IN THE SUPREME COURT OF IOWA 

No. 126/ 06–0880 

Filed February 8, 2008 

STATE OF IOWA, 

 Appellee, 

vs. 

BRENT ERIC JOHNSON, 

 Appellant. 

 Appeal from the Iowa District Court for Polk County, Artis Reis, 

Judge. 

 Defendant convicted of several alcohol-related offenses appeals on 

the ground the results of his blood-alcohol test were erroneously 

admitted into evidence. AFFIRMED. 

 Timothy McCarthy II of McCarthy & Hamrock, P.C., 

West Des Moines, for appellant. 

 Thomas J. Miller, Attorney General, Bridget A. Chambers, 

Assistant Attorney General, John P. Sarcone, County Attorney, and 

James P. Ward, Assistant County Attorney, for appellee. 
2

LARSON, Justice. 

 Brent Johnson was convicted of serious injury by vehicle (Iowa 

Code section 707.6A(4) (2005)), operating while intoxicated, third offense 

(Iowa Code section 321J.2(2)(c)), failing to stop following a personal 

injury accident (Iowa Code section 321.261(2)), and leaving the scene of a 

personal injury accident (Iowa Code section 321.263). On appeal, 

Johnson raises a single issue—the admission of test results from his 

blood sample obtained without a warrant, pursuant to Iowa Code section 

321J.10A. We affirm. 

I. Facts and Prior Proceedings. 

 The district court, in a jury-waived trial based on the minutes of 

evidence and the transcript of the suppression hearing, found the 

following facts. On January 27, 2006, at 4:41 p.m., Johnson caused an 

automobile accident resulting in the serious injury of Refic Abdik. After 

the accident, Johnson left the scene on foot, but police officers later 

located him several blocks away. Johnson failed field sobriety tests, was 

arrested, and was transported to the Des Moines Police Department. 

There, at 6:25 p.m., he refused to provide a breath sample. Johnson was 

transported to Mercy Hospital, and at 7:20 p.m., a blood sample was 

taken—without his consent and without a warrant. Analysis of the blood 

sample showed that Johnson’s blood-alcohol concentration was .250%, 

well over the legal limit. Johnson moved to suppress the results of the 

test, complaining the “emergency” required by section 321J.10A(1) for 

obtaining a blood sample without a warrant was not established. The 

district court denied the motion, concluding an emergency situation 

existed sufficient to justify the warrantless seizure of Johnson’s blood. 
3

II. Discussion.

 Iowa Code section 321J.6, our implied-consent statute, authorizes 

law enforcement officers to obtain a sample of a driver’s blood, breath, or 

urine for purposes of chemical testing for intoxication when there are 

reasonable grounds to believe the driver is intoxicated. On a refusal to 

submit to such testing, the driver’s license may be revoked. Iowa Code 

§ 321J.9. However, withdrawal of a specimen of blood, breath, or urine 

for chemical testing is permitted over the individual’s objection pursuant 

to a search warrant when a traffic accident has resulted in death or 

injury reasonably likely to cause death, and there are reasonable 

grounds to believe that at least one of the drivers at fault for the accident 

was intoxicated. Iowa Code § 321J.10A. In 2004, the legislature enacted 

section 321J.10A(1), which permits the withdrawal of blood without a 

warrant under certain circumstances. Section 321J.10A(1) provides: 

Notwithstanding section 321J.10 [requiring a warrant to 

obtain a blood sample in the absence of consent], if a person 

is under arrest for an offense arising out of acts alleged to 

have been committed while the person was operating a 

motor vehicle in violation of section 321J.2 or 321J.2A, and 

that arrest results from an accident that causes a death or 

personal injury reasonably likely to cause death, a chemical 

test of blood may be administered without the consent of the 

person arrested to determine the amount of alcohol or a 

controlled substance in that person’s blood if all of the 

following circumstances exist: 

a. The peace officer reasonably believes the blood 

drawn will produce evidence of intoxication. 

b. The method used to take the blood sample is 

reasonable and performed in a reasonable manner by 

medical personnel under section 321J.11. 

c. The peace officer reasonably believes the officer is 

confronted with an emergency situation in which the delay 

necessary to obtain a warrant under section 321J.10 

threatens the destruction of the evidence. 
4

 In this case, it is undisputed that the accident caused an injury 

reasonably likely to cause death (medical evidence showed that the 

victim would likely die), and the method used to take the blood sample 

(by medical personnel) was reasonable. Thus, requirements (a) and (b) of 

section 321J.10A(1) were satisfied, and the defendant does not contend 

otherwise. The only issue is whether the requirement of subsection (c) 

has been satisfied, i.e., whether the peace officer reasonably believed he 

was confronted with an emergency situation in which the delay 

necessary to obtain a warrant threatened the destruction of evidence. 

This case presents an issue of first impression in the application of Iowa 

Code section 321J.10A(1). 

A. The Exigency Argument. The issue raised in this case was 

addressed by the United States Supreme Court in Schmerber v. 

California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In 

Schmerber the Court concluded that the warrantless withdrawal of blood 

from an individual implicates the Fourth Amendment to the United 

States Constitution. It said, “[t]he overriding function of the Fourth 

Amendment is to protect personal privacy and dignity against 

unwarranted intrusion by the State,” and the extraction of blood “plainly 

constitute[s a search] of ‘persons’ and depend[s] antecedently upon 

seizures of ‘persons,’ within the meaning of that Amendment.” 

Schmerber, 384 U.S. at 767, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918. 

Despite Fourth Amendment implications, the Court recognized that 

alcohol naturally dissipates from the body shortly after its consumption 

and concluded the warrantless seizure of blood for purposes of chemical 

testing may be justified by the exigent-circumstances exception to the 

warrant requirement of the Fourth Amendment. The Court stated that 

the police officer in Schmerber “might reasonably have believed that he 
5

was confronted with an emergency, in which the delay necessary to 

obtain a warrant, under the circumstances, threatened ‘the destruction 

of evidence.’ ” Id. at 770, 86 S. Ct. at 1835, 16 L. Ed. 2d at 919–20 

(quoting Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883, 

11 L. Ed. 2d 777, 780 (1964)). The wording of the Iowa statute tracks 

closely with the language of Schmerber.1 

 Iowa case law has followed the rationale set forth in Schmerber—

that the natural dissipation of alcohol from the bloodstream may be an 

exigent circumstance making it constitutionally permissible to obtain a 

blood sample without a search warrant. See State v. Legg, 633 N.W.2d 

763, 772 (Iowa 2001) (holding that “there was a real possibility that any 

delay to obtain a warrant would result in the destruction of evidence. . . . 

Even if Legg would not have purposely tried to destroy evidence of her 

blood-alcohol level, this evidence would have naturally dissipated during 

any delay.”); State v. Findlay, 259 Iowa 733, 743, 145 N.W.2d 650, 656 

(1966) (holding that the delay required to obtain a search warrant would 

result in the destruction of evidence of an alcohol-related offense). 

 The State here bases its argument for admission of the blood-test 

evidence on the exigency rationale of Schmerber and Iowa Code section 

321J.10A(1). The exigency, of course, is the natural tendency of alcohol 

 1

The destruction of evidence in alcohol-related offenses is unique. This court 

has recognized two ways by which evidence of alcohol-related offenses can be destroyed. 

“First, a suspect could ingest more alcohol, skewing the alcohol content higher and 

corrupting any evidence of prior consumption. Second, the blood alcohol level naturally 

dissipates during a delay.” State v. Lovig, 675 N.W.2d 557, 566 (Iowa 2004) (citation 

omitted) (footnote omitted). It is the latter that is of concern in the present case. 

Alcohol is absorbed into the blood shortly after it is ingested. E. John Wherry, Jr., 

Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 Am. J. Trial Advoc. 

503, 515 (1996). Once all of the alcohol has been absorbed from the stomach and the 

small intestine into the bloodstream, the level of alcohol in the blood is at a maximum. 

Id. Thereafter, the alcohol concentration in the blood slowly decreases as the alcohol 

dissipates from the human body. Id. In general, alcohol dissipates from an average 

person’s body at a rate of .015% to .020% per hour. Id. at 516. The alcohol will 

continue to dissipate until it is completely eliminated from the body. Id. at 515. 
6

to dissipate from a person’s system. Johnson, on the other hand, 

contends the warrantless withdrawal of his blood did not comport with 

section 321J.10A and was unreasonable for Fourth Amendment 

purposes for two reasons: (1) the officer could have reduced the exigency 

by applying for a warrant by telephone under Iowa Code section 321J.10, 

and (2) there was no real exigency because a later sample could be used 

to determine the alcohol concentration at an earlier time through the 

process of extrapolation. 

 The impact of Schmerber and statutes such as our Iowa Code 

section 321J.10A(1), allowing extraction of blood without a warrant, have 

been discussed by cases from other jurisdictions with mixed conclusions. 

The Wisconsin Supreme Court has observed that 

 Schmerber can be read in either of two ways: (a) that 

the rapid dissipation of alcohol in the bloodstream alone

constitutes a sufficient exigency for a warrantless blood draw 

to obtain evidence of intoxication following a lawful arrest for 

a drunk driving related violation or crime—as opposed to 

taking a blood sample for other reasons, such as to 

determine blood type; or (b) that the rapid dissipation of 

alcohol in the bloodstream, coupled with an accident, 

hospitalization, and the lapse of two hours until arrest, 

constitute exigent circumstances for such a blood draw. 

State v. Bohling, 494 N.W.2d 399, 402 (Wis. 1993) (emphasis added). A 

majority of the Wisconsin court adopted the first rationale—that the 

rapid dissipation of alcohol alone constitutes a sufficient exigency to 

withdraw blood without a warrant. Id. The court discussed several 

cases and other authorities, which, it observed, had a similar view. Id. at 

403–05. 

 According to the dissent in Bohling, the majority “makes seizure of 

a blood sample without a warrant reasonable per se under the Fourth 

Amendment.” 494 N.W.2d at 406 (Abrahamson, J., dissenting). Other 
7

courts have rejected Bohling’s application of Schmerber. The Utah 

Supreme Court, for example, stated that: 

 Contrary to the assertion of the State, Schmerber does 

not stand for the proposition that the loss of evidence of a 

person’s blood-alcohol level through the dissipation of 

alcohol from the body was a sufficient exigency to justify a 

warrantless blood draw. Rather, these three categories of 

“special facts” combined to create the exigency. The 

evanescence of blood-alcohol was never special enough to 

create an exigent circumstance by itself. 

State v. Rodriguez, 156 P.3d 771, 776 (Utah 2007). We agree with this 

interpretation of Schmerber. In fact, the Court in Schmerber seemed to 

reject the notion of per se exigency in such cases. It said: 

We . . . conclude that the present record shows no 

violation of petitioner’s right under the Fourth and 

Fourteenth Amendments to be free of unreasonable searches 

and seizures. It bears repeating, however, that we reach this 

judgment only on the facts of the present record. The integrity 

of an individual’s person is a cherished value of our society. 

That we today hold that the Constitution does not forbid the 

States minor intrusions into an individual’s body under 

stringently limited conditions in no way indicates that it 

permits more substantial intrusions, or intrusions under 

other conditions. 

Schmerber, 384 U.S. at 772, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920 

(emphasis added). The “present record” referred to in Schmerber showed 

that time had to be taken by the arresting officer to investigate the scene 

of the accident, to attend to injuries, and process the defendant. Id. at 

770–71, 86 S. Ct. at 1835–36, 16 L. Ed. 2d at 919–20. So, there was 

more underlying the seizure of blood in Schmerber than the mere 

phenomenon of alcohol dissipation. 

 Time-based considerations similar to those in Schmerber are 

present in Johnson’s case. The accident occurred at approximately 4:41 

p.m. Johnson left the scene. Police officers arrived, dealt with the 

victim’s injuries, interviewed witnesses, and went looking for Johnson. 
8

They found Johnson several blocks away. A traffic officer specializing in 

OWI enforcement and fatality investigations was called. Johnson 

attempted, but failed, field sobriety tests. He was then transported to the 

traffic office to obtain a breath sample (which he refused), and he was 

ultimately transported to the hospital. There, at 7:20 p.m., his blood was 

drawn. 

 In all, more than two and a half hours passed between the time of 

the accident and the time Johnson’s blood was drawn. During this time, 

his blood-alcohol concentration was continually diminishing due to the 

natural dissipation of alcohol. The traffic officer testified that he believed 

evidence of Johnson’s blood-alcohol concentration would be destroyed if 

he waited to draw blood until after a search warrant was obtained. We 

conclude that the officers complied with section 321J.10A, which 

requires only a reasonable belief that the delay necessary to obtain a 

warrant would threaten the destruction of the evidence. 

B. The Telephone Warrant Argument. Johnson argues that 

Iowa Code section 321J.10, which allows an officer to obtain a telephonic 

search warrant, would have speeded up the warrant process and thereby 

reduced the effect of dissipation of alcohol from his blood. That section 

provides: 

Notwithstanding section 808.3 [requiring written 

applications], the issuance of a search warrant under this 

section may be based upon sworn oral testimony 

communicated by telephone if the magistrate who is asked to 

issue the warrant is satisfied that the circumstances make it 

reasonable to dispense with a written affidavit. The following 

shall then apply[.] 

Iowa Code § 321J.10(3). While a telephone warrant might be obtained 

more quickly than a traditional warrant, we do not think it would have 

significantly reduced the exigency in this case. Obtaining a warrant by 
9

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 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). 

 Despite the availability of a telephone warrant, we believe the facts 

of this case still show the exigency required by Schmerber and section 

321J.10A. Considerable time had elapsed following the accident before 

the need for any warrant—traditional or telephonic—became apparent. 

Perhaps more importantly, we believe that Iowa Code section 321J.10A 

eliminates the requirement for any warrant, telephonic or traditional, if 

the specified conditions are met. 

 The Fourth Circuit addressed the effect of telephone warrants 

under a federal rule almost identical to Iowa Code section 321J.10. The 

court stated: 
10

 [The defendants] argue that the police should have 

gotten a warrant via the telephone as allowed by Fed. R. 

Crim. P. 41(c)(2). Because of this procedure, they assert that 

no exigency existed. At first blush, this argument is 

convincing. However, analysis of the intricate requirements 

of Rule 41(c)(2) shows that the existence of the rule does not 

alter the exigency of the situation. 

 Rule 41(c)(2)(B) requires that the police prepare a 

document known as “a duplicate original warrant” before

calling the magistrate judge. Rule 41(c)(2)(B) also requires 

that the police must read the document verbatim to the 

magistrate judge. The magistrate judge must enter verbatim 

what is read to him onto a document known as the original 

warrant. Rule 41(c)(2)(D) requires the magistrate judge to 

place under oath the police officer requesting the warrant 

and anyone whose testimony forms a basis of the 

application. Further, Rule 41(c)(2)(D) requires the magistrate 

judge to record the conversation if a voice recording device is 

available; otherwise, the magistrate judge must arrange for a 

stenographic or longhand verbatim record to be made. 

Obviously, compliance with these rules takes time. Time is 

what is lacking in these circumstances [due to the natural 

dissipation of alcohol.] 

United States v. Reid, 929 F.2d 990, 993 (4th Cir. 1991). The court 

concluded that the availability of a warrant by telephone did not vitiate 

the exigency upon which the seizure of the sample was justified. We 

agree in this case. 

C. The Extrapolation Argument. Johnson argues that any 

exigency underlying the need for a prompt blood test is diminished by 

the fact that his blood-alcohol level at the time of the offense could be 

determined by extrapolation—analyzing a later specimen by applying 

standardized criteria to determine blood alcohol at an earlier time. It is 

clear, however, that this is far from an exact science. The defendant’s 

own expert testified that the accuracy of this method is subject to 

variables such as the type of drink consumed and the contents of the 

person’s stomach. The State’s expert was even more guarded in his 

assessment of this process, testifying that extrapolation is “just an 

approximation. It’s just an estimation.” 
11

The court in People v. Thompson, 135 P.3d 3 (Cal. 2006), stated: 

 We are . . . unpersuaded by defendant’s claim that any 

exigency is eliminated because of the possibility an expert 

could testify about the defendant’s blood-alcohol level at an 

earlier point “by extrapolating backward from the later-taken 

results.” As courts have recognized, “such extrapolations 

can be speculative.” 

Thompson, 135 P.3d at 12 (quoting Bohling, 494 N.W.2d at 405). The 

court in Thompson identified some of the factors that may affect the 

extrapolated result, including weight of the person, the timing and 

content of the last meal, and physical exertion. Id. 

 We conclude that the possibility of an extrapolated blood-alcohol 

percentage did not remove the exigency in this case. Section 321J.10A(1) 

contemplates accurate blood-test results obtained from samples that are 

reasonably contemporaneous with the event in question—not obtaining 

blood-alcohol results through the process of extrapolation, which is 

concededly less accurate. 

 We find no error in the trial court’s conclusions and therefore 

affirm. 

AFFIRMED. 

 All justices concur except Ternus, C.J., who takes no part.