IN THE COURT OF APPEALS OF IOWA

No. 16-1618

Filed July 19, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CONNER DANIEL CARNEY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Boone County, Paul G. Crawford, 

District Associate Judge.

Daniel Carney appeals the judgment entered following his conviction of 

operating while intoxicated, third offense. AFFIRMED.

Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for 

appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant 

Attorney General, for appellee.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2

DOYLE, Judge.

Daniel Carney appeals the judgment entered following his conviction for 

operating while intoxicated (OWI), third offense. He challenges the time in which 

the State filed the indictment and the manner in which a law enforcement officer 

obtained his blood for chemical testing. We affirm.

I. Background Facts and Proceedings.

On December 28, 2015, a car crashed into the back of a semi-trailer at a 

marked four-way intersection on Highway 30. Boone Police Officer Daniel Lynch 

found Carney unconscious in the driver’s seat of the car. After Carney was 

transported to the hospital for medical treatment and evaluation, Officer Lynch 

observed Carney to have blood-shot eyes, slurred speech, and an odor 

consistent with an alcoholic beverage. The officer also observed Carney 

repeatedly asking the medical staff questions they had already answered. 

Officer Lynch suspected Carney was impaired, but because Carney was lying on 

his back strapped to a hospital bed and undergoing medical treatment, Officer 

Lynch was unable to perform standardized field sobriety tests. The officer asked 

Carney if he had consumed any form of alcohol, controlled substance, or 

medication. Carney responded, “No comment.” The officer left the room and 

talked with one of the treating doctors who confirmed that she smelled of an odor 

of alcoholic beverage coming from Carney. 

Officer Lynch returned to Carney’s hospital room and asked Carney if he 

had “had anything to drink at all?” Carney responded, “No.” The officer asked if 

Carney would take a preliminary breath test. Carney said “No.” He refused to 

provide a breath sample for chemical testing explaining, “There is no way for me 
3

to do it.” The officer then requested a blood sample for chemical testing, and 

Carney said, “Sure.” The officer again asked if Carney had anything to drink that 

evening, and Carney said he had beer earlier. When asked “How much,” Carney 

responded, “Not too much,” and said he did not drink beer while he was driving. 

Officer Lynch then read the implied consent advisory to Carney. He also read 

Carney his Miranda rights. Carney signed the consent form. When it came time 

to draw the blood, Carney refused. Officer Lynch again explained the implied 

consent law. Carney then said, “Oh, draw the damn blood.” After additional 

conversation concerning the implied consent law, Carney consented to the blood 

draw. Testing revealed a blood alcohol content of .183. The blood also tested 

positive for the presence of THC. 

The State charged Carney with third-offense OWI on March 2, 2016. An 

amended trial information was filed on March 14, 2016, to reflect the presence of 

a controlled substance in Carney’s blood. On the same day, Carney was 

arraigned and pleaded not guilty. 

Carney filed a motion to dismiss, arguing the State violated his right to a 

speedy indictment. He also filed a motion to suppress the results of his blood 

test, arguing Officer Lynch obtained the sample in violation of Iowa Code 

sections 321J.6(2) and 321J.9 (2015). The trial court denied both motions, 

Carney then waived his right to a jury trial and agreed to trial on the minutes of 

evidence. The court found him guilty of third-offense OWI. 

II. Motion to Dismiss.

Carney appeals, first arguing the trial court erred in denying his motion to 

dismiss on speedy-indictment grounds. See Iowa R. Crim. P. 2.33(2) (requiring 
4

the court to dismiss criminal charges brought against a defendant more than 

forty-five days after arrest). Carney claims he was arrested on December 28, 

2015, but was not indicted until March 2, 2016—sixty-five days later. We review 

his claim for correction of errors at law. See State v. Hart, 703 N.W.2d 768, 771 

(Iowa 2005). 

Carney’s claim is based on the holding of State v. Wing, 791 N.W.2d 243, 

247-49 (Iowa 2010), in which our supreme court held the clock begins to tick on a 

speedy-indictment claim when a reasonable person in the defendant’s position 

would have believed an arrest occurred—regardless of whether the defendant is 

arrested under the conditions required by statute. After Carney filed this appeal 

and the parties’ briefs were submitted, our supreme court overruled Wing. See

State v. Williams, 895 N.W.2d 856, ___, 2017 WL 2291375, at *8 (Iowa 2017). 

The court held:

Arrest for the purposes of the speedy indictment rule requires the 

person to be taken into custody in the manner authorized by law. 

The manner of arrest includes taking the arrested person to a 

magistrate. The rule is triggered from the time a person is taken 

into custody, but only when the arrest is completed by taking the 

person before a magistrate for an initial appearance.

Id. Carney was not taken into custody in a manner authorized by law until 

February 8, 2016. Because the trial information was filed within forty-five days of 

this date, Carney’s right to a speedy indictment pursuant to rule 2.33(2) was not 

violated. The trial court properly denied Carney’s motion to dismiss on speedyindictment grounds.
5

III. Motion to Suppress. 

Carney also argues the trial court erred in denying his motion to suppress 

the results of his blood test. He claims: (1) Officer Lynch violated Iowa Code 

chapter 321J by obtaining his blood sample after he refused to submit to a breath 

test and (2) his consent to the blood test was not voluntary. We review his 

claims for correction of errors at law. See State v. Lukins, 846 N.W.2d 902, 906 

(Iowa 2014) (“We review for correction of errors at law a district court’s ruling on 

a motion to suppress based on the interpretation of a statute.”). 

A. Statutory requirements for chemical testing. 

Iowa Code chapter 321J sets forth both criminal and civil OWI 

proceedings. See State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010). Section 

321J.6, our implied consent statute, provides that drivers under suspicion of OWI 

who refuse to submit to chemical testing are subject to the civil penalty of license 

revocation. See Iowa Code §§ 321J.6(2), .9. Section 321J.6(2) states that if a 

law enforcement officer asks a driver to submit to breath or urine testing, any 

refusal to submit is deemed a refusal for the purposes of a license revocation 

proceeding; but if an officer asks a driver to submit to blood testing and the driver 

refuses, the officer must then offer breath or urine testing.1 See id. § 321J.6(2). 

Section 321J.9(1) further states, “If a person refuses to submit to the chemical 

testing, a test shall not be given . . . .” In interpreting these statutory provisions in 

the context of a license revocation proceeding, our supreme court has

 

1 A blood sample is treated differently “primarily [as] an accommodation to those 

motorists whose religious beliefs or physical condition make the blood test unsuitable.” 

Rodriguez v. Fulton, 190 N.W.2d 417, 419 (Iowa 1971). 
6

determined that “an initial refusal to consent to chemical testing is binding.” 

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 599 (Iowa 2011). 

Relying on the foregoing statutes and law, Carney alleges that once a 

motorist refuses to submit to chemical testing of any kind, an officer is estopped 

from again requesting chemical testing of any kind. He argues that by requesting 

a blood test after he refused a breath test, Officer Lynch violated sections 

321J.6(2) and .9, and the results of the blood test should have been suppressed 

on that basis. 

In previous cases, this court has addressed similar claims and declined to 

hold chapter 321J prevents an officer from requesting a driver provide another 

sample after an initial refusal. See State v. Brown, No. 13-0995, 2014 WL 

1999113, at *1-2 (Iowa Ct. App. May 14, 2014) (noting “the one-refusal mandate 

articulated in Welch does not necessarily apply to the admission of the test into 

evidence in a criminal case”); State v. Morris, No. 13-0080, 2014 WL 467652, at 

*5 (Iowa Ct. App. Feb. 5, 2014) (distinguishing “placing a burden on all law 

enforcement officers to stand by if an arrested motorist should change their mind 

and a single officer who chose to do so”). We have held that, although a law 

enforcement officer is not required to honor a driver’s change of mind after an 

initial refusal to submit to chemical testing, nothing in chapter 321J prevents an 

officer from doing so. See Morris, 2014 WL 467652, at *5. Likewise, nothing in 

chapter 321J prevents an officer who is investigating a criminal violation of the 

chapter from requesting a different chemical test after a motorist initially refuses. 
7

B. Voluntary consent.

Carney also argues the court erred in denying his motion to suppress 

because his consent to the blood test was not voluntary. Consent to chemical 

testing must be given freely, without coercion, and be reasoned and informed. 

See State v. Overbay, 810 N.W.2d 871, 876 (Iowa 2012). In determining 

whether consent was voluntary, we ask “whether the decision to comply with a 

valid request under the implied-consent law is a reasoned and informed 

decision.” Id. (citation omitted). 

As stated above, section 321J.6(2) states that if a driver is offered and 

refuses a blood test, it is not deemed a refusal to submit; rather, the officer must 

then offer a breath or urine test. Carney asserts his consent to the blood test 

was not voluntary because Officer Lynch inaccurately represented the 

consequences of failing to submit to the blood test by informing Carney that 

refusal would result in license revocation. Our supreme court has rejected the 

claim that a defendant’s consent to blood testing is not voluntary when the

defendant erroneously believes failure to give consent to the blood test will result 

in license revocation. See Overbay, 810 N.W.2d at 878-79; State v. Bernhard, 

657 N.W.2d 469, 472-73 (Iowa 2003). Although Carney attempts to distinguish 

the facts of his case from those holdings by noting that Officer Lynch’s request 

for a blood test was his second request for chemical testing, his argument is 

unavailing. 

The trial court did not err in denying Carney’s motion to suppress. 

Accordingly, we affirm his conviction for OWI, third offense.

AFFIRMED.