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Case No. 18-1643

For summaries from opinions prior to August, 2018, view PDF versions here

State of Iowa
v.
Rudy Danilo Depaz Colocho

Appellee

State of Iowa

Appellant

Rudy Danilo Depaz Colocho

Attorneys for Appellee

Genevieve Reinkoester, Assistant Attorney General

Attorneys for Appellant

Daniel J. Rothman

Court of Appeals

Court of Appeals Opinion

Opinion Number:
18-1643
Date Published:
Nov 06, 2019
Summary

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Rudy Colocho was convicted for third-offense operating a vehicle while intoxicated.  During a traffic stop, a police officer accommodated Colocho’s request to urinate before he performed field sobriety tests.  The officer took Colocho to the police station, but after he used the restroom, he still refused sobriety testing.  Instead, Colocho started speaking Spanish and requested an attorney.  The officer rejected the request.  After an interpreter was brought in Colocho still refused sobriety testing.  The officer then arrested Colocho and advised him his Iowa Code section 804.20 (2018) rights.  The officer estimated Colocho had just a little under an hour to make a phone call before the officer invoked implied consent.  Colocho refused to take the DataMaster test.  Colocho now appeals. OPINION HOLDS: We agree with the district court’s additional finding that the officer remedied the situation by later advising Colocho of his rights.  Also, because no excludable evidence emerged between the alleged violation and the officer’s giving of the advisory, we need not apply a fruits analysis.  Also, because Colocho refused the DataMaster test nearly an hour after receiving the advisory, the test refusal was admissible evidence in his stipulated bench trial.  Also, because the stipulated record contained strong evidence Colocho was operating while under the influence, we find any violation of Colocho’s rights under section 804.20 was harmless error.  Colocho is not entitled to new trial.

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