitzman asked Hollinrake to follow him in his vehicle for about two to three blocks to the sheriff's office where Officer Sitzman researched the registration. While Officer Sitzman checked the registration information, Hollinrake sat in a chair nearby.
Officer Bowers informed Officer Sitzman that Hollinrake smelled of alcoholic beverages and a preliminary breath test (PBT) should be performed. Officer Bowers administered a horizontal gaze nystagmus test, which Hollinrake failed. Officer Bowers then administered a PBT, which indicated an alcohol concentration in excess of .10. A breath test indicated an alcohol concentration of .108.
Officer Sitzman may have missed the odor of the alcoholic beverages because his sense of smell is impaired.
Hollinrake's driver's license was revoked for chemical test failure. The revocation was sustained following a contested case hearing and on administrative appeal. On judicial review, the district court rescinded the revocation because Hollinrake was not under continuous observation in the fifteen minutes prior to the PBT.
The IDOT argues the district court erred in rescinding Hollinrake's license revocation because Hollinrake failed to present evidence of anything that occurred during the period he was not in police observation, or how it affected the PBT results. Even if an arrestee is not continually observed, he must present evidence the test results were affected because he smoked, ate, or drank prior to administration of the test. Anson v. Iowa Dep't. of Transp., 477 N.W.2d 695, 697 (Iowa Ct.App. 1991). To successfully challenge test results, a driver must do more than merely speculate something might have occurred to invalidate those results. Id. Because there is no evidence anything occurred to invalidate the PBT results, we reverse the district court's rescission of Hollinrake's license revocation.
REVERSED.