UPDATES & ANALYSIS

Iowa Supreme Court finds a warrantless breath test while operating a boat was involuntary and violated the Iowa Constitution.

by Rox Laird | July 3, 2017

The Iowa Supreme Court ruled Friday that a warrantless breath test used to prosecute Dale Pettijohn for operating a boat while intoxicated violated Article I, section 8 of the Iowa Constitution, the state equivalent of the U.S. Constitution’s Fourth Amendment that prohibits unreasonable searches and sets requirements for warrants.

Iowa courts recognize two exceptions to the warrant requirement: One exception is if the search is tied to an arrest – or in the legal argot, a “search incident to arrest.” Another is if a suspect consents to a search. Neither exception applied in Pettijohn’s case, the court said in a 4-3 decision written by Justice David Wiggins joined by Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht.

Justice Thomas Waterman filed a sharp dissent, joined by Justices Edward Mansfield and Bruce Zager, in which he criticized the majority for “concocting new theories” to “make bad law.”

“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,” Waterman wrote. “We are supposed to be impartial adjudicators rather than partisan advocates.”

Dale Pettijohn was stopped by an Iowa Department of Natural Resources water patrol officer while piloting a pontoon boat on Saylorville Reservoir. Pettijohn was arrested and taken to the Polk City Police Department where he underwent a breath test after signing an “implied consent” form. He was subsequently convicted in Polk County District Court.

In his appeal to the Supreme Court, Pettijohn argued that the breath test violated his constitutional rights. The court agreed, basing its decision on the Iowa Constitution.

First, while a warrantless search conducted in the course of an arrest may be legally justified to prevent the destruction of evidence, the court said that does not necessarily apply to evidence lost because of the dissipation of alcohol from the body.

The state drunk-boating law allows a two-hour window of opportunity for a valid breath test, during which time an officer can obtain a warrant based on probable cause, which can be done electronically now with expanded online access to judges.

There may be exceptions when “unusual circumstances” make it impractical to obtain a warrant within two hours of witnessing the arrestee operating a boat, but the court rejected an across-the-board exception to the warrant requirement in such cases.

Second, a warrantless search may be allowed if the suspect consents. Under Iowa’s implied-consent law, in exchange for the privilege of being able to boat on navigable waterways, a person suspected of operating a boat while drunk “is deemed to have given consent” to a blood, breath or urine test. The individual is given a choice: Sign the form giving consent or face civil penalties, criminal penalties and/or the loss of boating privileges.

Consent to a warrantless search cannot be coerced but must be freely given after being informed of the consequences of refusing. After weighing the facts of Pettijohn’s case, the court concluded his consent was not knowingly given: Pettijohn was intoxicated when he signed the consent waiver; he was arrested and transported to the police station, which involves a greater degree of inherent coercion; and the implied-consent advisory did not advise Pettijohn of his constitutional right to refuse a warrantless search.

Also, the waiver advisory form was misleading because it warned only of the civil consequences of submitting to the breath test – a penalty of $500 to $2,000 and suspension of boating privileges for one to six years. But the form did not warn of potential criminal penalty – mandatory imprisonment for 48 hours to one year and a mandatory fine of $1,000 to $7,500.

“The mere fact that Pettijohn submitted to the breath test after being read the implied-consent advisory is inadequate to establish his effective consent,” Wiggins wrote. “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.”

Iowans headed to the lake this summer might beware reading too much into Friday’s Iowa Supreme Court’s ruling that reversed a drunken boater’s conviction: You may be able to refuse to take a breath test if you drink to excess while boating, but don’t expect the same privilege to apply when driving home from the lake.

The court emphasized that its ruling is limited to boating on Iowa waterways, not driving on the state’s roads. “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,” Wiggins wrote. “Any decision relating to operating a motor vehicle while under the influence will have to wait for another case raising its constitutionality,” he added.

Tags: Criminal Law, Iowa Supreme Court, Iowa Supreme Court Opinions