IN THE SUPREME COURT OF IOWA

No. 13–1938

Filed April 17, 2015

STATE OF IOWA,

Appellee,

vs.

BENJAMIN JOSEPH LYON,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Carol S. Egly 

(suppression) and Carol L. Coppola (trial), Judges.

The defendant seeks further review of a court of appeals decision 

affirming the district court’s judgment and sentence for operating while 

intoxicated, second offense. DECISION OF COURT OF APPEALS 

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Brandon Brown of Parrish, Kruidenier, Dunn, Boles, Gribble & 

Gentry, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant 

Attorney General, John P. Sarcone, County Attorney, and Maurice Curry 

and Olu Salami, Assistant County Attorneys, for appellee.
2

APPEL, Justice.

In this case, we consider the validity of a conviction for operating a 

motor vehicle while intoxicated, second offense. The police officer 

stopped Lyon’s vehicle based upon a suspicion that Lyon was operating a 

vehicle without proper illumination in violation of Iowa Code section 

321.388. Lyon claims the arresting officer lacked reasonable suspicion 

to make a traffic stop because the officer was too far from the vehicle to 

have more than a hunch that Lyon’s license plate was improperly 

illuminated and because the headlights of the officer’s vehicle interfered 

with his ability to observe whether a violation of law was occurring. 

Second, Lyon argues that after his arrest for driving while intoxicated, 

his rights under Iowa Code section 804.20 were violated because the 

officer failed to properly inform him of the purpose of a phone call under 

this Code provision.

We transferred the case to the court of appeals. The court of 

appeals affirmed Lyon’s conviction. We granted further review. We now 

vacate the decision of the court of appeals and affirm the district court. 

I. Background Facts and Proceedings. 

A. The Arrest. Polk County Sheriff’s Deputy Jason Tart was on 

duty in Polk County at approximately 2:00 a.m. on May 31, 2013. At 

about that time, he stopped a vehicle driven by Benjamin Lyon based on 

his suspicion that the vehicle was operating without a properly 

illuminated rear license plate in violation of Iowa Code section 321.388

(2013).1 After the stop and subsequent administration of three field

sobriety tests, Deputy Tart arrested Lyon for driving while intoxicated.

1We have viewed the DVD recording from Deputy Tart’s patrol car’s dash 

camera, admitted into evidence at the suppression hearing, and find it inconclusive on 

the factual issues. 

 
3

At the station, Deputy Tart gave Lyon Miranda warnings and the 

implied-consent advisory required by Iowa Code section 321J.6. The 

defendant made three phone calls. After making the phone calls, Deputy 

Tart asked Lyon for a breath sample pursuant to the implied-consent

law. Lyon refused. Ultimately, the State charged Lyon with operating a 

motor vehicle while intoxicated (OWI), second offense, in violation of Iowa 

Code section 321J.2. 

B. Motion to Suppress. Lyon filed a motion to suppress alleging 

both statutory and constitutional violations. 

His statutory grounds were founded on Iowa Code section 804.20. 

According to the motion, Lyon placed his statutorily allowed phone calls 

prior to any law enforcement request for a breath specimen. Thus, at the 

time he was permitted to make the phone calls, Lyon asserted he had no

knowledge he was going to be asked to provide a breath sample. 

Because of this timing, Lyon claimed he was deprived of his opportunity 

to speak to a family member or lawyer about whether to submit to testing, 

which he asserted is the primary purpose under Iowa Code section 

804.20 of allowing telephone calls during an OWI investigation/arrest. 

Further, the motion to suppress claimed the investigating officer violated 

Iowa Code section 804.20 when, after Lyon asked about the purpose of 

the calls, the officer sidestepped the question and provided an evasive 

answer contrary to our caselaw under the statute. Because the purposes 

of the statute were not fulfilled, Lyon argued that his failure to submit to 

the test must be suppressed.

Lyon also asserted constitutional violations in his motion to 

suppress. He claimed the stop was not based upon reasonable suspicion 

or probable cause under the Fourth Amendment of the United States 

Constitution. The motion to suppress also cited article I, section 8 of the 
4

Iowa Constitution, but did not present a separate argument under the 

state constitutional provision. 

The district court held a hearing on the motion to suppress. The 

sole witness at the hearing was Deputy Tart. With respect to the 

circumstances giving rise to the stop of Lyon’s vehicle, Deputy Tart 

testified that in the early morning hours of May 31, 2013, he was 

“probably doing stationary patrol, waiting for cars to drive by that had 

some sort of a violation.” He observed Lyon’s vehicle and believed the 

license plate light was out. He followed Lyon’s vehicle for some distance, 

making sure his headlights did not illuminate Lyon’s license plate. 

Deputy Tart agreed that if you get within a hundred feet or so the 

headlights will illuminate the license plate because it contains reflective 

material. Based on his observation, Deputy Tart testified that he was 

“100 percent certain” his headlights did not illuminate Lyon’s license 

plate. 

Turning to the Iowa Code section 804.20 claim, Deputy Tart 

testified that Lyon had refused to take a preliminary breath test at the 

scene of the stop. Deputy Tart testified he gave Lyon an opportunity at 

the police station to make phone calls. According to Deputy Tart, Lyon 

left voice mail messages for two persons and spoke with his father. After 

Lyon made the phone calls, Deputy Tart asked Lyon for a breath 

specimen. Lyon refused. 

At the conclusion of the suppression hearing, the district court 

read its ruling into the record and denied Lyon’s motion. The court first 

concluded Deputy Tart developed reasonable suspicion that criminal 

activity was afoot when he observed Lyon’s vehicle turning from 

northbound on Main Street to eastbound on Second Avenue without an 

illuminated rear license plate. Additionally, the court held Deputy Tart 
5

had probable cause to initiate the stop after he followed Lyon’s vehicle 

and verified the rear license plate light was out. The court further found 

Deputy Tart complied with the provisions of Iowa Code sections 804.20 

and 321J.6.

A jury subsequently found Lyon guilty of operating a motor vehicle 

while intoxicated. After Lyon stipulated to the disposition of his 

underlying first offense for OWI, he was convicted of OWI, second offense. 

Lyon appealed. The court of appeals affirmed Lyon’s conviction. For the 

reasons expressed below, we vacate the decision of the court of appeals 

and affirm the judgment of the district court. 

II. Standard of Review.

We review alleged violations of constitutional rights de novo. State 

v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997). We make an independent 

evaluation of the totality of circumstances shown by the entire record. 

Id.

“[W]e review the defendant’s challenge of the district court’s 

interpretation of Iowa Code section 804.20 for correction of errors at 

law.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015). We will 

affirm a district court’s ruling on a motion to suppress when the court 

correctly applied the law and there is substantial evidence to support the 

court’s fact-finding. State v. Hellstern, 856 N.W.2d 355, 360 (Iowa 2014).

III. Discussion of Lawfulness of Stop.

A. Iowa Code Section 321.388. In this case, law enforcement 

stopped Lyon’s vehicle based upon the belief that it did not have a 

properly illuminated license plate. The relevant Code provision is Iowa 

Code section 321.388, which provides in pertinent part, “Either the rear 

lamp or a separate lamp shall be so constructed and placed as to 
6

illuminate with a white light the rear registration plate and render it 

clearly legible from a distance of fifty feet to the rear.”

B. Positions of the Parties. 

1. Lyon. Lyon argues police “seized” him within the meaning of 

the Fourth Amendment of the United States Constitution and article I, 

section 8 of the Iowa Constitution. United States v. Mendenhall, 446 U.S. 

544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980) (noting 

that under the Fourth Amendment, a person is “seized” when, “in view of 

all of the circumstances surrounding the incident, a reasonable person 

would have believed that he was not free to leave”); Kinkead, 570 N.W.2d 

at 100. He asserts that in order to engage in a roadside detention, the 

officer must have reasonable suspicion that “criminal activity [is] afoot.” 

Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 

911 (1968); State v. Reisetter, 747 N.W.2d 792, 794–95 (Iowa Ct. App. 

2008). 

From this familiar formulation, Lyon argues that, in this case, 

Deputy Tart lacked reasonable suspicion to make the stop. He asserts 

that when Deputy Tart was questioned about the stop at the hearing on 

Lyon’s motion to suppress, the deputy testified the license plate was not 

visible, even outside fifty feet. Lyon asserts, however, that the fact 

Deputy Tart did not see illumination on the license plate from a distance 

outside fifty feet was irrelevant, as the statute requires only that the 

license plate be illuminated for legibility from a distance of fifty feet. 

According to Lyon, Deputy Tart further testified that when his vehicle 

was within one hundred feet or so of Lyon’s vehicle, his own headlights 

illuminated the rear plates, making it impossible to tell whether the 

license plate was properly illuminated at that distance. As a result, Lyon 
7

argues there was no evidence to establish that Deputy Tart observed his 

license plate “in a non-illuminated state around or inside of fifty feet.” 

In support of his argument, Lyon cites Reisetter, 747 N.W.2d at 

794–95, in which the court of appeals held that an officer did not have 

reasonable suspicion to stop a vehicle based upon Iowa Code section 

321.388 when the officer was traveling at a distance of one hundred feet 

or more behind the vehicle. Lyon cites a passage in Reisetter in which

the court of appeals stated that “[w]ithout the facts that would support 

reasonable suspicion . . . the statutory requirement of fifty feet was being 

violated, an officer could claim at any distance[] that a license plate was 

not illuminated and therefore justify a stop.” Id. at 795. In order to have 

reasonable suspicion under the statute, the Reisetter court believed the 

officer must be at a distance within fifty feet or some distance that 

reasonably approximates fifty feet when making observations about a

potential infraction. Id. at 794–95.

Lyon claims the video footage of the stop demonstrates that it was 

not possible to determine whether at a distance of fifty feet the license 

plate was sufficiently illuminated to be legible. Because Deputy Tart had 

not observed Lyon’s license plate at a distance approximating fifty feet 

without the spoiling feature of reflection from his own vehicle’s 

headlights, Lyon argues the district court’s conclusion that there was 

reasonable suspicion and probable cause to make the stop must be 

reversed. 

2. The State. The State disagrees. It asserts Iowa Code section 

321.388 establishes two separate requirements: (1) a license plate must 

be illuminated with a white light, and (2) the resulting illumination must 

“render [the license plate] clearly legible from a distance of fifty feet to the 

rear.” Iowa Code § 321.388; see also State v. Tyler, 830 N.W.2d 288, 295 
8

(Iowa 2013); State v. Gustafson, No. 08-1429, 2009 WL 4842474, at *4 

(Iowa Ct. App. Dec. 17, 2009) (per curiam) (Zimmer, S.J., concurring

specially). The State claims the record establishes that Deputy Tart had 

reasonable suspicion under both prongs of the test.

The State notes that at the suppression hearing Deputy Tart 

testified the license plate was not illuminated. When he made the 

determination there was no illumination, Deputy Tart testified he was 

“100 percent certain” that no light was cast from his car to Lyon’s license 

plate. As a result, the State argues Deputy Tart had reasonable 

suspicion Lyon’s license plate was not properly illuminated in violation of 

the first prong of Iowa Code section 321.388.

In addition, the State asserts Deputy Tart also had reasonable 

suspicion of a violation of the second prong of Iowa Code section 

321.388, which requires that the illumination allow the license plate to 

be “clearly legible” from a distance of fifty feet. Although Deputy Tart 

could not give a precise distance from which he observed the license 

plate, he stated the furthest he was from Lyon’s vehicle was outside fifty

or seventy-five feet away. The State urges that although Deputy Tart’s 

observations may not have been made at the precise fifty-foot mark, his 

vehicle was close enough to provide reasonable suspicion of a violation of 

the second prong of Iowa Code section 321.388.

The State addresses the Reisetter case in two ways. First, the 

State suggests Reisetter was wrongly decided and should be overruled by 

this court. Citing Louisiana authority, the State believes reasonable 

suspicion that a license plate is not legible from fifty feet may arise from 

an observation point as far back from the vehicle as ninety feet. State v. 

Purvis, 684 So. 2d 567, 569–70 (La. Ct. App. 1996). 
9

In any event, the State suggests Reisetter is distinguishable. In 

Reisetter, 747 N.W.2d at 794, the deputy testified he was “probably 

under a hundred feet [away from the vehicle] or close to it.” In this case, 

however, the State suggests the distance is materially closer. The State 

further notes that the Reisetter case did not consider the illumination 

prong of the statute. 

C. Prior Caselaw. The prior caselaw begins with Reisetter. In 

Reisetter, the court of appeals considered the validity of a traffic stop 

based upon suspicion of a violation of Iowa Code section 321.388 when

the officer observed the vehicle at a distance of about one hundred feet. 

Id. The court of appeals concluded the officer was too far away from the 

vehicle to “resolve the ambiguity” as to whether the license plate was 

properly illuminated. Id. at 795 (internal quotation marks omitted). The 

Reisetter court held that in order to have reasonable suspicion, the 

observing officer must be at a distance of fifty feet or approximately fifty 

feet from the vehicle. Id. at 794–95. A dissenting opinion argued, 

however, that the police officer observed the license plate light was “out” 

at a distance of about one hundred feet, thereby providing reasonable 

suspicion sufficient to justify the stop under Iowa Code section 321.388. 

Id. at 795–96 (Zimmer, J., dissenting). 

In a subsequent case, the court of appeals distinguished Reisetter. 

In Gustafson, 2009 WL 4842474, at *3, the court of appeals considered a 

traffic stop under Iowa Code section 321.388 in which testimony at the 

suppression hearing indicated that the officer making the stop was 

travelling at a distance of between thirty-six to seventy-five feet behind 
10

the suspect vehicle.2 The court of appeals noted the distance was much 

closer to the fifty-foot distance from which the license plate must be 

sufficiently illuminated to be legible under Iowa Code section 321.388. 

Id. Furthermore, in Gustafson the officer backed away from the vehicle 

to make sure his headlights were not illuminating the license plate. Id. 

Finally, the officer saw the vehicle turn a corner, giving the officer an 

opportunity to view the license plate area without the potential reflection 

coming from the headlights of his vehicle. Id. As a result, the stop in 

Gustafson was upheld. 

In Gustafson, a special concurrence noted that the validity of the 

stop did not turn on the exact distance between the vehicles. Id. at *4 

(Zimmer, S.J., concurring specially). The special concurrence 

distinguished between a license plate light that was not working at all

and a license plate light that did not provide sufficient illumination to be 

legible at a distance of fifty feet. Id. It noted that an officer may form 

reasonable suspicion that a license plate light is not working from a 

distance farther away than fifty feet. Id. At a minimum, the special 

concurrence called for clarification of Reisetter to distinguish between the 

two prongs of the statute. Id. at *5.

D. Analysis. Traffic stops on the open road have been subject to 

controversy. See State v. Pals, 805 N.W.2d 767, 772–73 & nn.2–4 (Iowa 

2011) (noting “the proper scope of police authority in the context of 

routine traffic stops has been the subject of countless commentaries,

many cases, and a number of consent decrees”). Unlimited discretion to 

stop vehicles on the open road may give rise to allegations of racial 

2As in this case, the litigant in Gustafson did not argue that a different standard 

applied under article I, section 8 of the Iowa Constitution as compared to the Fourth 

Amendment of the United States Constitution. 2009 WL 4842474, at *2. 

 
11

discrimination, characterized by the descriptive phrase “driving while 

black.” See State v. Harrison, 846 N.W.2d 362, 371–72 (Iowa 2014) 

(Appel, J., dissenting); Pals, 805 N.W.2d at 772 & n.2 (citing David A. 

Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme 

Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 

(1997)). This is particularly true when an ordinary traffic stop morphs 

into a larger criminal investigation without reasonable suspicion beyond 

that provided by the original offense. See Pals, 805 N.W.2d at 772–73.

It is thus important to recognize what is not involved in this case. 

There is no indication in the record of an improper purpose behind the 

stop. Cf. Harrison, 846 N.W.2d at 369–73 (noting the case raised the 

question of pretext, as the “officers’ obvious goal was not to take care of 

the [claimed Code violation], but rather to investigate an alleged crime for 

which they had no basis to initiate a stop”). Nor is this a case involving a 

consent search when the stop morphs far beyond the purpose of the 

stop. See, e.g., Pals, 805 N.W.2d at 772. And, it is not a case in which

an out-of-proportion arrest occurred as a result of a minor traffic 

violation. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 361–62, 

373, 121 S. Ct. 1536, 1561, 1567, 149 L. Ed. 2d 549, 581–82, 589 

(2001) (O’Connor, J., dissenting) (noting that in holding the arrest of an 

individual for a minor criminal offense punishable only by a fine does not 

offend the Fourth Amendment, the majority “cloaks the pointless 

indignity that [the petitioner] suffered with the mantle of 

reasonableness”). Instead, this case involves an ordinary traffic stop, 

based upon a claim of reasonable suspicion, in which the officer, in the 

course of an ordinary investigation of a traffic infraction, uncovers 

evidence of the serious crime of driving while intoxicated. 
12

In addition, although Lyon raises claims under both the Fourth 

Amendment to the United States Constitution and article I, section 8 of 

the Iowa Constitution, he does not advocate the application of a different 

standard under the Iowa Constitution than is generally applied by the 

United States Supreme Court under the United States Constitution. As a 

result, for the purposes of this case, we generally apply the federal 

standard, reserving the right to apply that standard in a fashion stricter 

than the federal caselaw. See Tyler, 830 N.W.2d at 291–92.

Both parties focus on whether Deputy Tart had reasonable 

suspicion to stop Lyon’s vehicle to investigate an alleged violation of Iowa 

Code section 321.388. We begin with the language of the statute. The 

statute provides that the rear lamp or a separate lamp shall be 

constructed and placed “as to illuminate with a white light the rear 

registration plate and render it clearly legible from a distance of fifty feet 

to the rear.” Iowa Code § 321.388. We agree with the State that the 

statute may be violated if there is no illumination of the license plate at 

all from a white light or if the illumination, though present, is so weak 

that the license plate is not clearly legible from a distance of fifty feet. 

We also agree with the thrust of the special concurrence in 

Gustafson. See 2009 WL 4842474, at *4. When the issue is whether the 

license plate is illuminated at all, that lack of illumination can be 

detected from a distance greater than fifty feet. Id. In this case, the 

deputy formed a reasonable suspicion that there was no working license 

plate light when he observed the vehicle drive past him without an 

illuminated license plate and then followed the vehicle to confirm his 

suspicions that there was no illumination at all. He trailed the vehicle 

from a distance sufficient to ensure that his headlights were not 

reflecting on the license plate. Under these circumstances, we find no 
13

constitutional infirmity under either the Iowa or the United States 

Constitutions. 

Our holding is not inconsistent with Reisetter. In Reisetter, 747 

N.W.2d at 794–95, the court of appeals focused only on the second prong 

of Iowa Code section 321.388, namely, whether the illumination was 

sufficient to be clearly legible. Reisetter did not explicitly consider 

whether there was reasonable suspicion to stop the vehicle based upon a

total absence of illumination. In any event, to the extent that Reisetter is 

inconsistent with our opinion we announce today, it is overruled. 

IV. Discussion of Iowa Code Chapter 804.20.

A. Introduction. The second issue in this case requires us to 

revisit Iowa Code section 804.20, which provides: 

Any peace officer or other person having custody of 

any person arrested or restrained of the person’s liberty for 

any reason whatever, shall permit that person, without 

unnecessary delay after arrival at the place of detention, to 

call, consult, and see a member of the person’s family or an 

attorney of the person’s choice, or both. Such person shall 

be permitted to make a reasonable number of telephone calls 

as may be required to secure an attorney. If a call is made, 

it shall be made in the presence of the person having 

custody of the one arrested or restrained. If such person is 

intoxicated, or a person under eighteen years of age, the call 

may be made by the person having custody. An attorney 

shall be permitted to see and consult confidentially with 

such person alone and in private at the jail or other place of 

custody without unreasonable delay. A violation of this 

section shall constitute a simple misdemeanor.

B. Positions of the Parties.

1. Lyon. There is no question that Deputy Tart permitted Lyon to 

make several phone calls after his arrest. Lyon, however, asserts Deputy 

Tart misled him about the purpose of calling a family member or attorney 

under Iowa Code section 804.20. Lyon contends that under our caselaw, 

the purpose of such a call is to help individuals decide whether to 
14

consent to or refuse a chemical test. See State v. Tubbs, 690 N.W.2d 

911, 914 (Iowa 2005). Lyon claims Deputy Tart misled him in two ways.

First, after he received his Miranda warnings and the impliedconsent advisory pursuant to Iowa Code section 321J.6, Lyon was 

advised of his right to place a phone call. Lyon, however, asked about 

the purpose of the call, stating “I’m gonna call someone first to get out of 

here, correct?” and that is “the main objective for me?” In response, 

Deputy Tart stated, “I mean, honestly, what you want to do, if you want 

to bond out, that’s your prerogative of these phone calls.”

Lyon asserts Deputy Tart’s response was misleading. According to 

Lyon, the purpose of a phone call under Iowa Code section 804.20 is to 

get advice on whether to consent to chemical testing. According to Lyon, 

after he stated that “the main objective” was “to get out of here,” Deputy 

Tart should have told him that the purpose of the phone call was to 

obtain advice on the chemical testing issue, not to obtain release. 

Second, Lyon also attacks the timing of Deputy Tart’s phone call 

offer. According to Lyon, Deputy Tart had not yet asked for further 

chemical testing. Lyon asserts Deputy Tart offered the phone calls before 

he requested further chemical testing in order to undermine Lyon’s 

ability to obtain advice on the consent issue. 

In support of his claims, Lyon cites several of our cases decided 

under Iowa Code section 804.20. He asserts the cases stand for the 

proposition that the purpose of the phone call is to assist the defendant 

in deciding whether to consent to the chemical testing. See State v. 

Walker, 804 N.W.2d 284, 290 (Iowa 2011); State v. Hicks, 791 N.W.2d 89, 

97 (Iowa 2010); Tubbs, 690 N.W.2d at 914. Further, according to Lyon, 

when an arrestee requests to make a call, the officer must advise the 

arrestee of the purpose of such a call under Iowa Code section 804.20. 
15

Didonato v. Iowa Dep’t of Transp., 456 N.W.2d 367, 371 (Iowa 1990). 

When the purposes of Iowa Code section 804.20 have not been met, Lyon 

argues the result is the exclusion of evidence. See State v. Vietor, 261 

N.W.2d 828, 832 (Iowa 1978).

2. The State. On the merits,3 the State contends Deputy Tart had 

no affirmative duty to inform Lyon of the purpose of making a phone call 

under Iowa Code section 804.20. The State argues Didonato should be 

read in tandem with State v. Garrity, 765 N.W.2d 592, 597 (Iowa 2009). 

In Garrity, we stated that when an arrestee asked to call a person outside 

the scope of section 804.20, law enforcement had an obligation to advise 

the arrestee “of the purpose of the phone call, i.e., who [the arrestee] 

could call.” Id. Thus, according to the State, Deputy Tart had no 

affirmative duty to advise Lyon of the purpose of the phone call once he 

was given the opportunity to call persons authorized to receive calls 

under the statute. 

In any event, even if there was an affirmative obligation under Iowa 

Code section 804.20, the State argues Deputy Tart did not mislead Lyon. 

The State sees nothing misleading about Deputy Tart’s statement, “I 

mean, honestly, what you want to do, if you want to bond out, that’s 

your prerogative of these phone calls.” The State further finds nothing 

misleading about the timing of the phone calls, noting Lyon had just 

previously received Miranda warnings and his implied-consent advisory. 

3The State contends Lyon has not preserved error because he failed to provide 

this court with a transcript of the underlying criminal proceedings. See State v. Mudra, 

532 N.W.2d 765, 767 (Iowa 1995) (per curiam), overruled by State v. Thompson, 856 

N.W.2d 915, 921 (Iowa 2014). Lyon counters an adverse ruling on a motion to suppress 

is sufficient to preserve the issue on appeal. See State v. Wright, 441 N.W.2d 364, 366 

(Iowa 1989) (en banc). Because we conclude Lyon fails on the merits, we find it 

unnecessary to address the preservation issue. 

 
16

According to the State, the officer’s only obligation is to give the arrestee

an opportunity to make phone calls prior to submitting to the chemical 

test. See Didonato, 456 N.W.2d at 371 (noting the statute was not 

violated when a defendant “ha[d] an actual opportunity to consult with 

counsel or a family member before submitting to the chemical test”). In 

this case, the State maintains, it strains credulity to believe that Lyon did 

not know a request was in the offing after Lyon received his Miranda

warnings and the implied-consent advisory. 

C. Caselaw Under Iowa Code Section 804.20. We have 

considered a variety of interpretive issues under Iowa Code section 

804.20. In Vietor, 261 N.W.2d at 831, we held that the statute’s

predecessor provided “a limited statutory right to counsel before making 

the important decision to take or refuse a chemical test under implied 

consent procedures.” 

We revisited the statute in Didonato. In Didonato, 456 N.W.2d at 

368, an accused sought to call a friend rather than an attorney or a 

family member as allowed under Iowa Code section 804.20. We stated in 

Didonato that while law enforcement had no affirmative duty to inform a 

suspect of his or her right to make a phone call to counsel, an officer 

cannot stand mute when the accused requests to make a call to a friend. 

Id. at 371. In Didonato, we stated that “[i]n these circumstances the 

statute is implicated and the officer should then advise for what purpose 

a phone call is permitted under the statute.” Id. 

With respect to the timing of the phone call, we noted in Didonato

that a phone call after the implied-consent form was signed is still timely 

because consent may be revoked. Id. When a phone call was made and 

the accused “ha[d] an actual opportunity to consult with counsel or a 
17

family member before submitting to the chemical test, the purposes 

behind the statute are served.” Id.

In Garrity, 765 N.W.2d at 594, we confronted a situation in which

the party accused of drunk driving sought to make a phone call to a 

narcotics officer in order to arrange a deal in which he would reveal a 

large drug operation in return for not doing jail time. The arresting 

officers declined the request as outside the scope of section 804.20 but 

did not affirmatively disclose to whom a call could be made. Id. We held 

that under the circumstances, the police officers had an affirmative duty 

to advise Garrity whom he could call under the statute. Id. at 597. 

In Garrity, we explored the permitted purposes of the phone call. 

Id. at 596. We recognized that “[o]ne purpose of Iowa Code section 

804.20 [was] to allow [an] arrestee to call an attorney before making the 

decision to submit to chemical testing.” Id. (citing Tubbs, 690 N.W.2d at

914). We emphasized, however, that the statute does not limit the phone 

call to that particular purpose. Id. We noted that as long as the purpose 

of the phone call is a good faith purpose, 

the arrestee may choose to contact family or a legal 

representative for advice, or to have them inform his 

employer that he is not likely to be at work, pick up children 

from school, or arrange to have the dog let out. 

Id. We stated that when an accused seeks to make a phone call to a 

person not covered by Iowa Code section 804.20, the officer has an 

obligation to advise the accused “of the purpose of the phone call, i.e.,

who [an arrestee] could call.” Id. at 597. We reiterated the broader 

phrasing of purpose in Hicks, 791 N.W.2d at 95, in which we noted “[t]he 

legislative purpose [behind] section 804.20 [was] to afford detained 

suspects the opportunity to communicate with a family member and 

attorney.” 
18

D. Analysis. As a general matter, we have insisted that law 

enforcement officers not play games when faced with a request from a 

person in custody to communicate with the outside world after being 

arrested. So, for example, an accused who seeks to talk to a narcotics 

officer may be advised that he or she cannot do so, but must then 

affirmatively be advised that he or she can call an attorney or family 

member. See Garrity, 765 N.W.2d at 597. Similarly, a suspect’s inquiry 

of an officer whether his or her mom might be called when his or her

vehicle is impounded and whether he or she could “call somebody to get 

me out?,” is sufficient to trigger an affirmative duty on the part of law 

enforcement to explain the arrestee’s right to call a family member under 

the statute. See Hicks, 791 N.W.2d at 92, 96. 

But in this case, Lyon asks us to go well beyond our caselaw. Law 

enforcement in this case plainly honored Lyon’s request to make phone 

calls to an attorney or to family members. Indeed, he was able to contact 

his father. Lyon seeks more. He asks us to require law enforcement 

officers to explain that a purpose of the call is to obtain advice regarding 

whether to submit to a chemical test. Lyon claims Deputy Tart misled 

him when he did not respond to his question regarding whether the 

primary purpose of the call was to get him out of jail.

While there is language in Didonato that might be recruited to 

support Lyon’s position, we think the reasoning in Garrity is more 

persuasive and precludes Lyon’s claim. It is no doubt true that one 

purpose of the call may be to obtain advice on the question of whether to 

consent to chemical testing. But as Garrity makes clear, the phone call 

can certainly be used for other purposes as well, including making 

arrangements for a suspect to be bailed out or picked up upon his or her 

release. See 765 N.W.2d at 596. We do not believe law enforcement 
19

officers must help shape the nature of the communication with attorneys 

and family members once they have honored the accused’s right to 

communicate with such individuals. Deputy Tart’s response to Lyon’s 

statement, in essence that it was up to him to determine the nature of 

the communication with his attorney or family member, was thus not 

misleading but was a correct statement of law.

We also reject the claim that Deputy Tart improperly sequenced 

events to eviscerate Lyon’s statutory right to contact an attorney or 

family member. After his arrest, Lyon was provided his Miranda rights 

and the implied-consent advisory. While a specific request for a 

specimen had not yet been made, a reasonable person arrested for drunk 

driving would know, after receiving the implied-consent advisory, that 

such a request was in the offing. On this record, Lyon has not 

persuaded us that Deputy Tart undermined his right to consult with 

counsel or a family member through the timing of his request for a 

breath specimen. 

V. Conclusion.

For the above reasons, we vacate the decision of the court of 

appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.

All justices concur except Hecht, J., who takes no part.