*1 IN THE SUPREME COURT OF IOWA
No. 14–0830 Filed June 30, 2017 STATE OF IOWA,
Appellee, vs.
DALE DEAN PETTIJOHN JR.,
Appellant.
Aрpeal from the Iowa District Court for Polk County, Terry Wilson, Odell McGhee, and William Price, Judges.
A defendant challenges his conviction for operating while intoxicated under Iowa Code section 462A.14(1) (2013). DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Grant C. Gangestad of Gourley, Rehkemper & Lindholm, P.L.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick (until withdrawal), Kevin Cmelik and Louis S. Sloven, Assistant Attorneys General, John P. Sarcone, County Attorney, and Jordan Roling, Assistant County Attorney, for appellee.
WIGGINS, Justice.
The defendant moved to suppress all evidence obtained after an officer seized the boat he was operating, including the results of a breath test he submitted to after an officer invoked the implied-consent procedure set forth in Iowa Code chapter 462A (2013). The district court denied the motion to suppress, concluding the seizure was justified by the community-caretaking exception to the warrant requirement and the administration of the warrantless breath test violated neither the Fourth Amendment to the United States Constitution nor article I, section 8 of the Iowa Constitution. The court convicted the defendant following a bench trial on the minutes, and the defendant appealed. We retained the appeal but held the matter in abeyance pending a decision from the United States Supreme Court.
We conclude the seizure of the boat the defendant was operating violated neither the Fourth Amendment nor article I, section 8 because the officer who stopped the defendant had a reasonable, articulable suspicion he was committing a crime. However, because we also conclude the administration of the warrantless breath test violated article I, section 8, we reverse the judgment of the district court and remand the case for a new trial.
I. Background Facts.
On August 18, 2013, at approximately 5:00 p.m., Iowa Department of Natural Resources (DNR) Water Patrol Officer William Wineland observed Dale Dean Pettijohn Jr. operating a rented pontoon boat in the no-wake zone of Saylorville Lake in Polk County, a manmade reservoir created by the U.S. Army Corps of Engineers and fed by the Des Moines River. At the time, Pettijohn was operating the boat at an appropriate speed and was not swerving or steering erratically. However, Officer *3 Wineland noticed a female passenger sitting on a sundeck located at the rear of the boat with her feet dangling over its back edge near the motor.
Because he had worked as a water patrol officer for many years, Officer Wineland was familiar with the location of the propellers on the rental boats at Saylorville Lake. He knew there was no guard or housing around the propeller on the rented pontoon boat Pettijohn was operating. Having previously witnessed severe injuries and even deaths resulting from people falling off boats and getting entangled in the propeller, Officer Wineland believed the position of the female passenger on Pettijohn’s boat posed a danger to her safety.
As a water patrol оfficer for the DNR, Officer Wineland had authority to investigate and enforce violations of the law amounting to simple misdemeanors, but not serious misdemeanors. Officer Wineland suspected Pettijohn was committing a simple misdemeanor by operating the pontoon boat in violation of section 462A.12(1) of the Iowa Code, which provides, “No person shall operate any vessel . . . in a careless, reckless or negligent manner so as to endanger the life, limb or property of any person.” Iowa Code § 462A.12(1); id. § 462A.13 (stating offenses defined in chapter 462A of the Code constitute simple misdemeanors unless otherwise specifically provided).
Officer Wineland decided to stop Pettijohn to inform him that permitting the passenger to sit so close to the unguarded propeller while the boat was in motion posed a danger to her safety. Pettijohn complied with Officer Wineland’s request to stop the boat.
While speaking with Pettijohn, Officer Wineland observed that he had bloodshot eyes. He also noticed there were two coolers on the boat. During their conversation, it appeared to Officer Wineland that Pettijohn was nervous and avoided making eye contact with him. These *4 observations led Officer Wineland to suspect Pettijohn had been operating the boat while intoxicated in violation of Iowa Code section 462A.14(1), a serious misdemeanor he was without authority to investigate. See id. § 462A.14(2). Consequently, Officer Wineland sought assistance from conservation officers authorized to investigate serious misdemeanor offenses. In the meantime, Officer Wineland instructed Pettijohn to proceed to the dock to await the arrival of the conservation officers and issued him a warning citation for the negligent operation of the boat. When Officer Wineland explained the reason for the citation, Pettijohn indicated he had not realized a passenger was sitting on the bow of the boat and would not have allowed her to remain there had he known of her location.
Conservation Officers Dakota Drish and Matt Bruner soon arrived. Once aboard Pettijohn’s boat, Officer Drish detected the distinct odor of an alcoholic beverage and observed that Pettijohn was slurring his speech and had bloodshot eyes. Based on these observations Officer Drish administered field sobriety tests, the results of which led him to conclude that Pettijohn had been operating the boat while intoxicated. Officer Drish placed Pettijohn in handcuffs, and the officers transported him to the Polk City Police Department.
At the station, Officer Drish read to Pettijohn from a standard form entitled “Implied Consent Advisory” in order to inform him of the consequences of failing a breath test or refusing to consent to a breath test. Pettijohn signed his name in a box labeled “confirmation signature” on the bottom of the form. Minutes later, Officer Drish formally requested a sample of his breath. Pettijohn checked a box on a separate form entitled “Notice and Request Under Iowа Code Section 462A.14,” indicating he consented to provide a breath sample upon being requested *5 to do so after having been read the implied-consent advisory. Pettijohn then submitted to a breath test, which indicated his blood alcohol concentration (BAC) was .194.
The State charged Pettijohn with operating a motorboat while under the influence in violation of Iowa Code section 462A.14(1). Because this was Pettijohn’s first offense, the violation constituted a serious misdemeanor criminal offense. See id. § 462A.14(2).
II. Prior Proceedings.
Before the district court, Pettijohn moved to suppress all evidence obtained after Officer Wineland stopped his boat, arguing the stop violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 8 of the Iowa Constitution. Pettijohn also moved to suppress the results of the breath test, arguing the implied-consent procedure he was subjected to violated the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution because (1) it authorizes the imposition of a penalty for the exercise of a constitutional right to refuse a warrantless search, and (2) a person cannot contract away his or her natural right to use the state’s navigable waterways. Additionally, Pettijohn argued the breath-test results should be suppressed because the implied-consent advisory was inaccurate and thus (1) violated his substantive due process rights under the Fourteenth Amendment of the United States Constitution and article I, section 9 of the Iowa Constitution; (2) violated his statutory rights under the Iowa Code; and (3) rendered his consent involuntary and coerced in violation of the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.
The district court denied Pettijohn’s motion to suppress. First, the court concluded the stop of Pettijohn’s boat was authorized under the Fourth Amendment and article I, section 8 because it was justified by the community-caretaking exception to the warrant requirement. Second, the court concluded the administration of a warrantless breath test pursuant to the implied-consent procedure authorized by the Iowa Code violates neither the Fourth Amendment nor article I, section 8. Third, the court concluded any inaccuracies in the implied-consent advisory read to Pettijohn did not induce or coerce his consent in violation of his federal or state substantive due process rights.
Pettijohn waived his right to a jury trial, and the district court convicted him following a bench trial on the minutes. Pettijohn subsequently appealed, and we retained the appeal.
Following oral argument, we held the appeal in abeyance pending a
decision from the United States Supreme Court on the issue of whether
the Fourth Amendment prohibits implied-consent laws imposing
penalties on motorists suspected of drunk driving for their refusal to
submit to BAC testing.
See Birchfield v. North Dakota
,
Following the issuance of the Birchfield decision, the parties submitted additional briefs to this court addressing its implications for our resolution of this appeal. Pettijohn argues Birchfield does not resolve the question of whether a warrantless breath test may be administered to an individual arrested on suspicion of boating while intoxicated under the Fourth Amendment, as the State’s need to ensure the safety of the public waterways is far less compelling than its need to ensure the safety of public highways. He further argues the administration of the warrantless breath test following his arrest on suspicion of boating while intoxicated violated article I, section 8 of the Iowa Constitution because no valid exception to the warrant requirement authorized the warrantless search.
In contrast, the State argues that because implied-consent laws serve the same purpose in the boating context as they serve in the driving context, the Fourth Amendment permits the warrantless administration of a breath test as a search incident to a lawful arrest on suspicion of operating while intoxicated in both contexts. Furthermore, the State argues that even if a warrantless breath test does not constitute a search incident to a lawful arrest in the boating context, because Pettijohn faced only the possibility of civil penalties and evidentiary consequences for refusal to submit, the procedure invoked prior to the administration of the breath test did not violate the Fourth Amendment. Finally, the State argues article I, section 8 permits the administration of a warrantless breath test as a search incident to the lawful arrest of an individual suspected of boating while intoxicated *8 because the interests justifying such a search relate primarily to evidence preservation.
III. Issues on Appeal.
We first consider whether the seizure of the boat Pettijohn was operating violated the Fourth Amendment to the United States Constitution or article I, section 8 of the Iowa Constitution. We next consider whether administering a warrantless breath test on an individual arrested on suspicion of boating while intoxicated violates the Fourth Amendment or article I, section 8. Finally, we consider whether Pettijohn effectively consented to the warrantless breath test. Because we conclude he did not, admission of the breath test results violated article I, section 8. Therefore, we do not reach Pettijohn’s due process and statutory claims.
IV. Standard of Review.
“We review constitutional claims de novo.” Hensler v. City of Davenport , 790 N.W.2d 569, 578 (Iowa 2010). To the extent a constitutional claim raises issues of statutory interpretation, however, our reviеw is for correction of errors at law. State v. Allen , 708 N.W.2d 361, 365 (Iowa 2006).
V. The Statutory Provisions.
Chapter 462A of the Iowa Code contains the boating-while- intoxicated statutes. Section 462A.14B defines the penalties that apply when a person refuses to submit to a chemical test “for the purpose of determining the alcohol concentration or presence of controlled substances or other drugs.” Iowa Code § 462A.14A(1). It provides,
1. If a person refuses to submit to the chemical testing, a test shall not be given unless the procedure in section 462A.14D is invoked. However, if the person refuses *9 the test, the person shall be punishable by the court according to this section.
2. The court, upon finding that the officer had reasonable ground to believe the person to have been operating a motorboat or sailboat in violation of section 462A.14, that specified conditions existed for chemical testing pursuant to section 462A.14A, and that the person refused to submit to the chemical testing, shall: a . Order that the person shall not operate a motorboat or sailboat for one year.
b . Impose a mandatory civil penalty as follows: (1) For a first refusal under this section, five hundred dollars.
(2) For a second refusal under this section, one thousand dollars.
(3) For a third or subsequent refusal under this section, two thousand dollars.
3. If the person does not pay the civil penalty by the time the one-year order not to operate expires, the court shall extend the order not to operate a motorboat or sailboat for an additional year, and may also impose penalties for contempt.
Id . § 462A.14B(1)–(3). In addition to these penalties, “proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of section 462A.14.” Id. § 462A.14A(8).
The Code also addresses the advisory an officer must administer when requesting an individual suspected of boating while intoxicated to submit to a chemical test. Id . §§ 462A.14A(4)( g ), .14C(1). Specifically, section 462A.14A(4)( g ) provides,
g. A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following:
10
(1) A refusal to submit to the test is punishable by a mandatory civil penalty of five hundred to two thousand dollars, and suspension of motorboat or sailboat operating privileges for at least a year. In addition, if the person is also convicted of operating a motorboat or sailboat while intoxicated, the person shall be subject to additional penalties.
(2) If the person submits to the test and the results indicate an alcohol concentration equal to or in excess of the level prohibited under section 462A.14 and the person is convicted, the person’s motorboat or sailboat operating privileges will be suspended for at least one year and up to six years, depending upon how many previous convictions the person has under this chapter, and whether or not the persоn has caused serious injury or death, in addition to any sentence and fine imposed for a violation of section 462A.14. Id. § 462A.14A(4)( g )(1)–(2). Similarly, section 462A.14C provides,
1. A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following:
a . A refusal to submit to the test is punishable by a mandatory civil penalty of five hundred to two thousand dollars, and suspension of motorboat or sailboat operating privileges for at least a year. In addition, if the person is also convicted of operating a motorboat or sailboat while intoxicated, the person shall be subject to additional penalties.
b . If the person submits to the test and the results indicate the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited by section 462A.14, the person’s privilege to operate a motorboat or sailboat will be prohibited for at least one year, and up to six years.
Id . § 462A.14C(1)( a )– (b) . [1]
11
VI. The Implied-Consent Advisory.
The following text appeared on the form Pettijohn signed containing the implied-consent advisory Officer Drish read to him:
Implied Consent Advisory:
(If any peace officer fails to offer a test within two hours the preliminary screening test is administered or refused, or the arrest is made, whichever occurs first, a test is not required, and there shall be no suspension of motorboat or sail boat operation privileges.)
Notice to Any Peace Officer
A person who has been requested to submit to a chemical test shall be advised by a peace officer of the following: (1) A refusal to submit to the test is punishable by a mandatory civil penalty of five hundred to two thousand dollars, and suspension of motorboat or sailboat operating privileges for at least a year. In addition, if the person is also convicted of operating a motorboat or sailboat while intoxicated, the person shall be subject to additional penalties. [2]
(2) If the person submits to the test and the results indicate the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited under section 462A.14 (.08 BAC) and the person is convicted, the person’s motorboat or sailboat operating privileges will be suspended for at least one year and up to six years, depending upon how many previous convictions the person has under this chapter, and whether or not the person has caused serious injury or death, in addition to any sentence and fine imposed for a violation of section 462A.14[.] [3]
VII. The Constitutional Provisions.
Article I, section 8 of the Iowa Constitution guarantees,
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.
Iowa Const. art. I, § 8. The federal counterpart to article I, section 8 is
thе Fourth Amendment to the United States Constitution, which was
made applicable to the states through the Due Process Clause of the
Fourteenth Amendment.
Mapp v. Ohio
,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. Though the rights set forth in these provisions
apply to all, questions concerning their scope ordinarily arise in
circumstances in which individuals are suspected of engaging in criminal
behavior.
State v. King
,
Warrantless searches and seizures are per se unreasonable unless one of several carefully drawn exceptions to the warrant requirement applies. State v. Lewis , 675 N.W.2d 516, 522 (Iowa 2004); State v. Kinkead , 570 N.W.2d 97, 100 (Iowa 1997). To establish the constitutionality of a warrantless search or seizure, the State must prove by a preponderance of the evidence that a recognized exception to the warrant requirement applies. State v. Simmons , 714 N.W.2d 264, 272 (Iowa 2006).
VIII. The Constitutionality of the Seizure.
The district court apparently concluded the seizure of the boat Pettijohn was operating constituted a valid exercise of the community- *13 caretaking exception to the warrant requirement. Assessing whether the community-caretaking exception to the warrant requirement justified a seizure requires a court to determine (1) whether the officer who effected the seizure was engaged in a bona fide community-caretaking activity and (2) whether the public need and interest outweighed the intrusion upon the privacy of the citizen subject to a seizure. State v. Kern , 831 N.W.2d 149, 173 (Iowa 2013). Community-caretaking activities are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 172 (quoting Cady v. Dombrowski , 413 U.S. 433, 441, 93 S. Ct. 2523, 2528 (1973)).
We need not reach the question of whether the community-
caretaking exception to the warrant requirement authorized the seizure
at issue in this case, however. Rather, we affirm the district court ruling
that the seizure was constitutional based on an alternate ground urged
by the State below and fully briefed and argued by the parties on appeal.
See, e.g., In re Estate of Voss
, 553 N.W.2d 878, 879 n.1 (Iowa 1996);
Johnston Equip. Corp. v. Indus. Indem.
, 489 N.W.2d 13, 17 (Iowa 1992);
see also Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa
Civil Rights Comm’n
,
One established exception to the warrant requirement permits an officer with “a reasonable, articulable suspicion that a criminal act has occurred, is occurring, or is about to occur” to stop an individual for investigatory purposes. State v. Vance , 790 N.W.2d 775, 780 (Iowa 2010). To prove an investigatory stop complies with the requirements of *14 this exception, however, the State must prove by a preponderance of the evidence that the officer reasonably believed criminal activity was afoot based on “specific and articulable facts . . . taken together with rational inferences from those facts.” Id. at 781. We determine whether reasonable suspicion existed in light of the totality of the circumstances confronting the officer, “including all information available to the officer at the time the decision to stop is made.” Id. (quoting State v. Kreps , 650 N.W.2d 636, 642 (Iowa 2002)).
Here, Officer Wineland believed Pettijohn was engaged in an ongoing misdemeanor because he was endangering the safety of a passenger on the boat he was operating in violation of the Iowa Code. The Code provides, “No person shall operate any vessel, or manipulate any water skis, surfboard or similar device in a careless, reckless or negligent manner so as to endanger the life, limb or property of any person.” Iowa Code § 462A.12(1). Pettijohn argues a person must endanger life, limb, or property by driving a boat in a careless, reckless, or negligent manner to violate this statute. We disagree.
When we interpret a statute, our goal is to determine legislative intent. Auen v. Alcoholic Beverages Div. , 679 N.W.2d 586, 590 (Iowa 2004). To determine legislative intent, we look at the words the legislature chose when it enacted the statute, not the words it might have chosen. Ramirez-Trujillo v. Quality Egg, L.L.C ., 878 N.W.2d 759, 770 (Iowa 2016). When the legislature chooses to “act as its own lexicographer” by defining a statutory term, we are ordinarily bound by its definition. Sherwin-Williams Co. v. Iowa Dep’t of Revenue , 789 N.W.2d 417, 425 (Iowa 2010) (quoting State v. Fischer , 785 N.W.2d 697, 702 (Iowa 2010)). When the legislature fails to define a statutory term, we examine the context in which the term appears and accord the term its *15 ordinary and common meaning. Ramirez-Trujillo , 878 N.W.2d at 770. Interpreting a statute requires us to assess it in its entirety to ensure our interpretation is harmonious with the statute as a whole rather than assessing isolated words or phrases. Id.
For purposes of section 462A.12(1), the legislature has defined the word “operate” to mean “to navigate or otherwise use a vessel or motorboat.” Iowa Code § 462A.2(24). The common meaning of “navigate” is to “direct one’s course through any medium.” Navigate, Webster’s Third New International Dictionary (unabr. ed. 2002). Were this the only legislative definition of the word “operate” appearing in chapter 462A, it would arguably support interpreting the statute narrowly as Pettijohn suggests.
However, according to the definition of the term “operate” the legislature adopted, a person operates a boat when they navigate it “or otherwise use” it. Iowa Code § 462A.2(24). The common meaning of the word “otherwise” is “in a different way or manner.” Otherwise , Webster’s Third New International Dictionary . The common meaning of the word “use” is “to put into action or service.” Use , Webster’s Third New International Dictionary . Because the legislature incorporated the phrase “otherwise use” in the statutory definition of the word “operate,” we conclude the legislature intended the prohibition in section 462A.12(1) to apply any time a person uses a boat “in a careless, reckless or negligent manner so as to endanger . . . life, limb or property,” even if the person is navigating the boat safely. To illustrate, navigating a boat while it was carrying weight in excess of its maximum weight capacity would clearly constitute a violation of section 462A.12(1).
Here, Pettijohn was operating the pontoon boat with a passenger in close proximity to an unguarded propeller. If Pettijohn had made a *16 sudden maneuver, his passenger could have slipped off the boat and into the propeller. Under these circumstances, Officer Wineland had a reasonable, articulable suspicion that Pettijohn was engaged in the crime defined in section 462A.12(1). Therefore, we conclude the seizure of the boat violated neither the Fourth Amendment to the United States Constitution nor article I, section 8 of the Iowa Constitution.
IX. The Constitutionality of the Search Under the United States Constitution.
We begin our analysis concerning the constitutionality of the breath test by examining the recent decision of the United States Supreme Court addressing the constitutionality of implied-consent searches. In Birchfield , the Court considered “whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream” consistent with the Fourth Amendment to the United States Constitution. 579 U.S. at ___, 136 S. Ct. at 2172. The three petitioners whose consolidated cases the Court addressed each advanced the argument “that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.” Id. The Court noted that when
such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.
Id.
As a result, the Court set out to determine whether the
administration of warrantless blood and breath tests is justified by an
exception to the Fourth Amendment warrant requirement when an
*17
individual has been lawfully arrested on suspicion of drunk driving.
Id.
at ___,
The Court first noted the exigent-circumstances exception to the
warrant requirement, which “allows a warrantless search when an
emergency leaves police insufficient time to seek a warrant,” does not
categorically permit warrantless BAC
testing
in drunk-driving
investigations.
Id
. at ___,
The Court next considered whether the search-incident-to-arrest
doctrine applies to breath and blood tests incident to drunk-driving
arrests.
Id.
After acknowlеdging its prior decisions applying this
doctrine have not been “easy to reconcile” and describing its scope
during colonial times, the Court ultimately determined the question of
whether the doctrine applies “does not depend on whether a search of a
particular
arrestee is likely to protect officer safety or evidence.”
Id.
at
___, 136 S. Ct. at 2175–76. However, when the doctrine applies, the
Court noted, the very “fact of the lawful arrest” permits “a full search of
the person.”
Id.
at ___, 136 S. Ct. at 2176 (quoting
United States v.
Robinson
,
The Court next described the appropriate test for determining
whether the doctrine “should be applied in situations that could not have
been envisioned when the Fourth Amendment was adopted.”
Id.
“Absent more precise guidance from the founding era,” the Court
concluded such determinations should ordinarily be made “by assessing,
on the one hand, the degree to which it intrudes upon an individual’s
privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.”
Id.
(quoting
Riley v.
California
,
Lacking “any definitive guidance” from the founding era as to
whether blood and breath tests to measure BAC should be permitted
incident to arrest, the Court then undertook to apply this test.
Id.
With
respect to the degree to which BAC testing intrudes upon individual
privacy interests, the Court distinguished between blood and breath
tests, concluding blood tests implicate more significant privacy concerns
than breath tests.
Id.
at ___,
As for the question of whether BAC testing on persons arrested for drunk driving promotes a legitimate governmental interest, the Court determined states have compelling interests in both “neutralizing the threat posed” by drunk drivers behind the wheel and deterring drunk driving effectively. Id. at ___, 136 S. Ct. at 2178–79. Accordingly, the Court found implied-consent laws that induce motorists suspected of drunk driving to submit to BAC testing “serve a very important function” even after those motorists have been arrested and removed from the road. Id. at ___, 136 S. Ct. at 2179. In doing so, the Court described alcohol consumption as “a leading cause of traffic fatalities and injuries” and emphasized statistics prepared by the National Highway Traffic Safety Administration (NHTSA) indicating the number of fatalities in *19 accidents attributed to drunk driving in recent years “ranged from 13,582 deaths in 2005 to 9,865 deaths in 2011.” Id. at ___, 136 S. Ct. at 2178.
In assessing the degree to which implied-consent laws imposing
penalties for refusal to submit to BAC testing are necessary to promote
the legitimate governmental interests related to assuring roadway safety,
the Court rejected the relevance of determining whether “the burden of
obtaining a warrant is likely to frustrate the governmental purpose
behind the search” in the particular case.
Id.
at ___,
Finally, because the Court determined requiring warrants for BAC testing would impose a burden on the states, it concluded the petitioners needed to support their claims by demonstrating “some special need for warrants for BAC testing.” Id. at ___, 136 S. Ct. at 2181. In assessing whether the petitioners had met that standard, the Court described the benefits requiring warrants would provide as follows:
Search warrants protect privacy in two main ways. First, they ensure that a search is not carried out unless a neutral magistrate makes an independent determination that there is probable cause to believe that evidence will be found. *20 Second, if the magistrate finds probable cause, the warrant limits the intrusion on privacy by specifying the scope of the search—that is, the area that can be searched and the items that can be sought.
Id.
at ___, 136 S. Ct. at 2181 (citation omitted). The Court then
concluded the petitioners had not demonstrated a special need for
warrants before BAC testing is conducted.
Id.
at ___,
Balancing these considerations, the Court held the Fourth Amendment permits the administration of a warrantless breath test, but not a blood test, to determine the BAC of an individual lawfully arrested on suspicion of drunk driving as a search incident to arrest. Id. at ___, 136 S. Ct. at 2184–85. However, the Court cautioned a warrantless blood test may be justified under another exception to the warrant requirement, stating,
Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.
Id.
at ___,
Pettijohn argues applying the balancing test the Birchfield Court used to determine whether the search-incident-to-arrest exception applies to arrests for drunk driving yields a different result in the context of drunk boating for two reasons. First, he argues the individual interest at stake in the boating context is more significant than in the driving *21 context because a person has a natural right to navigate state waterways and does not need a license to operate a boat. Second, he argues the government interest in preventing drunk boating is far less compelling than the government interest in preventing drunk driving.
We reject this analysis. First, in determining whether the search- incident-to-arrest exception to the Fourth Amendmеnt right to be free from unreasonable searches applies, the individual interest to be assessed is the degree to which a warrantless search will intrude upon his or her privacy interests. Second, though government statistics indicate drunk boating causes far fewer annual fatalities than drunk driving, we conclude the government interest in preventing and deterring injuries and fatalities is similar in the drunk driving and the drunk boating contexts. Though we acknowledge government statistics suggest drunk boating causes far fewer annual fatalities than drunk driving, alcohol is the leading known contributing factor in both fatal boating accidents and fatal motor vehicle accidents.
Applying Birchfield , we conclude the Fourth Amendment permits the administration of a warrantless breath test to determine the BAC of an individual lawfully arrested on suspicion of boating while intoxicated. The BAC test at issue in this case was a breath test rather than a blood test, and Officer Drish administered it after reading an implied-consent advisory to Pettijohn following his lawful arrest. Therefore, we conclude the breath test constituted a search incident to arrest excepted from the Fourth Amendment’s warrant requirement under Birchfield .
X. The Constitutionality of the Search Under the Iowa Constitution.
The text of the Fourth Amendment to the United States
Constitution and article I, section 8 of the Iowa Constitution are “nearly
*22
identical.”
State v. Short
, 851 N.W.2d 474, 500 (Iowa 2014). However,
the scope of the protections they afford is not.
See, e.g.
,
State v. Gaskins
,
“We jealously guard our right to construe a provision of our state
constitution differently than its federal counterpart, though the two
provisions may contain nearly identical language and have the same
general scope, import, and purpose.”
State v. Jackson
,
A. Searches Incident to Arrest Under Article I, Section 8. Our caselaw recognizes the search-incident-to-arrest exception to the warrant requirement under article I, section 8 “must be narrowly construed and limited to accommodating only those interests it was created to serve.” Gaskins , 866 N.W.2d at 8 (quoting State v. McGrane , 733 N.W.2d 671, 677 (Iowa 2007)). Applying this principle, in Gaskins we held the scope of the search-incident-to-arrest exception to the warrant requirement under article I, section 8 of the Iowa Constitution is narrower than its scope under the Fourth Amendment to the United States Constitution. Id. at 13–14.
Our decision in
Gaskins
addressed the extent to which the proper
scope of the search-incident-to-arrest exception to the warrant
requirement under article I, section 8 is limited by its underlying
*23
purposes.
Id.
at 8–16. In considering this question, we concluded,
“When lines need to be drawn in creating rules, they should be drawn
thoughtfully along the logical contours of the rationales giving rise to the
rules.”
Id.
at 12 (quoting
State v. Rowell
,
In concluding a warrantless search incident to arrest justified by
the need to preserve evidence must serve the purpose of preventing
evidence destruction under article I, section 8, we squarely rejected the
proposition that collecting “evidence of the crime of arrest” constitutes a
sufficient justification to support a warrantless search under article I,
section 8.
Id.
at 13–14. Notwithstanding the contrary position taken by
the United States Supreme Court in
Arizona v. Gant
,
Of course, when the Iowa Constitution is more protective against government intrusion than the United States Constitution, we must determine whether the government conduct at issue in a particular case violated individual rights guaranteed under our state constitution. Therefore, we must now determine whether the breath test administered on Pettijohn was justified as a search incident to arrest under article I, section 8 as construed in Gaskins .
Relying on our language acknowledging “the important distinction between the purpose of preserving evidence and the purpose of collecting evidence” in Gaskins , id. at 14, the State argues the evanescent nature of BAC evidence places breath tests squarely within the scope of the search-incident-to-arrest exception to the warrant requirement under article I, section 8.
We recognize “that as a result of the human body’s natural
metabolic processes, the alcohol level in a person’s blood begins to
dissipate once the alcohol is fully absorbed and continues to decline until
the alcohol is eliminated.”
McNeely
,
However, it is apparent the evanescent nature of BAC evidence does not make it susceptible to concealment or destruction by an arrestee. Plainly, there was nothing Pettijohn could have done to conceal or destroy the alcohol present in his blood. In Gaskins , we acknowledged evidence preservation constitutes a justification for warrantless searches incident to arrest only insofar as they serve the purpose of preventing the destruction or concealment of evidence by an arrestee. 866 N.W.2d at 14. We specifically disavowed the notion that the state interest in collecting evidence expediently, as opposed to the state interest in preventing evidence from being intentionally destroyed by an arrestee, constitutes an adequate justification for a search incident to arrest. Id.
In essence, the State asks us to hold that the proper scope of
searches incident to arrest justified by evidence preservation under
article I, section 8 extends not only to evidence the arrestee might
conceal or destroy, but also to other evidence that might be lost due to
*26
its natural dissipation as part of an arrestee’s metabolic processes. We
have previously rejected this claim under our statutory scheme.
Harris
,
The implied-consent statute in chapter 462A establishes evidentiary presumptions applicable to BAC evidence obtained by breath tests taken up to two hours after an arrestee is observed operating a boat that ensure the results of tests taken within this window will constitute powerful evidence supporting a conviction under section 462A.14. Under the implied-consent procedure set forth in the Code,
alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn within two hours after the defendant was operating or was otherwise in physical control of a motorboat or sailboat is presumed to be the alcohol concentration at the time of operation or being in physical control of the motorboat or sailboat.
Iowa Code § 462A.14A(8) (emphasis added); see id. § 462A.14(8)( a ). Moreover, section 462A.14 prohibits not only operating a boat with a blood alcohol concentration equal to “.08 or more,” but also operating a boat “under the influence of an alcoholic beverage or other drug or a combination of such substances.” Id. § 462A.14(1)( a )–( b ). Thus, when combined with officer testimony concerning the facts that created the probable cause for arresting a defendant in the first place, test results confirming the presence of any alcohol in the defendant’s blood might be enough to establish a violation of section 462A.14.
The evidentiary presumption established in the implied-consent
procedure set forth in sections 462A.14 and 462A.14A accounts for
delays inherent to obtaining trial-worthy BAC evidence. For example,
officers generally conduct evidentiary breath tests on arrestees only after
transporting them to either “a police station, governmental building, or
mobile testing facility where officers can access reliable, evidence-grade
breath testing machinery.”
Birchfield
,
During this necessary window of delay, law enforcement officers who wish to conduct a breath test on an arrestee can seek a warrant electronically. In Iowa, law enforcement officers have “the capability to access the court system from the computer in а police vehicle to request a search warrant based on probable cause at all times of the day and night.” Gaskins , 866 N.W.2d at 17 (Cady, C.J., concurring specially). This expanded access to the courts enables law enforcement officers throughout the state to obtain search warrants more quickly than ever before. Furthermore, in the context of arrests for operating while
28
intoxicated, the facts establishing probable cause to obtain a search warrant “are largely the same from one . . . stop to the next and consist largely of the officer’s own characterization of his or her observations.” Birchfield , 579 U.S. at ___, 136 S. Ct. at 2181 (majority opinion). Because documenting the facts needed to establish probable cause is relatively simple in this context, an officer who has probable cause to suspect an individual of operating while intoxicated should ordinarily be able to complete and submit an electronic warrant application within minutes.
This
reasoning
is consistent with
Iowa constitutional
jurisprudence. Whenever practicable, the state should obtain a warrant
prior to conducting a search.
See Gaskins
,
29
allows the police to get a warrant almost instantaneously. The failure of the state to authorize such a procedure cannot create an exigency.
Moreover, the Iowa Code allows unsworn statements to be the basis of an affidavit for issuance of a search warrant. The Code provides in relevant part,
When the laws of this state or any lawful requirement made under them requires or permits a matter to be supported by a sworn statement written by the person attesting the matter, the person may attest the matter by an unsworn written statement if that statement recites that the person certifies the matter to be true under penalty of perjury under the laws of this state, states the date of the statement’s execution and is subscribed by that person.
Iowa Code § 622.1. By submitting a statement with the proper certification to a magistrate electronically, a magistrate can issue the warrant under Iowa Code section 808.3.
Given that law enforcement officers in Iowa have around-the-clock
access to our electronic court system,
[5]
“the delays inherent in
administering reliable breath tests generally provide ample time to obtain
a warrant” within the two-hour window that will entitle their results to
the evidentiary presumption set forth in section 462A.14A(8).
Birchfield
,
30
threaten the State’s ability to obtain a successful prosecution under section 462A.14(1). [6]
As the Supreme Court repeatedly emphasized in
Birchfield
, when
the search-incident-to-arrest exception to the warrant requirement
applies, it provides law enforcement officers with “categorical” authority
to conduct warrantless searches.
Id.
at ___, ___, ___,
For this reason, we previously concluded the proper scope of a categorical search-incident-to-arrest exception to the warrant requirement is limited to situations in which the commonalities among a class of cases indicate the application of the exception to that category of cases would satisfy the underlying purposes justifying its existence. See Gaskins , 866 N.W.2d at 13. Here, the State offers no evidence to *31 plausibly support the conclusion that commonalities serving the underlying purposes of the search-incident-to-arrest exception to the warrant requirement exist across all cases in which an officer seeks to administer a breath test to determine the BAC of an arrestee suspected of violating section 462A.14. In the absence of such evidence, the application of the categorical search-incident-to-arrest exception to the warrant requirement to this class of cases would eviscerate the protections guaranteed by article I, section 8.
We therefore decline the State’s invitation to conclude the search- incident-to-arrest exception applies to this category of cases across the board. Under article I, section 8, mere inconvenience resulting from the requirement that officers obtain warrants before conducting searches is inadequate to support the application of the search-incident-to-arrest exception to the warrant requirement. See id. at 15. Therefore, assuming the search-incident-to-arrest exception under article I, section 8 is at all concerned with the State’s interest in preventing the loss of evanescent evidence, that concern justifies its application only insofar as such loss would occur before a warrant could ordinarily be obtained. The mere fact an individual suspected of boating while intoxicated has been arrested does not reliably indicate this circumstance exists, therefore it does not reliably indicate the existence of a threat to the State’s interest in evidence preservation sufficient to justify application of the search-incident-to-arrest exception to the warrant requirement under article I, section 8.
We note the dissipation of alcohol from the bloodstream may
support the determination that exigent circumstances exist to justify a
warrantless breath test on an arrestee suspected of operating a boat
while intoxicated. Though “experts can work backwards from the BAC at
*32
the time the sample was taken to determine the BAC at the time of the
alleged offense, longer intervals may raise questions about the accuracy
of the calculation.”
McNeely
,
We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. . . . And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest.
However, as the State rightly concedes, the natural dissipation of
alcohol in the bloodstream and the potential loss of BAC evidence do not
automatically constitute exigent circumstances that subvert the warrant
requirement under the Fourth Amendment or article I, section 8.
See Birchfield
,
33
while intoxicated and concluding it constitutes a per se exigency permitting warrantless searches in such cases. [7]
We therefore conclude a warrantless breath test to detеrmine the BAC of an arrestee suspected of operating a boat while intoxicated does not fall within the search-incident-to-arrest exception to the warrant requirement under article I, section 8. Thus, because the natural dissipation of alcohol does not justify the per se application of the search-incident-to-arrest exception to the warrant requirement under article I, section 8, we conclude the breath test Officer Drish administered to Pettijohn did not constitute a permissible search incident to arrest under the Iowa Constitution.
B. Consent to a Warrantless Search Under Article I, Section 8.
Having determined the breath test administered to Pettijohn did not
constitute a permissible search incident to arrest under article I,
section 8, we must now turn to the question of whether the warrantless
search was justified based on consent. Under article I, section 8, a
warrant is not required to authorize a search based on consent.
State v.
Baldon
,
1. The statutorily implied consent to submit to chemical testing. Before considering whether Pettijohn’s affirmative consent to submit to the breath test effectively waived his right to be free from a warrantless search under article I, section 8, we first consider whether the consent *34 implied under the Iowa Code constituted effective consent justifying the administration of the warrantless breath test. Section 462A.14(A)(1) of the Code states,
A person who operates a motorboat or sailboat on the navigable waters in this state under circumstances which give reasonable grounds to believe that the person has been operating a motorboat or sailboat in violation of section 462A.14 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 controlled substances or other drugs, subject to this section. Iowa Code § 462A.14A(1). If the implied consent to warrantless searches declared in section 462A.14A constitutes an effective waiver of the right to be free from warrantless searches guaranteed by article I, section 8, then the search Pettijohn was subjected to did not violate the Iowa Constitution.
We begin our analysis by assessing decisions of the United States Supreme Court addressing the impact of implied consent in the Fourth Amendment context. In assessing that caselaw, we remain mindful that decisions of the Supreme Court addressing the scope of a right guaranteed by the United States Constitution set a floor below which the scope of a right guaranteed by the Iowa Constitution may not fall, but not a ceiling above which it may not rise. See State v. Sweet , 879 N.W.2d 811, 832 (Iowa 2016).
In
Birchfield
, after determining warrantless blood tests on
motorists arrested for drunk driving arе not justified as searches incident
to arrest, the Court considered whether such tests are justified such that
they do not violate the Fourth Amendment by virtue of drivers’ legally
implied consent to submit to them.
Because the Court had held breath tests may be administered to
motorists arrested on suspicion of drunk driving as searches incident to
arrest, the
Birchfield
opinion did not address whether statutorily implied
consent may justify warrantless breath tests consistent with the Fourth
Amendment.
See id.
Nor did the opinion address whether motorists may
be deemed to have consented to blood or breath tests when state law
provides refusal to submit will subject them to civil penalties, as the
petitioners had each been threatened with criminal penalties for refusal.
See id.
at ___, ___,
Unlike Birchfield , McNeely did not directly address whether statutorily implied consent to submit to warrantless blood or breath tests constitutes consent for purposes of the Fourth Amendment. Nevertheless, we conclude the clear implication of the McNeely decision is that statutorily implied consent to submit to a warrantless blood test *36 under threat of civil penalties for refusal to submit does not constitute consent for purposes of the Fourth Amendment.
The relevant facts of McNeely are as follows. After the defendant refused to provide a breath sample, an officer requested an arrestee to provide a blood sample and advised him that refusal to submit to the test would subject him to civil penalties for refusal, including the immediate revocation of his license, and the possibility that his refusal would be relied upon as evidence in a future prosecution under state law. McNeely , 569 U.S. at ___, 133 S. Ct. at 1557. By state statute, any person who operated a motor vehicle on public highways within the state was deemed to have given consent to a chemical test subject to civil penalties for refusal. Id. (citing Mo. Rev. Stat. §§ 577.020, .041 (2011)). When the defendant refused to provide a blood sample despite the existence of this statutorily implied consent, the arresting officer ordered the withdrawal of his blood without applying for a warrant because he believed obtaining one “was not legally necessary.” Id. at ___, ___, 133 S. Ct. at 1557, 1567.
The
McNeely
opinion framed the question before the Court as
“whether the natural dissipation of alcohol in the bloodstream
establishes a
per se
exigency that suffices on its own to justify an
exception to the warrant requirement for nonconsensual blood testing in
drunk-driving investigations.”
Id.
at ___,
37
for administering warrantless BAC tests on drunk-driving suspects
under the Fourth Amendment.
See Birchfield
,
Nevertheless,
McNeely
clearly did not treat the statutorily implied
consent in the Missouri statute as consent under the Fourth
Amendment. Notably, in a section of the
McNeely
opinion joined by five
justices, the Court framed the issue to be decided as one concerning the
constitutionality of “
nonconsensual
blood testing in drunk-driving
investigations.”
McNeely
,
States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk- driving offense. Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.
Id.
at ___,
Following
McNeely
, a number of state courts concluded the mere
existence of statutorily
implied consent does not permit the
administration of a warrantless test of an individual’s blood, breath, or
urine consistent with the Fourth Amendment.
See, e.g.
,
State v. Butler
,
A recurrent theme among state court decisions issued in
McNeely
’s
wake concerned the nature of consent sufficient to justify a warrantless
search consistent with the Fourth Amendment.
See, e.g.
,
Halseth
, 339
P.3d at 371;
Byars
,
1569–74 (Roberts, C.J., concurring in part and dissenting in part); id. at ___, 133 S. Ct. at 1574–78 (Thomas, J., dissenting).
limited, qualified, or withdrawn.
Florida v. Jimeno
, 500 U.S. 248, 252,
111 S. Ct. 1801, 1804 (1991) (“A suspect may of course delimit as he
chooses the scope of the search to which he consents.”);
United States v.
Sanders
, 424 F.3d 768, 774 (8th Cir. 2005) (“Once given, consent to
search may be withdrawn . . . .”);
State v. McConnelee
,
The implied-consent procedure set forth in chapter 462A of the Iowa Code clearly anticipates that consent implied under the statute will ordinarily be subsequently withdrawn or reaffirmed. Under section 462A.14A(1), an individual is deemed to have consented to chemical testing when he or she “operates a motorboat or sailboat on the navigable waters in this state under circumstances which give reasonable grounds to believe that the person has been operating a motorboat or sailboat in violation of section 462A.14.” Iowa Code § 462A.14A(1). However, even after implied consent has attached to an
40
individual suspected of boating while intoxicated, the statute does not compel his or her submission to a chemical test. [9] See id. § 462A.14C. Rather, it requires an officer to request the individual submit to a chemical test and advise him or her of the consequences the law attaches to the choice of submission as well as the choice of refusal. Id. § 462A.14C(1)( a )–( b ). The individual may then choose between affirming or withdrawing his or her consent to submit to a chemical test. See id.
We conclude the consent implied by the statutory scheme set forth
in chapter 462A of the Code does not automatically permit a warrantless
search consistent with article I, section 8.
[10]
Accordingly, to determine
whether the warrantless breath test in this case was permissible by
virtue of consent, we must determine, under the totality of the
circumstances, whether Pettijohn effectively consented to submit to the
breath test after Officer Drish read him the implied-consent advisory.
See, e.g.
,
Birchfield
,
2. The affirmative consent to submit to the breath test. As we have previously noted, the United States Supreme Court has determined the standard for determining the validity of consent under the Fourth Amendment is “whether the consent was voluntarily given and not a result of duress or coercion, expressed or implied.” State v. Pals , 805 N.W.2d 767, 777 (Iowa 2011). Under this standard, the question of whether consent was voluntarily given is a question of fact to be determined by considering the totality of the circumstanсes. Id.
Under the federal standard for determining whether a warrantless
search was justified based on consent, effective consent does not require
a waiver of the right to be free from unreasonable searches and seizures
meeting the standard that ordinarily applies to the waiver of other
constitutional rights as set forth in
Johnson v. Zerbst
, 304 U.S. 458, 58
S. Ct. 1019 (1938).
See Schneckloth,
412 U.S. at 235–46, 93 S. Ct. at
2051–58;
Pals
, 805 N.W.2d at 777. Whereas an effective waiver of a
constitutional right ordinarily requires “an intentional relinquishment or
abandonment of a known right or privilege” under
Zerbst
, 304 U.S. at
464,
The Supreme Court has never reversed a conviction for operating while intoxicated based on the involuntariness of an individual’s consent to submit to a BAC test. However, its decisions in two prior cases have significant implications with respect to the requirements of voluntary consent in the implied-consent context.
First, in South Dakota v. Neville , the Court held the privilege against self-incrimination does not protect an individual’s “refusal to take a blood-alcohol test, after a police officer has lawfully requested it” because refusal under such circumstances does not constitute “an act coerced by the officer.” 459 U.S. 553, 564, 103 S. Ct. 916, 924 (1983). The Court rested its decision on the ground that “no impermissible coercion is involved when the suspect refuses to submit to take the test.” Id. at 562, 103 S. Ct. at 921–22. Nonetheless, though the statute only provided for civil penalties upon the act of refusal to submit and required officers to inform suspects of their right to refuse BAC testing, the Court acknowledged such statutes unquestionably force defendants to make difficult choices:
We recognize, of course, that the choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices.
Id.
at 564,
Second, in Birchfield , the Court reversed the conviction of a petitioner who submitted to a blood test after being advised “that refusing to consent would itself be a crime.” 579 U.S. at ___, ___, 136 S. Ct. at 2172, 2185–86. But the Court remanded the case to the state
43
court for a reevaluation of the voluntariness of the petitioner’s consent in
light of “the partial inaccuracy of the officer’s advisory,” noting the state
supreme court had held his consent was voluntary “on the erroneous
assumption that the State could permissibly compel both blood and
breath tests.”
Id.
at ___,
Relying on federal caselaw, in
State v. Knous
, we indicated that
determining the voluntariness of an individual’s consent to a BAC test
given after an officer invokes implied-consent procedures “requires an
examination of the totality of the circumstances to determine whether the
decision was voluntary or coerced.”
Our prior caselaw also acknowledges that when an officer invokes
implied-consent procedures and requests an individual to submit to a
BAC test, voluntary consent requires some degree of knowledge. For
example, we have determined consent to submit to a chemical test is not
voluntary unless it is “freely made, uncoerced, reasoned, and informed.”
State v. Garcia
, 756 N.W.2d 216, 220 (Iowa 2008). Similarly, we have
indicated the “ultimate question” in determining the voluntariness of
consent in the implied-consent context is whether the decision to comply
with an officer’s request to submit to the test was “a reasoned and
informed decision.”
State v. Overbay
,
Notably, our caselaw that establishes an individual must have
knowledge concerning the consequences of failing or refusing a BAC test
to voluntarily consent to one have neither invoked the Iowa Constitution
in arriving at this conclusion nor addressed the general requirements of
effective consent under article I, section 8.
See Overbay
, 810 N.W.2d at
875–80;
Garcia
, 758 N.W.2d at 219–23;
Bernhard
, 657 N.W.2d at 471–
73;
see also State v. Hutton
,
We have yet to consider whether a knowing and intelligent waiver of the right to be free from warrantless searches and seizures set forth in article I, section 8 is required to establish the effectiveness of consent under the Iowa Constitution. See Baldon , 829 N.W.2d at 822; see also Pals , 805 N.W.2d at 782. Pettijohn argues effective consent to a warrantless breath test requires a knowing and intelligent waiver of the rights set forth in article I, section 8 of the Iowa Constitution. However, we begin our analysis of the effectiveness of Pettijohn’s consent to submit to the warrantless breath test by considering whether it met the federal standard for effective consent, as the State concedes his consent was not effective under article I, section 8 unless it was “voluntarily given and not a result of duress or coercion, expressed or implied.” Pals , 805 N.W.2d at 777.
“The question of voluntariness requires the consideration of many factors, although no factor itself may be determinative.” State v. Lane , *46 726 N.W.2d 371, 378 (Iowa 2007). In assessing whether a defendant’s consent to a warrantless search was voluntary, factors to be considered include, but are not limited to,
personal characteristics of the defendant, such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of detention or questioning, the substance of any discussion between the defendant and police preceding the consent, whether the defendant was free to leave or was subject to restraint, and whether the defendant’s contemporaneous reaction to the search was consistent with consent.
United States v. Jones
,
As a starting point in our analysis of the totality of the
circumstances to determine whether Pettijohn’s consent was voluntary
and uncoerced, we note the State does not dispute that Pettijohn was
legally intoxicated when he submitted to the warrantless breath test.
Although by no means dispositive in our analysis of the totality of the
circumstances, evidence that an individual was under the influence of
drugs or alcohol is a factor we consider in evaluating the voluntariness of
an individual’s consent to a warrantless search.
See, e.g.
,
State v.
Prusha
,
Similarly, the State does not dispute that officers arrested Pettijohn
and transported him to the police station before he submitted to the
breath test. Though the fact an individual was seized when he or she
consented to a warrantless search is not necessarily determinative under
the totality-of-the-circumstances test, the potential for coercion exists
even in seemingly innocuous circumstances involving seizures.
See
Baldon
, 829 N.W.2d at 797–98;
Pals
, 805 N.W.2d at 782–83. “In other
words, coercion can easily find its way into human interaction when
detention is involved.”
Baldon
,
As compared to an ordinary roadside detention, arrest involves an even greater degree of inherent coercion. Simply put, “the psychological impact of an arrest immediately preceding a consent to search may not be ignored” in determining whether consent to a warrantless search was voluntary under the totality of the circumstances. Ahern , 227 N.W.2d at 166. Consequently, the fact officers arrested Pettijohn and transported him to the police station before he submitted to the breath test cuts sharply against finding his consent was voluntary and uncoerced.
Next, we note the implied-consent advisory read to Pettijohn did
not advise him of his constitutional right to refuse a warrantless search.
Whether an individual had knowledge of his or her constitutional right to
withhold consent is not a prerequisite to finding that consent was
*48
voluntary, but it is one factor we consider in determining whether
consent to submit to a warrantless search was voluntary.
Pals
, 805
N.W.2d at 783;
see Schneckloth
, 412 U.S. at 227, 93 S. Ct. at 2048.
Conversely, a warning that consenting to a warrantless search involves
the relinquishment of a constitutional right to be free from warrantless
searches may significantly neutralize the coercive context in which a
request for consent is made.
Pals
,
The State does not dispute that the implied-consent advisory Officer Drish read to Pettijohn did not advise him that consenting to the warrantless breath test would involve the relinquishment of a constitutional right. Nor does the State dispute that the advisory did not advise Pettijohn that he had a constitutional right to withhold his consent. Accordingly, this factor also cuts against finding Pettijohn’s consent to the breath test was voluntary and uncoerced, particularly in light of the fact that he was arrested before he submitted to the breath test.
Relatedly, we note the implied-consent advisory administered to Pettijohn suggested he had no affirmative right to refuse to consent. *49 After all, the advisory unequivocally stated that refusal to consent to a request to submit to a chemical test was “punishable” by a mandatory fine and the suspension of his operating privileges. And the form on which the advisory was printed indicаted no test was “required” only in the event that no test was offered within two hours of a preliminary screening test or an arrest. We therefore conclude the advisory was misleading because it implied Pettijohn had no constitutional right to refuse to consent, a factor we weigh strongly against finding his consent was voluntary and uncoerced.
Knowledge that criminal penalties will attach to the refusal to
consent to a warrantless search the State cannot properly compel
constitutes a determinative factor to be weighed in assessing the
voluntariness of the consent to a search.
See Birchfield
,
The advisory Pettijohn received informed him that refusal to submit was “punishable by a mandatory civil penalty of five hundred to two thousand dollars, and suspension of motorboat or sailboat operating privileges for at least a year.” Iowa Code §§ 462A.14A(4)( g )(1), .14C(1)( a ). We note the minimum mandatory civil fine for refusal to submit is greater than the minimum fines associated with convictions for both
50
simple and serious misdemeanor criminal offenses.
[13]
Furthermore, the
maximum mandatory civil fine for refusal to submit is greater than the
maximum fines associated with convictions for both simple and serious
misdemeanors as well as the minimum fine associated with a conviction
for an aggravated misdemeanor.
[14]
Thus, the advisory not only informed
Pettijohn his refusal to submit would subject him to mandatory fines as
punishment, but also reflected those fines would be just as hefty as the
fines he would have received had the implied-consent statute deemed
refusal to be a criminal misdemeanor offense. This fact cuts against
finding his consent to the warrantless search was voluntary and
uncoerced, as the State could not compel him to submit to the
warrantless breath test under article I, section 8.
See Birchfield
, 579
U.S. at ___, ___,
The advisory Pettijohn received was also misleading in that it indicated his refusal to submit to the request for a breath test could
51
result in the suspension of his boating privileges for just as long as a conviction for operating while intoxicated might. [15] By statute, refusal to submit is punishable by a mandatory suspension of boating privileges for precisely one year, see Iowa Code § 462A.14B(2)( a ), whereas a conviction for operating while intoxicated results in a suspension of boating privileges for one to six years, see id. § 462A.14(2)( a )(3), (2)( b )(3), (2)( c )(3). As we previously acknowledged in the course of analyzing a substantive due process claim in this context, when an individual submits to a warrantless BAC test after an implied-consent advisory overstates the penalty assоciated with refusal to consent, we cannot necessarily be confident the individual’s decision to consent was unaffected by the inaccuracy in the advisory. State v. Massengale , 745 N.W.2d 499, 504 (Iowa 2008). Thus, we must also weigh this misleading aspect of the advisory in assessing the totality of the circumstances to determine whether the consent Pettijohn gave was voluntary and uncoerced.
We recognize that unlike the loss of the ability to drive upon public
roads, the loss of the ability to boat on state waterways ordinarily does
not implicate the fundamental right to earn a living.
See Gilchrist v.
Bierring
,
52
waterways for navigational and recreational purposes.
See Witke v. State
Conservation Comm’n
, 244 Iowa 261, 267, 56 N.W.2d 582, 586 (1953)
(quoting
McCauley v. Salmon
,
Finally, with respect to the consequences of submitting to the breath test, the advisory indicated only that Pettijohn would face the loss of his boating privileges “for at least one year and up to six years” if he submitted to the breath test and the results led to his conviction under section 462A.14. Though the advisory accurately indicated the civil penalty associated with a conviction for operating while intoxicated, we note it failed to mention that a conviction for operating while intoxicated would result in the imposition of significant criminal penalties. See Iowa Code § 462A.14(2). Namely, a conviction for operating while intoxicated results in mandatory imprisonment for forty-eight hours to one year and a mandatory fine of one thousand to seven thousand five hundred dollars. See id. § 462A.14(2). The fact that the advisory stated the civil consequences associated with convictions for operating while intoxicated and failed to mention the serious criminal consequences rendered it significantly inaccurate and misleading. This factor weighs substantially _____________________
beyond dispute that regulations addressing the operation of boats on state waterways may be enacted by the legislature in proper exercise of the State’s police powers. See, e.g. , State v. Jackman , 211 N.W.2d 480, 484 (Wis. 1973); Ex parte Powell , 70 So. 392, 397 (Fla. 1915). The legislature has enacted many limits on the operation of boats implicating public safety. See Iowa Code § 462A.12. For example, though licensure is not required to operate a boat on state waterways, boats may generally be operated only by persons who are at least eighteen years of age, except under limited circumstances. Id. § 462A.12(6). The existence of these regulations make clear that just as there is no absolute right to operate a motor vehicle on state highways “under any and all conditions,” State v. Holt , 261 Iowa 1089, 1094, 156 N.W.2d 884, 887 (1968), there is no absolute right to operate a boat on state waterways.
against concluding the consent Pettijohn gave was voluntary and uncoerced under the totality of the circumstances.
We acknowledge the fact an individual was forced to choose
between two unpalatable alternatives does not necessarily defeat the
voluntariness of his or her consent to a warrantless search.
Baldon
, 829
N.W.2d at 801;
see Neville
,
Relying on basic contract principles, we previously held a parole agreement containing a provision whereby a prisoner consents to prospective warrantless searches as a precondition to release is insufficient to establish his or her consent was voluntary in light of the relative lack of bargaining power parolees possess as compared to the government. Id. Arguably, an individual arrested on suspicion of drunk boating retains a greater degree of bargaining power than a parolee by virtue of the fact that he or she retains the ability to demand a trial. See id. at 795. Yet the significance of this distinction is diminished by the reality that any choice an individual makes when an officer invokes implied-consent procedure will undermine his or her chance of prevailing at trial. Certainly, the results of a BAC test constitute powerful evidence of intoxication culminating an all-but-certain conviction for operating while intoxicated if an individual has a BAC of .08 or higher. See State v. *55 Senn , 882 N.W.2d 1, 48 (Wiggins, J., dissenting). Additionally, under section 462A.14(A)(8), “proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motorboat or sailboat in violation of section 462A.14.” Iowa Code § 462A.14A(8). Having been advised the outcome following refusal will be the imposition of mandatоry civil penalties and additional penalties if convicted of operating while intoxicated, an intoxicated individual requested to submit to a BAC test may believe he or she has no meaningful choice to make. See id. §§ 462A.14A(4)( g )(1), .14C(1)( a ).
Pettijohn did not face the promise of a criminal record for refusing to submit to the BAC test, and the act of refusing to submit did not require him to commit a crime in the presence of an officer. These facts weigh in favor of concluding his consent to the warrantless breath test was voluntary and uncoerced, but they are by no means determinative.
On the contrary, we think the totality of the circumstances under which Pettijohn submitted to the breath test indicates his consent to that warrantless search was not voluntary and uncoerced. The evidence is undisputed that Pettijohn was intoxicated when he submitted to the breath test such that his capacity to make reasoned and informed decisions was diminished. Before he submitted to the test, he was arrested and transported to the police station. There, he was advised that significant civil penalties that would attach to his refusal to submit or conviction for operating while intoxicated. However, he was not advised of his constitutional right to withhold consent or the serious criminal penalties that would result if he submitted to the test and failed it.
The mere fact that Pettijohn submitted to the breath test after being read the implied-consent advisory is inadequate to establish his effective consent. Because Pettijohn made the decision to submit to the breath test in the inherently coercive context of custodial detention with incomplete and inaccurate information, while intoxicated and facing the prospect of significant penalties if he refused to submit, we conclude his consent to the warrantless search was not voluntary and uncoerced. Accordingly, in light of our conclusion that the State had no right to compel the warrantless breath test as a search incident to his lawful arrest, we conclude the admission of the results of the breath test violated article I, section 8 of the Iowa Constitution.
Under the totality of the circumstances, the choice to consent to a warrantless search here was merely illusory. Therefore, under article I, section 8, we must hold Pettijohn’s submission to the breath test did not constitute effective consent.
As we previously recognized,
We are duty bound to give the liberty in article I, section 8 of our constitution the integrity it deserves and demands, and we must not allow the government to avoid an important constitutional check on its power by using an unfair play on human nature.
Baldon
,
57
XI. Claim this Decision Makes the Statutory Scheme Governing the Operation of a Motor Vehicle While Under the Influеnce Unconstitutional.
A person reading this decision should not jump to the conclusion that our analysis will make the statutory scheme governing the operation of a motor vehicle while under the influence unconstitutional. Nevertheless, we do not doubt evaluating the totality of the circumstances could lead to a different outcome in the implied-consent context in an appropriate case. For example, in the area of operating a motor vehicle while under the influence, our legislature has chosen not to make it a criminal offense or have a mandatory monetary civil penalty when an individual refuses to take the chemical test. [17]
The Hawaii Supreme Court has done this analysis in connection with its operating a motor vehicle while intoxicated statutes in State v. Yong Shik Won , 372 P.3d 1065 (Haw. 2015). There, the supreme court found in the context of drunk driving that an additional penalty above the normal loss of a person’s license was coercive and thus, made the defendant’s consent involuntary under its state constitution. Id. at 1083–84. However, the court recognized that it has upheld the state’s implied-consent scheme without the additional penalty when a defendant is accurately informed of the right to withdraw his implied consent so that consent is free and voluntary. Id . at 1080. In other words, the additional penalty in Hawaii’s drunk-driving laws, as the additional penalty in our boating laws, made the consent involuntary, not the mere loss of driving privileges.
Accordingly, this decision only applies to the statutory scheme for operating a boat while under the influence and not to the statutory scheme for operating a motor vehicle while under the influence. Any decision relating to operating a motor vehicle while under the influence will have to wait for another case raising its constitutionality.
XII. Disposition.
Because the officer who stopped the boat had a reasonable, articulable suspicion that Pettijohn was committing a crime, we conclude the seizure of the boat did not violate the Fourth Amendment to the United States Constitution nor article I, section 8 of the Iowa Constitution. However, because the State failed to prove Pettijohn voluntarily consented to the warrantless breath test and failed to prove the breath test was justified by an exception to the warrant requirement, we conclude the warrantless administration of the breath test violated article I, section 8 of the Iowa Constitution. Therefore, we reverse the judgment of the district court and remand the case for a new trial.
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Cady, C.J., Appel and Hecht, JJ., join this opinion. Cady, C.J., files a special concurrence. Waterman, Mansfield, and Zager, JJ., dissent.
#14–0830, State v. Pettijohn CADY, Chief Justice (concurring specially).
I concur in the opinion of the court. First, I agree the officer
permissibly stopped Dale Dean Pettijohn Jr. after observing a violation of
Iowa Code section 462A.12(1) (2013).
See State v. Vance
, 790 N.W.2d
775, 780 (Iowa 2010). Second, I agree the search of Pettijohn’s breath
was constitutional under the United States Supreme Court’s
interpretation of the search-incident-to-arrest exception to the warrant
requirement of the Fourth Amendment.
See Birchfield v. North Dakota
,
579 U.S. ___, ___, 136 S. Ct. 2160, 2184 (2016). Third, I agree the
search was not justified under our independent interpretation of the
search-incident-to-arrest exception to the warrant requirement of Iowa
Constitution article I, section 8.
See State v. Gaskins
,
Consent is one of the well-recognized exceptions to the constitutional requirement that searches must be conducted pursuant to a warrant. See id. at 791. Consent, however, can only be used as an exception if it was voluntary. See id. at 792.
In this case, it is unnecessary to analyze the totality of the circumstances to determine if Pettijohn voluntarily consented to chemical testing. This analysis is unnecessary because the statutory implied- consent scheme for boating in Iowa is inherently coercive and cannot be used under the Iowa Constitution to justify a warrantless withdrawal of blood, breath, or urine based on consent.
Implied-consent laws were enacted in the context of motor vehicle
operation to secure cooperation with breath tests.
See Birchfield
, 579
U.S. at ___,
In
Baldon
, we analogized the consent given in an agreement with
the state to a contract with the state.
Under the implied-consent law for boating in Iowa, if a boat operator revokes the implied consent to testing, so, too, does the state revoke the correspоnding privilege to operate a boat. See Iowa Code *61 § 462A.14B(2)( a ). In other words, the operator is simply placed back in the position occupied before being given the privilege to operate a boat. This component of the implied-consent law for boating is not coercive in any way. Instead, the choice presented to a boat operator relates to the benefit exchange that allowed the person to operate a boat. If the person subsequently decides to withhold the implied consent given to the state, the state is, in turn, entitled to withhold the benefit bestowed. These circumstances do not present coercion, but a return of the parties to their original positions.
However, under Iowa’s implied-consent law for boating, the consequences of withholding consent are not limited to the loss of the privilege to operate a boat. The law also imposes a mandatory civil penalty of at least $500 as punishment for the refusal to submit to chemical testing. See Iowa Code § 462A.14A(4)( g )(1) (“A refusal to submit to the test is punishable by a mandatory civil penalty of five hundred dollars to two thousand dollars . . . .” (Emphasis added.)); see also id. § 462A.14B(2)( b )(1)–(3) (requiring the court impose the applicable penalty). The threat of this punishment necessarily means the subsequent consent was obtained by coercion and was thus involuntary.
In the context of consent, the $500 penalty is coercive for two central reasons. First, the law requires an officer to tell the boat operator of the mandatory fine prior to deciding whether to give consent to See id. chemical testing or to refuse chemical testing. § 462A.14A(4)( g )(1). Thus, the person is told the fine is not only an additional consequence, but a consequence specifically conditioned on withholding consent. See id. § 462A.14A(4)( g )(1)–(2). Furthermore, the consequence involves the loss of substantial property. See id. § 462A.14B(2)( b )(1)–(3). Second, the penalty is coercive because the *62 court imposes it only if the operator revokes consent. See id. The court does not impose the penalty as a consequence of a test result in excess of the legal limit. Cf. id. § 462A.14(2)( a )–( e ) (identifying the penalties for operating a boat while intoxicated).
Under these circumstances, the $500 civil penalty serves primarily, if not entirely, to pressure the person to consent to testing. We simply cannot ignore what the statute actually seeks to accomplish or fail to acknowledge how the penalty interferes with the voluntariness of the decision the boat operator must make when suspected of operating while intoxicated. The statute, plain and simple, is inherently coercive. Any person faced with the prospect of being required to pay $500 unless consent is given would feel the coercion.
Of course, the boating statute can be written to avoid the element of coercion. The implied-consent law for motor vehicles is an example. This law avoids the use of coercion because it only requires an officer to advise a driver that the department of transportation will revoke the driver’s license to operate the motor vehicle if consent is not given and that the same will occur if consent is given and the test reveals the presence of alcohol or a controlled substance in excess of statutory limits. Id. § 321J.8(1)( a )–( b ); see also Voss v. Iowa Dep’t of Transp. , 621 N.W.2d 208, 212 (Iowa 2001) (“The clear intent of [these advisements] is to provide a person who has been requested to submit [to] a chemical test a basis for evaluation and decision-making in regard to either submitting or not submitting to the test.”). In this way, the only consequence injected into the decision to consent or refuse is losing the benefit of the bargain that resulted in obtaining the privilege to drive. See Iowa Code § 321J.9(1)( a )–( b ).
It is true that the law also requires the imposition of a $200 civil fine “if the department revokes a person’s driver’s license” pursuant to the implied-consent law. Id. § 321J.17(1). However, unlike the penalty imposed for refusing consent to testing while boating, this penalty is not imposed just as a punishment for refusing the test. Instead, the department of transportation imposes the fine when it is required to revoke a license for any reason under the statute. See id. For example, the department also imposes the fine when a license is revoked for testing in excess of statutory limits. See id. §§ 321J.12(1), .17(1). Thus, the $200 penalty under the implied-consent law for motor vehicles relates to the administrative process of revoking and reinstating a license, unlike the implied-consent law for boating. In fact, the department imposes many additional consequences of license revocation, see generally id. § 321J.17(1)–(3) (requiring, among other things, a driver install an ignition interlock device and attend substance abuse evaluation and treatment), but the only consequence directly relating to the refusal to consent is the revocation itself.
Thus, the legislature can rewrite the implied-consent law for boating to remove the element of coercion and maintain the implied- consent procedure. Furthermore, operating a boat while intoxicated will still be a crime in Iowa and can still be prosecuted. Actually consented- to breath testing will be available to aid in any prosecution, and boaters can be prosecuted for operating while intoxicated without the aid of a chemical test. The only difference without the power of implied consent is that the refusal to consent to chemical testing will not result in the loss of boating privileges or the imposition of a penalty, at least until the law is changed so that it is comparable to the implied-consent law for motor vehicles.
In
Baldon
, a “fundamental[]” reason we held parolee consent
searches pursuant to a parole agreement invalid was because the
searches were “conceptually detached from the concept of bargaining.”
In a court system, judges are required to call a strike a strike and a ball a ball. The implied-consent law for boating was written to coerce consent to chemical testing. There is no way around calling this strike a strike. While some will see the decision as creating controversy, it actually identifies the value of a fair and impartial court system and upholds the integrity of the process of justice. Perhaps even more important, the decision upholds the constitutional values Iowans prize. For these reasons, I concur in the opinion of the court.
65
#14–0830, State v. Pettijohn WATERMAN , Justice (dissenting).
I respectfully dissent and would affirm Dale Dean Pettijohn Jr.’s
conviction for drunken boating. The majority correctly holds that Officer
William Wineland lawfully stopped the boat Pettijohn was operating on
Saylorville Lake and that Pettijohn’s warrantless breath test to measure
his blood alcohol level satisfied the Fourth Amendment. The majority
also correctly rejects Pettijohn’s theory that his “natural right” to use
Iowa waterways limits the State’s power to criminalize drunken boating
as it criminalizes drunken driving on Iowa roads. But I part company
with the majority’s unprecedented conclusion that Pettijohn’s breath-test
results must be suppressed under article I, section 8 of the Iowa
Constitution. In my view, that breath test was a constitutional search
incident to arrest and valid under the implied-consent statute.
See
Birchfield v. North Dakota
,
Importantly, nothing in today’s opinion invalidates the implied- consent laws for motorists, which have been in place in our state for over half a century. 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. Even so, the majority is wrong to suggest that there is a relevant constitutional distinction between the implied- consent laws for boating and for driving. If you refuse the breath test as *66 a boater, you receive a mandatory civil penalty of $500 for your first refusal, and you are not allowed to operate a boat for a year. See Iowa Code § 462A.14B(2) (2013). On the other hand, if you refuse the breath test as a driver, you lose your driver’s license for one year for your first refusal and pay a $200 civil penalty. See Iowa Code §§ 321J.9(1), .17(1). Now ask yourself, which is a more serious consequence for refusal: (1) losing your driver’s license for a year and having to pay $200, or (2) being unable to operate a boat for a year and having to pay $500? I think the vast majority of Iowans—if they had to choose—would pick the boating sanction over the driving sanction. Even though a boater’s refusal to take the breath test results in a larger monetary penalty, many people would gladly pay $500 and give up recreational boating in return for being able to keep their driver’s licenses, especially when they take into account the impact of a driver’s license suspension on what they will have to pay in the future for car insurance. If constitutionality turns on the seriousness of the sanction, then the sanction for a driver’s refusal to test is more serious than the sanction for a boater’s refusal to test.
The special concurrence tries to patch this hole in the majority’s reasoning by asserting that the driver is only “losing the benefit of the bargain that resulted in obtaining the privilege to drive.” The State granted the right to drive, and the State is taking back the right to drive because the motorist did not consent to testing. The problem with this reasoning is that it is totally circular. It assumes the validity of the “bargain,” i.e., the implied-consent law for driving. One can just as well argue that the boater is losing only the benefit of his or her bargain, since the $500 penalty is part of the statutory scheme that the boater accepts when operating a boat on the state’s waters.
67
The legislature rationally included a $500 penalty for a boater’s refusal to submit to a breath test. Otherwise, drunken boaters could simply refuse the test without meaningful consequence. Loss of boating privileges alone is insufficient. Boating, unlike driving, is typically a social activity, and most could simply have a friend or family member operate the boat while they enjoy the ride.
Well-settled precedent upholds the constitutionality of implied- consent laws. See, e.g. , Birchfield , 579 U.S. at ___, 136 S. Ct. at 2185. The reasoning of those cases applies equally to boaters. The majority misleadingly cites cases requiring warrants for invasive blood tests as if those courts were talking about breath tests, even as the majority ignores the nearly unanimous view of courts nationwide upholding warrantless breath tests under equivalent implied-consent statutes. The majority blurs the dispositive distinction between implied-consent statutes, lawfully enacted to promote safe driving and boating, and actual consent put in question by the very intoxication to be measured by the breath test.
The majority pretends the technology is already in place to quickly obtain electronic warrants from the field. It is not. In fact, internet connectivity is spotty or lacking in popular boating areas and much of rural Iowa. Iowa law has required most warrants to be presented in person to a judicial officer. [19] The majority blithely suggests the
68
legislature fund the technology upgrades for patrol officers statewide for the brave new world in which instant warrants can be obtained anywhere in Iowa 24/7. That world is years away.
Pettijohn did not raise the unsupported theories employed by the majority to reverse his conviction. The majority goes well beyond what Pettijohn argued in district court or on appeal and thereby blindsides the State and unfairly reverses the district court on theories never presented in that forum. We are supposed to be impartial adjudicators rather than partisan advocates. And, by concocting new theories on appeal, the majority makes new bad law without allowing the State the opportunity to develop a record affirmatively refuting the flawed factual premise underlying the majority’s holding—that warrants can be obtained electronically within minutes. There is no factual support in the record for that premise. [20]
_____________________
original warrant. Iowa Code § 321J.10(3)(
b
). The oral application must
set forth facts and information tending to establish the grounds for the
issuance of the warrant and describe with reasonable specificity the
person or persons whose driving has been involved and from whom the
specimen is to be withdrawn.
Id.
§ 321J.10(3)(
c
). Gathering of this
information, of course, requires considerable time. If a voice recording
device is available to the magistrate, the magistrate may record the call,
but otherwise “shall cause a stenographic or longhand memorandum to
be made of the oral testimony of the person applying for the warrant.”
Id.
§ 321J.10(3)(
d
). If the magistrate is satisfied that the grounds for the
issuance of the warrant have been established, the magistrate shall order
the issuance of the warrant by directing the officer applying for it to sign
the magistrate’s name to the “duplicate” warrant.
Id.
§ 321J.10(3)(
e
).
officers have “the capability to access the court system from the computer in a police
vehicle to request a search warrant based on probable cause at all times of the day and
night.”
I. Today’s Opinion Undermines Public Safety Without Advancing Civil Liberties.
The majority eviscerates Iowa’s implied-consent regimen for
boaters, but to what end? Nowhere does the majority or Pettijohn
suggest a neutral magistrate would have refused to issue a warrant for
his breath test on this record. How have we advanced the rights of
drunken boaters, other than allowing them to avoid the legal
consequences of their actions? Our courts can and do suppress test
results
in appropriate cases when statutory or constitutional
requirements are not met.
See State v. Walker
, 804 N.W.2d 284, 296
(Iowa 2011) (suppressing breath-test results as remedy for violation of
statutory requirement to permit detainee to meet alone and in private
with attorney);
State v. Albrecht
,
A. The Purposes of the Warrant Requirement Are Not Served
by Requiring a Warrant for Breath Tests.
We have expressed a
preference for warrants.
State v. Breuer
, 808 N.W.2d 195, 200 (Iowa
2012). But our rationales for that preference do not support abandoning
the implied-consent law in favor of warrants for breath tests. The
particularity requirement precludes general warrants and limits the
scope of the search to “cabin police power” so police do not search places
and things not described in the warrant.
See id.
(quoting
State v. Ochoa
,
A warrant requirement also imposes the “deliberate, impartial
judgment of a judicial officer . . . between the citizen and the police.”
Breuer
,
B. Today’s Decision Creates Practical Problems. Officers will have to race the clock as blood alcohol dissipates, set aside their other duties, and obtain a search warrant for the breath test. This may take *71 over an hour, during which time the officer is unavailable to patrol to detect other crimes or respond to other emergencies. In rural areas, it may be impossible to get a warrant in time. For example, in State v. Seige , a drunken boater fell off his speedboat while executing a turn, and his unmanned boat crashed into a sailboat, killing one of the occupants. No. CR070292771, 2009 WL 659198, at *1 (Conn. Super. Ct. Feb. 11, 2009). “After the collision, the defendant’s vessel continued to run in circles at a high rate of speed posing a great danger to other vessels on the river.” Id. As a result, his boat could not be brought under control until about forty-five minutes after the accident. Id. The defendant was not delivered to the dock until approximately one hour after the accident. Id. at *2. The dock area was crowded because “of the holiday weekend” and “onlookers brought on by the chaotic scene.” Id. After administering rushed field sobriety tests in the dock’s parking lot, the officers transported the defendant to the police station. Id. at *3. Officers were only able to administer the first blood alcohol test over two hours after the accident. Id. The defendant’s BAC test results of .15 and .17 were suppressed because the tests were not administered within two hours as required by statute. Id. at *3, *5; see also Iowa Code § 462A.14A(4)( b ) (“If the peace officer fails to offer a test within two hours after the preliminary screening test is administered or refused, or the arrest is made, whichever occurs first, a test is not required, and there shall be no suspension of motorboat or sailboat operation privileges.”). Now, imagine if the officers also had been required to apply for, and receive, a warrant in the midst of this chaos. We can expect round after round of hearings to adjudicate exigency exceptions or issues of actual consent.
Indeed, as the Supreme Court cautioned,
If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped. And even if we arbitrarily singled out BAC tests incident to arrest for this special treatment . . . , the impact on the courts would be considerable. The number of arrests every year for driving under the influence is enormous—more than 1.1 million in 2014. Particularly in sparsely populated areas, it would be no small tasks for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, and in rural areas, some districts may have only a small number of judicial officers.
Birchfield
,
Our legislature enacted implied-consent laws to avoid such problems. “[W]e have continuously affirmed that the primary objective of the implied consent statute is the removal of dangerous and intoxicated drivers from Iowa’s roadways in order to safeguard the traveling public.” Welch v. Iowa Dep’t of Transp ., 801 N.W.2d 590, 594 (Iowa 2011); see also State v. Wallin , 195 N.W.2d 95, 96 (Iowa 1972) (“The [implied- consent] law was enacted to help reduce the appalling number of highway deaths resulting in part at least from intoxicated drivers.”). That goal of public safety applies to motorists and boaters alike.
“Alcohol use is the leading known contributing factor in fatal boating accidents.” U.S. Coast Guard, 2016 Recreational Boating Statistics 6 (May 22, 2017), http://www.uscgboating.org/library/ accident-statistics/Recreational-Boating-Statistics-2016.pdf. Susan Stocker, boating law administrator and education coordinator for the Iowa Department of Natural Resources, recently explained,
73
One-third of all boating fatalities nationally involved alcohol and many of those victims were innocent bystanders . . . .
The effects of alcohol can be intensified when combined with wind and wave action and an extended time spent in the sun. Operators may not think they are under the influence, but their judgment, reaction time, balance and vision indicate that they are . . . .
News Release, Operation Dry Water Starts June 24 (June 21, 2016), http://www.iowadnr.gov/About-DNR/DNR-News-Releases/ArticleID/ 762/Operation-Dry-Water-Starts-June-24.
Implied-consent laws have withstood the test of time in Iowa for
over a half century. The legislature enacted Iowa’s first implied-consent
law in Iowa in 1963.
Welch
,
II. Our Court, and Other State Courts, Have Repeatedly Held that Implied-Consent Laws Are Not Inherently Coercive.
Pettijohn concedes that “implied consent schemes have, to date,
passed constitutional muster as they pertain to ordinary operating while
intoxicated cases involving driving of motor vehicles on public highways.”
Although a reader would not know this from the majority opinion, we
have repeatedly rejected constitutional challenges that Iowa’s implied-
*74
consent laws are coercive.
State v. Bernhard
,
The majority also fails to acknowledge the legion of cases in other
states rejecting similar constitutional challenges.
See, e.g.
,
People v.
Harris
, 170 Cal. Rptr. 3d 729, 734 (App. Dep’t Super. Ct. 2014)
(“[C]onsent is not invalid under the Fourth Amendment simply because it
was given in advance and in exchange for a related benefit, and this is all
the implied consent law accomplishes.”);
Johnson v. State
, 450 N.E.2d
123, 125 (Ind. Ct. App. 1983) (“Knowledge of a possible penalty for
refusal to submit to the test is not so inherently coercive as to negate [the
defendant’s] consent.”);
State v. Brooks
,
In
Padley
, cited by the majority, the Wisconsin Court of Appeals
concluded that its implied-consent statute
did not
violate the Fourth
Amendment or render an accused’s consent coerced.
The reasoning of these cases applies with equal force to boating.
See, e.g.
,
State v. Rossiter
, No. A13–2210, 2014 WL 5506964, at *3
(Minn. Ct. App. Nov. 3, 2014) (concluding that boating implied-consent
advisory did not “coerce[] [boater’s] consent”);
see also Commonwealth v.
Thompson
, 32 N.E.3d 1273, 1277 (Mass. App. Ct. 2015) (“[A]ny person
arrested for a violation of the boating OUI statute does not have a
constitutional right to refuse to submit to a blood test.”). The implied-
consent statute “establishes the basic principle that a driver impliedly
agrees to submit to a test in return for the privilege of using the public
highways.”
State v. Hitchens
,
III. Gaskins Is Not on Point; This Is a Search of the Person, Not the Vehicle, Incident to Arrest.
The majority relies heavily on
State v. Gaskins
,
Fourth, and most importantly, Gaskins is inapposite because it merely limited the search of a vehicl e, not a person. It is important to get to the core concept of the search incident to arrest. See Gaskins , 866 N.W.2d at 13 (majority opinion) (declining to adopt the federal “evidence- gathering purpose as a rationale for warrantless searches of automobiles and their contents incident to arrest under article I, section 8 of the Iowa Constitution” (emphasis added)). When a criminal suspect is arrested, law enforcement is allowed to search the suspect’s body —to empty the person’s pockets, go through the person’s clothing, and even require the person to remove clothing for search purposes. Even my colleagues do not believe such searches are unconstitutional.
A person’s breath is a part of the body; it is not like a vehicle. Cf. Gaskins , 866 N.W.2d at 16 (holding warrant required to search locked safe in vehicle after arrest of driver). And most people would regard a breath test that takes a few seconds as less invasive of their privacy than having to remove their clothes. So Gaskins is not the correct analogy at all.
As the United States Supreme Court pointed out in
Birchfield
, the
basis for requiring a warrant before a breath test is administered to an
arrestee would also require a warrant before “searching through objects
found on the arrestee’s possession.”
IV. The Majority Departs from Birchfield .
Birchfield , as the majority concedes, makes clear that warrantless breath tests satisfy the Fourth Amendment. Id. at ___, 136 S. Ct. at 2185 (“Because breath tests are significantly less intrusive than blood tests . . . , we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.”). I would reach the same conclusion under article I, section 8 of the Iowa Constitution.
The Supreme Court has drawn a clear distinction between breath
tests and coerced blood draws.
See id.
at ___, 136 S. Ct. at 2165 (“The
impact of breath tests on privacy is slight . . . . Bloоd tests, however, are
significantly more intrusive, and their reasonableness must be judged in
light of the availability of the less invasive alternative of a breath test.”);
McNeely
, 567 U.S. at ___, 133 S. Ct. at 1568 (“[A] compelled physical
intrusion beneath McNeely’s skin and into his veins to obtain a sample of
his blood for use as evidence in a criminal investigation . . . implicate[d]
an individual’s ‘most personal and deep-rooted expectations of privacy.’ ”
(quoting
Winston v. Lee
, 470 U.S. 753, 760, 105 S. Ct. 1611, 1616
(1985))). Pettijohn was offered and consented to take the breath test—he
simply had to exhale into a tube. Any infringement upon Pettijohn’s
privacy was
de minimis
at best: “Humans have never been known to
assert a possessory interest in or any emotional attachment to
any
of the
air in their lungs.”
Birchfield
,
The majority misleadingly asserts that “a number of state courts
concluded the mere existence of statutorily implied consent does not
permit the administration of a warrantless test of an individual’s blood,
breath, or urine consistent with the Fourth Amendment.” The majority
supports that assertion by citing thirteen cases, without disclosing that
twelve of the thirteen involved warrantless
blood
tests, not the breath test
at issue here.
See State v. Butler
, 302 P.3d 609, 613 (Ariz. 2013)
(en banc);
Harris
,
80
(Tenn. Crim. App. 2014);
Weems v. State
,
The Iowa statute gives the driver a choice to consent or refuse the
breath test.
See Welch,
801 N.W.2d at 595 (“Thus, from a practical
standpoint, and subject to certain exceptions, the driver must actually
consent to the chemical testing.”
[22]
(Footnote omitted.)). Pettijohn chose
to take the breath test after being read the advisory that tracked the
language of the statute. He, like any other Iowan, could have conferred
with his own attorney for advice whether to consent to the test.
Walker
,
The Supreme Court has also distinguished between implied- consent statutes that impose criminal sanctions and those that only impose civil penalties. In Birchfield , the Court held that a motorist could not be deemed to have consented to a blood draw when the implied- consent threatened a criminal penalty for refusal. 579 U.S. at ___, 136 S. Ct. at 2185. However, the Court distinguished implied-consent statutes imposing civil penalties, noting,
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them .
Id. (emphasis added) (citations omitted). In State v. Yong Shik Won , cited by the majority, the Hawaii Supreme Court held its implied-consent statute unconstitutiоnal when the defendant was informed that if he refused to submit to a test, he could be convicted of a crime for that test refusal and subject to thirty days’ imprisonment and a fine of $1000. 372 P.3d 1065, 1069, 1081 (Haw. 2015). By contrast, Iowa’s implied- consent statutes impose no jail sentence or other criminal penalty for refusing a breath test. See Iowa Code § 462A.14B(2) (imposing civil monetary penalty and license revocation for one year). There is a stark difference between the thirty days in jail threatened in Yong Shik Won and the assessment of a monetary civil penalty. Cf. State v. Richardson , 890 N.W.2d 609, 622–23 (Iowa 2017) (“Thus, being incarcerated and owing a restitution debt are simply not comparable. One is a matter of liberty, the other a financial obligation.”).
Not surprisingly, after
Birchfield
, state courts have continued to
reject constitutional challenges to implied-consent laws imposing civil
penalties for refusing breath tests.
See Espinoza v. Shiomoto
, 215
*82
Cal. Rptr. 3d 807, 831 (Ct. App. 2017) (“[W]e conclude refusal to submit
to a breath test incident to arrest may also be the basis of imposing civil
penalties under the implied consent law, including suspension or
revocation of the motorist’s driver’s license.”);
People v. Simpson
, 392
P.3d 1207, 1213 (Colo. 2017) (“Colorado’s Expressed Consent Statute
imposes only civil, and not criminal, penalties for refusal. Therefore, . . .
Birchfield
sanctions rather than forbids justifying a warrantless blood
draw on the basis of statutory consent.”);
Lepre v. Commonwealth
, ___
A.3d ___, ___, 2017 WL 1337550, at *4 (Pa. Commw. Ct. Apr. 12, 2017)
(upholding civil penalty of license revocation for refusal to submit to
breath test);
Wolfe v. Commonwealth
,
None of the cases cited by the majority have held that an implied-
consent procedure offering defendant a choice is invalid as to warrantless
breath tests. Our court is the first and only court to reach that
conclusion. After
Birchfield
, courts have upheld implied consent under
both the Federal and State Constitutions.
See State v. Navarro
, 382 P.3d
1234, 1236 (Ariz. Ct. App. 2016) (holding under art. II, § 8 of Arizona
Constitution “non-invasive breath tests for DUI arrestees” were a “slight
inconvenience” and did not require a warrant (quoting
State v. Berg
, 259
P.2d 261, 266 (1953),
overruled on other grounds by State v. Pina
, 383
P.2d 167, 168 (1963)));
Williams v. State
,
The
Birchfield
Court held “the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving.” 579 U.S.
at ___,
V. Given the Predictable Legislative Response, the Court’s Decision Will Lead Us Away from Individualized Justice and Toward Assembly-Line Justice.
Finally, I predict that this decision will actually disserve the very people it is intended to benefit—suspected intoxicated boaters. Iowa does not stand still for our court. In all likelihood, there will be a legislative response. This session the legislature authorized electronic warrants for the first time. S.F. 358, 87th G.A., 1st Sess. § 4 (Iowa 2017). Among other steps the general assembly may consider are (1) making preliminary breath test results admissible, and (2) narrowing *84 Iowa Code section 804.20 to exclude those detained for suspicion of drunken boating. Let us review them.
A. Preliminary Breath Test Results Admissible . Typically, a preliminary breath test (PBT) is administered at the scene of the stop when the officer has reasonable grounds to believe the boat operator is intoxicated. Under existing law, the results are not admissible, but a refusal to take the test is. Iowa Code § 321J.5(2). Yet as testing technology has advanced and these tests have become more reliable, why not just legislate that the PBT results are admissible?
B. Revision of Iowa Code Section 804.20. Additionally, once the implied-consent process is eliminated for boaters, it becomes more difficult to see the underlying purpose served by Iowa Code section 804.20. This statute allows someone who has been arrested to promptly call, consult with, and see an attorney or family member. Although it applies in other contexts, the statute has traditionally been tied to the implied-consent process. See Walker , 804 N.W.2d at 290 (“Most of our cases, however, have involved the statutory right to place a telephone call to an attorney or family member when pulled over for drunk driving.”); State v. Tubbs , 690 N.W.2d 911, 914 (Iowa 2005) (“One purpose of section 804.20, of course, is to allow an arrestee to call an attorney before deciding whether to submit to a chemical test.”). Under section Iowa Code section 804.20, the person arrested for drunken boating is given an opportunity to consult with an attorney before deciding whether to take the chemical test.
But if law enforcement is going to have to get a warrant anyway so the attorney consultation fills no immediate need, why bother? Time is passing while the parties wait for the attorney to answer the phone or *85 come to the station house. It would not surprise me to see the legislature amend section 804.20 to exclude boaters.
C. Electronic Warrants. We can also expect to see electronic warrants pursuant to the new legislation. That is, law enforcement will submit a sworn warrant application via the court’s electronic data management system (EDMS) to a judicial officer with a note to call “if there are questions,” the magistrate will call and recite the oath, and the approved warrant will then be transmitted electronically back to law enforcement. If our court upholds this procedure under article I, section 8—and we would be hard-pressed to disapprove it since the majority mentions EDMS warrants as one justification for its current ruling—we will then have assembly-line warrants for breath testing.
So this is our future: in-the-field PBTs may be admissible, no call or consultation with an attorney will be allowed before chemical breath tests take place at the station, and warrants will be routinely sought and issued based on electronic applications without face-to-face contact between the judicial officer and law enforcement. Taking things further, a rotation could be devised in which one judicial officer per judicial district would be assigned one “night shift” per month. That officer would sit at her or his computer through the night and handle all of that district’s electronic warrant requests. This would meet the legal requirements of today’s decision, but it would not advance our criminal justice system.
For these reasons, I respectfully dissent.
Mansfield and Zager, JJ., join this dissent.
Notes
[1] We acknowledge that the advisories mandated by sections 462A.14C(1)( b ) and 462A.14A(4)( g )(2) of the Code do not precisely match. However, we need not contemplate the potential significance of these differences in resolving this appeal.
[2] Subparagraph (1) of the advisory matched verbatim the text appearing in sections 462A.14C(1)( a ) and 462A.14(4)( g )(1) of the Code.
[3] Subparagraph (2) of the advisory combined language appearing in sections 462A.14A(4)( g )(2) and 462A.14C(1)( b ) of the Code.
[4] We will discuss exigent circumstances in regard to the dissipation of alcohol in the bloodstream later in this opinion.
[5] To the extent law enforcement claims they cannot use the system to access a warrant, the legislature can make any changes to the law that would allow a judicial officer to issue a warrant under our EDMS, as the legislature has allowed the issue of telephonic warrants in certain OWI cases. See Iowa Code § 321J.10.
[6] We acknowledge the implied-consent statute set forth in chapter 462A specifically does not bar the introduction of any competent evidence bearing on the question of whether a person was under the influence of an alcoholic beverage or a controlled substance or other drug, including the results of chemical tests of specimens of blood, breath, or urine obtained more than two hours after the person was operating a motorboat or sailboat. Iowa Code §§ 462A.14(11), .14A(8).
[7] The State does not argue exigent circumstances justifying the administration of a warrantless breath test existed in this case, nor have we identified anything about the circumstances preceding the breath test other than the natural dissipation of the alcohol in Pettijohn’s blood that would support such a conclusion.
[8] Though only four justices joined the section of the opinion containing this passage, no opinion by any justice suggested statutorily implied consent falls within the scope of the consent exception to the warrant requirement. See McNeely , 569 U.S. at ___, 133 S. Ct. at 1568–69 (Kennedy, J., concurring in part); id. at ___, 133 S. Ct. at
[9] Section 462A.14A(4)( f ) 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 this section.” The State does not claim Pettijohn was dead, unconscious, or otherwise in a condition that rendered him incapable of consent or refusal. Therefore, we address this provision only insofar as to note that the exigent-сircumstances exception to the warrant requirement may permit a warrantless search under such circumstances even if the consent implied under the statute does not justify a warrantless search.
[10] The State concedes implied consent is not effective consent. However, the State also relies on prior statements by this court suggesting an individual has no constitutional right to refuse a warrantless breath test under the United States Constitution when statutorily implied consent applies. See State v. Massengale , 745 N.W.2d 499, 501 (Iowa 2008); State v. Knous , 313 N.W.2d 510, 512 (Iowa 1981). We express no opinion on the continued vitality of our prior statements concerning an individual’s right to refuse a breath test with respect to the United States Constitution. We simply hold the mere existence of statutorily implied consent does not justify a warrantless search under article I, section 8.
[11] The implied-consent statute that applies to individuals suspected of operating a motor vehicle while intoxicated is substantially similar to the statute that applies to individuals suspected of boating while intoxicated. Compare Iowa Code §§ 462A.14, .14A, .14B, with id. §§ 321J.6, .8, .9. Therefore, we draw on our relevant context from cases involving the operation of a motor vehicle while intoxicated in describing the requirements of voluntary consent in cases involving individuals suspected of boating while intoxicated.
[12] This is consistent with the federal standard for determining the effectiveness of consent to a warrantless search as expressed in Schneckloth , 412 U.S. at 248–49, 93 S. Ct. at 2059.
[13] Compare Iowa Code § 462A.14B(2)( b )(1) (providing the court shall impose a mandatory civil penalty of five hundred dollars upon finding a person refused to consent to chemical testing when the conditions specified in section 462A.14A existed for the first time), with id. § 903.1(1)( a ) (providing that upon convicting a person of a simple misdemeanor, the court shall impose “a fine of at least sixty-five dollars”), and id. § 903.1(1)( b ) (providing that upon convicting a person of a serious misdemeanor, the court shall impose “a fine of at least three hundred fifteen dollars”).
[14] Compare Iowa Code § 462A.14B(2)( b )(3) (providing the court shall impose a mandatory civil penalty of two thousand dollars upon finding a person refused to consent to chemical testing when the conditions specified in section 462A.14A existed for the third or subsequent time), with id. § 903.1(1)( a ) (providing that upon conviction for a simple misdemeanor, the court shall impose “a fine . . . not to exceed six hundred twenty-five dollars”), id. § 903.1(1)( b ) (stating that upon conviction for a serious misdemeanor, the court shall impose “a fine . . . not to exceed one thousand eight hundred seventy-five dollars”), and id. § 903.1(2) (providing that upon conviction for an aggravated misdemeanor, “[t]here shall be a fine of at least six hundred twenty-five dollars”). Notably, the maximum civil fine associated with refusal to submit also exceeds the fine the court must assess upon an individual’s first conviction for the Compare id. serious misdemeanor offense of operating while intoxicated. § 462A.14B(2)( b )(3), with id. § 462A.14(2)( a )(2).
[15] Compare Iowa Code §§ 462A.14A(4)( g )(1), .14C(1)( a ) (requiring an officer to advise an individual requested to consent to a chemical test that “refusal to submit to the test is punishable by . . . suspension of motorboat or sailboat operating privileges for at lеast a year”), with id. §§ 462A.14A(4)(g)(2), .14C(1)(b) (requiring an officer to advise an individual requested to consent to a chemical test that if the person submits to the test and the results indicate his or her BAC exceeds the level prohibited by section 462A.14, his or her boating privileges will be suspended “for at least one year” and “up to six years”).
[16] We note Pettijohn argues that because operating a boat does not constitute an affirmatively granted privilege requiring a license, the implied-consent statute set forth in chapter 462A of the Code is unconstitutional. His argument rests on the assumption we repudiate today—that the implied-consent statute operates as a legislatively implied contract whereby an individual waives his right to be free from unreasonable searches in exchange for a privilege. See State v. Jensen , 216 N.W.2d 369, 373 (Iowa 1974). Though this alone constitutes a sufficient basis for rejecting this argument, we reject it on additional grounds as well. First, under the Iowa Code, implied consent is deemed to exist whenever any person operates a motor vehicle or boat within the state under specified conditions. See Iowa Code § 321J.6(1); id. § 462A.14A(1). Thus, in determining whether implied consent existed under the implied-consent statutes such that invocation of the procedures set forth therein was appropriate, licensure is beside the point. Cf. State v. Kjos , 524 N.W.2d 195, 197 (Iowa 1994) (reversing a conviction for driving while intoxicated because an officer was statutorily precluded from telling the defendant his license would be automatically revoked if he did not consent to testing). Second, it is
[17] Compare Iowa Code § 462A.14A(4)( g )(1) (creating a mandatory monetary civil penalty for refusal to take the test), with id . § 321J.9(1)( a )–( b ) (containing neither a criminal penalty nor mandatory monetary civil penalty).
[18] We held over this appeal from last term for supplemental briefing and a second argument last September in light of Birchfield . Why did we delay our decision by over a year for Birchfield only to decline to follow its resolution of the constitutionality of warrantless breath tests?
[19] The majority notes telephone warrants are permitted under limited circumstances set forth in Iowa Code section 321J.10(3). In State v. Johnson , we noted the time-consuming complexities involved in that telephonic warrant procedure: Obtaining a warrant by telephone is fairly complicated; an officer cannot simply call up a magistrate and make a general request for a warrant. The officer must prepare a “duplicate” warrant and read the duplicate warrant, verbatim, to the magistrate. The magistrate then must enter, verbatim, what has been read to him on a form to be considered as the
[21] “In 1986, the implied-consent statutes from chapter 321B were combined with
the criminal OWI laws.”
State v. Fischer
,
[22] “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.’ ”
See also
Welch
,