State of Iowa v. Dale Dean Pettijohn Jr.

IN THE SUPREME COURT OF IOWA
No. 14–0830
Filed June 30, 2017
STATE OF IOWA,
Appellee,
vs.
DALE DEAN PETTIJOHN JR.,
Appellant.
Appeal 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.
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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
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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 officer 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
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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 Iowa Code Section 462A.14,”
indicating he consented to provide a breath sample upon being requested
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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.
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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, 579 U.S. ___, 136
S. Ct. 2160 (2016). After applying a balancing test weighing the degree
to which blood tests and breath tests intrude upon individual privacy
interests and the degree to which such tests are needed to promote the
legitimate government interest in the safety of public highways, the Court
held the Fourth Amendment permits the administration of warrantless
breath tests, but not the administration of warrantless blood tests, as
searches incident to lawful arrests for drunk driving. Id. at ___, ___, 136
S. Ct. at 2176–79, 2185. Accordingly, the Court determined state
statutes criminalizing the refusal of a motorist arrested on suspicion of
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drunk driving to submit to a blood test violate the Fourth Amendment.
Id. at ___, 136 S. Ct. at 2185–86.
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 review 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
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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:
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(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
person 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
1We 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.
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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,
2Subparagraph (1) of the advisory matched verbatim the text appearing in
sections 462A.14C(1)(a) and 462A.14(4)(g)(1) of the Code.
3Subparagraph (2) of the advisory combined language appearing in sections
462A.14A(4)(g)(2) and 462A.14C(1)(b) of the Code.
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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
the 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, 367 U.S. 643, 654–55, 81 S. Ct.
1684, 1691 (1961). The Fourth Amendment provides,
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, 867 N.W.2d 106, 110–11 (Iowa 2015).
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, 394 N.W.2d 375, 378 (Iowa 1986). Specifically, we
conclude the warrantless seizure of the boat Pettijohn was operating was
constitutionally authorized because Officer Wineland reasonably
suspected that Pettijohn was violating Iowa Code section 462A.12(1).
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 ___, 136 S. Ct. at 2173–74.
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 ___, 136 S. Ct. at 2173–74. Rather, the question of
whether the natural dissipation of alcohol from the bloodstream
constitutes an exigency justifying a warrantless BAC test must be
determined by careful case-by-case assessment of “all of the facts and
circumstances of the particular case.” Id. at ___, 136 S. Ct. at 2174
(quoting Missouri v. McNeely, 569 U.S. ___, ___, 133 S. Ct. 1552, 1560
(2013) (plurality opinion)). The Court emphasized the exigent-
circumstances exception to the warrant requirement, unlike other
exceptions to the warrant requirement, must be applied in a case-specific
fashion, not categorically. Id.
The Court next considered whether the search-incident-to-arrest
doctrine applies to breath and blood tests incident to drunk-driving
arrests. Id. After acknowledging 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, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)).
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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, 573 U.S. ___, ___, 134 S. Ct. 2473, 2484 (2014)).
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 ___, 136 S. Ct. at 2176–78.
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 ___, 136 S. Ct. at 2179.
Rather, the Court concluded the applicability of the search-incident-to-
arrest exception “has never turned on case-specific variables such as
how quickly the officer will be able to obtain a warrant in the particular
circumstances he faces.” Id. at ___, 136 S. Ct. at 2180. The Court
dismissed “alternatives to warrantless BAC tests incident to arrest” as
“poor substitutes” for implied-consent laws because many other
strategies available to combat drunk driving are “significantly more
costly,” “target[ed to] only a segment of the drunk-driver population,”
“already in widespread use,” or less effective than more severe penalties
for refusal. Id. at ___, 136 S. Ct. at 2182.
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 ___, 136 S. Ct. at 2181–
82. More precisely, the Court determined “requiring the police to obtain
a warrant in every case would impose a substantial burden but no
commensurate benefit” because the facts officers would need to recite to
establish probable cause for a warrant would “consist largely of the
officer’s own characterization of his or her observations” and the scope of
search permitted by the warrant would be the same in every case. Id.
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 ___, 136 S. Ct. at 2184.
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 Amendment 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,
866 N.W.2d 1, 13 (Iowa 2015); Short, 851 N.W.2d at 506; State v. Ochoa,
792 N.W.2d 260, 291 (Iowa 2010).
“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, 878 N.W.2d 422,
442 (Iowa 2016); see State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013).
Additionally, whether or not a defendant has advanced the argument
that a different framework applies to a state constitutional claim than
federal cases have used in parallel federal constitutional claims, we
reserve our right to apply a federal standard more stringently than it is
applied in federal caselaw when construing the requirements of our state
constitution. Jackson, 878 N.W.2d at 442; Kooima, 833 N.W.2d at 206.
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, 188 P.3d 95, 101 (N.M. 2008)).
Accordingly, we determined the proper scope of the search-incident-to-
arrest exception “is tethered to its original underlying dual justifications.”
Id. at 16. We thus held a proper search incident to arrest under article I,
section 8 must serve either the purpose of “protecting arresting officers”
or “safeguarding any evidence the arrestee may seek to conceal or
destroy.” Id. at 8 (quoting Vance, 790 N.W.2d at 786). We also clarified
that in order for the preservation of evidence to justify a warrantless
search incident to arrest under the Iowa Constitution, the search must
serve “the State’s interest in preserving evidence from destruction,” not
merely its interest in collecting evidence expediently. Id. at 14.
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, 556 U.S. 332, 351,
129 S. Ct. 1710, 1723 (2009), we rejected this general evidence-gathering
rationale as the proper limitation for the permissible scope of searches
incident to arrest under article I, section 8. Gaskins, 866 N.W.2d at 13.
Instead, we concluded the general evidence-gathering rationale approved
in Gant stood “wholly separate from” the underlying justifications for the
search-incident-to-arrest exception to the warrant requirement such that
it was “repugnant to article I, section 8 of the Iowa Constitution.” Id. at
24
13–14. We reasoned that allowing warrantless searches incident to
arrest based on the need to gather evidence would cause the search-
incident-to-arrest exception “to swallow completely the fundamental
textual rule in article I, section 8 that searches and seizures should be
supported by a warrant.” Id. at 13. We emphasized our holding would
not preclude warrantless searches following an arrest when “the security
of an arresting officer is implicated,” “the arrested person is within reach
of contraband and thus able to attempt to destroy or conceal it,” or
unusual circumstances supporting the application of the exigent-
circumstances exception to the warrant requirement exist. Id. at 15.
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, 569 U.S. at ___, 133 S. Ct. at 1560.
We have applied this very concept in interpreting our state statutes well
25
before the United States Supreme Court decided McNeely. See State v.
Harris, 763 N.W.2d 269, 274 (Iowa 2009) (holding the mere dissipation of
alcohol in a person’s bloodstream was not enough to allow a warrantless
search to obtain the driver’s blood alcohol level under our OWI statutes);
State v. Johnson, 744 N.W.2d 340, 344–45 (Iowa 2008) (holding the mere
dissipation of alcohol in a person’s bloodstream with exigent
circumstances was enough to allow a warrantless search to obtain the
driver’s blood alcohol level under our OWI statutes); see also State v.
Lovig, 675 N.W.2d 557, 567 (Iowa 2004) (holding police could not enter a
home and obtain a chemical test to determine a person’s blood alcohol
level under the Fourth Amendment merely because the driver’s “blood-
alcohol level might have dissipated while the police obtained a warrant”).
We therefore have acknowledged the evanescent nature of BAC evidence.
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,
763 N.W.2d at 274. Additionally, we have rejected this claim under the
Fourth Amendment. Lovig, 675 N.W.2d at 567. For the following
reasons, we also reject the notion that the natural dissipation of alcohol
justifies the per se application of the search-incident-to-arrest exception
to the warrant requirement under article I, section 8.
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.
27
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, 579 U.S. at ___, 136 S. Ct. at 2192
(Sotomayor, J., dissenting). An officer must also observe an arrestee for
fifteen to twenty minutes before administering a breath test in order to
ensure the arrestee has not “inserted any food or drink into his mouth”
and “to ensure that ‘residual mouth alcohol,’ which can inflate results
and expose the test to an evidentiary challenge at trial, has dissipated.”
Id. (quoting NHTSA & Int’l Ass’n of Chiefs of Police, DWI Detection and
Standardized Field Sobriety Testing Participant Guide, Session 7, p. 20
(2013)). Finally, when an officer arrives at an adequately equipped
testing location, “if a breath test machine is not already active, the . . .
officer must set it up.” Id. Because these steps are necessary to
obtaining reliable BAC evidence, “the standard breath test is conducted
well after an arrest is effectuated.” Id.
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 a 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, 866 N.W.2d at 16 (holding a
search warrant is generally required before a search); Ochoa, 792 N.W.2d
at 285 (holding under the Iowa Constitution we have a warrant-
preference requirement); see also Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct.
1868, 1879 (1968) (“We do not retreat from our holdings that the police
must, whenever practicable, obtain advance judicial approval of searches
and seizures through the warrant procedure . . . .”). A recognized
exception to the warrant requirement is when there is probable cause
and exigent circumstances. 4 The state cannot create an exigent
circumstance and profit by it against a defendant’s rights under our
search and seizure jurisprudence. See State v. Ahern, 227 N.W.2d 164,
168 (Iowa 1975). The legislature does allow police officers to obtain
telephonic search warrants in certain instances. See Iowa Code
§ 321J.10(3). Our electronic document management system (EDMS)
4We will discuss exigent circumstances in regard to the dissipation of alcohol in
the bloodstream later in this opinion.
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,
479 U.S. at ___, 136 S. Ct. at 2191 (Sotomayor, J., dissenting). Thus, the
evidentiary presumption set forth in the implied-consent procedure
defined in chapter 462A ensures the evanescent nature of BAC evidence
will ordinarily present no immediate risk of evidence loss sufficient to
5To 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.
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 ___, ___, ___, 136 S. Ct. at 2174,
2179, 2183 (majority opinion). Thus, an officer’s ability to conduct a
warrantless search incident to arrest “does not depend on an evaluation
of the threat to officer safety or the threat of evidence loss in a particular
case.” Id. at ___, 136 S. Ct. at 2183. It naturally follows that the
recognition of “categorical exceptions” to the warrant requirement is
appropriate only “where the commonalities among a class of cases justify
dispensing with the warrant requirement for all of those cases, regardless
of their individual circumstances.” Id. at ___, 136 S. Ct. at 2188
(Sotomayor, J., dissenting).
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
6We 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).
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, 569 U.S. at ___, 133 S. Ct. at 1563. Thus,
when unusual circumstances arise that make an officer obtaining a
warrant within two hours of witnessing the arrestee operating a boat
impracticable, they may support the determination that exigent
circumstances exist to justify the administration of a warrantless breath
test. See Iowa Code §§ 462A.14(8)(a), .14A(8). As the Supreme Court
stated in 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.
569 U.S. at ___, 133 S. Ct. at 1562.
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, 579 U.S. at ___, 136 S. Ct. at 2174; McNeely, 569 U.S. at ___,
133 S. Ct. at 1560–61, 1563; Harris, 763 N.W.2d at 272. “In short, while
the natural dissipation of alcohol in the blood may support a finding of
exigency in a specific case, . . . it does not do so categorically.” McNeely,
569 U.S. at ___, 133 S. Ct. at 1563. In our view, this fact fatally
undermines the State’s argument, as we perceive no meaningful
distinction between concluding the natural dissipation of alcohol justifies
the application of the search-incident-to-arrest exception to the warrant
requirement in every case involving an arrestee suspected of operating
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 determine 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, 829 N.W.2d 785, 791 (Iowa 2013). Rather, effective consent to a
warrantless search establishes a waiver of an individual’s right to be free
from unreasonable searches and seizures under article I, section 8. Id.
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
7The 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.
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 are 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. 579 U.S. at ___, 136 S. Ct. at 2185–
86. The Court ultimately concluded “motorists cannot be deemed to
35
have consented to submit to a blood test on pain of committing a
criminal offense,” reasoning there must be some “limit to the
consequences to which motorists may be deemed to have consented by
virtue of a decision to drive on public roads.” Id. In reaching this
conclusion, the Court applied a standard of general reasonableness. Id.
But in doing so, the Court noted this general reasonableness standard
did not differ in substance from concluding motorists may be deemed to
have consented only to conditions that have a nexus to the privilege of
driving and entail proportionally severe penalties. Id. at ___, 136 S. Ct.
at 2186.
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 ___, ___, 136 S. Ct. at 2170–72, 2185–86. However, the Court
explicitly cautioned the opinion should not be read to suggest implied-
consent laws imposing civil penalties and evidentiary consequences on
motorists who refuse to submit are unconstitutional. Id. at ___, 136
S. Ct. at 2185.
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 ___, 133 S. Ct. at 1558. The Court
held the natural dissipation of alcohol does not create a per se exigency,
and that exigency in the drunk-driving context “must be determined case
by case based on the totality of the circumstances.” Id. at ___, 133 S. Ct.
at 1556. Though the opinion explicitly acknowledged the existence of
other exceptions to the warrant requirement, it did not consider whether
any exception other than exigency might serve as a potential justification
37
for administering warrantless BAC tests on drunk-driving suspects
under the Fourth Amendment. See Birchfield, 579 U.S. at ___, 136 S. Ct.
at 2174 (discussing McNeely). Thus, the opinion never explicitly
addressed whether statutorily implied consent constitutes effective
consent for purposes of determining whether a warrant was required to
authorize a search under the Fourth Amendment. See id.
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, 569 U.S. at ___, 133 S. Ct. at 1558 (emphasis
added). Furthermore, another passage contemplating the nature of
implied-consent laws explicitly referenced the ability of motorists to
withdraw consent that is statutorily implied:
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 ___, 133 S. Ct. at 1566 (plurality opinion) (citation omitted). 8
8Though 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
38
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,
302 P.3d 609, 613 (Ariz. 2013) (en banc); People v. Harris, 184 Cal. Rptr.
3d 198, 207, 213 (Ct. App. 2015); Williams v. State, 771 S.E.2d 373,
376–77 (Ga. 2015); State v. Halseth, 339 P.3d 368, 371 (Idaho 2014);
State v. Declerck, 317 P.3d 794, 804 (Kan. Ct. App. 2014); State v.
Brooks, 838 N.W.2d 563, 573 (Minn. 2013), cert. denied, ___ U.S. ___,
134 S. Ct. 1799 (2014); State v. Modlin, 867 N.W.2d 609, 619 (Neb.
2015); Byars v. State, 336 P.3d 939, 945–46 (Nev. 2014); State v. Smith,
849 N.W.2d 599, 605 (N.D. 2014), abrogated by Birchfield, 579 U.S. at
___, 136 S. Ct. at 2186; State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014);
State v. Wells, No. M2013-01145-CCA-R9-CD, 2014 WL 4977356, at *13
(Tenn. Crim. App. Oct. 6, 2014); Weems v. State, 434 S.W.3d 655, 665
(Tex. Ct. App. 2014), aff’d, 493 S.W.3d 574 (Tex. Crim. App. 2016); State
v. Padley, 849 N.W.2d 867, 879–80 (Wis. Ct. App. 2014).
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, 336 P.3d at 945; Padley, 849 N.W.2d at 879–80. Of
course, it is well-settled law that consent must be voluntarily given to
justify a warrantless search that comports with the Fourth Amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059
(1973). Additionally, effective consent to a warrantless search may be
_____________________
1569–74 (Roberts, C.J., concurring in part and dissenting in part); id. at ___, 133 S. Ct.
at 1574–78 (Thomas, J., dissenting).
39
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, 690 N.W.2d 27, 30
(Iowa 2004) (acknowledging “consent to a search may be limited or
qualified” and “authorities . . . are constrained by such limitations or
qualifications”); State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991) (“In
consent to search cases, an initial voluntary grant of consent may be
limited, withdrawn or revoked at any time prior to the completion of the
search.”). From these general observations about the nature of effective
consent sufficient to justify a warrantless search, it follows that
statutorily implied consent cannot function as an automatic exception to
the warrant requirement. Consent is not voluntary and capable of
justifying a warrantless search unless the individual consenting has the
ability to withdraw it. See, e.g., Halseth, 339 P.3d at 371 (“Inherent in
the requirement that consent be voluntary is the right of the person to
withdraw that consent.”); Byars, 336 P.3d at 945 (“A necessary element
of consent is the ability to limit or revoke it.”).
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, 579 U.S. at ___, 136 S. Ct. at 2186 (remanding for a
determination as to the voluntariness of a petitioner’s consent based on
the totality of the circumstances); Williams, 771 S.E.2d at 377
9Section 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-circumstances 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.
10The 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.
41
(remanding with instructions to consider the voluntariness of the
defendant’s consent under the totality of the circumstances).
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 circumstances. 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, 58 S. Ct. at 1023, consent to a warrantless search that “was in fact
voluntarily given, and not the result of duress or coercion, express or
implied” is sufficient to forfeit the Fourth Amendment right to be free
from unreasonable searches. Schneckloth, 412 U.S. at 248, 93 S. Ct. at
2059. In Pals, we acknowledged the supreme courts in several states
have rejected the federal standard for determining the validity of consent
under their state search-and-seizure constitutional provisions. 805
N.W.2d at 779. In a number of these states, consent to a warrantless
search is valid only if an individual knowingly and intelligently waived
42
his or her rights under the search-and-seizure provision of the state
constitution. Id. at 779, 782.
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, 103 S. Ct. at 922–23.
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 ___, 136 S. Ct. at 2186. The Court indicated remand
was necessary because voluntariness must be determined “from the
totality of all the circumstances.” Id. (quoting Schneckloth, 412 U.S. at
227, 93 S. Ct. at 2047–48).
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.” 313 N.W.2d 510, 512 (Iowa 1981).11
Nevertheless, in doing so we assumed individuals who asked to submit to
BAC tests have only a “statutory right to withdraw consent which is
deemed to exist by statutory implication,” rather than a constitutional
right to refuse guaranteed by article I, section 8 of the Iowa Constitution.
See id. On this assumption, we concluded proving an individual had
knowledge of the right to refuse a BAC test “is not a prerequisite” to
establishing his or her consent to submit to such a test was voluntary
and effective. See id. 12 However, we also determined knowledge of the
11The 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.
12This 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.
44
right to refuse a BAC test nevertheless constitutes a “relevant
circumstance” to determining whether consent to submit to one was
voluntary. Id.
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, 810 N.W.2d 871, 876 (Iowa 2012)
(quoting State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003)). Thus, our
cases recognize an individual’s consent to submit to a BAC test is
involuntary and invalid if the consent was coerced or the individual was
not reasonably informed of the consequences of failing or refusing the
test at the time consent was given. Garcia, 756 N.W.2d at 220; see
Overbay, 810 N.W.2d at 880.
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, 796 N.W.2d 898, 906–07 (Iowa 2011); State
v. Gravenish, 511 N.W.2d 379, 381–82 (Iowa 1994). Rather than
consider whether effective consent requires a knowing and intelligent
45
waiver of the right to be free from warrantless searches in article I,
section 8 under the Iowa Constitution, we have instead emphasized that
understanding the consequences of refusing or failing a chemical test
when deciding to submit to one is relevant to determining whether that
consent was voluntary. See Overbay, 810 N.W.2d at 880; Garcia, 758
N.W.2d at 220, 223; Berhnard, 657 N.W.2d at 472–73; see also Hutton,
796 N.W.2d at 906–07; Gravenish, 511 N.W.2d at 381–82. Moreover, we
have distinguished between knowledge of the statutory consequences of
failing or refusing a BAC test and knowledge that submitting to a request
for a BAC test involves the relinquishment of the constitutional right to
be free from unreasonable searches. See Knous, 313 N.W.2d at 512
(distinguishing between the knowledge of the statutory consequences
and the relinquishment of a constitutional right).
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, 254 F.3d 692, 696 (8th Cir. 2001); see Pals, 805
N.W.2d at 786; Lane, 726 N.W.2d at 378. “This test balances the
competing interests of legitimate and effective police practices against
our society’s deep fundamental belief that the criminal law cannot be
used unfairly.” State v. Lowe, 812 N.W.2d 554, 572 (Iowa 2012); accord
State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001).
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, 874 N.W.2d 627, 631 (Iowa 2016); Lowe, 812 N.W.2d at 573–74;
Lane, 726 N.W.2d at 378; Gravenish, 511 N.W.2d at 381. Because it is
undisputed Pettijohn was intoxicated when he submitted to the breath
test, this factor weighs against finding his consent voluntary and
uncoerced.
47
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, 829 N.W.2d at 798. For this reason, our
recent caselaw acknowledges that brief seizures such as traffic stops
constitute an “inherently coercive” setting. Pals, 805 N.W.2d at 783; see
also Baldon, 829 N.W.2d at 798; Lowe, 812 N.W.2d at 575 n.11. Such a
setting is inherently coercive because it is one in which “police plainly
have the upper hand and are exerting authority in a fashion that makes
it likely that a citizen would not feel free to decline to give consent for a
search.” Pals, 805 N.W.2d at 783.
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, 805 N.W.2d at 783. In the inherently
coercive context of custodial detention, the fact an individual was not
informed that consenting to a warrantless search amounts to giving up
the constitutional right to withhold consent amounts to a “strong factor
cutting against the voluntariness” of his or her consent to an ensuing
search. Id. In the implied-consent context, properly weighing this factor
in analysis of the totality of the circumstances requires us to distinguish
between knowledge of the penalties attached to the choice of refusal and
knowledge that submitting to a request for a BAC test involves the
relinquishment of the constitutional right to be free from warrantless
searches. See Knous, 313 N.W.2d at 512.
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 indicated 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, 579 U.S. at ___,
___, 136 S. Ct. at 2172, 2185–86. However, the mere fact an individual
faces only the prospect of civil rather than criminal penalties for refusing
to consent does not render those penalties irrelevant to determining the
voluntariness of his or her consent to a warrantless search. On the
contrary, that an individual consented to a search knowing civil penalties
would attach if he or she refused to consent is one factor to be weighed
in assessing the voluntariness of his or her consent, particularly when
those civil penalties are potentially as severe as some criminal penalties.
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 ___, ___, 136 S. Ct. at 2172, 2185–86.
The advisory Pettijohn received was also misleading in that it
indicated his refusal to submit to the request for a breath test could
13Compare 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”).
14Compare 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
serious misdemeanor offense of operating while intoxicated. Compare id.
§ 462A.14B(2)(b)(3), with id. § 462A.14(2)(a)(2).
 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 associated 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, 234 Iowa 899, 914, 14 N.W.2d 724, 732 (1944) (describing the
right to earn a living as being among the “fundamental, constitutional
rights of the citizen” and “the greatest of human rights”). Unlike driving,
however, boating implicates the “paramount” right of Iowans to use state
15Compare 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 least 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”).
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, 234 Iowa 1020, 1022, 14 N.W.2d 715, 716
(1944)). This right derives from the very act of Congress that granted
Iowa statehood, in which Congress declared the Mississippi River “and
the navigable waters leading into the same, shall be common highways,
and forever free as well to the inhabitants of said State, as to all other
citizens of the United States.” State v. Sorensen, 436 N.W.2d 358, 361
(Iowa 1989) (quoting section 3 of An Act for the Admission of the States
of Iowa and Florida into the Union, Mar. 3, 1845, reprinted in Iowa Code
volume VI at p. 1534 (2013)). Thus, it reflects the foundational principle
of the public trust doctrine embraced by the English common law and
nineteenth century jurists—“the notion that the public possesses
inviolable rights to certain natural resources.” Id. Given that this notion
played a central role in the founding of this State and to ensure the
associated right to access state waterways maintains its vitality in
modern times, we decline to treat its threatened loss as a matter of little
consequence. 16 Thus, we conclude the fact that Pettijohn faced the loss
16We 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
53
of his right to boat on state waterways does weigh against finding his
consent was voluntary and uncoerced, though we acknowledge the loss
of this right would weigh more strongly against a finding of voluntariness
if it had implicated his ability to earn a living.
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.
54
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, 459 U.S. at 559–60, 563, 103 S. Ct. at 920–
21, 922. But we remain mindful that an individual put to such a choice
may have essentially “no choice at all” such that coercion may arise.
Baldon, 829 N.W.2d at 801 (quoting Tamez v. State, 534 S.W.2d 686, 692
(Tex. Crim. App. 1976)). When an individual agrees to submit to a
warrantless search upon request in order to avoid the imposition of
undesirable consequences by the government, we must carefully assess
the relative bargaining power of the parties to determine whether the so-
called consent resulted from a one-sided agreement. See id. at 801–02.
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 mandatory
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.
56
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, 829 N.W.2d at 802. In this case, our duty to honor and protect
the integrity of article I, section 8 requires us to hold Pettijohn’s
submission to a breath test after an officer invoked the implied-consent
procedure set forth in chapter 462A of the Code did not constitute
effective consent to a warrantless search.
57
XI. Claim this Decision Makes the Statutory Scheme
Governing the Operation of a Motor Vehicle While Under the
Influence 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.
17CompareIowa 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).
58
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.
59
#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, 866 N.W.2d 1, 16
(Iowa 2015). And, fourth, I agree Pettijohn’s consent to the search was
coerced by the State’s threat of penalties authorized by Iowa Code section
462A.14B(2)(b)(1)–(3). See State v. Baldon, 829 N.W.2d 785, 802–03
(Iowa 2013). I write separately because I would decide this case solely on
these grounds.
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.
60
Implied-consent laws were enacted in the context of motor vehicle
operation to secure cooperation with breath tests. See Birchfield, 579
U.S. at ___, 136 S. Ct. at 2168–69. “They provided that cooperation with
[blood-alcohol content] testing was a condition of the privilege of driving
on state roads and that the privilege would be rescinded if a suspected
drunk driver refused to honor that condition.” Id. at ___, 136 S. Ct. at
2169; see also State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981) (“[T]he
implied consent statute is based on the premise ‘that a driver impliedly
agrees to submit to a test in return for the privilege of using the public
highways.’ ” (quoting State v. Hitchens, 294 N.W.2d 686, 687 (Iowa
1980))). In other words, implied-consent laws do not mandate consent to
testing, but require the driver to make a choice when suspected of
operating a motor vehicle while under the influence of alcohol or a
controlled substance: either submit to testing pursuant to the implied
consent previously given in exchange for the privilege of driving, or
revoke it and lose the privilege. In essence, if a driver refuses testing, the
entire arrangement is revoked.
In Baldon, we analogized the consent given in an agreement with
the state to a contract with the state. 829 N.W.2d at 791. In doing so,
we recognized that the decision to enter into a contract can “involve a
choice between two unpalatable alternatives, which does not defeat the
voluntariness of the consent.” Id. at 801. Yet, we also recognized there
may be some situations in which coercion does surface to defeat the
consent. See id. (“[T]his proposition does not mean a choice between two
unpalatable alternatives can never be coercive.”).
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 corresponding 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
chemical testing or to refuse chemical testing. See id.
§ 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).
63
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.
64
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.”
829 N.W.2d at 802. The monetary penalty here is similarly unrelated to
the privilege sought to be obtained. It is coercive, and thus it is the
State’s burden to present additional evidence in the record to reveal
Pettijohn voluntarily consented to the search. See id. The only evidence
in this case is that Pettijohn read and understood the implied-consent
warning required by statute. As discussed above, that statute was
coercive and therefore could not establish his consent.
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, 579 U.S. ___, ___, ___, 136 S. Ct. 2160, 2177,
2185 (2016). 18
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
18We 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?
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
19The 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
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).
744 N.W.2d 340, 345 (Iowa 2008).
20The majority relies on a special concurrence in State v. Gaskins, which states
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.” 866 N.W.2d 1, 17 (Iowa 2015) (Cady,C.J., concurring specially). There was no
factual support for that assertion in Gaskins.
69
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, 657 N.W.2d 474, 477 (Iowa 2003) (“The
remedy for not substantially complying with the implied-consent
procedure is the exclusion of the test results . . . .”). This is not such a
case.
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,
792 N.W.2d 260, 273 (Iowa 2010)). Only a breath test is at issue here, a
procedure that is “capable of revealing only one bit of information, the
amount of alcohol in the subject’s breath.” Birchfield, 579 U.S. at ___,
136 S. Ct. at 2177; see also id. at ___, 136 S. Ct. at 2181 (explaining
70
warrants would not serve the function of “delineating the scope of a
search” because “[i]n every case the scope of the warrant would simply be
a [blood alcohol content (BAC)] test of the arrestee”).
A warrant requirement also imposes the “deliberate, impartial
judgment of a judicial officer . . . between the citizen and the police.”
Breuer, 808 N.W.2d at 201 (alteration in original) (quoting United States
v. Grubbs, 547 U.S. 90, 99, 126 S. Ct. 1494, 1501 (2006)). Here, the
district court correctly found the statutory implied-consent requirements
were met and probable cause existed to search Pettijohn’s breath.
Officer Wineland observed Pettijohn operating the boat, and two other
officers observed Pettijohn’s slurred speech, bloodshot eyes, and poor
performance on field tests for sobriety. How often does the majority
imagine a magistrate will refuse a warrant for a breath test presented
electronically based on the officer’s stated observations of the suspect’s
intoxication? See Birchfield, 579 U.S. at ___, 136 S. Ct. at 2181 (“In
order to persuade a magistrate that there is probable cause for a search
warrant, the officer would typically recite the same facts that led the
officer to find that there was probable cause for arrest . . . .”). What
value are we adding by requiring a warrant? If the requisite grounds for
requesting a breath test are lacking, the test results can and should be
suppressed. Do we really need our judicial officers to review warrant
applications on nights and weekends when drunk boaters are typically
detained? And, if so, would the magistrate not be better positioned to
assess the grounds for the warrant if the officer appeared in person to
answer questions?
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.
72
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, 579 U.S. at ___, 136 S. Ct. at 2180 (citations omitted). There
is good reason no other court or legislature has required search warrants
for breath tests. It is nonsensical.
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, 801 N.W.2d at 594 (citing 1963 Iowa Acts,
ch. 114, § 37–50 (codified at Iowa Code ch. 321B (1966)). The general
assembly declared the implied-consent provisions “are necessary in order
to control alcoholic beverages and aid the enforcement of laws
prohibiting operation of a motor vehicle while in an intoxicated
condition.” 1963 Iowa Acts ch. 114, § 37. 21 And now as to drunken
boaters, this court overrides that rational policy choice by our elected
branches of government.
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-
21“In 1986, the implied-consent statutes from chapter 321B were combined with
the criminal OWI laws.” State v. Fischer, 785 N.W.2d 697, 700 (Iowa 2010) (citing 1986
Iowa Act ch. 1220 (codified at Iowa Code ch. 321J (1987))).
74
consent laws are coercive. State v. Bernhard, 657 N.W.2d 469, 472 (Iowa
2003) (concluding decision to take blood test not coerced even though
defendant “was motivated to agree to a blood test because of the desire
not to lose his license”); State v. Owens, 418 N.W.2d 340, 344 (Iowa
1988) (holding no due process violation because “decision to submit to
chemical testing [was] a reasonable and informed decision to cooperate
with the officers’ investigation rather than a decision coerced by threat”);
State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981) (“Because the State
does not have to prove the accused knew of his right to refuse the test,
we hold that the officers administering the test do not have a due process
obligation to inform him of that right under either the Iowa or United
States Constitution.”); State v. Vietor, 261 N.W.2d 828, 830 (Iowa 1978)
(“We have upheld the constitutionality of this [implied-consent] statute
and have approved the admissibility of such [test] refusal[s] in criminal
trials.”); State v. Johnson, 257 Iowa 1052, 1062, 135 N.W.2d 518, 525
(1965) (rejecting constitutional challenge, stating that Iowa’s implied-
consent “law is almost identical to laws of a like nature upheld in other
states”). The majority effects a sea change in Iowa law today without
fairly confronting our precedent.
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, 838 N.W.2d 563, 570–72 (Minn.
75
2013) (rejecting claim that consent was coerced when driver was told
refusal constituted criminal offense); State v. Padley, 849 N.W.2d 867,
876 (Wis. Ct. App. 2014) (“The fact that the driver is forced to make a
difficult choice does not render the consent involuntary.”); Walters v.
State ex rel. Wyo. Dep’t of Transp., 300 P.3d 879, 883 (Wyo. 2013)
(“Explaining the consequences of her choice as to whether to take the
test may or may not have pressured Walters in some sense, but
providing accurate information did not rise to a level of coercion which
would render her consent involuntary.”).
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. 849 N.W.2d at 881,
887. The court observed the implied-consent statute “does not authorize
searches, it authorizes law enforcement to require a driver to choose
between giving actual consent to a blood draw, or withdrawing ‘implied
consent’ and suffering implied-consent-law sanctions.” Id. at 880. The
Padley court appropriately distinguished Missouri v. McNeely, 567 U.S.
___, 133 S. Ct. 1552 (2013), upon which the majority relies, because it
was not “a consent case.” Padley, 849 N.W.2d at 881. The Padley court
found that consent was voluntary, stating, “Nowhere does [defendant]
develop a legal argument that the State cannot present a suspect with
the hard choice of giving up a constitutional right or accepting a
permissible penalty.” Id. at 886; see also People v. Harris, 184
Cal. Rptr. 3d 198, 209 (Ct. App. 2015) (“[W]e conclude that free and
voluntary submission to a blood test, after receiving an advisement
under the implied consent law, constitutes actual consent to a blood
draw under the Fourth Amendment.”); Brooks, 838 N.W.2d at 572
(highlighting implied consent as a “legal tool” and holding consent was
76
not coerced merely because Minnesota attached penalties for refusal);
State v. Modlin, 867 N.W.2d 609, 619–20 (Neb. 2015) (concluding that
driver consented to the blood draw despite implied consent imposing a
“difficult choice” of consent or revocation).
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, 294 N.W.2d 686, 687 (Iowa 1980). “If the
driver withdraws that consent by refusing an appropriate request by an
officer to take a test, the statute allows the state to withdraw the driver’s
privilege of using our public highways.” Id. The same is true for
operating a motorboat on public waterways. “In the unique context of
giving consent to a search . . . in exchange for a benefit, the person
cannot enjoy the benefit only then to renounce the cost, and expect to
continue enjoying the benefit.” Harris, 170 Cal. Rptr. 3d at 735; see also
State v. Holt, 261 Iowa 1089, 1094, 156 N.W.2d 884, 887 (1968) (“We
know of no reason why a person in order to enjoy the privilege so granted
may not waive such ‘rights’ as he might otherwise have.”).
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, 866 N.W.2d 1 (Iowa
2015), but misapplies it. In Gaskins, our court diverged from settled
77
Federal Fourth Amendment precedent to limit warrantless searches
incident to arrest (SITA) to those necessary for officer safety or “justified
by the State’s interest in preserving evidence from destruction, not
merely collecting it expediently.” Id. at 14. Gaskins does not support the
majority’s decision for four reasons. First, Gaskins was wrongly decided.
See id. at 38 (Waterman, J., dissenting); id. at 56 (Zager, J., dissenting).
Second, Gaskins is inapposite because neither actual consent nor
implied consent was at issue. Third, under Gaskins, a breath test
constitutes a permissible warrantless SITA to preserve evidence given the
rapidly dissipating blood alcohol. See id. at 14 (majority opinion) (“We
conclude the SITA exception to the warrant requirement under article I,
section 8 of the Iowa Constitution is justified by the State’s interest in
preserving evidence from destruction . . . .”); see also Birchfield, 579 U.S.
at ___, 136 S. Ct. at 2182 (equating “preventing the loss of blood alcohol
evidence as the result of the body’s metabolism of alcohol” with
“[s]topping an arrestee from destroying evidence” because “[i]n both
situations the State is justifiably concerned that evidence may be lost”).
Fourth, and most importantly, Gaskins is inapposite because it
merely limited the search of a vehicle, 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.
78
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.” 579 U.S. at ___, 136 S. Ct. at 2180.
Likewise, if a rape victim reported to the police that she had scratched
her male assailant’s chest while resisting, the majority’s reasoning today
would require a warrant before police could ask the arrested assailant to
remove his shirt. “If a search warrant were required for every search
incident to arrest that does not involve exigent circumstances, the courts
would be swamped.” Id. I dissented in Gaskins, but there is no need to
extend our Iowa search and seizure law relating to automobiles to
searches of the person incident to arrest.
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.
79
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 . . . . Blood 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, 579 U.S. at ___, 136 S. Ct. at 2177.
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, 184 Cal. Rptr. 3d at 213; Williams v. State, 771 S.E.2d
373, 377 (Ga. 2015); State v. Halseth, 339 P.3d 368, 371 (Idaho 2014);
State v. Declerck, 317 P.3d 794, 799 (Kan. Ct. App. 2014); Brooks, 838
N.W.2d at 568; Modlin, 867 N.W.2d at 619; Byars v. State, 336 P.3d 939,
945–46 (Nev. 2014); State v. Fierro, 853 N.W.2d 235, 242–43 (S.D. 2014);
State v. Wells, No. M2013–01145–CCA–R9CD, 2014 WL 4977356, at *13
80
(Tenn. Crim. App. 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. Ct.
App. 2014); Padley, 849 N.W.2d at 887. Even worse, the majority fails to
note that in three of its cited cases, the defendant withdrew his consent,
and a warrantless forcible blood draw was administered over his
objection. Halseth, 339 P.3d at 369; Fierro, 853 N.W.2d at 237; Weems,
434 S.W.3d at 658; see also Byars, 336 P.3d at 945–46 (“The State’s
argument that consent is valid . . . is problematic because the statute
makes the implied consent irrevocable.”).
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,
804 N.W.2d at 290 (citing Iowa Code § 804.20). We have never held the
implied-consent advisory must inform the defendant of his constitutional
right to refuse consent. See Knous, 313 N.W.2d at 511 (“Thus the right
to refuse the test is a statutory right to withdraw consent which is
deemed to exist by statutory implication.”); see also South Dakota v.
Neville, 459 U.S. 553, 560 n.10, 103 S. Ct. 916, 921 n.10 (1983) (“[A]
person suspected of drunk driving has no constitutional right to refuse to
take a blood-alcohol test.”).
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, 801 N.W.2d at 595 n.4 (quoting Iowa Code § 321J.7). Pettijohn was not in such
a condition and freely consented to the breath test.
81
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 unconstitutional 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, 793 S.E.2d 811, 815 (Va. Ct. App.
2016) (“Significantly, appellant was not exposed to a criminal penalty if
he refused the breath or blood test.”). Iowa’s civil penalty for a test
refusal likewise is constitutional.
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, 210 So. 3d 774, 776 (Fla. Dist.
Ct. App. 2017) (“[W]e adopt the holding in Birchfield that breath-alcohol
tests are permissible . . . .”); State v. Cornwell, 884 N.W.2d 722, 726–27
(Neb. 2016) (“[P]ost-Birchfield, a warrantless breath test is reasonable
and does not run afoul of the Fourth Amendment. Nor do we find that it
83
runs counter to Neb. Const. art. I, § 7 . . . .”); Commonwealth v. Boone,
No. 3492 EDA 2015, 2017 WL 781664, at *2 n.4 (Pa. Super. Ct. Feb. 28,
2017) (noting that even if issue of warrantless breath test had been
preserved, “it would not warrant relief”); State v. Baird, 386 P.3d 239,
245, 247 (Wash. 2016) (en banc) (concluding there was “no constitutional
right to refuse the breath test” although implied-consent statute granted
right to refuse as aspect of “legislative grace”); State v. Lemberger, 893
N.W.2d 232, 242 n.13 (Wis. 2017) (“[S]uffice it to say that Lemberger
does not adequately establish that Article I, section 11 possesses a
different meaning than the Fourth Amendment to the United States
Constitution in this context.”). I would follow the legion of cases that
uphold implied-consent statutes for breath tests.
The Birchfield Court held “the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving.” 579 U.S.
at ___, 136 S. Ct. at 2184. I reach the same conclusion under our state
constitution for boaters and motorists alike and would affirm the district
court.
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
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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
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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.