UPDATES & ANALYSIS

Oral Argument Recap: Iowa justices worry about safety on lakes and roads alike

by Rox Laird | September 7, 2016

One key question from at least two justices of the Iowa Supreme Court is whether a precedent from a drunken boating case would end at the water’s edge or spill onto public roads as well.

That was the first question put to attorney Grant Gangestad, who is representing Dale Dean Pettijohn in his appeal of his conviction for operating a boat while intoxicated (see our earlier post for more background on this case).

Pettijohn argues that his rights against an illegal search under the Iowa Constitution were violated when a state officer stopped Pettijohn’s boat and administered a breath test. His attorney urged the court to hold that, under the Iowa Constitution, a warrant must first be secured from a judge before conducting such tests.

Gangestad made clear in briefs filed with the court that this appeal is limited to drunken boating. And he repeated that position Wednesday when asked by Justice Edward Mansfield if Pettijohn’s argument would apply to drunken driving, too.

“This is a boating case,” Gangestad replied.

Justice Thomas Waterman returned to that issue later in the course of the oral argument: If Pettijohn were to succeed in his argument, “then what happens to the state’s ability to protect the public” on the roadways?

“There is a holocaust on our waterways just as there is on our highways,” Waterman said, using a word also used by the U.S. Supreme Court in a recent case involving legality of searches conducted in the course of drunken driving arrests.

Waterman asked Gangestad directly if he is “going to be back to make the same arguments” in a case involving a driver charged with operating vehicle under the influence?

Gangestad did not answer Waterman’s question directly, but in response to an earlier question he allowed that it “could be a question for another day” for the Court to consider.

Another line of questions was whether Pettijohn’s breath test was “coerced” by the state – either you submit to the test or lose your boating license and face a civil fine of up to $2,000. Or, does the need to preserve evidence provide exception to the warrant requirement?

“Don’t you have a vanishing evidence problem?” Mansfield asked. In other words, by the time a warrant is issued, a suspect might pass a breath test.

In which case, Justice Brent Appel wondered whether the state had a burden to demonstrate that a warrant is impracticable. And, he added, it is not clear from the record that the state demonstrated that in Pettijohn’s case.

The state’s position, articulated by Assistant Attorney General Louis Sloven, is that the state has no burden to show a warrant was impracticable. There is a categorical exception to the warrant requirement for breath tests, he said, because “evidence is disappearing every second.”

An issue that held his case up for nearly a year – the applicability of the U.S. Supreme Court’s ruling in Birchfield v. North Dakota regarding the constitutionality of state-mandated breathalyzer and blood-alcohol tests in drunken driving prosecutions – was barely touched on in Wednesday’s oral argument. Both parties had indicated earlier that Pettijohn’s case neither helped nor harmed by that ruling.

So, for Pettijohn it’s back to the original question, which the Iowa Supreme Court will decide sometime within the next several months.