STATE OF IOWA v. ALISHIA SUE DAWN DEWBRE
No. 21-1150
IN THE COURT OF APPEALS OF IOWA
October 19, 2022
AHLERS, Judge.
Appeal from the Iowa District Court for Emmet County, Ann M. Gales, District Associate Judge.
Alishia Dewbre appeals her conviction for operating while intoxicated, asserting that the results of a blood test for alcohol concentration should have been suppressed. AFFIRMED.
Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau and Louis Sloven, Assistant Attorneys General, for appellee.
Considered by Bower, C.J., and Tabor, Greer, Schumacher, Ahlers, Badding, and Chicchelly, JJ.
Alishia Dewbre appeals following her conviction for operating while intoxicated (OWI). She contends the State violated her right against self-incrimination under
I. Background Facts and Prior Proceedings
In the early-morning hours of a Friday, a law enforcement officer observed a truck weave back and forth repeatedly and cross the center line of a state highway. The officer pulled the truck over and identified Dewbre as the driver. Dewbre emitted an odor of alcoholic beverage, her eyes were watery and bloodshot, and she admitted to drinking. After Dewbre refused field sobriety testing and a preliminary breath test, the officer arrested Dewbre for OWI.
The arresting officer did not invoke implied consent. See
Dewbre filed a motion to suppress “any and all evidence seized as a result of the search warrant” because she claimed taking the blood specimen violated her rights under the Iowa Constitution. Following a suppression hearing and briefing from the parties, the court denied the motion to suppress. Dewbre stipulated to a trial on the minutes, and the court found her guilty of OWI.
Dewbre appeals and requests we reverse the district court‘s ruling on the motion to suppress.
II. Scope and Standard of Review
Because Dewbre challenges the suppression ruling on constitutional grounds, our review is de novo. State v. Hunt, 974 N.W.2d 493, 496 (Iowa 2022). “We review the entire record to independently evaluate the totality of the circumstances and examine each case ‘in light of its unique circumstances.‘” State v. Hauge, 973 N.W.2d 453, 458 (Iowa 2022) (quoting State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019)).
III. Discussion
Dewbre remains faithful to the argument she raised at the suppression hearing—she claims
Although the Iowa Constitution does not explicitly provide a right against self-incrimination, our supreme court has found such a right implicitly exists via the due process clause in
In Height, the defendant was accused of committing a sex act on a ten-year-old child who “was found to be affected with venereal disease.” Id. at 935. While the defendant was jailed and awaiting trial, physicians examined the defendant‘s genitals at the direction of the prosecutor and over the defendant‘s objections. Id. at 936. The physicians discovered the defendant was afflicted with the same disease as the child. Id. at 935. That evidence was presented to the jury. Id. The supreme court completed a detailed discussion of
The supreme court referenced Height a few years later in Wragg v. Griffin, when it stated, “Even when charged with the gravest of crimes, [a defendant] cannot be compelled to give evidence against himself, nor can the [S]tate compel him to submit to a medical or surgical examination, the result of which may tend to convict him of a public offense.” 170 N.W. 400, 403 (Iowa 1919) (citing Height, 91 N.W. at 935). However, Wragg did not address
May the local board of health of the city of Des Moines, upon suspicion that the petitioner is afflicted with a venereal disease, or has been exposed to such contagion, lawfully order him under arrest and subject him by force to an examination of his person and compel him against his will to permit a quantity of blood to be extracted from his veins, and then be held in continued durance until the blood has been sent to an expert in a distant city and by test thereof it is determined whether such petitioner is or is not in fact so diseased?1
Id. at 401. So Wragg provides scant support for Dewbre‘s self-incrimination argument. Still, Dewbre argues neither Height nor Wragg have been explicitly or implicitly overruled, so we must follow them to conclude the Iowa Constitution prohibits compelled medical examinations of a defendant for the purposes of collecting evidence to use against the defendant.
The State strongly and persuasively pushes back on Dewbre‘s claim. At the outset, we agree with the State‘s characterization of the portions of Height and Wragg that Dewbre relies upon as dicta rather than as substantive holdings. That reconciliation helps explain why neither was expressly overruled by our supreme court in the years following. Moreover, in Aguilar Olvera v. State, No. 18-0930, 2019 WL 3943995, at *4–5 (Iowa Ct. App. Aug. 21, 2019), we concluded Height and its analysis of the examination of the defendant without a warrant were no longer applicable given developments in our laws in the years since Height. So we look elsewhere for guidance.
In State v. Johnson, our supreme court addressed whether a defendant was entitled to a separate determination by a separate jury as to whether a blood specimen taken from him was obtained through coercion and trickery, making it involuntarily obtained and impermissible to use to prosecute him for OWI. 135 N.W.2d 518, 524 (Iowa 1965). Johnson determined such process was not necessary. Id. at 524. It found the defendant had freely and voluntarily given his consent to the taking of his blood specimen. Id. at 525. The court went on to note “the evidence relating to the analysis of appellant‘s blood sample taken and the explanatory testimony of the analyst were admissible, and that their admission did not violate appellant‘s privilege against self-incrimination under either the federal or state constitutions.” Id. This pronouncement seems fatal to Dewbre‘s claim. Nonetheless, we go on to highlight the pertinent distinction in incriminatory evidence.
We make a fundamental distinction between testimonial and non-testimonial evidence from a defendant. In State v. Sefcheck, the defendant claimed his Miranda rights were violated, a claim rooted in the
[t]he privilege against self-incrimination under both federal and state rules, is limited to evidence by [c]ommunication in whatever form that communication might take. It does not protect a defendant, by the taking of blood or other bodily fluid, by the use of fingerprints, or by the showing of some physical trait or characteristic, from becoming the source of real or physical evidence against himself.
Id. (emphasis added). That explanation would seem to resolve the case before us—Dewbre‘s claim relates to non-testimonial evidence (the blood specimen), so Sefcheck seemingly defeats her claim under
to the “taking of blood or bodily fluid” includes compelled blood draws. Instead, she contends we should infer that the reference extends only to voluntary blood draws.
Dewbre‘s argument misses the mark for two reasons. First, Sefcheck makes a simple distinction between testimonial and non-testimonial evidence and concludes federal and state prohibitions against self-incrimination only apply to testimonial evidence. See id. Second, we see nothing in Sefcheck to infer a distinction between how we treat compelled and non-compelled non-testimonial evidence. See id. So, when determining if the state and federal prohibitions against compelled self-incrimination are triggered, the real inquiry is whether the evidence in question is testimonial or non-testimonial, not whether the non-testimonial evidence was compelled or not compelled.
Dewbre‘s argument also ignores the availability of a warrant to aid in the investigation of an OWI offense. Dewbre suggests that obtaining a warrant for a blood draw was unreasonable because the officer could have invoked implied-consent procedures instead. This suggestion is negated by statute and case law.
by the officer. See
Dewbre makes one last attempt to distinguish Sefcheck. She argues it is implausible that the supreme court intended its opinion to overrule Height and Wragg when the claim before the court was rooted in the federal constitution and not
Dewbre also argues we should interpret the Iowa Constitution as providing individuals with greater protection than the federal constitution. She points to Iowa‘s history of interpreting its constitution as being more protective than the federal constitution. See State v. Baldon, 829 N.W.2d 785, 820–21 (Iowa 2013) (Appel, J., specially concurring) (discussing instances where our supreme court interpreted the Iowa Constitution in a different manner than the United States Constitution). She seems to ask us to interpret
To the extent the language from Sefcheck is also dicta, we decline to stray from its reasoning when interpreting
Because we treat
compelled non-testimonial evidence, like Dewbre‘s blood draw, passes constitutional muster. In Schmerber v. California, the Supreme Court held that the
Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis [of the accused‘s blood]. . . . Since the blood test evidence, although an incriminating product of compulsion, was neither [the accused]‘s testimony nor evidence relating to some communicative
act or writing by the petitioner, it was not inadmissible on privilege grounds.
Id. at 765. Accordingly, Dewbre‘s motion to suppress was correctly denied.
IV. Conclusion
The due process clause of
AFFIRMED.