IN THE COURT OF APPEALS OF IOWA

No. 13-0915

Filed March 26, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JORGE MICHAEL DE HOYOS,

Defendant-Appellant.

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Appeal from the Iowa District Court for Cerro Gordo County, Gregg R. 

Rosenbladt (motion to suppress), Judge, and Annette L. Boehlje (trial), District 

Associate Judge.

Jorge De Hoyos appeals his conviction for operating while intoxicated. 

AFFIRMED.

Colin C. Murphy, Clear Lake, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney 

General, Anthony Garcia, Student Legal Intern, and Carlyde D. Dalen, County 

Attorney, for appellee.

Considered by Vogel, P.J., and Tabor, J., and Eisenhauer, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VOGEL, P.J.

Jorge De Hoyos appeals his conviction for operating while intoxicated. De 

Hoyos claims the district court erred in denying his motion to suppress the results 

of the Datamaster DMT test because the police officer did not honor De Hoyos’s 

request for an independent blood test, in violation of Iowa Code section 321J.11 

(2011). Because we conclude De Hoyos failed to actually demand an 

independent test, we affirm.

On April 7, 2012, Iowa State Trooper Nathan Sneider stopped De Hoyos 

because of De Hoyos’s failure to obey a traffic signal. Trooper Sneider observed 

the odor of alcohol emanating from the vehicle, as well as De Hoyos’s bloodshot, 

watery eyes and slurred speech. De Hoyos informed Trooper Sneider that he 

had consumed two beers earlier.

De Hoyos consented to performing field sobriety tests. The first test was a 

horizontal gaze nystagmus, during which De Hoyos showed six cues of 

intoxication as well as a lack of smooth pursuit in the eyes. Before the

commencement of the walk-and-turn test, De Hoyos told Trooper Sneider he 

would “rather take a blood test, than do this test.” He stated he had worked out 

the night before and was still sore. While in the instructional stance, De Hoyos 

informed Trooper Sneider he had a cramp in his left calf. After stretching, De 

Hoyos performed the test, showing an inability to maintain balance. The third 

test was a one-leg stand, which was ended early for safety concerns because De 

Hoyos showed four cues and hopped during the test. De Hoyos then agreed to a 

preliminary breath test but failed to cooperate by not blowing hard enough during 
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his three attempts to provide a sample. De Hoyos then stated: “I’m not that 

drunk.”

Trooper Sneider placed De Hoyos under arrest and transported him to the 

county jail. After invoking implied consent, Trooper Sneider informed De Hoyos 

he could telephone someone, but De Hoyos declined. A chemical breath test 

was performed on the Datamaster, which showed De Hoyos’s blood alcohol 

concentration was .176. De Hoyos made no further references regarding a blood 

test or other independent test.

De Hoyos was charged with operating while intoxicated, in violation of 

Iowa Code section 321J.2. He filed a motion to suppress the Datamaster results, 

alleging his rights under Iowa Code section 321J.11 were violated. Following a 

hearing, the district court denied the motion. On March 1, 2013, a bench trial 

was held, after which the district court found De Hoyos guilty. De Hoyos 

appeals.

We review the district court’s ruling on the motion to suppress for 

correction of errors at law. See State v. Hornik, 672 N.W.2d 836, 838 (Iowa 

2003).

Under certain circumstances, Iowa Code section 321J.11 entitles an 

intoxicated person to an independent chemical test. Specifically:

The person may 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. 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. 

Upon the request of the person who is tested, the results of the test 

or tests administered at the direction of the peace officer shall be 

made available to the person.
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Iowa Code § 321J.11. A defendant is entitled to an independent chemical test 

only after submitting to the test requested by the officer. State v. Bloomer, 618 

N.W.2d 550, 553 (Iowa 2000). In determining whether a defendant was 

attempting to assert his right to an independent test rather than refusing the 

requested test, the court considers “[t]he statements and conduct of the arrestee 

and police officer, as well as the surrounding circumstances.” Ginsberg v. Iowa 

Dep’t of Transp., 508 N.W.2d 663, 664 (Iowa 1993).

Here, De Hoyos did not request an independent test either before or after 

the Datamaster test. A vague comment that he would prefer a blood test over 

the field sobriety test does not amount to an invocation of De Hoyos’s right to an 

independent test under section 321J.11. See Bloomer, 618 N.W.2d at 552–53 

(holding the defendant’s insistence on taking a urine test instead of the 

breathalyzer was a refusal to submit to the test requested by the officer); State v. 

Mahoney, 515 N.W.2d 47, 50 (Iowa Ct. App. 1994) (“The legislature’s clear 

intent, by its use of the words ‘in addition to,’ was that a defendant must submit to 

a state-administered chemical test before being allowed to demand an 

independent test.”). Consequently, no violation of section 321J.11 occurred, and 

the district court properly denied De Hoyos’s motion to suppress.

AFFIRMED.