IN THE SUPREME COURT OF IOWA

No. 14–0830

Filed June 30, 2017

Amended September 26, 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.
2

WIGGINS, Justice.

The defendant moved to suppress all evidence obtained after an

officer seized the boat he was operating, including the results of a breath 

test he submitted to after an officer invoked the implied-consent 

procedure set forth in Iowa Code chapter 462A (2013). The district court 

denied the motion to suppress, concluding the seizure was justified by 

the community-caretaking exception to the warrant requirement and the 

administration of the warrantless breath test violated neither the Fourth 

Amendment to the United States Constitution nor article I, section 8 of 

the Iowa Constitution. The court convicted the defendant following a 

bench trial on the minutes, and the defendant appealed. We retained the 

appeal but held the matter in abeyance pending a decision from the 

United States Supreme Court. 

We conclude the seizure of the boat the defendant was operating 

violated neither the Fourth Amendment nor article I, section 8 because 

the officer who stopped the defendant had a reasonable, articulable 

suspicion he was committing a crime. However, because we also 

conclude the administration of the warrantless breath test violated 

article I, section 8, we reverse the judgment of the district court and 

remand the case for a new trial.

I. Background Facts. 

On August 18, 2013, at approximately 5:00 p.m., Iowa Department 

of Natural Resources (DNR) Water Patrol Officer William Wineland 

observed Dale Dean Pettijohn Jr. operating a rented pontoon boat in the 

no-wake zone of Saylorville Lake in Polk County, a manmade reservoir 

created by the U.S. Army Corps of Engineers and fed by the Des Moines 

River. At the time, Pettijohn was operating the boat at an appropriate

speed and was not swerving or steering erratically. However, Officer 
3

Wineland noticed a female passenger sitting on a sundeck located at the 

rear of the boat with her feet dangling over its back edge near the motor. 

Because he had worked as a water patrol officer for many years, 

Officer Wineland was familiar with the location of the propellers on the 

rental boats at Saylorville Lake. He knew there was no guard or housing 

around the propeller on the rented pontoon boat Pettijohn was operating. 

Having previously witnessed severe injuries and even deaths resulting 

from people falling off boats and getting entangled in the propeller, 

Officer Wineland believed the position of the female passenger on 

Pettijohn’s boat posed a danger to her safety. 

As a water patrol 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 
4

observations led Officer Wineland to suspect Pettijohn had been 

operating the boat while intoxicated in violation of Iowa Code section 

462A.14(1), a serious misdemeanor he was without authority to 

investigate. See id. § 462A.14(2). Consequently, Officer Wineland sought 

assistance from conservation officers authorized to investigate serious 

misdemeanor offenses. In the meantime, Officer Wineland instructed 

Pettijohn to proceed to the dock to await the arrival of the conservation 

officers and issued him a warning citation for the negligent operation of 

the boat. When Officer Wineland explained the reason for the citation, 

Pettijohn indicated he had not realized a passenger was sitting on the 

bow of the boat and would not have allowed her to remain there had he 

known of her location. 

Conservation Officers Dakota Drish and Matt Bruner soon arrived. 

Once aboard Pettijohn’s boat, Officer Drish detected the distinct odor of 

an alcoholic beverage and observed that Pettijohn was slurring his 

speech and had bloodshot eyes. Based on these observations Officer 

Drish administered field sobriety tests, the results of which led him to 

conclude that Pettijohn had been operating the boat while intoxicated. 

Officer Drish placed Pettijohn in handcuffs, and the officers transported 

him to the Polk City Police Department. 

At the station, Officer Drish read to Pettijohn from a standard form 

entitled “Implied Consent Advisory” in order to inform him of the 

consequences of failing a breath test or refusing to consent to a breath

test. Pettijohn signed his name in a box labeled “confirmation signature”

on the bottom of the form. Minutes later, Officer Drish formally 

requested a sample of his breath. Pettijohn checked a box on a separate 

form entitled “Notice and Request Under Iowa Code Section 462A.14,”

indicating he consented to provide a breath sample upon being requested 
5

to do so after having been read the implied-consent advisory. Pettijohn 

then submitted to a breath test, which indicated his blood alcohol 

concentration (BAC) was .194. 

The State charged Pettijohn with operating a motorboat while

under the influence in violation of Iowa Code section 462A.14(1). 

Because this was Pettijohn’s first offense, the violation constituted a 

serious misdemeanor criminal offense. See id. § 462A.14(2). 

II. Prior Proceedings. 

Before the district court, Pettijohn moved to suppress all evidence 

obtained after Officer Wineland stopped his boat, arguing the stop 

violated his rights under the Fourth and Fourteenth Amendments to the 

United States Constitution and article I, section 8 of the Iowa 

Constitution. Pettijohn also moved to suppress the results of the breath 

test, arguing the implied-consent procedure he was subjected to violated

the Fourth Amendment to the United States Constitution and article I, 

section 8 of the Iowa Constitution because (1) it authorizes the 

imposition of a penalty for the exercise of a constitutional right to refuse 

a warrantless search, and (2) a person cannot contract away his or her

natural right to use the state’s navigable waterways. Additionally, 

Pettijohn argued the breath-test results should be suppressed because 

the implied-consent advisory was inaccurate and thus (1) violated his 

substantive due process rights under the Fourteenth Amendment of the 

United States Constitution and article I, section 9 of the Iowa 

Constitution; (2) violated his statutory rights under the Iowa Code; and 

(3) rendered his consent involuntary and coerced in violation of the 

Fourth Amendment to the United States Constitution and article I, 

section 8 of the Iowa Constitution. 
6

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 
7

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-whileintoxicated statutes. Section 462A.14B defines the penalties that apply 

when a person refuses to submit to a chemical test “for the purpose of 

determining the alcohol concentration or presence of controlled 

substances or other drugs.” Iowa Code § 462A.14A(1). It provides,

1. If a person refuses to submit to the chemical 

testing, a test shall not be given unless the procedure in 

section 462A.14D is invoked. However, if the person refuses 
9

the test, the person shall be punishable by the court 

according to this section.

2. The court, upon finding that the officer had 

reasonable ground to believe the person to have been 

operating a motorboat or sailboat in violation of section 

462A.14, that specified conditions existed for chemical 

testing pursuant to section 462A.14A, and that the person 

refused to submit to the chemical testing, shall:

a. Order that the person shall not operate a 

motorboat or sailboat for one year.

b. Impose a mandatory civil penalty as follows:

(1) For a first refusal under this section, five hundred 

dollars.

(2) For a second refusal under this section, one 

thousand dollars.

(3) For a third or subsequent refusal under this 

section, two thousand dollars.

3. If the person does not pay the civil penalty by the 

time the one-year order not to operate expires, the court 

shall extend the order not to operate a motorboat or sailboat 

for an additional year, and may also impose penalties for 

contempt.

Id. § 462A.14B(1)–(3). In addition to these penalties, “proof of refusal is 

admissible in any civil or criminal action or proceeding arising out of acts 

alleged to have been committed while the person was operating a 

motorboat or sailboat in violation of section 462A.14.” Id. § 462A.14A(8). 

The Code also addresses the advisory an officer must administer

when requesting an individual suspected of boating while intoxicated to 

submit to a chemical test. Id. §§ 462A.14A(4)(g), .14C(1). Specifically, 

section 462A.14A(4)(g) provides,

g. A person who has been requested to submit to a 

chemical test shall be advised by a peace officer of the 

following:
10

(1) A refusal to submit to the test is punishable by a 

mandatory civil penalty of five hundred to two thousand 

dollars, and suspension of motorboat or sailboat operating 

privileges for at least a year. In addition, if the person is also 

convicted of operating a motorboat or sailboat while 

intoxicated, the person shall be subject to additional 

penalties.

(2) If the person submits to the test and the results 

indicate an alcohol concentration equal to or in excess of the 

level prohibited under section 462A.14 and the person is 

convicted, the person’s motorboat or sailboat operating 

privileges will be suspended for at least one year and up to 

six years, depending upon how many previous convictions 

the person has under this chapter, and whether or not the 

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.
11

VI. The Implied-Consent Advisory. 

The following text appeared on the form Pettijohn signed 

containing the implied-consent advisory Officer Drish read to him: 

Implied Consent Advisory:

(If any peace officer fails to offer a test within two hours the 

preliminary screening test is administered or refused, or the 

arrest is made, whichever occurs first, a test is not required, 

and there shall be no suspension of motorboat or sail boat 

operation privileges.)

Notice to Any Peace Officer

A person who has been requested to submit to a chemical 

test shall be advised by a peace officer of the following:

(1) A refusal to submit to the test is punishable by a 

mandatory civil penalty of five hundred to two thousand 

dollars, and suspension of motorboat or sailboat operating 

privileges for at least a year. In addition, if the person is also 

convicted of operating a motorboat or sailboat while 

intoxicated, the person shall be subject to additional 

penalties.2

(2) If the person submits to the test and the results indicate 

the presence of a controlled substance or other drug, or an 

alcohol concentration equal to or in excess of the level 

prohibited under section 462A.14 (.08 BAC) and the person 

is convicted, the person’s motorboat or sailboat operating 

privileges will be suspended for at least one year and up to 

six years, depending upon how many previous convictions 

the person has under this chapter, and whether or not the 

person has caused serious injury or death, in addition to any 

sentence and fine imposed for a violation of section 

462A.14[.]3

VII. The Constitutional Provisions. 

Article I, section 8 of the Iowa Constitution guarantees,

 2Subparagraph (1) of the advisory matched verbatim the text appearing in 

sections 462A.14C(1)(a) and 462A.14A(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.
12

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 communitycaretaking 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. 141, 151, 133 S. Ct. 1552, 1560 

(2013) (plurality opinion)). The Court emphasized the exigentcircumstances 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)).
18

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-toarrest 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 searchincident-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-toarrest 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 searchincident-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 exigentcircumstances 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 152, 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 “bloodalcohol 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 warrantpreference 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 searchincident-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 156, 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 155, 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 151–

52, 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 156, 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.14A(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 impliedconsent 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 146, 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 163, ___, 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 147, 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 156, 133 S. 

Ct. at 1563. 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 147, 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 drunkdriving 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 161, 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 

165–66, 133 S. Ct. at 1568–69 (Kennedy, J., concurring in part); id. at 166–76, 133 
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 

_____________________

S. Ct. at 1569–74 (Roberts, C.J., concurring in part and dissenting in part); id. at 176–

83, 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 to 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” in 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 socalled 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 in 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.14A(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 of

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. 

 17Compare Iowa Code § 462A.14A(4)(g)(1) (creating a mandatory monetary civil 

penalty for refusal to take the test), with id. § 321J.9(1)(a)–(b) (containing neither a 

criminal penalty nor mandatory monetary civil penalty).
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 impliedconsent 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 impliedconsent procedure. Furthermore, operating a boat while intoxicated will 

still be a crime in Iowa and can still be prosecuted. Actually, consentedto 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 impliedconsent 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 impliedconsent 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 impliedconsent 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 [impliedconsent] 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 Acts 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 impliedconsent “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, 569 U.S. 

141, 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 impliedconsent 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 “evidencegathering 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 impliedconsent 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 impliedconsent 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 impliedconsent 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 impliedconsent 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 
84

Iowa Code section 804.20 to exclude those detained for suspicion of 

drunken boating. Let us review them. 

A. Preliminary Breath Test Results Admissible. Typically, a 

preliminary breath test (PBT) is administered at the scene of the stop 

when the officer has reasonable grounds to believe the boat operator is 

intoxicated. Under existing law, the results are not admissible, but a 

refusal to take the test is. Iowa Code § 321J.5(2). Yet as testing 

technology has advanced and these tests have become more reliable, why 

not just legislate that the PBT results are admissible? 

B. Revision of Iowa Code Section 804.20. Additionally, once 

the implied-consent process is eliminated for boaters, it becomes more 

difficult to see the underlying purpose served by Iowa Code section 

804.20. This statute allows someone who has been arrested to promptly 

call, consult with, and see an attorney or family member. Although it 

applies in other contexts, the statute has traditionally been tied to the 

implied-consent process. See Walker, 804 N.W.2d at 290 (“Most of our 

cases, however, have involved the statutory right to place a telephone call 

to an attorney or family member when pulled over for drunk driving.”); 

State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (“One purpose of 

section 804.20, of course, is to allow an arrestee to call an attorney 

before deciding whether to submit to a chemical test.”). Under Iowa Code 

section 804.20, the person arrested for drunken boating is given an 

opportunity to consult with an attorney before deciding whether to take 

the chemical test. 

But if law enforcement is going to have to get a warrant anyway so 

the attorney consultation fills no immediate need, why bother? Time is 

passing while the parties wait for the attorney to answer the phone or 
85

come to the station house. It would not surprise me to see the 

legislature amend section 804.20 to exclude boaters. 

C. Electronic Warrants. We can also expect to see electronic 

warrants pursuant to the new legislation. That is, law enforcement will 

submit a sworn warrant application via the court’s electronic data 

management system (EDMS) to a judicial officer with a note to call “if 

there are questions,” the magistrate will call and recite the oath, and the 

approved warrant will then be transmitted electronically back to law 

enforcement. If our court upholds this procedure under article I, section 

8—and we would be hard-pressed to disapprove it since the majority 

mentions EDMS warrants as one justification for its current ruling—we 

will then have assembly-line warrants for breath testing. 

So this is our future: in-the-field PBTs may be admissible, no call 

or consultation with an attorney will be allowed before chemical breath 

tests take place at the station, and warrants will be routinely sought and 

issued based on electronic applications without face-to-face contact 

between the judicial officer and law enforcement. Taking things further,

a rotation could be devised in which one judicial officer per judicial 

district would be assigned one “night shift” per month. That officer 

would sit at her or his computer through the night and handle all of that 

district’s electronic warrant requests. This would meet the legal 

requirements of today’s decision, but it would not advance our criminal 

justice system. 

For these reasons, I respectfully dissent. 

Mansfield and Zager, JJ., join this dissent.