Case Information
*1 IN THE SUPREME COURT OF IOWA
No. 19–1219
Submitted December 16, 2020—Filed May 14, 2021
STATE OF IOWA,
Appellee,
vs.
BRIAN De ARRIE McGEE,
Appellant. Appeal from the Iowa District Court for Polk County, William Price (motion to suppress), Senior Judge, Becky Goettsch (trial) and Christopher Kemp (sentencing), District Associate Judges.
A defendant appeals his conviction for operating a motor vehicle while intoxicated, contending that the district court erred in denying his motion to suppress the results of a blood test. REVERSED AND REMANDED.
Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, McDonald, and McDermott, JJ., joined. McDermott, J., filed a special concurrence in which Christensen, C.J., and Waterman, J., joined. Appel, J., filed a dissenting opinion. Oxley, J., filed a dissenting opinion in which Appel, J., joined.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven (argued), Assistant Attorney General, John P. Sarcone, County Attorney, Maurice Curry and Kailyn Heston, Assistant County Attorneys, for appellee. MANSFIELD, Justice.
“Affirm if you can, reverse if you must, but never remand.” We receive this advice often from our colleagues on the trial bench. Here, however, the law changed after this case was heard in the district court. In June 2019, the United States Supreme Court decided that the Fourth Amendment “almost always” permits warrantless blood draws from unconscious drivers when the police have probable cause to believe the driver was operating while under the influence of alcohol. Mitchell v. Wisconsin , 588 U.S. ___, ___, 139 S. Ct. 2525, 2539 (2019) (plurality opinion). The Court allowed for an exception in the “unusual case” where the defendant can “show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.” at ___, 139 S. Ct. at 2539. As we discuss herein, this significant development in the law necessitates a remand.
The defendant caused a two-vehicle accident by driving recklessly. The occupants of both vehicles were injured. The defendant was rendered unconscious, suffered a head injury, and was taken to the hospital smelling strongly of marijuana. A police officer was dispatched to the hospital to arrange for blood testing of the defendant. The defendant had been sedated for treatment and a medical professional certified pursuant to Iowa Code section 321J.7 (2018) that the defendant was unable to consent or refuse blood testing. Testing was performed, therefore, without the defendant’s permission. It confirmed that the defendant had both THC and THC metabolites in his system. The defendant’s motion to suppress this testing was overruled and the defendant was convicted of operating while intoxicated (OWI) in violation of Iowa Code section 321J.2.
On appeal, the defendant argues that this warrantless blood draw violated Iowa Code section 321J.7, the Fourth Amendment to the United States Constitution, and article I, section 8 of the Iowa Constitution. We find the State complied with section 321J.7. Regarding the Fourth Amendment, we hold that Mitchell applies to cases of suspected driving while under the influence of controlled substances, in addition to alcohol- related cases. However, because the parties did not have an opportunity to make a record under the Mitchell standard, we must utilize that dreaded remand. We also hold that article I, section 8 does not provide greater protection from warrantless blood draws than the Mitchell standard. Accordingly, we reverse the judgment below and remand for further proceedings in accordance with this opinion.
I. Facts and Procedural Background.
On the afternoon of Saturday, December 8, 2018, at around 2 p.m., a call went out to Des Moines police to alert them of a vehicle collision on Euclid Avenue. Dispatch indicated there were numerous injuries and one person unconscious. Brian McGee was extracted from the driver’s seat of one of the vehicles at the scene and taken to the hospital in critical condition, having suffered a head injury and having been rendered unconscious from the accident. Witnesses at the scene of the accident indicated to police that McGee had been traveling at a high rate of speed and failed to yield before making a left turn. This led to the collision with the other vehicle. Five occupants of the other vehicle were injured and had to be transported by medics to the hospital as well. It was determined when they reached the hospital that their injuries were not life- threatening.
Traffic was diverted away from the collision area. Both vehicles were towed away. It took until 4:30 p.m. to restore traffic. As police officers and medics tended to McGee, they noticed a strong odor of marijuana coming from his person. An on-call Des Moines police officer—Tim Fricke—was summoned to report for duty and assigned the task of arranging for testing of McGee based on suspicions that he had been driving while impaired.
Upon arriving at the hospital, Officer Fricke was informed by medical staff that McGee had been sedated and would be unable to perform any initial screening tests for impairment or to provide a refusal or consent for blood testing. Also, Officer Fricke could see that McGee was unresponsive. Officer Fricke did not attempt to obtain a warrant. He later testified that he could have done so, but the Des Moines Police Department policy was to obtain a warrant for blood testing of a nonresponsive driver only if the offense would be a third or subsequent OWI or there was a serious injury or death.
Shortly before 4 p.m., Officer Fricke handed an official request for blood testing and a certification form to an advanced registered nurse practitioner who was present. The nurse completed and signed the certification that McGee was presently unable to give consent or refusal for testing. At this point, the medical staff initiated the steps necessary to draw blood from McGee. While this was going on, McGee suddenly awoke in a muddled state. McGee repeated the word “pee” frantically and began to urinate on himself as medical staff and his family attempted to help him sit up and urinate into a receptacle. During this time, McGee did not respond or even attempt to answer questions asked about his condition. He passed out again after being calmed by family and further attended to by medical staff. At around 4:10 p.m., McGee’s blood was drawn. Results from the tests showed traces of lorazepam and delta-tetrahydrocannabinol (THC) along with the presence of both the impairing and nonimpairing THC metabolites. [1]
On March 13, 2019, the State filed a trial information in the Polk County District Court charging McGee with OWI first offense. On April 11, McGee filed a motion to suppress the evidence obtained as a result of the warrantless blood draw, arguing the State needed “a warrant or exigent circumstances.”
An evidentiary hearing took place on May 7 and 8 at which Officer Fricke testified and both his body cam video and the certification form were received in evidence. At the conclusion of the hearing, the district court denied McGee’s motion to suppress. The district court ruled the State had complied with Iowa Code section 321J.7 in undertaking the warrantless blood draw and that neither the United States Constitution nor the Iowa Constitution required the State to obtain a warrant for the blood draw.
Thereafter the parties stipulated to a trial on the minutes. The district court found McGee guilty of first-offense OWI under the Iowa Code section 321J.2(1)( c ) alternative (“any amount of a controlled substance is present in the person, as measured in the person’s blood”). The district court expressly declined to find McGee guilty under section 321J.2(1)( a ) (the “under the influence” alternative). McGee was sentenced to one year in jail with all but seven days suspended, fined $1250, and ordered to pay over $10,000 in restitution to various victims.
II. Standard of Review.
McGee’s motion to suppress raised both statutory and
constitutional grounds. As to the statutory ground, our review is for
correction of errors at law and the district court’s findings of fact are
binding if supported by substantial evidence.
See State v. Smith
, 926
N.W.2d 760, 762 (Iowa 2019). With respect to the constitutional grounds,
our review is de novo.
State v. Fogg
,
III. Legal Analysis.
Iowa Code section 321J.7 provides,
A person who is dead, unconscious, or otherwise in a condition rendering the person incapable of consent or refusal is deemed not to have withdrawn the consent provided by section 321J.6, and the test may be given if a licensed physician, physician assistant, or advanced registered nurse practitioner certifies in advance of the test that the person is unconscious or otherwise in a condition rendering that person incapable of consent or refusal. [2]
In this case, an advanced registered nurse practitioner certified at 3:59 p.m. on December 8, 2018, that McGee was incapable of consent or refusal, having received intravenous injections of Ativan, Fentanyl, and Haldol. McGee maintains that the blood draw was unlawful and violated both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.
A. Compliance with Iowa Code Section 321J.7. Before getting to the constitutional questions, we will address McGee’s claim that the blood draw did not comply with the statute. When the nurse completed the certification at 3:59 p.m., McGee was sedated and appeared to be asleep. As preparations were being made for the blood draw around 4:04 p.m., McGee stirred. He made some irregular movements and indicated he had to “pee.” With assistance he sat up at the front of the hospital bed. He urinated—initially on himself and on the floor of the hospital room and later into a urinal that was held for him. At approximately 4:06 p.m., McGee was helped to lie back down. He appeared to fall back asleep. The actual blood draw occurred four minutes later at 4:10 p.m.
McGee claims that a new certification should have been obtained in light of his waking up temporarily to urinate. The district court disagreed, finding that McGee’s condition did not materially change during the eleven minutes between the certification and the actual blood draw. The court noted that McGee remained “totally unresponsive to the questions of the medical professionals [during the blood draw].” The recording on Officer Fricke’s body cam shows the full sequence of events from 3:59 to 4:10 p.m. The district court’s factual findings are supported by substantial evidence. See State v. Axline , 450 N.W.2d 857, 859–60 (Iowa 1990) (stating that “[c]onsiderable deference should be given to a trial court’s factual findings” under Iowa Code § 321J.7, and that a person who is conscious can nevertheless be “in a condition rendering him incapable of giving or refusing consent”).
As a matter of statutory interpretation, we agree that Iowa Code section 321J.7 does not usually require recertification when the blood draw occurs within eleven minutes of the initial certification. Certifications do not expire in eleven minutes, at least without clearer evidence that the driver has become capable of refusing or consenting in the meantime. Statutes come with a presumption of reasonableness, see Iowa Code § 4.4(3), and this is a reasonable approach. We hold that the blood draw complied with section 321J.7.
B. Constitutionality of the Blood Draw Under the Fourth Amendment. We now turn to McGee’s Fourth Amendment objection to the admission of the blood test results. In a series of recent decisions, the United States Supreme Court has applied the Fourth Amendment to blood alcohol testing. Its opinions, somewhat like the allegedly intoxicated driver whose rights they have sought to define, have twisted and turned somewhat. They have not necessarily hewed to a straight path.
In
Missouri v. McNeely
, the Court rejected the proposition that the
dissipation of alcohol in the blood justified a per se exigent-circumstances
exception to the warrant requirement.
In short, while the natural dissipation of alcohol in the
blood may support a finding of exigency in a specific case, . . .
it does not do so categorically. Whether a warrantless blood
test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the
circumstances.
at 156,
This then led to the question whether other exceptions to the
warrant requirement might apply. In
Birchfield v. North Dakota
, the Court
held that the search-incident-to-arrest (SITA) exception to the warrant
requirement authorized breath tests, but not blood tests, for alcohol. 579
U.S. ___, ___,
Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
Id.
at ___,
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.
Id.
at ___,
Lastly, in June 2019, one month after the suppression ruling in this
case, the Court decided
Mitchell v. Wisconsin
, 588 U.S. ___, 139 S. Ct.
2525.
Mitchell
seemingly walked back (1)
McNeely
’s rejection of categorical
exigent-circumstances exceptions and (2)
Birchfield
’s endorsement of
warrant applications for blood tests of incapacitated persons.
Mitchell
presented the question of whether a warrant was needed for a blood draw
from an unconscious driver.
Id.
at ___,
When police have probable cause to believe a person
has committed a drunk-driving offense and the driver’s
unconsciousness or stupor requires him to be taken to the
hospital or similar facility before police have a reasonable
opportunity to administer a standard evidentiary breath test,
they may almost always order a warrantless blood test to
measure the driver’s BAC without offending the Fourth
Amendment. We do not rule out the possibility that in an
unusual case a defendant would be able to show that his
blood would not have been drawn if police had not been
seeking BAC information, and that police could not have
reasonably judged that a warrant application would interfere
with other pressing needs or duties. Because Mitchell did not
have a chance to attempt to make that showing, a remand for
that purpose is necessary.
at ___,
The
Mitchell
plurality reached back toward the reasoning in
Schmerber v. California
,
Justice Thomas, concurring in the judgment, provided the
necessary fifth vote in
Mitchell
.
See Mitchell
,
“Under the narrowest grounds doctrine, the holding of a fragmented
Supreme Court decision with no majority opinion ‘may be viewed as that
position taken by those Members who concurred in the judgments on the
narrowest grounds.’ ”
State v. Iowa Dist. Ct.
,
The Mitchell plurality stated,
[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.
If McGee had smelled of an alcoholic beverage rather than
marijuana, there would be no doubt that
Mitchell
applies to this case. But
those are not the facts. McGee’s erratic driving, combined with the “strong
odor” of burnt marijuana coming from him at the scene and at the hospital,
gave the police probable cause to conclude that he had violated the
controlled substance
prongs of Iowa Code section 321J.2(1).
See
Iowa Code
§ 321J.2(1)(
a
) & (
c
);
State v. Watts
,
We think it does. At least one commentator has expressed this view: Mitchell could also provide justification for warrantless blood draws in cases where someone is suspected of driving under the influence of drugs, which also present a continuous risk that evidence is being destroyed through the suspect’s metabolic processes. . . . Mitchell will likely play a role in future cases with drivers who are under the influence of drugs, which present similar, if not elevated, potential health, safety, and law enforcement needs.
The Supreme Court, 2018 Term—Leading Cases , 133 Harv. L. Rev. 302, 310 n.86 (2019).
Additionally, the South Carolina Supreme Court utilized the
Mitchell
plurality’s standard in a case of controlled substances.
See State v. McCall
,
We have noted in our cases that “nonimpairing metabolites” of
marijuana can remain in the body for some time and that any amount of
these metabolites in blood or urine can constitute a violation of Iowa Code
section 321J.2.
See State v. Childs
,
Law enforcement is not required to settle for the minimum in suspected OWI drug cases. Detection of the nоnimpairing and long-lasting metabolite carboxy-THC is enough to establish OWI under Iowa law. See Newton , 929 N.W.2d at 256–59; Childs , 898 N.W.2d at 184. That’s the bare minimum. But there are legitimate reasons why law enforcement would want more—namely, proof that fast-dissipating THC itself was in the driver’s system. For one thing, evidence that the driver actually had the active ingredient and not merely an inert byproduct in their system might help avoid jury nullification in an era when criminalization of marijuana use has become increasingly controversial.
Also, if the driver unintentionally caused a serious injury to another person by operating a motor vehicle while intoxicated, that’s a class “D” felony. See Iowa Code § 707.6A(4). In State v. Adams , a prosecution for the related crime of causing someone’s death while intoxicated, we indicated that the State has the burden “to prove a causal connection between the defendant’s intoxicated driving and the victim’s death.” 810 N.W.2d 365, 371 (Iowa 2012). So, if there is a potential for serious injuries, the State needs proof that the defendant was actually under the influence, and not merely had vestiges of past marijuana use in their bloodstream. We recognize that a report had come back from the hospital that the five occupants of the other vehicle had not suffered serious injuries. Still, situations like this can be fluid. Here, one of the injured children needed thirteen stitches, missed two weeks of school, and was still scared of traveling in a car three and a half months later.
Additionally, from a victim restitution standpoint, it matters whether
the defendant was under the influence of THC or just technically had a
nonimpairing metabolite in their system.
See
Iowa Code § 910.1(6)
(defining “pecuniary damages” for purposes of victim restitution as
damages “which a victim could recover against the offender in a civil action
arising out of the same facts or event”);
State v. Shears
,
We have ourselves analogized the body’s natural elimination of drugs to its natural elimination of alcohol, and upheld a warrantless stomach pump for drug evidence on that basis. See State v. Strong , 493 N.W.2d 834 (Iowa 1992). Thus, in Strong , we explained,
[I]t is common knowledge that cocaine, once ingested orally, is absorbed into the blood and, like alcohol, is eliminated by the body. Therefore, the passage of time alone will operate to destroy the evidence. We conclude, under the rationale of Schmerber , that exigent circumstances existed here which justified a warrantless search. at 837. Notably, the rationale of Schmerber , which we relied upon in
Strong
, is essentially the rationale of
Mitchell
.
See Mitchell
,
For all these reasons, we conclude that the Fourth Amendment standards in Mitchell apply when law enforcement has probable cause to believe that an incapacitated person committed OWI with respect to marijuana instead of alcohol. [4] This then leads to the question whether we should apply those standards ourselves or remand for the district court to do so. With verve and gusto, the State has gone through the minutes in its appellate briefing and detailed for us how it believes the Mitchell exigent-circumstances standard was met. In the State’s view, this was a very busy Saturday afternoon for the Des Moines police.
But no one had a real opportunity to make a record in the district
court because the Supreme Court had not decided
Mitchell
yet.
Accordingly, we think the appropriate course under the Fourth
Amendment is to reverse and remand with directions to conduct a
suppression hearing under the
Mitchell
test: Is this a situation where
Officer Fricke “could not have reasonably judged that a warrant
application would interfere with other pressing needs or duties”?
Id.
at
___,
C. Constitutionality of the Blood Draw Under Article I, Section
8.
We believe
State v. Findlay
provides the starting-point for article I,
section 8 analysis of warrantless blood draws of allegedly intoxicated but
incapacitated drivers.
Following his OWI conviction, the defendant appealed, raising the
inadmissibility of the blood test.
Id.
We found the statute had been
complied with.
Id.
at 737–38,
The public interest requires a holding that the disappearing
evidence due to bodily assimilation created an emergency
requiring prompt action. Under these conditions we find no
unreasonable search and seizure and no substantial violation
of defendant’s constitutional right of due process.
at 740,
on
Schmerber
.
See id.
at 738–39, 741–42, 744,
Thus,
Findlay
upheld a warrantless blood draw performed on an
incapacitated driver against both state and federal constitutional
challenges. At its core,
Findlay
largely forecasts the plurality opinion in
Mitchell
. We say “largely” because the exigent-circumstances discussions
in the two opinions are not exactly the same.
Mitchell
adopts a rule that
exigent circumstances are “almost always” present, with the only
exception being a light police workload.
Findlay
likewise gives leeway to
the State, but focuses on the potential loss of evidence. Hence,
Findlay
indicates that when the officer “reasonably believed he was confronted
with an emergency, a situation in which the delay necessary to obtain a
warrant threatened ‘the destruction of evidence,’ he can rightfully order
the blood withdrawal and complete the test.”
Id.
at 742, 145 N.W.2d at
656 (citation omitted) (quoting
Preston v. United States
,
Despite the existence of the Findlay precedent, and its heuristic resemblance to Mitchell , each side in this case prefers that we not follow Mitchell under the Iowa Constitution. McGee urges us to apply State v. Pettijohn , 899 N.W.2d 1 (Iowa 2017), to his case. Pettijohn held that a warrant is ordinarily required under article I, section 8 before taking a breath test for blood alcohol from a suspected drunken boater. Id. at 22– 25. We indicated that any exigent-circumstances exception to this warrant requirement under the Iowa Constitution should be available only rarely:
[W]hen unusual circumstances arise that make an officer obtaining a warrant within two hours of witnessing the arrestee operating a boat impracticable, they may support the determination that exigent circumstances exist to justify the administration of a warrantless breath test. at 24 (emphasis added). Although decided under the Iowa Constitution,
Pettijohn borrowed from the discussions of exigent circumstances in McNeely and Birchfield and suggested that the scope of that exception would dwindle in OWI cases as electronic warrants became more widespread. See id. at 23–25.
Invoking Pettijohn , McGee argues that a warrant should be required for a blood draw from an allegedly intoxicated driver except in the infrequent situation when the State cannot feasibly get a warrant on time. We decline to adopt that position for two reasons. First, in Pettijohn , we expressly limited our decision to boating while intoxicated. Id. at 38. To make this clear, we devoted a separate section of the opinion and a separate heading to this point. Id. [8] Second, if we extended Pettijohn to driving, there would be no principled way to limit the extension to blood tests. Pettijohn , after all, involved a breath test. And we believe there would be significant practical costs in presumptively requiring warrants in OWI driving cases—without any corresponding gains in civil liberties.
Intoxicated driving often occurs when intoxication occurs, that is, at night and on weekends. And it is unfortunately rather prevalent. In 2019, the Iowa Department of Transportation reported 14,395 OWI revocations statewide. Iowa DOT, Iowa OWI Revocations by Year and County 2001– 2020 (2021), https://iowadot.gov/mvd/stats/owirevocations.pdf [https://perma.cc/69FP-4825]. So if warrants were presumptively required, we expect thousands of off-hours warrant applications every year. It is true that some drivers might consent, but the scales of the consent law could no longer be tipped with adverse consequences for not consenting. The typical driver suspected of OWI would therefore have every incentive to buy time by not consenting, thereby forcing law enforcement to go through the hoops of obtaining a warrant.
And to what gain in civil liberties? Independent review by a judicial officer of the asserted grounds for searching a house, an apartment, a computer, or a cellphone matters . A wide variety of reasons for such searches exist, and there is no single formula that separates the proper from the improper search. Someone needs to sift through the asserted grounds for the search, make sure there is probable cause, and limit the search appropriately. With OWI, however, there are few if any judgment calls by the time a chemical test would be administered. Notably, in this case, McGee has not argued that probable cause for a blood draw was lacking. That is typical; only in the rare case does the defendant argue that implied consеnt was improperly invoked due to the lack of probable cause. More often, the defendant challenges the initial vehicle stop or alleges a violation of some statutory procedure. Here the police could have obtained a warrant and, according to Officer Fricke, would have done so if they had been investigating a more serious crime such as OWI third.
Moreover, with OWI, the relevant events giving rise to probable cause happen over a matter of minutes. Recording of those events is feasible, unlike with the events allegedly supporting probable cause for search of a home. Law enforcement has the incentive to record encounters with drivers suspected of OWI under the existing implied-consent regime, and those recordings provide more protection to defendants than a formalistic warrant requirement would. [9]
Once a warrant had issued based on law enforcement’s
representations about signs of intoxication, which we believe would
routinely occur, the defendant would have great difficulty challenging the
test results.
See State v. Shanahan
, 712 N.W.2d 121, 132 (Iowa 2006)
(noting that once a warrant issues “[w]e do not attempt to independently
determine probable cause but rather ‘merely decide whether the issuing
judge had a substantial basis for concluding probable cause existed’ ”
(quoting
State v. Gogg
,
In sum, a presumptive warrant requirement for cases under Iowa Code section 321J.2, similar to the one we recognized in Pettijohn for section 462A.14 cases, would consume significant resources, both for the police and the courts. At the same time, we doubt it would add meaningfully to the existing protections for drivers derived from the implied-consent law.
Implied-consent laws have been present in all fifty states since the
1960s and they have not changed all that much during those six decades.
Their universal adoption suggests that they work and that they aren’t
viewed as especially controversial. This may explain why the Supreme
Court in
Mitchell
seemingly pulled back from its tone in
McNeely
and
Birchfield
, while gesturing as to the importance of blood alcohol testing.
See Mitchell
,
At the same time that we are reluctant to tow Pettijohn onto dry land as McGee asks, we must also decline the State’s invitation to hold Iowa Code section 321J.7 per se compliant with the Iowa Constitution. The State wants us to recognize implied consent as a “free-standing exception” to the article I, section 8 warrant requirement. The Supreme Court has not taken this step in its Fourth Amendment jurisprudence. We agree with the State that, in theory, nothing prevents us from adopting a narrower interpretation of article I, section 8 than the Supreme Court’s interpretation of the Fourth Amendment. Still, in this case, at this time, we are not inclined to do so.
Warrant exceptions need to be grounded in an underlying purpose or principle. One such principle is that warrantless searches are permissible when it would be impractical or unduly formalistic to obtain a warrant. This has led us to recognize warrant exceptions for exigent circumstances, seаrches incident to arrest, automobile searches, and consent. However, an exception needs to be based on something other than the legislation that created the exception. The problem with implied consent is that it is an artificial construct of Iowa Code chapter 321J. As the State acknowledges, implied consent “is not actual consent.” See also Mitchell , 588 U.S. at ___, 139 S. Ct. at 2533 (“[O]ur decisions have not rested on the idea that these laws do what their popular name might seem to suggest—that is, create actual consent to all the searches they authorize.”).
For now, therefore, we agree with the State’s fallback position. Article I, section 8 does not demand a more rigorous standard than the Mitchell plurality imposed for warrantless blood draws on incapacitated drivers. Mitchell is a workable state constitutional standard. Accordingly, the Fourth Amendment remand we have ordered will resolve any issues under article I, section 8.
D. Equal Protection Issues.
Finally, McGee argues that it violates
both the Fourteenth Amendment and article I, section 6 equal protection
for unconscious drivers suspected of OWI to be treated differently from
conscious drivers. We disagree. Since neither a suspect class nor a
fundamental right is involved, we apply the rational basis test.
[10]
There are
rational reasons for treating the two categories of motorists differently.
Someone who is conscious can decide whether to consent or not to consent
to testing. So it is logical to give them the choices delineated in Iowa Code
sections 321J.6 and 321J.9. An unconscious driver by definition can’t
consent, and it would be unfair to allow such a driver to refuse. Unfair to
the driver, who would suffer license revocation under section 321J.9; and
unfair to the State, which would be unable to put the refusal into evidence
because there had been no exercise of a choice. The Colorado Supreme
gainfully employed when a classification impinges upon the exercise of a fundamental
and other express constitutional guaranties. The fundamental rights analysis is most
This approach is off the mark because it muddles the distinction between equal protection
already been found not to violate an explicit constitutional guaranty, it usually does not
,
In sum, the fundamental rights branch of equal protection analysis is usually not viewed as a way to expand the recognized substantive scope of other express constitutional guaranties. If it were, litigants would be raising it in just about every case involving alleged infringement of some other express constitutional provision. Court recently explained these points well in rejecting a similar challenge to Colorado’s OWI law:
When drivers are unconscious, law enforcement officers are deprived of the evidence they typically rely on in drunk-driving prosecutions: unlike conscious drivers, unconscious drivers cannot perform roadside maneuvers, display speech or conduct indicative of alcohol impairment, or admit to alcohol consumption. In order to effectively combat drunk driving, the state needs some means of gathering evidence to deter and prosecute drunk drivers who wind up unconscious. Section 42–4–1301.1(8) satisfies that need. Therefore, Hyde’s equal protection challenge, like his Fourth Amendment claim, fails.
People v. Hyde
,
IV. Conclusion.
For the foregoing reasons, we reverse McGee’s judgment and conviction and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Christensen, C.J., and Waterman, McDonald, and McDermott, JJ., join this opinion. McDermott, J., files a special concurrence in which Christensen, C.J., and Waterman, J., join. Appel, J., files a dissenting opinion. Oxley, J., files a dissenting opinion in which Appel, J., joins.
#19–1219, State v. McGee McDERMOTT, Justice (concurring specially).
I join the majority opinion, but I write separately because I believe
the Iowa Constitution’s search and seizure protections in article I, section
8 do not mandate the procedures to establish “exigent circumstances” that
the United States Supreme Court announced in its plurality opinion in
Mitchell v. Wisconsin
,
We generally interpret the search and seizure provisions in the Iowa
Constitution to track with federal interpretations of the Fourth
Amendment to the United States Constitution.
State v. Brown
, 930
N.W.2d 840, 847 (Iowa 2019). Yet we nonetheless have a duty to interpret
provisions of the Iowa Constitution independently, even when two
constitutional provisions “contain nearly identical language and have the
same general scope, import, and purpose.”
State v. Brooks
, 888 N.W.2d
406, 410–11 (Iowa 2016) (quoting
State v. Jackson
,
As the majority points out, the United States Supreme Court’s recent
decisions applying the Fourth Amendment to blood alcohol testing have
wound a twisted path culminating most recently in
Mitchell
. The plurality
opinion in
Mitchell
permits a warrantless draw of blood from an
unconscious driver based on probable cause
except
—and here’s the
catch—where law enforcement “could not have reasonably judged that a
warrant application would interfere with other pressing needs or duties.”
Under the
Mitchell
plurality’s holding, when the police come upon
the scene of a crash and find an unconscious driver, whether probable
cause exists to conduct a blood draw without a search warrant doesn’t
depend on circumstances inherent to the driver or the crash but on
whether the police have some other more important task that takes priority
over getting a warrant. Our constitution provides protection from
“unreasonable” searches and seizures. But I find nothing in the Iowa
Constitution’s search and seizure protections that would require us to
adopt the Supreme Court’s difficult-to-administer rule from
Mitchell
to
ensure “reasonableness.”
State v. Tyler
,
The “exigent circumstances” exception to the Fourth Amendment’s
warrant requirement applies when law enforcement’s need to prevent the
imminent destruction of evidence is so compelling that a warrantless
search is “objectively reasonable” under constitutional search and seizure
protections.
State v. Watts
, 801 N.W.2d 845, 850 (Iowa 2011);
see also
King
,
But instead of holding simply that exigent circumstances exist to
conduct a blood draw of an unconscious driver suspected of alcohol
intoxication
only if
law enforcement’s to-do list contains some other
pressing tasks (as the plurality in
Mitchell
held), I would adopt the
reasoning of Justice Thomas’s concurring opinion that exigent
circumstances exist in these situations regardless of whatever other work
police officers might have on their plates.
Mitchell
,
Requiring a law enforcement officer dealing with an unconscious
driver to ponder and measure the fuzzy question “Just how pressing are
my other job responsibilities right now?” in deciding whether it’s necessary
to get a warrant will expose the officer to protracted second-guessing in
later court proceedings. In the relatively short time since
Mitchell
came
down, other jurisdictions have already started grappling with these
questions.
See, e.g.
,
McGraw v. State
, 289 So. 3d 836, 839 (Fla. 2019)
(remanding for a determination of whether the search fell within the “other
pressing needs or duties” exception);
State v. Chavez-Majors
, 454 P.3d
600, 608 (Kan. 2019) (same);
State v. Key
,
And to what end? The “other pressing needs or duties” inquiry comes with negligible upside for the protection of a suspect’s civil liberties. When an officer attests to an unconscious driver’s suspected intoxication, an overwhelming percentage of the time the court will find probable cause exists and issue a warrant for the blood draw. We should not, and need not, adopt as a matter of constitutional “reasonableness” the Mitchell plurality’s complicated rule that secures virtually no protection against unreasonable searches and seizures yet constrains enforcement of intoxicated driving laws. As a matter of Iowa constitutional law, I would thus hold that law enforcement’s investigation of an unconscious driver suspected of alcohol intoxication meets the exigency exception to the warrant requirement to permit a blood draw consistent with Iowa Code section 321J.11 without the need for a warrant.
The majority decides this case under the Fourth Amendment of the United States Constitution, and correctly so. When the Iowa Constitution provides less protection than the Federal Constitution, government officials must nonetheless comply with the more stringent provisions of the Federal Constitution. I thus join the majority opinion but urge our court to adopt, for purposes of Iowa’s constitutional search and seizure protections, the straightforward per se rule described above in place of the Mitchell plurality’s test.
Christensen, C.J., and Waterman, J., join this special concurrence. #19–1219, State v. McGee APPEL, Justice (dissenting).
I respectfully dissent. The preserved issue in this case is whether Iowa’s implied-consent statute provides a constitutional justification for a warrantless search of an unconscious driver suspected of drugged driving. Because of the lack of voluntary consent, the unconstitutional nature of the condition in the statute, and the similarity of the implied-consent statute to a general warrant, I think the answer to this question is firmly no under the search and seizure provision of article I, section 8 of the Iowa Constitution, and alternatively, under the Fourth Amendment to the United States Constitution.
The majority seeks a work-around to avoid the question regarding
Iowa’s implied-consent statute by answering a second question, namely,
whether the warrantless search in this case could be justified under a
modified version of the exigent-circumstances exception recently
developed by the United States Supreme Court in the case of
Mitchell v.
Wisconsin
,
There are two problems with the majority approach. First, the State
did not pursue the fact-bound exigent-circumstances exception before the
district court. As a result, the question is not preserved in this case.
State
v. Baldon
,
In any event, I would not adopt the innovations to the traditional
exigent-circumstances exception to the warrant requirement cobbled
together by a narrow majority of the United States Supreme Court in
Mitchell
under the search and seizure provision of the Iowa Constitution
.
As in this case, the question of exigent circumstances in
Mitchell
was not
raised below. Nonetheless, apparently to avoid the implied-consent issue
similar to the one in this case, the
Mitchell
Court announced modification
of the exigent-circumstances exception for purposes of the Fourth
Amendment in cases involving blood draws, without the benefit of briefs
of the parties or amici on the issue. In my view, by adopting
Mitchell
on
the unpreserved issue, the majority has uncritically adopted a flawed
Federal Court decision when a better model is available, specifically, the
approach of the Supreme Court only a few years earlier in
Missouri v.
McNeely
,
Because the State loses on the merits of the only preserved claim, I would reverse and remand the case to the district court. In the alternative, if we were to consider the proposed reconstruction of the exigent- circumstances exception to the warrant requirement under a second bite of the apple theory, I would require on remand that the State prove what it has always been required to prove under the exigent-circumstances exception, namely, a compelling need and a showing that obtaining a warrant in a timely fashion was impracticable. In caselaw shorthand, I would follow the approach of the United States Supreme Court in McNeely , and not that developed in Mitchell .
The majority suggests that a Mitchell -type approach is especially necessary where drugged driving involving marijuana is involved. I view Mitchell as objectionable for a host of reasons as will be explained below. In my view, however, whether to adopt a new and specialized regime for blood draws seeking evidence of marijuana consumption should await a case where the record is fully developed both with respect to the toxicology involved and the ability of the state to obtain a warrant.
The specific issues posed in this case might be characterized as quite narrow, and, indeed they seem to be. But we have learned in search and seizure law that it is very important to keep exceptions to the warrant requirement narrow and disciplined. Or, to put it colloquially, in the law of search and seizure, one thing leads to another. I write with some energy to prevent erosion of search and seizure rights under article I, section 8 of the Iowa Constitution.
I. Background.
A. Facts. This case involves a traffic accident that occurred on December 8, 2018, at 1:59 p.m. in Des Moines. Brian McGee, a driver of one of the vehicles, was taken to the hospital in an unconscious state. About two hours after the accident, a Des Moines police officer, Tim Fricke, asked a nurse for a certification that the patient was “in a condition rendering [him] incapable of consent or refusal” under Iowa Code section 321J.7 (2018). The nurse signed the certification and a blood draw was taken about ten minutes later. Just prior to the blood draw, McGee aroused enough to urinate but then returned to bed. The results of the blood draw showed traces of lorazepam and delta-tetrahydrocannabinol (THC) along with the presence of both the impairing and nonimpairing THC metabolites.
B. Motion to Suppress. McGee was charged with OWI, first offense, in violation of Iowa Code section 321J.2. The trial information charged McGee with two alternatives under the statute: driving while under the influence and driving with any amount of a controlled substance in his bloodstream.
McGee filed a motiоn to suppress, and argued the search was conducted without a warrant and that under Iowa law, such a search is unconstitutional absent a “jealously and carefully drawn exception.” McGee argued that the blood draw in his case was not a search incident to arrest, no exigent circumstances were present, and he did not consent to the chemical testing.
The district court held a hearing on the motion to suppress on May 7 and 8, 2019. At the hearing, McGee asserted that the warrantless blood draw was unconstitutional under the Fourth Amendment and article I, section 8 of the Iowa Constitution. McGee argued that the blood draw was a search, that the warrant requirement applied, and that the exigent circumstances and consent exceptions to the warrant requirement did not apply. McGee further argued that the blood draw was improper because he had gained consciousness after the nurse had signed the certification but prior to the blood draw. In addition, McGee asserted at the hearing that it would violate equal protection to require a warrant in a case involving a conscious driver but not in a case involving an unconscious driver.
The State responded to McGee’s legal arguments by asserting that the blood draw pursuant to the implied-consent scheme of Iowa Code chapter 321J fell within the consent exception to the warrant requirement. The State did not claim that the blood draw could be supported by the exigent-circumstances or search-incident-to-arrest exceptions to the warrant requirement.
The district court opened the hearing as follows: [THE COURT:] The motion to suppress in general is based on the warrantless taking of Mr. McGee’s blood in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Iowa Constitution. That would appear to put the burden on the State to go forward with the evidence. Are you in agreement with that, Mr. Curry, or not?
MR. CURRY: Yes, your Honor. Consistent with its stipulated burden, the State proceeded to offer evidence at the hearing. The State’s first witness was Fricke, who was an eleven-year veteran of the traffic unit at the time of the accident. His training included attendance at the Advanced Roadside Impaired Driving Enforcement program (ARIDE).
Fricke testified that he received a call regarding a serious injury accident and that he was to proceed to the hospital to obtain testing of a suspected impaired driver. Fricke testified regarding events at the hospital, including the sedated condition of McGee and his obtaining a certificate under Iowa Code section 321J.7 because the suspect was not able to consent due to his medical condition.
On cross-examination, Fricke was asked about his failure to obtain a warrant before the blood draw was taken. Below are all of the relevant transcript passages on the issue of failure to obtain a warrant:
Q. Officer, was there anything preventing you from getting a warrant in this case? A. No. This is a -- for an OWI first that did not result in a fatality with this case, no.
Q. So you concede that you could have obtained a warrant, correct? A. I don’t believe that you can get a warrant for a first offense for an OWI.
Q. Do you think that the procurement of a warrant depends on the number of offense on the OWI, that’s your understanding? A. My understanding is that for an OWI first that does not result in a serious injury or a traffic fatality, that I would not be able to get a warrant for that.
. . . .
Q. You wouldn’t dispute though the legal certainty that you can get a warrant based on probable cause, correct? A. No, I don’t dispute that.
Q. But you didn’t get a warrant here? A. I did not. . . . .
Q. Now, officer, one further point from the video, you would agree that blood was withdrawn at 1610, correct? A. That’s correct.
Q. And at that time you did not have a warrant, correct? A. I did not.
Q. You hadn’t made any efforts to procure a warrant, is that correct? A. No.
Q. You didn’t think you needed one? A. No.
. . . .
Q. As you began your OWI investigation, in that 30 to 40 minutes that it took you to get to the hospital, did you make any efforts during that time to secure a warrant? A. No. Q. How about in terms of the officer that initially called you, did you instruct that officer to make efforts to secure a warrant? A. No.
. . . .
Q. Did you instruct that officer, the officer with whom you spoke with at the hospital, to make any efforts to get a warrant? A. No, I did not.
Q. And the officer that you spoke with at the hospital, is that the officer who would have followed Brian to the hospital, followed my client to the hospital? A. Yes.
Q. So I know I am kind of hammering it home. Safe to say no one involved in this OWI investigation made any efforts to procure a warrant, correct? A. Correct.
Fricke was also examined about the passage of twelve minutes between the signing of the certificate by medical personnel and the actual blood draw. The defense offered into evidence a video of officer Fricke’s body camera that showed McGee arising from his bed and urinating during this time frame.
Aside from the testimony of Fricke and the admission of the certification, the State offered no further evidence. The defense rested without the introduction of evidence.
At the close of evidence, the district court heard oral arguments from the parties. The State argued that “implied consent is an exception to the warrant requirement.” According to the State, the provision of Iowa Code section 321J.7 (providing a certification process where a driver is incapable of consent) is “the crux of the case before the court today.” The State argued that once a certification pursuant to Iowa Code section 321J.7 is obtained, “[t]here is nothing more needed.” The State closed its argument by emphasizing that “[t]he scheme itself[, Iowa Code section 321J.7,] is [the] exception.”
McGee argued that the implied-consent statute did not provide a basis for a warrantless blood draw. According to McGee, “the person who is asked to provide consent must be able to provide consent and when you have someone who is by definition incapable of providing consent, you cannot proceed under a consent-based exception.” McGee further argued that if the implied-consent provisions of Iowa Code section 321J.7 were a stand-alone exception to the warrant requirement, a serious equal protection argument would be raised. According to McGee, conscious persons would be entitled to the protection of the warrant requirement, while unconscious persons would not. McGee also attacked the certification in the case in light of the twelve-minute gap and the video showing that McGee arose and urinated after the certification was executed.
At the conclusion of the hearing, the district court denied the motion from the bench. The district court found that 321J cases are an “exception to the warrant requirement.” The district court further held that the State met its burden of showing that the statutory requirements of section 321J.7 were met and that there was no requirement of recertification because of the delay in obtaining the blood draw. The district court explicitly stated that the testimony of Fricke regarding whether he could get a warrant was “immaterial to this matter as none was required.” The district court concluded that the State had met its burden of showing that the requirements of 321J were properly complied with by a preponderance of the evidence and, as a result, the motion to suppress was denied.
The district court did not discuss, and made no factual findings regarding, the possible application of the exigent-circumstances exception to the warrant requirement—a claim that the State did not make before the district court.
C. Trial on the Minutes. After the motion to suppress was denied, the parties agreed to a bench trial on the minutes of testimony. The district court convicted McGee under the alternative of the statute that prohibited driving with any trace of a controlled substance, see Iowa Code § 321J.2(1)( c ). The district court concluded, however, that there was insufficient evidence to support a conviction on driving under the influence, see id. § 321J.2(1)( a ).
D. Issues Raised on Appeal. McGee appealed his conviction. On appeal, McGee contends that a warrant to draw blood was required under both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. He attacks head-on the district court’s conclusion that the certification provisions of Iowa Code section 321J.7 provides an exception to the warrant requirement.
McGee asserts that any claim that the evidence was admissible under the exigent-circumstances exception was not relied upon by the State and was thus not preserved. In the alternative, however, McGee asserts that exigent circumstances were not demonstrated in this case. McGee again asserted that any approach that permitted a conscious person to insist on a warrant but denied the same right to an unconscious person would violate equal protection. Finally, McGee raises the statutory assertion that the terms of Iowa Code section 321J.7 were not complied with because of the approximately twelve-minute delay between the certification and the blood draw. [11]
II. Overview of Applicable Search and Seizure Principles. A. Introduction. In considering any important legal issue, it is
important to establish the legal context. By legal context I mean the larger environment of concepts and principles that touch upon and relate to the specific question at hand. If we immediately “cut to the chase,” we may decide a case that is at odds with the larger legal environment. Further, our caselaw will become transactional, result-oriented, less coherent, and provoke unintended consequences. Only when the general legal principles governing search and seizure are canvassed and understood can we drill down and apply those general principles to the specific issue at hand.
Below is a summary of the legal principles that set the framework for the decision in this case. The concepts presented below have a relatively high degree of generality. I have made no attempt to compare or contrast the potentially different doctrines of search and seizure under the Iowa Constitution compared to the Fourth Amendment. We are free, of course, to depart from federal caselaw under the Fourth Amendment when interpreting the search and seizure provisions of the Iowa Constitution.
B. Generally Applicable Constitutional Principles of Search and Seizure.
1. The purpose of search and seizure law is to protect individuals from overreaching government action. As is apparent from the history of search and seizure law, the purpose of the constitutional protections is to prevent governmental overreach. Search and seizure law is designed to draw boundaries around permissible government action. Constitutional protections against unlawful searches and seizures are not a minor inconvenience but play a crucial role in our constitutional governance by drawing lines that protect individuals from arbitrary government invasions of their privacy and dignity. As noted by Justice Jackson after his return from Nuremberg, search and seizure rights
are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.
Brinegar v. United States
,
It is true that search and seizure restrictions complicate the job of
law enforcement. But as noted by one state court, “Duties of law
enforcement officials are extremely demanding in a free society. But that
is as it should be. A policeman’s job is easy only in a police state.”
People
v. Spinelli
,
Our Iowa constitutional history demonstrates the importance of bill of rights protections against government overreach. George Ells, Chair of the Committee on the Preamble and Bill of Rights, declared, “[T]he Bill of Rights is of more importance than all the other clauses in the Constitution put together, because it is the foundation and written security upon which the people rest their rights.” 1 The Debates of the Constitutional Convention of the State of Iowa , 103 (W. Blair Lord rep. 1857), http://www.statelibraryofiowa.org/services/collections/law-library/iaconst. Ells cautioned that “[t]he annals of the world . . . furnish many instances in which the freest and most enlightened governments that have ever existed upon earth, have been gradually undermined, and actually destroyed, in consequence of the people’s rights.” Id. at 100–01. In order to protect the nascent state democracy, Ells stated the express desire
to put upon record every guarantee that could be legitimately placed [in the constitution] in order that Iowa not only might be the first State in the Union, unquestionably as she is in many respects, but that she might also have the best and most clearly defined Bill of Rights. at 100. Of course, article I, section 8 of the Iowa Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.
Given the importance of the search and seizure provisions of the United States and Iowa Constitutions, they are not designed to be efficient. Without question, in all cases, they make the ability of the state law enforcement to engage in searches and seizures somewhat less efficient . But that is true with many precious rights. The right to a jury trial, with careful procedures to ensure representation of a fair cross section of the community in jury panels, is hardly efficient. So, the importance or value of a constitutional protection is not determined by efficiency considerations. Indeed, by placing the protections in the constitutional firmament, the founders desired to ensure that specifically enumerated constitutional rights remained firmly entrenched notwithstanding their inefficient characteristics. The scope of the bill of rights was not to be subject to periodic pragmatic adjustments by the legislature.
2.
The generally applicable bright-line search and seizure rule is “get
a warrant.”
Like its federal counterpart, article I, section 8 of the Iowa
Constitution has a “reasonableness” clause and a “warrant clause.” We
have repeatedly stated that the reasonableness clause is informed by or
linked to the warrant clause.
See, e.g.
,
State v. Ochoa
,
The strong warrant preference approach was outlined decades ago by the United States Supreme Court in Coolidge v. New Hampshire :
[T]he most basic constitutional rule in this area is that
“searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few
specifically established and well delineated exceptions.” The
exceptions are “jealously and carefully drawn,” and there
must be “a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.”
While the United States Supreme Court cases began to undercut the
tradition of the warrant requirement in cases like
Griffin v. Wisconsin
, 483
U.S. 868,
Our cases demonstrate that “get a warrant” is the general command
of the search and seizure provisiоns of article I, section 8 of the Iowa
Constitution, subject to certain exceptions.
E.g.
,
State v. Coleman
, 890
N.W.2d 284, 286 (Iowa 2017). We have stated that Iowa courts “strongly
favor the warrant requirement, subject only to ‘jealously and carefully
drawn exceptions.’ ” (quoting
State v. Strong
, 493 N.W.2d 834, 836
(Iowa 1992));
see also State v. Gaskins
,
3.
The generally applicable bright-line “get a warrant” rule is subject
to narrow and well-defined exceptions that should be “jealously guarded”
against even small incursions.
“[T]he basic rule [is] that ‘searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are
per se
unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated
exceptions.’ ”
Arizona v. Gant
,
These exceptions, however, must be tightly controlled lest they
overcome the general rule that search warrants are required. The risk of
encroachment was recognized by the Supreme Court in its first major
search and seizure case,
Boyd v. United States
, 116 U.S. 616, 633–35,
[C]onstitutional provisions for the security of person and
property should be liberally construed. A close and literal
construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in
sound than in substance. It is the duty of courts to be
watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon.
at 635,
And, as stated by Justice Jackson in his classic discussion of search
and seizure law, “any privilege of search and seizure without warrant” will
be “push[ed] to the limit.”
Brinegar
,
Any exceptions to the warrant requirement thus must be “jealously
and carefully drawn” and subject to strict judicial oversight.
Jones
, 357
U.S. at 499, 78 S. Ct. at 1257. As noted by Justice Stevens, “The
ascendancy of the warrant requirement in our system of justice must not
be bullied aside by extravagant claims of necessity.”
California v. Carney
,
4.
The taking of a blood draw by the state is a search involving
invasions of a person’s most personal and deeply rooted expectations of
privacy.
There is no serious doubt that the taking of a blood draw is a
search.
See, e.g.
,
Birchfield v. North Dakota
,
5.
When applying the narrow and well-defined exceptions to the
warrant requirement, per se rules are disfavored.
As a general proposition,
exceptions to the warrant requirement are fact-based, not rule-based. The
determination of whether a warrantless search meets a narrow and
jealously guarded exception is not subject to “Procrustean application” of
reasonability.
Ker v. California
, 374 U.S. 23, 33, 83 S. Ct. 1623, 1630
(1963). “[T]here is no formula for the determination of reasonableness.
Each case is to be decided on its own facts and circumstances.” (quoting
Go-Bart Importing Co. v. United States
, 282 U.S. 344, 357, 51
S. Ct. 153, 158 (1931)). Thus, the Supreme Court has stated “that for the
most part
per se
rules are inappropriate in the Fourth Amendment
context.”
United States v. Drayton
,
[T]he facts of cases so various that no template is likely to produce sounder results than examining the totality of circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn out to be important in a given instance, and without inflating marginal ones.
6.
The burden is on the state to show the circumstances necessary
to support the narrow exceptions to the “get a warrant” requirement.
In
applying exceptions to the warrant requirement, the burden is on the state
to show that an exception applies.
See Coolidge
,
The rationale for placing the burden with the state is double-
barreled. First, as a general matter, the party seeking an exception to a
general rule carries the burden of proof.
See Welsh v. Wisconsin
, 466 U.S.
740, 749–50,
7.
A warrant is not required under the “jealously and carefully”
applied concept of voluntary consent.
For many years, the Supreme Court
had not discovered a consent doctrine to avoid the warrant requirement.
However, in
Bumper v. North Carolina
, the Supreme Court stated, “When
a prosecutor seeks to rely upon consent to justify the lawfulness of a
search, he has the burden of proving that the consent was, in fact, freely
and voluntarily given.”
The consent doctrine has been characterized by the Supreme Court
as “jealously and carefully drawn.”
Georgia v. Randolph
, 547 U.S. 103,
109, 126 S. Ct. 1515, 1520 (2006) (quoting
Jones
, 357 U.S. at 499, 78
S. Ct. at 1257);
see also State v. Lowe
,
Once given, however, consent to search may be withdrawn.
Florida
v. Jimeno
,
A number of state courts have rejected the
Schneckcloth
“totality of
the circumstances” test in favor of the more stringent standard of knowing
and voluntary waiver announced in
Johnson v. Zerbst
,
8.
Exigent circumstances have been recognized as a narrow and
jealously guarded exception to the warrant requirement where the state
makes a factual showing of compelling need and obtaining a warrant is
impracticable.
The exigent-circumstances exception applies where “ ‘the
exigencies of the situation’ make the needs of law enforcement so
compelling that [a] warrantless search is objectively reasonable under the
Fourth Amendment.”
Kentucky v. King
, 563 U.S. 452, 460, 131 S. Ct.
1849, 1856 (2011) (alteration in original) (quoting
Mincey v. Arizona
, 437
U.S. 385, 394,
The exigent-circumstances exception has been applied where police
need to provide help to a “seriously injured” occupant of a house or there
is an imminent threat of such injury to that person,
Brigham City v. Stuart
,
Like other exceptions to the warrant requirement, the state bears
the burden of proof on the exigent-сircumstances exception.
See, e.g.
,
Welsh
,
9.
Administrative convenience can never by itself justify disregard of
search and seizure principles.
In
Johnson v. United States
, the Supreme
Court observed that “the inconvenience to the officers and some slight
delay necessary to prepare papers and present the evidence to a
magistrate[] . . . are never very convincing reasons and, in these
circumstances, certainly are not enough to bypass the constitutional
requirement [of a warrant].”
10.
The Iowa Supreme Court “zealously” protects authority to engage
in independent search and seizure analysis.
It is well established that a
state supreme court has the ultimate authority to determine the meaning
of state constitutional provisions and that there is no obligation to simply
follow federal precedent even where the federal and state constitutional
provisions are nearly identical. We have departed from federal search and
seizure precedents on a number of occasions.
See, e.g.
,
State v. Ingram
,
C. Statutory Provisions of Iowa Code Chapter 321J. Iowa Code chapter 321J, entitled “Operating While Intoxicated,” has various statutory provisions relating directly to the authority of police officers to obtain warrantless blood draws of nonconsenting persons. The provisions relate to implied consent, the testing of dead or unconscious persons, the consequences of refusal to submit to testing, written or telephonic search warrants, and obtaining samples without a warrant. See Iowa Code §§ 321J.6, .7, .9, .10, .10A.
Three provisions are particularly germane to this case. Iowa Code section 321J.6 provides that “a person who operates a motor vehicle in this state . . . is deemed to have given consent to the withdrawal of specimens of the person’s blood . . . for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs.”
Iowa Code section 321J.7 provides that “a person who is dead, unconscious, or otherwise in a condition rendering the person incapable of consent or refusal is deemed not to have withdrawn the consent provided by section 321J.6.”
Iowa Code section 321J.10 provides for, among other things, telephonic warrants where “[a] traffic accident has resulted in a death or personal injury reasonably likely to cause death.”
Iowa Code section 321J.10A states that a police officer may obtain a sample without a warrant if the person is under arrest for operating a vehicle unlawfully and the police “officer reasonably believes the blood drawn will produce evidence of intoxication,” the method used is reasonable and “performed in a reasonable manner,” and the officer “reasonably believes the officer is confronted with an emergency situation in which the delay necessary to obtain a warrant . . . threatens the destruction of the evidence.”
III. Overview of Applicability of the Warrant Requirement for Bodily Intrusions of Unconscious Suspects.
A. Introduction. Having examined the generally applicable search and seizure principles and relevant statutory provisions, I now consider whether the state may engage in warrantless blood draws of unconscious persons either based on “implied consent” (i.e., implied by law under Iowa’s implied-consent statute) or based on exigent circumstances that make application for a warrant impracticable.
Before diving into the caselaw, it is important to distinguish between
two distinctly different consent issues under implied-consent laws. The
first question is whether actual consent given by a suspect pursuant to an
implied-consent statute is “voluntary” under search and seizure law. That
was a key issue in
State v. Pettijohn
,
While the fact-based question in Pettijohn involved, in part, whether the civil sanctions threated by Iowa’s implied-consent statute applicable to boating rendered the consent involuntary, the issue in this case is whether the State can “deem” a driver consented to waiver of search and seizure rights by merely driving on the roads of the state.
B. United States Supreme Court Precedent Regarding
Unconsented and Warrantless Bodily Invasions by the State.
The trail
of United States Supreme Court cases dealing with blood draws begins
with two due process cases. In
Rochin v. California
, law enforcement
forcibly broke into the home of the accused and observed him place
something in his mouth.
In a second due process case,
Breithaupt v. Abram
, the Supreme
Court considered the validity of a manslaughter conviction based, in part,
on a blood draw obtained from an unconscious defendant without a
warrant after a traffic accident. 352 U.S. 432, 433, 77 S. Ct. 408, 409
(1957). The
Breithaupt
majority rejected a due process challenge to the
search on the merits, concluding that blood draws were not “brutal” or
“offensive.” at 435,
Chief Justice Warren, joined by Justice Black and Justice Douglas,
dissented. The Chief Justice found little meaningful difference between a
stomach pump and an invasion of the skin through a needle.
Id.
at 440–
42,
In
Schmerber v. California
, the Supreme Court considered the
validity of a blood draw taken involuntarily from an
arrested
but
hospitalized driver without a warrant. 384 U.S. 757, 758–59, 86 S. Ct.
1826, 1829 (1966). The defendant challenged the blood draw on Fourth
and Fifth Amendment grounds.
Id.
at 759,
By a narrow 5–4 margin, the
Schmerber
Court sustained the
warrantless blood draw as a search incident to arrest.
Id.
at 770–71, 86
S. Ct. at 1835–36. The
Schmerber
majority emphasized that ordinarily the
involvement of a “neutral and detached magistrate” is required before
allowing a law enforcement officer to “invade another’s body in search of
evidence of guilt is indisputable and great.” at 770,
Nonetheless, the
Schmerber
majority emphasized that the officer
reasonably believed, under the circumstances, that there was a threatened
“destruction of evidence” based on the elimination of alcohol from the
accused’s system.
Id.
at 769, 86 S. Ct. at 1835. The
Schmerber
Court
stated that “[p]articularly in a case such as this, where time had to be
taken to bring the accused to a hospital and to investigate the scene of the
accident, there was no time to seek out a magistrate and secure a
warrant.”
Id.
at 770–71,
Yet, the Schmerber Court did not want to give law enforcement sweeping authority or permit warrantless, unconsented bodily intrusions. According to the Schmerber majority:
It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
Id.
at 772,
Chief Justice Warren, Justice Black, and Justice Douglas dissented
on Fifth Amendment grounds.
Id.
at 773,
In 2013, the Supreme Court in
McNeely
, returned to the question of
unconsented blood draws.
The Supreme Court was fractured in
McNeely
. Writing for a
majority, Justice Sotomayor rejected the state’s per se rule for suspected
drunk drivers.
Id.
at 165, 133 S. Ct. at 1568. Justice Sotomayor
repeatedly emphasized the fact-based nature of the inquiry.
Id.
at 150–
51,
In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case . . . it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
Id.
at 156,
Finally, Justice Sotomayor noted that a sizeable majority of the
states now have various remote methods, such as telephone, radio, email,
and video conference, to apply for search warrants.
Id.
at 154–55, 133
S. Ct. at 1561–62. The Chief Justice noted in his opinion concurring in
part and dissenting in part that judges often issue warrants in five to
fifteen minutes.
Id.
at 173,
A few years after
McNeely
, the Supreme Court, in
Birchfield v. North Dakota
, considered a challenge to a search where the suspect consented
only after being informed of the consequences of failure to consent under
a state’s implied-consent law.
The
Birchfield
Court distinguished between blood tests and breath
tests.
Id.
at ___,
It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious . . . . But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for а warrant if need be.
Id.
at ___,
The Birchfield Court concluded that the state could not establish voluntary consent for a blood draw through its implied-consent laws if the consequence of refusal to submit to a blood test was committing a criminal offense. Id. In short, the Birchfield Court permitted the state, through its implied-consent laws, to put some pressure on a suspect, such as a threat of administrative penalty, but not too much pressure. Id.
Finally, the Supreme Court considered whether law enforcement
could obtain a warrantless blood draw from an unconscious driver
suspected of driving while intoxicated in
Mitchell
,
Justice Alito wrote for a four-person plurality. In canvassing the
implied-consent precedents, the plurality noted that “our decisions have
not rested on the idea that these laws do what their popular name might
seem to suggest—that is, create actual consent to all the searches they
authorize.” at ___, 139 S. Ct. at 2533. Instead, the Alito plurality
emphasized that the cases have dealt with “the specific constitutional
claims in each case.”
Id.
at ___,
The Alito plurality next considered the public policy grounds for
obtaining blood draws.
Id.
at ___, 139 S. Ct. at 2535–37. The Alito
plurality noted that “highway safety is a vital public interest,” that federal
and state laws have long maintained that tests measuring blood alcohol
content aid the public safety interest, and that enforcing blood alcohol
content laws “requires a test . . . accurate enough to stand up in court.”
Id.
at ___,
The Alito plurality reviewed
Schmerber
, giving it a very narrow gloss.
Id.
at ___,
The Alito plurality then announced its conclusion. According to the
Alito plurality, police would “almost always” be entitled to conduct a
warrantless blood draw to measure a driver’s blood alcohol content where
the unconsciousness of the driver requires that the driver be taken to a
hospital or similar facility.
Id.
at ___,
There was one other important limitation in
Mitchell
. Justice Alito
emphasized that the legal conclusions in the opinion rested upon the fact
that “a breath test is impossible.” at ___, 139 S. Ct. at 2531. This
important limitation appears in various forms throughout the plurality
opinion.
See, e.g.
,
id.
at ___, 139 S. Ct. at 2531 (“[T]he driver is
unconscious and therefore cannot be given a breath test.”);
id.
at ___, 139
S. Ct. at 2534 (“[The police had] no reasonable opportunity to give Mitchell
a breath test . . . .”);
id.
at ___,
Justice Thomas provided the fifth vote by concurring in the result of
the case.
Id.
at ___, 139 S. Ct. at 2539–41 (Thomas, J., concurring in
judgment). Justice Thomas, however, would hold that there is a per se or
categorical exception to the warrant requirement where the “failure to act
would result in ‘the imminent destruction of evidence.’ ”
Id.
at 2540
(quoting
King
,
Justice Sotomayor emphasized that there were “carefully
circumscribed exceptions to the warrant requirement,” including exigent
circumstances.
Id.
at ___,
Justice Sotomayor acknowledge that drunk drivers are a cause for
great concern on the road, but argued that it is “ ‘[p]recisely because the
need for action . . . is manifest’ in such cases that ‘the need for vigilance
against unconstitutional excess is great.’ ”
Id.
at ___,
Justice Sotomayor also addressed the question of whether the
Supreme Court should even consider the exigent-circumstances exception
given the state of the record.
Id.
at ___,
Justice Sotomayor concluded by accusing the plurality of “act[ing] recklessly” in deciding a significant constitutional issue without a factual record and fully developed adversary proceeding. Id. at ___, 139 S. Ct. at 2546. According to Justice Sotomayor,
The plurality today carries that burden [demonstrating the availability of exigent circumstances exception] for a State that never asked it to do so, not only here but also in a scattershot mass of future cases. Acting entirely on its own freewheeling instincts—with no briefing or decision below on the question—the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant. The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment.
Id.
at ___,
Justice Gorsuch in a brief dissenting opinion noted certiorari was
granted to consider whether Wisconsin drivers impliedly consent to blood
draws “thanks to a state statute.”
Id.
at ___,
C. State Court Precedents Involving Warrantless and Unconsented Invasions of Bodily Integrity by the State.
1. Implied consent. I now turn to an examination of state court precedents regarding the constitutionality of invasions of bodily integrity by the state based on “implied consent” laws where the suspect has not given actual consent. As will be apparent, there are many jurisdictions that have come to the conclusion that implied-consent laws are not a stand-alone exception to the warrant requirement under both the Fourth Amendment and the search and seizure provisions of their state constitutions. What follows below is a summary of the important reasons supporting these state court decisions.
Many of the state court cases rely upon Supreme Court cases in their discussion of the validity of warrantless searches of unconscious persons based upon implied-consent statutes. Many cases also cite to parallel search and seizure provisions under the applicable state constitutions. The state cases, however, do not generally provide a separate analysis of state constitutional provisions.
Many state court cases involving unwarranted bodily invasions of
unconscious people by the state focus on the notion that in order to have
“consent” sufficient to avoid the warrant requirement, the consent must
be the product of a conscious mind in order to be “voluntary.” The notion
of consent as a voluntary act has existed in Anglo-American jurisprudence
for time out of mind. A corollary to the requirement of a conscious mind
is the necessity of the power to limit or revoke consent. Because the
features of a conscious mind are not present when blood draws are taken
from an unconscious person and an unconscious person is not capable of
limiting or revoking consent, state courts have repeatedly pounded that
the voluntariness required for a person to waive the warrant requirement
is not present.
See, e.g.
,
State v. Havatone
, 389 P.3d 1251, 1255 (Ariz.
2017) (“We conclude that the unconscious clause can be constitutionally
applied only when case-specific exigent circumstances prevent law
enforcement officers from obtaining a warrant.”);
People v. Arredondo
, 199
Cal. Rptr. 3d 563, 573 (Ct. App. 2016) (“[C]onsent of this kind cannot be
characterized as ‘free[].’ ” (alteration in original) (quoting
People v. Michael
,
The state court cases involving bodily invasions of unconscious people without a warrant by the state further emphasize that whether consent for purposes of search and seizure law has been provided by an individual raises a question of fact and not law. Thus, the notion of “implied consent” pursuant to a statute is said to be an inaccurate description. As noted by a California appellate court in People v. Arredondo ,
“[I]mplied consent” is a misleading, if not inaccurate, label in this context. Certainly consent sufficient to sustain a search may be “implied” as well as explicit, but it is nonetheless actual consent, “implied” only in the sense that it is manifested by conduct rather than words.
The state court cases involving unwarranted bodily invasions of unconscious people by the state also express concern regarding the power of the state legislature to override constitutional commands in implied- consent statutes. The Arredondo court discussed this concern at length, noting that “[a] state legislature does not have the power to ‘deem’ into existence ‘facts’ operating to negate individual rights.” 199 Cal. Rptr. 3d at 574. But further, the Arredondo court worried about the implications of legislatively-imposed consent:
It is far from implausible, for examрle, that a legislative body—
state or federal—might decree, in the name of public safety or
national security, that the use of the mails, or the phone lines,
or the Internet—all of which rely to a greater or lesser extent
on publicly owned property or facilities or publicly provided
services—constitutes consent to search the contents of all
communications thus conducted. Consent to search homes
might be “deemed” to be given by anyone taking advantage of
various publicly provided or subsidized privileges—like use of
public utilities, libraries, or schools. Consent to search the
person might be “deemed” to be given by use of a public
sidewalk or occupancy of a public place.
at 577–78;
see also Hannoy v. State
,
2003) (“To hold that the legislature could nonetheless pass laws stating that a person ‘impliedly’ consents to searches under certain circumstances where a search would otherwise be unlawful would be to condone an unconstitutional bypassing of the Fourth Amendment.”); Meyers , 164 A.3d at 1174 (“[L]egislative proclamation that motorists are deemed to have consented to chemical tests is insufficient to establish the voluntariness of consent that is necessary to serve as an exception to the warrant requirement.”).
Some of the cases focus on the fact that where officers can
practically obtain a warrant without significantly undermining the
efficiency of such search, the officers are required to obtain the warrant.
Bailey v. State
,
2. Exigent circumstances. I now turn to state court cases considering whether the exigent-circumstances exception applies in the context of obtaining blood draws from unconscious drivers suspected of driving while intoxicated. Using Schmerber as a springboard, the states are decidedly split. Some courts are relatively demanding in requiring the state to make a strong showing of exigent circumstances, while other courts seem more receptive to warrantless searches of unconscious drivers under the exception.
For example, in
State v. Bohling
, the Supreme Court of Wisconsin
held, over a dissent, that
Schmerber
created a per se exigent exception to
the warrant requirement.
But, in contrast, the Supreme Court of Utah came to the opposite
conclusion in
State v. Rodriguez
.
There are at least three state court cases dealing with the application
of the exigent-circumstances exception to the warrant requirement in the
context of dissipation of marijuana metabolites. In
Byars v. State
, the
Supreme Court of Nevada noted that “[t]here [was] no indication in the
record that Trooper Murwin was prevented from seeking a warrant
telephonically.”
A similar result occurred in
City of Seattle v. Pearson
,
Absent other extenuating circumstances, the natural dissipation of THC in a suspect’s bloodstream will constitute an exigency sufficient to forgo the warrant requirement only if the party seeking to introduce evidence of a warrantless blood test can show that waiting to obtain a warrant would result in losing evidence of the defendant’s intoxication.
Id. at 200. Further, the Washington court went on to state,
[W]e hold that the natural dissipation of THC from the bloodstream is a relevant consideration in an exigent circumstances analysis but is not a per se exigent circumstance that justifies an exception to the warrant requirement for nonconsensual blood draws in DUI cases.
Id. at 201. Based on the record, the court concluded that the warrantless blood draw was not justified in that case.
In
State v. Anderson
, however, a Washington appellate court
concluded, based on the record, that the state had made an adequate
showing of exigent circumstances in an alcohol and THC case based on
the facts and circumstances presented.
D. Iowa Cases Involving Warrantless Blood Draws.
1.
Implied consent.
Although they do not deal specifically with
implied consent, we have considered a number of search and seizure cases
that generally applied the notion of consent found in
Schneckloth
under
both the Fourth Amendment to the United States Constitution and article
I, section 8 of the Iowa Constitution. In these cases, we applied the familiar
fact-based, totality-of-the-circumstances test. In some cases, we found
that the state failed to show valid consent.
See, e.g.
,
Reinier
, 628 N.W.2d
at 467–69;
State v. Horton
,
We considered a question of a categorical, nonfact-based approach
in
State v. Ochoa
.
We considered the issue of consent in the context of a traffic stop in
Pals
.
We considered an important consent issue in State v. Baldon . 829 N.W.2d at 789–91. In Baldon , the question was whether a signature by a parolee convicted of drug offenses on a parole agreement that consented to future warrantless searches of his home, vehicle, and belongings was a valid consent under article I, section 8 of the Iowa Constitution. Id. at 787–91. The courts across the country were split on the issue. Id. at 792– 95. After review of the cases, we sided with the jurisdictions that held that the execution of a parole agreement did not categorically establish consent. Id. at 800–03. A prospective consent-to-search provision in a parole agreement did not solely give rise to a valid consent. Id. at 800. We noted that there was no additional evidence in the record to reveal Baldon voluntarily consented to a search. Id. at 802. But the state relied solely on the parole agreement, which we found was insufficient. Id. We stated that “more is needed.” Id. at 803.
The above principles have generally been applied by this court in the context of claims of consent via implied-consent statutes. In State v. Garcia , we considered whether an individual voluntarily submitted to a blood test when an officer invoked implied-consent procedures. 756 N.W.2d 216, 220 (Iowa 2008). We emphasized that in order to be voluntary, the consent must be “freely made, uncoerced, reasoned, and informed.” Id. The issue of consent was not “deemed” to be satisfied merely by the statute, but needed to be proved, as a matter of fact, by the state. at 220–21, 223.
A second implied-consent case is
State v. Overbay
,
Finally, we considered the issue of implied consent in Pettijohn . 899 N.W.2d at 25–29. In that case, we considered the constitutionality of a warrantless breath test obtained from a boater suspected of drunk boating. Id. at 25–26. We canvassed jurisdictions, noting that consent must be voluntary and must be subject to limitation or withdrawal. Id. at 28. Consistent with Garcia and Overbay , we rejected the state’s claim that the implied-consent statute dealing with drunken boaters provided per se consent sufficient to justify the warrantless breath test in the case. Id. at 29. We therefore held that the consent implied by the statute did not automatically permit a warrantless search consistent with article I, section 8 of the Iowa Constitution. Id.
We then turned to the question of whether consent was given by Pettijohn under the totality of circumstances to be sufficiently voluntary to pass constitutional muster under article I, section 8. Id. at 29–38. We canvassed the facts, including the intoxication of the boater, the detention of the boater at the police station, the inaccuracy of the implied-consent agreement read to him by the officers, and the imposition of a penalty of at least $500 for failing to provide consent. Id. at 32–38. We concluded that in light of all the facts and circumstances, consent was not voluntary in the case. Id. at 37–38.
The majority opinion was qualified in one important respect. According to the majority, the evaluation of the totality-of-the- circumstances test could lead to different outcomes in a different case. at 38. The majority stated “[a]ny decision relating to operating a motor vehicle while under the influence will have to wait for another case raising its constitutionality.” Id.
2.
Exigent circumstances.
In
State v. Findlay
, we considered
whether a search of the body of an unconscious person not under arrest
amounted to an unreasonable invasion of privacy.
Although the opinion is cryptic, it is an early version of the exigent- circumstances exception to the warrant requirement in the context of an unconscious driver suspected of driving while intoxicated. On the one hand, it is clear that expressions of administrative convenience clearly are insufficient to avoid the warrant requirement. On the other hand, when law enforcement produces expert testimony stating that, under the facts and circumstances, the state faced imminent destruction of evidence, the state might not be required to seek a warrant. Findlay is a something for everyone case.
There are two more recent Iowa exigent-circumstances cases that provide additional guidance. The first case is State v. Johnson , 744 N.W.2d 340 (Iowa 2008). The case concerned a driver involved in an accident and suspected of drunk driving and was arrested and taken to the Des Moines police station. Id. at 341. After the suspect refused a breath test, he was taken to the hospital and a blood sample was taken without his consent. Id.
In
Johnson
, we directly confronted the two strands of authority
emanating from
Schmerber
.
Id.
at 343–45. We rejected the per se
approach to exigency adopted by the Supreme Court of Wisconsin in
Bohling
, 494 N.W.2d at 402, in favor of the more fact-based approach
adopted by the Supreme Court of Utah in
Rodriguez
, 156 P.3d at 776.
Johnson
,
The second case is
State v. Harris
,
In
Harris
, we again considered the question of the scope of
Schmerber
.
Id.
at 272–73. We again noted that
Schmerber
required more
than the mere dissipation of alcohol to justify a warrantless search.
Id.
at
272. We also stressed the
Schmerber
language that for the warrantless
blood draw in that case, there was not time to obtain a warrant and that
“given these special facts,” a warrantless search was permitted. (emphasis omitted) (quoting
Schmerber
,
We then turned to analysis of the facts in Harris. The record showed that the officer was acting at the direction of the county attorney with respect to the warrant application. Id. at 273–75. The officer’s testimony included the following:
Q: . . . [C]ould you tell the Court what the emergency situation was in this case that caused you to draw blood . . . without a warrant . . . . A: Well, I was following the guidelines from [the county attorney]. . . .
. . . .
Q: Was the emergency situation that [the county attorney] says take the blood? A: This is what the county attorney—we had all what we thought we may have, what we might have, and this was the decision of the county attorney. Q: And you followed his instructions? A: And I followed his instructions.
Id. at 274 n.2 (first alteration and first, second, third, and fifth omissions in original).
As a result, the suppression was affirmed. at 275. Harris plainly stands for the proposition that the reasonability component of the exigent- circumstance exception, at least in Iowa, has an objective and subjective component.
IV. Discussion of the Merits.
A. Implied Consent. In my view, the precise issue presented and decided by the district court, and raised on appeal, is whether an unconscious driver may be “deemed” to have consented to a blood draw under Iowa’s implied-consent statute consistent with the Fourth Amendment and article I, section 8, has a clear answer: No.
At the outset, as noted by the authorities in more than a dozen
states, the narrow and jealously guarded theory of consent to avoid the
warrant requirement in search and seizure cases is fact-based. Whether
one operates under the consent approach of
Schneckloth
or the more
demanding waiver theory of
Zerbst
, the notion of the surrender of
constitutional rights by the individual requires a deliberate and voluntary
act. The basic premise of consent is that it is an act of free will, given
voluntarily. And, it has been repeatedly said, in order for consent to be
voluntary, it must be subject to limitation and, ultimately to revocation.
See, e.g.
,
Jimeno
,
None of these features are present when consent is “deemed” to have
occurred solely based on the legislature’s declaration in Iowa’s implied-
consent statute.
See
Iowa Code § 321J.6. Consistent with the vast
majority of state court cases, our caselaw under article I, section 8 has
consistently rejected artificial, categorical approaches to consent, and
instead requires the state to show that consent was truly voluntary based
on an individualized, fact-based inquiry.
See, e.g.
,
Pettijohn
, 899 N.W.2d
at 29–38;
Baldon
,
Further, the notion that a driver is “deemed” to have consented to a
blood draw solely based upon driving on the highways imposes an
unconstitutional condition on a government benefit. This issue was
explorеd in one of the amicus briefs filed in
Mitchell
.
See
Brief of Amicus
Curiae California DUI Lawyers Ass’n in Support of Petitioner at 4–10,
Mitchell
, 588 U.S. ___, 139 S. Ct. 2525 (2019) (No. 18–6210), 2019 WL
1092735, at *4–10 [hereinafter
Mitchell
Amicus Brief]. The brief noted that
in
Frost v. Railroad Commission
,
If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.
Frost
,
If the door is open to unconstitutional conditions, the amici
suggested, the end result could severely undermine our panoply of
constitutional rights. at 9–10,
Government is a monopoly provider of countless services, notably law enforcement, and we live in an age when government influence and control are pervasive in many aspects of our daily lives. Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections.
450 F.3d 863, 866–67 (9th Cir. 2006); see also Kathleen M. Sullivan, Unconstitutional Conditions , 102 Harv. L. Rev. 1413, 1492 (1989).
If implied-consent statutes can, as a matter of law, require all drivers
to waive search and seizure protections with respect to warrantless blood
draws, may the state, then, pass a statute declaring that all drivers must
waive search and seizure protections for their cell phones, their car
interiors, their glove compartments, or the persons in their car? And the
reach of statutorily created consent could extend well beyond the highway.
May the government condition the granting of a building permit on implied
consent to search the premises without a warrant?
See Elkins v. District
of Columbia
, 710 F. Supp. 2d 53, 56–61, 65 (D.D.C. 2010),
vacated on
other grounds
,
And, the notion that the legislature can as a matter of law “deem” a
driver to have consented to a search by simply using the roads amounts
to a general warrant or writ of assistance—the very reasons for the
development of American search and seizure law.
See Ochoa
, 792 N.W.2d
at 263–74;
see also Riley
,
For all of the above reasons, even the United States Supreme Court is, currently at least, unwilling to justify warrantless searches of an unconscious person based on implied-consent statutes. From a process point of view, Mitchell is surely a procedural pretzel, with the Supreme Court taking a case to resolve the question of whether implied consent permitted the warrantless search of an unconscious driver, and then twisting the case to decide the unraised question of exigent circumstances that was not briefed by the parties and, indeed, was conceded by the state below. This extraordinary maneuver suggests the Supreme Court did not want to touch the hot stove issue of warrantless searches based on the legal concept of implied consent.
In any event, I would reject the notion that a statute can “deem” the fact of consent under the Iowa Constitution in light of the free will nature of consent embraced in the caselaw, rejection of unconstitutional conditions, the similarity of implied consent to a general warrant or writ of assistance, and our consistent recent caselaw. See Pettijohn , 899 N.W.2d at 28–29 (rejecting mere existence of statutory implied consent to permit administration of a warrantless test and stating “we must determine, under the totality of the circumstances, whether Pettijohn effectively consented to submit to the breath test”); Baldon , 829 N.W.2d at 802 (“Considering our obligation to ensure that consent remains a doctrine of voluntariness that functions with integrity, we conclude a parole agreement containing a prospective search provision is insufficient evidence to establish consent.”); Ochoa , 792 N.W.2d at 291 (“[A] parolee may not be subjected to broad, warrantless searches by a general law enforcement officer without any particularized suspicion or limitations to the scope of the search.”).
The only rationale for avoiding a warrant presented by the State at the district court was that consent was “deemed” under Iowa’s implied- consent statute. The State made no effort to show exigent circumstances to avoid the warrant requirement. As a result, McGee’s motion to suppress should have been granted. I would thus vacate McGee’s conviction and remand the matter to the district court.
B. Exigent Circumstances.
1. Preservation of error. There is an initial issue of preservation of error. As is apparent from an examination of the transcript of the legal argument at the hearing, the State made no claim at all of exigent circumstances below. Further, the district court made no factual or legal findings on the issue. This is thus not a case where a change of law occurred while a claim of exigency was pending before the court. The State simply did not claim exigency, period.
A decision not to pursue exigent circumstances would not have been
careless as, under our caselaw, there was little chance that the State could
prevail on the issue. The facts reveal that the case has a striking parallel
to
Harris
, where we held that if the only reason advanced for not getting a
warrant was the directives of the prosecutor, exigent circumstances have
not been established.
We have previously considered a case where the state did not make a claim in the district court during a suppression hearing and then attempted to resurrect it for the first time on appeal. See Baldon , 829 N.W.2d at 789. In State v. Baldon , the state, before the district court, asserted that Baldon had consented to a search through a parole agreement, but did not raise any generalized argument under a “balancing test” or “special needs” theory. Id. (quoting New Jersey v. T.L.O. , 469 U.S. 325, 351, 105 S. Ct. 733, 748 (1985) (Blackmun, J., concurring in judgment)). We stated:
The State did not introduce evidence of any particular need for the parole officer to search Baldon, either predicated on individual suspicion, background information particular to Baldon that would have been known to the parole officer, or the general mission of parole. Thus, the only issue we address on appeal is whether a parole agreement containing a consent-to-search clause renders suspicionless and warrantless searches of parolees reasonable under the search and seizure clause of the Iowa Constitution.
Id. at 789–90. A dissent argued that we should have considered the issues not presented because of caselaw developments that occurred after the district court proceedings. at 847 (Mansfield, J., dissenting). The question of issue preservation in this case presents nearly identical circumstances as the issue preservation question presented and decided in Baldon .
We have stated that “[i]t is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut , 641 N.W.2d 532, 537 (Iowa 2002). Here, there is no question that the State did not raise exigent circumstances before the district court. Thus, if the preservation ruling in Meier v. Senecaut , as applied in Baldon , is to be followed, we would not address the exigent-circumstances issue raised by the State for the first time on appeal. I would follow our precedent and decline to consider the exigent-circumstance question which the State did not raise in the trial court below.
The problem here is especially acute when we are asked to depart from past precedent and adopt the newly developed approach in Mitchell to a blood draw designed to obtain evidence of marijuana use. No record has been developed to guide us in the potential fashioning or refurbishing of our traditional approach to exigent circumstances. We should not engage in significant constitutional innovations without a thorough record below.
2. Discussion. If I were to address the question posed on appeal as a first responder, without a record or decision of the district court on the issue, I would find the constitutional innovations to the Fourth Amendment law introduced by the Supreme Court in Mitchell problematic and inapplicable to our consideration of the question under article I, section 8 of the Iowa Constitution. To the extent I would look to federal caselaw for guidance, I find the opinions of Justice Sotomayor in McNeely and Mitchell far more persuasive than the Mitchell plurality opinion. Further, I would rely on the better reasoned traditional Iowa and state law precedents that have consistently employed a narrow exception to the warrant requirement based on exigent circumstances demonstrated by the state, on the record, of a compelling need and impracticability of obtaining a warrant.
The problems with
Mitchell
are manifest. First, remarkably, it shifts
the burden to the defendant of showing that an exception to the warrant
requirement does not exist.
See Mitchell
, 588 U.S. at ___, 139 S. Ct. at
2539. That innovation is inconsistent with our caselaw and is an
undesirable development. Obtaining a warrant is the norm and exigent
circumstances the exception. The burden of proving an exception to the
generally applicable rule, especially one of such importance as the warrant
requirement, should rest with the state.
See, e.g.
,
Welsh
,
Further, the information necessary to prove the exception is in the
possession of the state, not the defendant.
See, e.g.
,
N.Y., New Haven &
Hartford R.R.
,
Second, even assuming the defendant is entitled to robust discovery,
the substantive standard is nearly impossible for a defendant to show. A
defendant must prove a remarkable negative, “that police could not have
reasonably judged that a warrant application would interfere with other
pressing needs or duties.”
Mitchell
,
Third, the approach in
Mitchell
is inconsistent with our prior
caselaw. For instance, consider
Harris
where we rejected the state’s effort
to escape the warrant requirement where a warrant was not obtained as a
result of adherence to a policy of the local prosecutor.
Fourth, it is inconsistent with the case-by-case approach that has
been applied to determining exigency.
McNeely
, of course, dealt with the
dissipation of alcohol, but its principles apply here with full applicability.
Indeed, the caselaw suggests that
McNeely
adequately handles claims of
exigency arising from drugged driving.
See, e.g.
,
Byars
,
Fifth, our cases should not whipsaw around like a wild caboose at
the end of a federal caselaw train.
See Ochoa
,
While there is a substantial body of scientific literature on the dissipation of alcohol, less is known about the dissipation of marijuana. [12] If the issue had been actually litigated in the district court, we would know more. We might also know how long it takes to get a warrant in an OWI case. In this case, however, we are flying blind. So, on this appeal, I see no basis for developing some kind of new legal standard for marijuana, particularly one simply copied from Mitchell —a decision based solely on alcohol. Whether the State could have met its burden in this case under the traditional exigent-circumstances requirements, I do not know, but what I do know is that the State did not try to make the required showing. I would not remand for a second chance. But to the extent the State is entitled to a second chance, it should not be based upon a newly developed framework fashioned by this court on appeal on a completely inadequate record. [13]
V. Conclusion.
For the above reasons, I would reverse the judgment of the district
court and remand the case with instructions that the motion to suppress
should have been granted. I note that my approach does not prevent the
state from searching for evidence through blood draws from an
unconscious individual suspected of intoxicated driving. The state is never
powerless to get such a blood sample, it only must get a search warrant or
show the exigent circumstances that make obtaining such a warrant
impracticable. As noted by Justice Gorsuch when serving as a judge on
the Tenth Circuit, “The [Fourth] Amendment and the common law from
which it was constructed leave ample room for law enforcement to do its
job. A warrant will always do.”
United States v. Carloss
,
But my approach does not have the analytical overkill of Mitchell ; rather, it permits warrantless blood draws only in the narrow circumstances historically permitted by search and seizure doctrine. The only downside to my approach is that it might be less efficient. But the fact that obtaining a warrant requires some time and effort is not constitutionally significant. A blood draw involves the state thrusting a needle into your body and drawing out a substance that can provide many intimate details of health and life. It is a grave error to generally exempt such intrusions from the warrant requirement where truly exigent circumstances are not present.
With respect to the Hyde and Kates cases, these cases found no constitutional violation and, therefore, there could be no fundamental interest for equal protection purposes that would trigger strict scrutiny based on the unfounded constitutional claim.
These cases, and Baker , are limited to their narrow context. Nothing in the majority opinion or the footnote should affect the ability of a party to plead multiple, overlapping constitutional claims. The loss of one constitutional claim, of course, does not necessarily affect another.
#19–1219, State v. McGee OXLEY, Justice (dissenting).
In this case, on this record, I do not believe that the United States
Supreme Court would extend
Mitchell v. Wisconsin
’s holding that the
exigent circumstances involving suspected OWI from alcohol consumption
apply equally to cases involving marijuana.
After describing the exigent circumstances exception to the Fourth
Amendment’s warrant requirement as being met only when “there is
compelling need for official action and no time to secure a warrant,”
id.
at
___,
The importance of the needs served by BAC testing is
hard to overstate. The bottom line is that BAC tests are
needed for enforcing laws that save lives. The specifics, in
short, are these: Highway safety is critical; it is served by laws
that criminalize driving
with a certain BAC level
; and
enforcing
these legal BAC limits
requires efficient testing to obtain BAC
evidence, which naturally dissipates. So BAC tests are crucial
links in a chain on which vital interests hang. And when a
breath test is unavailable to advance those aims, a blood test
becomes essential.
at ___,
He then supported how compelling the need was with well-
established and undisputed empirical data: alcohol-related accidents took
ten to twenty thousand lives per year between 1982 and 2016; “federal
and state lawmakers have long been convinced that
specified BAC limits
make a big difference” in reducing the number of alcohol-related accidents;
and, critically, “[e]nforcement of BAC limits . . . requires prompt testing
because it is ‘a biological certainty’ that ‘[a]lcohol dissipates from the
bloodstream at a rate of 0.01 percent to 0.025 percent per hour[;] . . .
[e]vidence is literally disappearing by the minute.’ ”
Id.
at ___, 139 S. Ct.
2536 (second alteration and omission in original) (emphasis added)
(quoting
McNeely
,
The fact that THC may dissipate from the blood “quickly” is not both
the beginning and the end analysis. If that is all that was needed to find
a “compelling need,” Justice Alito would not have described in such detail
the reliability of the science surrounding blood alcohol concentration
(BAC) levels, the significant impact a specific BAC level has for law
enforcement’s ability to enforce laws, and the effectiveness of laws setting
particular BAC limits at reducing alcohol-related traffic accidents.
See id.
at ___,
Rather, the rationale for collecting the disappearing evidence is critical in determining whether the State has a compelling need that overrides Fourth Amendment protections. Evidence of a certain level of THC does not carry the same meaning as evidence of a BAC level. Whereas all fifty states and the District of Columbia outlaw driving with a BAC above .08, there is no magic number for THC. There is no magic number because marijuana is a much more complicated drug than alcohol, not only with respect to how and when it dissipates from the blood, but also with respect to the extent to which it impairs a driver’s abilities. See Andrea Roth, The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness , 103 Calif. L. Rev. 841, 897 (2015) [hereinafter Roth] (“Applying this DUI alcohol framework to the marijuana context, it is clear that the THC blood limits chosen by states have no scientific basis if their purpose is to target dangerous driving. On the contrary, the science that does exist strongly suggests that these levels do not correspond with dangerous driving impairment. This is not to say that driving while stoned is safe; it is only to say that, as of this writing, THC blood levels сannot legitimately be used to define chemical impairment under a science based jurisprudence of dangerousness.”).
Justice Alito’s description of the importance of BAC levels makes clear that the sought-after evidence must be practically necessary for the administration of law enforcement’s duties, in addition to being time sensitive. The uniform and scientifically verified .08 BAC level has made accurate BAC determinations a necessary mechanism for enforcing alcohol-related offenses. It is inappropriate to recast that logic in the context of marijuana, where there is no scientific consensus regarding marijuana impairment, at what levels impairment arises, or what certain evidence says about current impairment. It would be wrong to say that a blood test for THC is foundational to highway safety the same way BAC testing is.
At least partially in recognition of the difficulties with measuring and evaluating impairment caused by marijuana use, Iowa law criminalizes operating a motor vehicle “while any amount of a controlled substance is present . . . in the person’s blood or urine.” Iowa Code § 321J.2(1)( c ) (2018). The presence of carboxy-THC, the nonimpairing metabolite of marijuana, satisfies the “any amount of a controlled substance” prong of operating while intoxicated. See State v. Childs , 898 N.W.2d 177, 184 (Iowa 2017) (“The Iowa legislature chose to cast a wider net, criminalizing driving with any amount of prohibited substances in one’s body, including the nonimpairing metabolite at issue commonly found in urine after marijuana use.”); see also Iowa Code § 321J.1(4) (defining “controlled substance” to include “any metabolite or derivative of the drug, substance, or compound” listed in section 124.204). [14] “The strict standard relates in part to the current hurdles in testing drug impairment. For example, [in 2019], there [wa]s no device for a peace officer to identify marijuana- impaired driving or even an accepted standard to identify such an impairment.” State v. Newton , 929 N.W.2d 250, 258 n.2 (Iowa 2019) (citation omitted). The legislature has, effectively, taken care of any exigency caused by dissipation of active THC by allowing officers to charge, and a court to convict, an individual for OWI based only on the presence of carboxy-THC.
McGee was charged and convicted with operating a motor vehicle
under the “any amount” prong of OWI.
See
Iowa Code § 321J.2(1)(
c
). The
majority does not dispute that there are no exigent circumstances related
to testing for carboxy-THC, the only substance needed to support a
conviction under section 321J.2(1)(
c
), since that metabolite is admittedly
detectible for at least “some time.” A conviction under subsection (1)(
c
)
subjects the defendant to the same punishment as a conviction for
operating under the influence under subsection (1)(
a
).
See
Iowa Code
§ 321J.2(2) (imposing same penalties for any violation of subsection 1).
With respect to enforcing Iowa’s OWI laws, law enforcement’s compelling
need for evidence is satisfied the same whether the blood is drawn quickly
in an attempt to capture active THC or after a bit of a delay when carboxy-
THC may be the only thing still present. Despite the clear lack of any
exigency in capturing carboxy-THC in a suspect’s blood, and despite the
majority’s own recognition that active THC can stay in the body for hours
оr even days and marijuana’s unpredictable properties make inferences
about its psychoactive effect nearly impossible, the majority nonetheless
leaps to the conclusion that the presence of active THC in the blood “makes
the case for impairment stronger than it otherwise would be.” The majority
then uses this unsupported conclusion to move from a clear lack of
exigency in this case involving an any-amount OWI (which requires no
evidence of impairment, so there is no need to strengthen “the case for
impairment”) to the broad generalization that because active THC
dissipates quickly, evidence of marijuana use always creates an exigency.
The majority justifies its broad holding by proclaiming that law
enforcement should not have to “settle” for lesser evidence when stronger
evidence is available. Except they should when it comes to infringing on
a citizen’s Fourth Amendment protections without a warrant—unless they
can prove a compelling need to support the exigency exception to the
warrant requirement.
See Mitchell
,
It may be that “there are legitimate reasons why law enforcement
would want more,” including, at least theoretically, avoiding jury
nullification or the need to support the causation element of a charge
under Iowa Code section 707.6A(4), as offered by the majority. But
“compelling need,” not hypothetical “legitimate reasons,” is the standard
for establishing exigent circumstances.
See Mitchell
,
Even then, the jury nullification rationale presupposes the jury would ignore a judge’s instruction that the presence of a marijuana metabolite satisfies our laws, a presumption we repeatedly decry. See, e.g. , State v. Gomez Garcia , 904 N.W.2d 172, 183 (Iowa 2017) (“We presume jurors follow the court’s . . . instructions.”). This is hardly a compelling state interest that can be equated with a scientifically proven BAC level that saves thousands of lives to support overriding a driver’s Fourth Amendment rights.
I do agree with the majority that the need for evidence of active THC to support a section 707.6A(4) charge, which requires proof of a causal connection between impaired driving and serious injuries, could potentially support the exigent circumstances needed to dispense with a warrant—if it could be shown that active THC levels correlated to impaired driving. But there is no evidence in this record to support that proposition. And it is not so well established that we should be doing our own research and relying on student notes and commentators’ views to find post hoc support for the State’s compelling interest needed to establish an exigency. Cf. State v. McCall , 839 S.E.2d 91, 95 n.2 (S.C. 2020) (discussing toxicologist’s testimony regarding THC metabolization); City of Seattle v. Pearson , 369 P.3d 194, 201 (Wash. Ct. App. 2016) (same). Indeed, Professor Roth explains that “even if . . . scientists could straightforwardly infer proximity of use from THC blood levels, marijuana’s unpredictable properties render nearly impossible any inference about the likely psychoactive effect on the brain of a specific THC blood level.” Roth, 103 Calif. L. Rev. at 887.
Another more fundamental problem with this justification is that McGee was not charged with violating section 707.6A(4). Recognizing this deficiency, the majority combed the record to find evidence of the victim’s injuries, concluding thirteen stitches, two weeks of missed school, and a fear of riding in a car support its conclusion that “situations like this can be fluid,” so an exigency exists in this case. Under the majority’s rationale, an exigency exists in any case involving any type of injury.
But the State did not offer the potential for a section 707.6A(4)
charge as a justification at the suppression hearing. To the contrary,
Officer Fricke expressly (and repeatedly) testified at the suppression
hearing that he did not even attempt to obtain a warrant because he
understood he could not get one in this case because there were no serious
injuries. Thus, as a factual matter, that need cannot support an exigency
in this particular case.
See Mitchell
,
On the facts presented at the suppression hearing, the State failed to establish the exigent circumstances necessary to avoid procuring a warrant, and I would hold that McGee’s Fourth Amendment rights were violated. In fairness, Mitchell came down after the suppression hearing, where the State relied on the implied-consent statute and offered no evidence of exigency even in light of McGee’s argument that an exigency was required to support the warrantless blood draw. At a minimum, the State should be tasked with presenting facts to the district court to support the compelling need to obtain evidence of active THC, as opposed to evidence of carboxy-THC, when the officers chose to forego a warrant. As it stands, the majority has found a compelling need as a matter of law, and the State gets a pass on that required showing.
I do not believe the Supreme Court would extend Mitchell ’s categorical rule for driving under the influence of alcohol to driving with any amount of marijuana in the driver’s blood or urine, and I therefore respectfully dissent.
Appel, J., joins this dissent.
Notes
[1] The tests showed 15 ng/mL lorazepam, 17 ng/mL THC, 3 ng/mL hydroxy-THC, and 59 ng/mL carboxy-THC.
[2] Iowa Code section 321J.7 incorporates by reference the notion of implied consent
set forth in section 321J.6. That latter section 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
tо this section.
Iowa Code § 321J.6(1). “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.” ’ ”
State v. Garcia
, 756 N.W.2d 216, 220 (Iowa 2008) (quoting
State v.
Knous
,
[3] As we discuss below, this Mitchell rule shares some characteristics with our 1966 holding under both the Fourth Amendment and article I, section 8 in a case involving an unconscious driver suspected of driving under the influence of alcohol. See State v. Findlay ,259 Iowa 733 , 743,145 N.W.2d 650 , 656 (1966).
[4] One of the dissenting opinions argues that the State had to “present[] facts to the
district court to support the compelling need to obtain evidence of active THC.” This
would be inconsistent with
Mitchell
, where the plurality instead relied on
legislative
facts
to establish a
general
rule upholding warrantless blood draws from incapacitated drivers
suspected of drunk driving, subject only to an exception where the “police could not have
reasonably judged that a warrant application would interfere with other pressing needs
or duties.”
Mitchell
,
[5] McGee asserts that the State did not argue exigent circumstances below. That
is correct but not surprising since
Mitchell
had yet not been decided. Instead, McGee
argued there were
no
exigent circumstances. However, he did not utilize the definition
which
Mitchell
later gave to that term, but a narrower meaning taken from
McNeely
,
Birchfield
, and
State v. Pettijohn
,
[6] The State discussed
Findlay
at some length in its briefing. McGee did not even
cite
Findlay
. We caution parties that the vintage of an Iowa constitutional precedent is
not, in itself, a reason to forgo discussion of that precedent. For example, in 2014 we
treated
State v. Cullison
,
[7] Notably, the lapse of time between the accident and the blood draw at the hospital was two hours and ten minutes both in Findlay and in the present case.
[8] A special concurrence articulated reasons why Pettijohn would not apply to driving. 899 N.W.2d at 40–41 (Cady, C.J., concurring specially). A dissent criticized these distinctions as unsound. Id. at 42–43 (Waterman, J., dissenting). Yet the dissent also stated, “Trial judges should accept the word of the majority and Chief Justice Cady’s special concurrence that today’s decision is limited to drunken boaters. The door is closed to any effort to extend this decision to drunken drivers.” at 42.
[9]
See Pettijohn
,
[11] On appeal, McGee claimed that under the statute his prior certification was no longer valid after a twelve-minute delay and that the results of the blood draw should be suppressed on statutory grounds. On this point, I concur with the majority opinion rejecting McGee’s claim.
[12] Unlike the level of alcohol in the bloodstream, the level of marijuana metabolites in the bloodstream may not be a reliable indicator of intoxicаtion. As noted by one resource, The nationally recognized level of impairment for drunken driving is .08 g/mL blood alcohol concentration. But there is no similar national standard for drugged driving. Drugs do not affect people consistently. Drugs such as marijuana can also stay in the system for weeks, thus appearing in roadside tests while no longer causing impairment. Drugged Driving: Marijuana-Impaired Driving , Nat’l Conf. of State Legislatures (Nov. 9, 2020), https://www.ncsl.org/research/transportation/drugged-driving-overview.aspx [https://perma.cc/PG26-2R4S].
[13] In this case, McGee also raises a claim that the application of Iowa’s implied-
consent law to him violates equal protection and that strict scrutiny should apply because
the classifications affect his fundamental constitutional rights. The equal protection
claim is viable only if the court finds Iowa Code sections 321J.6 and 321J.7
constitutionally applied in this case to validate the blood draw. The majority declines,
however, to apply the terms of the implied-consent statute in this case. That’s a good
thing, as the statute is, as demonstrated by this opinion, unconstitutional under article
I, section 8 of the Iowa Constitution. As a result, McGee’s equal protection question is
moot. That means the majority’s discussion of the issue is dicta. Because I have found
that the implied-consent provisions cannot constitutionally be applied against McGee,
the equal protection claim is also moot under my approach. As a result, it is not necessary
to address it on the merits.
There is also a reference in the majority opinion to
Baker v. City of Iowa City
, 867
N.W.2d 44 (Iowa 2015), in a footnote. In
Baker
, we held that where the basis for an
assertion of a fundamental right was a constitutional claim and that claim failed, the
classification would be judged on a rational basis test. at 57.
The majority cites to
People v. Hyde
, 393 P.3d 962, 969 (Colo. 2017) (en banc),
and
People v. Kates
,
[14] In
State v. Childs
, we justified “[t]he harshness of Iowa’s flat ban [a]s ameliorated
by the fact that the motorist would be asked to submit to chemical testing only after the
officer performed a lawful traffic stop and had reasonable grounds to believe the driver
was impaired.”