State of Iowa v. Adam Donald Oscar Melchert

IN THE COURT OF APPEALS OF IOWA

No. 20-1301
Filed October 6, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ADAM DONALD OSCAR MELCHERT,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Casey D. Jones, District

Associate Judge.

Adam Melchert appeals his conviction for operating while intoxicated.

AFFIRMED.

Alexander S. Momany and Mark D. Fisher of Howes Law Firm, PC, Cedar

Rapids, for appellant.

Thomas J. Miller, Attorney General, and Katie Krickbaum (until withdrawal)

and Kevin Cmelik, Assistant Attorneys General, for appellee.

Heard by Mullins, P.J., and May and Ahlers, JJ.
2

MAY, Judge.

Adam Melchert appeals his conviction for operating while intoxicated (OWI).

He claims (1) the district court erred in denying his motion to suppress because

his implied consent revocation was not voluntary and (2) Iowa Code

section 907.3(1)(a)(6)(d) (2019) violates the state and federal constitutions’ right

to equal protection. We affirm.

I. Background Facts and Prior Proceedings

In the early morning hours of March 21, 2019, police responded to a Burger

King drive through. There, they found Melchert unresponsive in the driver’s seat

of a vehicle while its engine ran. When Melchert came to, he did not immediately

respond to the officer knocking on his window. Instead, he started to pull forward

toward the drive-through window. Once Melchert stopped and engaged with

officers, he repeatedly tried—but failed—to hand over his license. Several times

he handed an officer a credit card, seemingly believing he was providing his

license. Melchert was able to produce his license only after an officer identified it

for him in his stack of cards. Then officers subjected Melchert to field sobriety

testing. Melchert explained he thought his medication reacted with alcohol he

consumed. After police administered a preliminary breath test, they arrested him

for OWI.

Once at the police station, an officer read Melchert the implied consent

advisory and allowed him to look over it himself. Melchert expressed his desire to

consult an attorney “prior to consenting.” Officers agreed he could contact an

attorney. Melchert called his attorney’s office; but it was after work hours, and he

did not reach the attorney. He reiterated that he wanted to talk to his attorney
3

before he “did anything.” An officer explained that Melchert needed to test or

refuse relatively soon (“tonight before business hours”), but Melchert again stated

he wanted to “talk to her before [he] did anything.” Melchert maintained he wanted

to talk to counsel before refusing or submitting to Datamaster testing because of

his concerns about his medication mixing with alcohol.

Officers suggested Melchert might be able to reach someone who had his

attorney’s personal phone number. Melchert stated he knew of no one who would

have his attorney’s phone number. Officers again reminded him of the time

constraints on testing. Melchert asked the officers how to reach another attorney,

but they explained it is often difficult for people to reach counsel after hours without

an attorney’s personal phone number. Melchert reiterated he would not make a

decision without consulting an attorney. Officers determined Melchert refused

testing.

The State charged Melchert with OWI. Melchert filed a motion to suppress

his refusal to submit to Datamaster testing. Melchert argued his refusal was not

voluntary because he was not informed “a refusal would necessarily, unequivocally

result in the loss of any future opportunity to request let alone receive[] a deferred

judgment and potentially avoid a permanent, public criminal record.” Melchert also

argued Iowa Code section 907.3(1)(a)(6)(d), which prohibits courts from granting

deferred judgments to individuals who refused testing, violates the state and

federal constitutions’ right to equal protection. The State resisted. Following a

hearing, the court denied the motion to suppress. Melchert sought discretionary

review, which the supreme court denied. Then Melchert agreed to a bench trial on

the minutes, and the court found him guilty. Melchert appeals.
4

II. Discussion

A. Voluntariness

We first address Melchert’s contention that his refusal to test was not

voluntary and, therefore, should have been suppressed. We review challenges to

the voluntariness of a defendant’s refusal or submission to chemical testing de

novo. State v. Garcia, 756 N.W.2d 216, 219 (Iowa 2008). “While we are not bound

by the district court’s factual findings, we give considerable weight to the court’s

assessment of the voluntariness of the defendant’s [refusal] to the chemical test.”

Id.

Iowa Code section 321J.6(1) provides in part:

A person who operates a motor vehicle in this state under
circumstances which give reasonable grounds to believe that the
person has been operating a motor vehicle in violation of section
321J.2 or 321J.2A is deemed to have given consent to the
withdrawal of specimens of the person’s blood, breath, or urine and
to a chemical test or tests of the specimens for the purpose of
determining the alcohol concentration or presence of a controlled
substance or other drugs, subject to this section.

This is commonly referred to as the implied consent law. “Iowa’s implied consent

law is based on the premise that a driver impliedly agrees to submit to a test in

return for the privilege of using the public highways.” Id. at 220 (quotation and

internal quotation marks omitted). “The law was enacted to help reduce the

appalling number of highway deaths resulting in part at least from intoxicated

drivers.” Id. (quotation and internal quotation marks omitted). “Implied consent

procedures are reasonably calculated to further this objective.” Id. (citation

omitted).
5

Although a driver impliedly consents to testing, the driver also has the right

to withdraw that consent. See Iowa Code § 321J.9(1) (“If a person refuses to

submit to the chemical testing, a test shall not be given . . . .”). “Yet refusal can

have serious consequences.” State v. Caldwell, No. 19-0894, 2021 WL 592747,

at *7 (Iowa Ct. App. Jan. 21, 2021). For instance, “[i]f implied-consent is properly

invoked and the driver still refuses to submit, the Iowa Department of

Transportation must (“shall”) revoke their driver’s license for at least a year.” Id.

(citing Iowa Code § 321J.9(1)). So, “[t]o be valid, the driver’s decision to [refuse

or] consent to testing must be voluntary, i.e., freely made, uncoerced, reasoned,

and informed.” Garcia, 756 N.W.2d at 220. “[I]f the driver is not reasonably

informed of the consequences of refusal to submit to the test or failure of the test,”

then the driver’s decision is not voluntarily made. See id.

The question here is: What does the driver need to know to be “reasonably

informed”? Melchert argues he was not reasonably informed because officers did

not explain that his refusal to test would trigger section 907.3(1)(a)(6)(d), which

prohibits a sentencing court from granting a deferred judgment to a defendant who

refused testing.1 But his argument hits a critical snag. Iowa Code

section 321J.8(1) specifically states what information must be provided to an

individual before they consent to or refuse testing.2 And section 321J.8(1) makes

1 To the extent Melchert argues he should have been advised that his refusal could
be used against him, we agree with the State that the claim was not raised in the
district court. So we will not address it for the first time on appeal. See Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012). Moreover, the record shows Melchert
was informed it could be used as evidence against him.
2 Melchert does not argue police did not comply with section 321J.8(1), and during

oral argument counsel agreed the information contained in section 321J.8(1)
should be shared with drivers.
6

no mention of section 907.3(1)(a)(6)(d) or the impact of refusal to test on a

defendant’s eligibility for a deferred judgment.3 Moreover, our supreme court has

rejected prior arguments that law enforcement officers must inform drivers of

consequences other than those specifically listed in section 321J.8(1). See State

v. Kentner, 562 N.W.2d 431, 433 (Iowa 1997); Primm v. Iowa Dep’t of Transp., 561

N.W.2d 80, 81 (Iowa 1997). In Kentner, the supreme court explained,

The advice form is already quite lengthy. If we were to require
additional advice on matters not expressly required by section
321J.8, the only way for an officer to be certain to comply with section
321J.8 would be to read Iowa Code sections 321J.9 and 321J.12 in
their entirety. Such a lengthy statement of “rights” would obscure the
key revocation information required by section 321J.8 and would in
all likelihood further confuse the subject.

562 N.W.2d at 433. We see no reason to deviate from this logic and obligate law

enforcement to provide additional information beyond what is already required by

section 321J.8. Rather, we believe a driver is reasonably informed of the

consequences of testing or refusal if they have been advised of the consequences

identified in section 321J.8(1). Because Melchert received that advisement, his

voluntariness challenge cannot succeed.4 See Garcia, 756 N.W.2d at 219–20.

Moreover, as the State points out, even assuming that police should have

provided Melchert additional information, “not every inaccurate depiction by law

enforcement officers that might bear on a subject’s election to submit to chemical

testing is a basis for suppress[ion].” See State v. Bernhard, 657 N.W.2d 469, 473

3 Iowa Code section 321J.2(3)(b)(2)(d) references section 907.3 and also prohibits
the court from granting a deferred judgment when the defendant refused testing.
4 Melchert’s voluntariness challenge turns entirely on whether he was reasonably

informed. He does not argue he was coerced or that other circumstances made
his decision involuntary.
7

(Iowa 2003). So suppression is not necessary when the driver would have reached

the same decision to consent to or refuse testing. See State v. Hutton, 796 N.W.2d

898, 906 (Iowa 2011). Here, Melchert made clear he would not make any decision

until his spoke to counsel. This served as a de facto refusal given the time

constraints on testing and the time of day. Cf. Iowa Code § 321J.6(2) (“If the peace

officer fails to offer a test within two hours after the preliminary screening test is

administered or refused or the arrest is made, whichever occurs first, a test is not

required, and there shall be no revocation under section 321J.9.”). And the record

makes clear he would not have changed course had officers informed him of the

impact that refusal would have on his eligibility for a deferred judgment. So

suppression would be unnecessary regardless of whether officers should have

advised him of section 907.3(1)(a)(6)(d). The district court was right to deny the

motion to suppress.

B. Equal Protection

Melchert also argues section 907.3(1)(a)(6)(d) violates both the state and

federal constitutions’ right to equal protection. See U.S. Const. amend. XIV, § 1;

Iowa Const. art. I, § 6. We review constitutional challenges to our statutes de novo.

State v. Kilby, 961 N.W.2d 374, 377 (Iowa 2021).

In doing so, we must remember that statutes are cloaked with
a presumption of constitutionality. The challenger bears a heavy
burden, because it must prove the unconstitutionality beyond a
reasonable doubt. Moreover, the challenger must refute every
reasonable basis upon which the statute could be found to be
constitutional. Furthermore, if the statute is capable of being
construed in more than one manner, one of which is constitutional,
we must adopt that construction.

Id. (citation and internal quotation marks omitted).
8

The Fourteenth Amendment to the United States Constitution provides, “No

State shall . . . deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. The Iowa Constitution provides, “All laws of

a general nature shall have a uniform operation; the general assembly shall not

grant to any citizen, or class of citizens, privileges or immunities, which, upon the

same terms shall not equally belong to all citizens.” Iowa Const. art. I, § 6.

“Generally, ‘[w]e apply the same analysis in considering the state equal protection

claim as we do in considering the federal equal protection claim.’” State v. Tucker,

959 N.W.2d 140, 146 (Iowa 2021) (alteration in original) (citation omitted). “At its

core, the federal and state ‘equal protection guarantee requires that laws treat all

those who are similarly situated with respect to the purposes of the law alike.’” Id.

(citation omitted).

“The first step in our equal protection analysis is to determine whether the

challenged law makes a distinction between similarly situated individuals with

respect to the purposes of the law.” Id. “This is a threshold test.” Id. “If the

defendant ‘cannot show as a preliminary matter that [they are] similarly situated,

[we] do not further consider whether . . . different treatment under a statute is

permitted.’” Id. (second alteration in original) (citation omitted).

Melchert does not address this threshold requirement in his appellant brief.

He addresses it in his reply brief to rebut the State’s argument. So we question

whether we should consider his equal protection argument at all. See Villa

Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018) (recognizing we generally do

not consider arguments raised for the first time in a reply brief).
9

Assuming we can address Melchert’s argument, we conclude Melchert

cannot satisfy this threshold test. He posits, “There is only one class of persons in

existence relative to these issues and that is persons under investigation for [OWI]

per Iowa Code [section] 321J.2.” So, he reasons, everyone in this “one class of

persons in existence” are similarly situated. We disagree. In reality, “persons

under investigation for [OWI]” split themselves into two separate classes by

deciding whether to submit to or refuse testing.5 That decision creates a clear

divide. As the State points out, “One group has continued to consent to testing in

exchange for the privilege of driving on Iowa roads. The other has revoked that

consent.” One group has agreed to comply with processes that make OWI

investigations easier and more streamlined, while the other has not. These are

two distinct groups. They are not similarly situated. Cf. United States v. Gallegos,

480 F.3d 856, 859 (8th Cir. 2007) (determining two defendants were not similarly

situated when one cooperated with authorities and the other did not).

Because Melchert cannot satisfy this threshold requirement, we need not

proceed further with his equal protection claim.

AFFIRMED.

5 Melchert conceded as much at oral argument when he argued persons are
similarly situated at the time they are asked to consent or refuse but are no longer
similarly situated after they make their decision. Here, section 907.3(1)(a)(6)(d)
comes into play following conviction, long after one must consent to or refuse
chemical testing. So by Melchert’s own reasoning, persons who consented to
testing are not similarly situated to those who refused with respect to
section 907.3(1)(a)(6)(d).