IN THE SUPREME COURT OF IOWA

No. 19–1219

Submitted December 16, 2020—Filed May 14, 2021

STATE OF IOWA,

Appellee,

vs.

BRIAN De ARRIE McGEE,

Appellant.

Appeal from the Iowa District Court for Polk County, William Price 

(motion to suppress), Senior Judge, Becky Goettsch (trial) and Christopher 

Kemp (sentencing), District Associate Judges.

A defendant appeals his conviction for operating a motor vehicle 

while intoxicated, contending that the district court erred in denying his 

motion to suppress the results of a blood test. REVERSED AND 

REMANDED.

Mansfield, J., delivered the opinion of the court, in which 

Christensen, C.J., and Waterman, McDonald, and McDermott, JJ., joined. 

McDermott, J., filed a special concurrence in which Christensen, C.J., and 

Waterman, J., joined. Appel, J., filed a dissenting opinion. Oxley, J., filed 

a dissenting opinion in which Appel, J., joined.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy

(argued), Assistant Appellate Defender, for appellant.
2

Thomas J. Miller, Attorney General, Louis S. Sloven (argued), 

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

Curry and Kailyn Heston, Assistant County Attorneys, for appellee.
3

MANSFIELD, Justice.

“Affirm if you can, reverse if you must, but never remand.” We 

receive this advice often from our colleagues on the trial bench. Here, 

however, the law changed after this case was heard in the district court. 

In June 2019, the United States Supreme Court decided that the Fourth 

Amendment “almost always” permits warrantless blood draws from 

unconscious drivers when the police have probable cause to believe the 

driver was operating while under the influence of alcohol. Mitchell v. 

Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2539 (2019) (plurality 

opinion). The Court allowed for an exception in the “unusual case” where 

the defendant can “show that his blood would not have been drawn if 

police had not been seeking BAC information, and that police could not 

have reasonably judged that a warrant application would interfere with 

other pressing needs or duties.” Id. at ___, 139 S. Ct. at 2539. As we 

discuss herein, this significant development in the law necessitates a 

remand.

The defendant caused a two-vehicle accident by driving recklessly. 

The occupants of both vehicles were injured. The defendant was rendered

unconscious, suffered a head injury, and was taken to the hospital 

smelling strongly of marijuana. A police officer was dispatched to the 

hospital to arrange for blood testing of the defendant. The defendant had 

been sedated for treatment and a medical professional certified pursuant 

to Iowa Code section 321J.7 (2018) that the defendant was unable to 

consent or refuse blood testing. Testing was performed, therefore, without 

the defendant’s permission. It confirmed that the defendant had both THC 

and THC metabolites in his system. The defendant’s motion to suppress 

this testing was overruled and the defendant was convicted of operating 

while intoxicated (OWI) in violation of Iowa Code section 321J.2.
4

On appeal, the defendant argues that this warrantless blood draw 

violated Iowa Code section 321J.7, the Fourth Amendment to the United 

States Constitution, and article I, section 8 of the Iowa Constitution. We 

find the State complied with section 321J.7. Regarding the Fourth 

Amendment, we hold that Mitchell applies to cases of suspected driving 

while under the influence of controlled substances, in addition to alcoholrelated cases. However, because the parties did not have an opportunity 

to make a record under the Mitchell standard, we must utilize that dreaded 

remand. We also hold that article I, section 8 does not provide greater 

protection from warrantless blood draws than the Mitchell standard. 

Accordingly, we reverse the judgment below and remand for further 

proceedings in accordance with this opinion.

I. Facts and Procedural Background.

On the afternoon of Saturday, December 8, 2018, at around 2 p.m.,

a call went out to Des Moines police to alert them of a vehicle collision on 

Euclid Avenue. Dispatch indicated there were numerous injuries and one 

person unconscious. Brian McGee was extracted from the driver’s seat of 

one of the vehicles at the scene and taken to the hospital in critical 

condition, having suffered a head injury and having been rendered 

unconscious from the accident. Witnesses at the scene of the accident 

indicated to police that McGee had been traveling at a high rate of speed 

and failed to yield before making a left turn. This led to the collision with 

the other vehicle. Five occupants of the other vehicle were injured and 

had to be transported by medics to the hospital as well. It was determined 

when they reached the hospital that their injuries were not lifethreatening.

Traffic was diverted away from the collision area. Both vehicles were 

towed away. It took until 4:30 p.m. to restore traffic. As police officers 
5

and medics tended to McGee, they noticed a strong odor of marijuana 

coming from his person. An on-call Des Moines police officer—Tim 

Fricke—was summoned to report for duty and assigned the task of 

arranging for testing of McGee based on suspicions that he had been 

driving while impaired.

Upon arriving at the hospital, Officer Fricke was informed by medical 

staff that McGee had been sedated and would be unable to perform any 

initial screening tests for impairment or to provide a refusal or consent for 

blood testing. Also, Officer Fricke could see that McGee was unresponsive. 

Officer Fricke did not attempt to obtain a warrant. He later testified that 

he could have done so, but the Des Moines Police Department policy was 

to obtain a warrant for blood testing of a nonresponsive driver only if the 

offense would be a third or subsequent OWI or there was a serious injury 

or death. 

Shortly before 4 p.m., Officer Fricke handed an official request for 

blood testing and a certification form to an advanced registered nurse 

practitioner who was present. The nurse completed and signed the 

certification that McGee was presently unable to give consent or refusal 

for testing. At this point, the medical staff initiated the steps necessary to 

draw blood from McGee. While this was going on, McGee suddenly awoke 

in a muddled state. McGee repeated the word “pee” frantically and began 

to urinate on himself as medical staff and his family attempted to help him

sit up and urinate into a receptacle. During this time, McGee did not 

respond or even attempt to answer questions asked about his condition.

He passed out again after being calmed by family and further attended to 

by medical staff. At around 4:10 p.m., McGee’s blood was drawn. Results 

from the tests showed traces of lorazepam and delta-tetrahydrocannabinol 
6

(THC) along with the presence of both the impairing and nonimpairing THC 

metabolites.1

On March 13, 2019, the State filed a trial information in the Polk 

County District Court charging McGee with OWI first offense. On April 11, 

McGee filed a motion to suppress the evidence obtained as a result of the 

warrantless blood draw, arguing the State needed “a warrant or exigent 

circumstances.”

An evidentiary hearing took place on May 7 and 8 at which Officer 

Fricke testified and both his body cam video and the certification form 

were received in evidence. At the conclusion of the hearing, the district 

court denied McGee’s motion to suppress. The district court ruled the 

State had complied with Iowa Code section 321J.7 in undertaking the 

warrantless blood draw and that neither the United States Constitution 

nor the Iowa Constitution required the State to obtain a warrant for the 

blood draw.

Thereafter the parties stipulated to a trial on the minutes. The 

district court found McGee guilty of first-offense OWI under the Iowa Code 

section 321J.2(1)(c) alternative (“any amount of a controlled substance is 

present in the person, as measured in the person’s blood”). The district 

court expressly declined to find McGee guilty under section 321J.2(1)(a) 

(the “under the influence” alternative). McGee was sentenced to one year 

in jail with all but seven days suspended, fined $1250, and ordered to pay 

over $10,000 in restitution to various victims.

II. Standard of Review.

McGee’s motion to suppress raised both statutory and 

constitutional grounds. As to the statutory ground, our review is for 

 

1The tests showed 15 ng/mL lorazepam, 17 ng/mL THC, 3 ng/mL hydroxy-THC, 

and 59 ng/mL carboxy-THC.
7

correction of errors at law and the district court’s findings of fact are 

binding if supported by substantial evidence. See State v. Smith, 926 

N.W.2d 760, 762 (Iowa 2019). With respect to the constitutional grounds, 

our review is de novo. State v. Fogg, 936 N.W.2d 664, 667 (Iowa 2019).

III. Legal Analysis.

Iowa Code section 321J.7 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 section 321J.6, and the test may be given if a licensed 

physician, physician assistant, or advanced registered nurse 

practitioner certifies in advance of the test that the person is 

unconscious or otherwise in a condition rendering that person 

incapable of consent or refusal.2

In this case, an advanced registered nurse practitioner certified at 

3:59 p.m. on December 8, 2018, that McGee was incapable of consent or 

refusal, having received intravenous injections of Ativan, Fentanyl, and 

Haldol. McGee maintains that the blood draw was unlawful and violated 

both the Fourth Amendment to the United States Constitution and article 

I, section 8 of the Iowa Constitution.

A. Compliance with Iowa Code Section 321J.7. Before getting to 

the constitutional questions, we will address McGee’s claim that the blood 

 

2Iowa Code section 321J.7 incorporates by reference the notion of implied consent 

set forth in section 321J.6. That latter section provides in part,

A person who operates a motor vehicle in this state under 

circumstances which give reasonable grounds to believe that the person 

has been operating a motor vehicle in violation of section

321J.2 or 321J.2A 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 a controlled substance or other drugs, subject 

to this section.

Iowa Code § 321J.6(1). “Iowa’s implied consent law ‘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.” ’ ” State v. Garcia, 756 N.W.2d 216, 220 (Iowa 2008) (quoting State v.

Knous, 313 N.W.2d 510, 512 (Iowa 1981)).
8

draw did not comply with the statute. When the nurse completed the 

certification at 3:59 p.m., McGee was sedated and appeared to be asleep. 

As preparations were being made for the blood draw around 4:04 p.m., 

McGee stirred. He made some irregular movements and indicated he had 

to “pee.” With assistance he sat up at the front of the hospital bed. He 

urinated—initially on himself and on the floor of the hospital room and 

later into a urinal that was held for him. At approximately 4:06 p.m.,

McGee was helped to lie back down. He appeared to fall back asleep. The 

actual blood draw occurred four minutes later at 4:10 p.m.

McGee claims that a new certification should have been obtained in 

light of his waking up temporarily to urinate. The district court disagreed, 

finding that McGee’s condition did not materially change during the eleven 

minutes between the certification and the actual blood draw. The court 

noted that McGee remained “totally unresponsive to the questions of the 

medical professionals [during the blood draw].” The recording on Officer

Fricke’s body cam shows the full sequence of events from 3:59 to 4:10 p.m. 

The district court’s factual findings are supported by substantial evidence. 

See State v. Axline, 450 N.W.2d 857, 859–60 (Iowa 1990) (stating that 

“[c]onsiderable deference should be given to a trial court’s factual findings” 

under Iowa Code § 321J.7, and that a person who is conscious can 

nevertheless be “in a condition rendering him incapable of giving or 

refusing consent”).

As a matter of statutory interpretation, we agree that Iowa Code 

section 321J.7 does not usually require recertification when the blood 

draw occurs within eleven minutes of the initial certification. 

Certifications do not expire in eleven minutes, at least without clearer

evidence that the driver has become capable of refusing or consenting in 

the meantime. Statutes come with a presumption of reasonableness, see
9

Iowa Code § 4.4(3), and this is a reasonable approach. We hold that the 

blood draw complied with section 321J.7.

B. Constitutionality of the Blood Draw Under the Fourth 

Amendment. We now turn to McGee’s Fourth Amendment objection to 

the admission of the blood test results. In a series of recent decisions, the 

United States Supreme Court has applied the Fourth Amendment to blood 

alcohol testing. Its opinions, somewhat like the allegedly intoxicated driver 

whose rights they have sought to define, have twisted and turned 

somewhat. They have not necessarily hewed to a straight path.

In Missouri v. McNeely, the Court rejected the proposition that the 

dissipation of alcohol in the blood justified a per se exigent-circumstances 

exception to the warrant requirement. 569 U.S. 141, 152, 156, 165, 133 

S. Ct. 1552, 1561, 1563, 1568 (2013). As the Court put it,

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. Whether a warrantless blood 

test of a drunk-driving suspect is reasonable must be 

determined case by case based on the totality of the 

circumstances.

Id. at 156, 133 S. Ct. at 1563.

This then led to the question whether other exceptions to the 

warrant requirement might apply. In Birchfield v. North Dakota, the Court 

held that the search-incident-to-arrest (SITA) exception to the warrant 

requirement authorized breath tests, but not blood tests, for alcohol. 579

U.S. ___, ___, 136 S. Ct. 2160, 2185 (2016). The Court reasoned,

Blood tests are significantly more intrusive, and their 

reasonableness must be judged in light of the availability of 

the less invasive alternative of a breath test. Respondents 

have offered no satisfactory justification for demanding the 

more intrusive alternative without a warrant.
10

Id. at ___, 136 S. Ct. at 2184. Addressing the situation where the driver 

might not be capable of performing a blood test, the Court commented,

It is true that a blood test, unlike a breath test, may be 

administered to a person who is unconscious (perhaps as a 

result of a crash) or who is unable to do what is needed to take 

a breath test due to profound intoxication or injuries. But we

have no reason to believe that such situations are common in 

drunk-driving arrests, and when they arise, the police may 

apply for a warrant if need be.

Id. at ___, 136 S. Ct. at 2184–85.

Lastly, in June 2019, one month after the suppression ruling in this 

case, the Court decided Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 

2525. Mitchell seemingly walked back (1) McNeely’s rejection of categorical 

exigent-circumstances exceptions and (2) Birchfield’s endorsement of 

warrant applications for blood tests of incapacitated persons. Mitchell

presented the question of whether a warrant was needed for a blood draw 

from an unconscious driver. Id. at ___, 139 S. Ct. at 2529–30. The Mitchell

plurality opinion concluded as follows:

When police have probable cause to believe a person 

has committed a drunk-driving offense and the driver’s 

unconsciousness or stupor requires him to be taken to the 

hospital or similar facility before police have a reasonable 

opportunity to administer a standard evidentiary breath test, 

they may almost always order a warrantless blood test to 

measure the driver’s BAC without offending the Fourth 

Amendment. We do not rule out the possibility that in an 

unusual case a defendant would be able to show that his 

blood would not have been drawn if police had not been 

seeking BAC information, and that police could not have 

reasonably judged that a warrant application would interfere 

with other pressing needs or duties. Because Mitchell did not 

have a chance to attempt to make that showing, a remand for 

that purpose is necessary.

Id. at ___, 139 S. Ct. at 2539 (plurality opinion). 

The Mitchell plurality reached back toward the reasoning in 

Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966), a case the 
11

Supreme Court had decided over a half-century earlier. See Mitchell, 588

U.S. at ___, 139 S. Ct. at 2537 (“Schmerber controls.”). In Schmerber, the 

Court had upheld a warrantless blood draw from a conscious, suspected 

drunk driver. 384 U.S. at 772, 86 S. Ct. at 1836. It did so on the basis

that blood alcohol “begins to diminish shortly after drinking stops” and 

“where time had to be taken to bring the accused to a hospital and to 

investigate the scene of the accident, there was no time to seek out a 

magistrate and secure a warrant.” Id. at 770–71, 86 S. Ct. at 1836.

Justice Thomas, concurring in the judgment, provided the 

necessary fifth vote in Mitchell. See Mitchell, 588 U.S. at ___, 139 S. Ct. at 

2539 (Thomas, J., concurring in the judgment). He had dissented in 

McNeely. See 569 U.S. at 176, 133 S. Ct. at 1574 (Thomas, J., dissenting). 

Concurring in the result only in Mitchell, Justice Thomas reiterated his 

view that the natural metabolization of alcohol in the blood stream creates 

a per se exigency and a per se exception to the warrant requirement 

whenever law enforcement have probable cause to believe a driver is 

drunk. See 588 U.S. at ___, 139 S. Ct. at 2539.

“Under the narrowest grounds doctrine, the holding of a fragmented 

Supreme Court decision with no majority opinion ‘may be viewed as that 

position taken by those Members who concurred in the judgments on the 

narrowest grounds.’ ” State v. Iowa Dist. Ct., 801 N.W.2d 513, 522 (Iowa 

2011) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990,

993 (1977)). Hence, for Fourth Amendment purposes, the Mitchell

plurality opinion controls.

The Mitchell plurality stated,

[E]xigency exists when (1) BAC evidence is dissipating and 

(2) some other factor creates pressing health, safety, or law 

enforcement needs that would take priority over a warrant 

application. Both conditions are met when a drunk-driving 
12

suspect is unconscious, so Schmerber controls: With such 

suspects, too, a warrantless blood draw is lawful.

588 U.S. at ___, 139 S. Ct. at 2537. Thus, Mitchell stands for a rule that 

whenever probable cause exists to believe an unconscious driver has 

committed drunk driving, a warrantless blood draw would “almost always” 

be acceptable. Id. at ___, 139 S. Ct. at 2539. The only exception arises 

where law enforcement “could not have reasonably judged that a warrant 

application would interfere with other pressing needs or duties.” Id. at ___, 

1139 S. Ct. at 2539. Exigent circumstances, in other words, is defined 

generously, and is based on law-enforcement workload.

3

If McGee had smelled of an alcoholic beverage rather than 

marijuana, there would be no doubt that Mitchell applies to this case. But 

those are not the facts. McGee’s erratic driving, combined with the “strong 

odor” of burnt marijuana coming from him at the scene and at the hospital, 

gave the police probable cause to conclude that he had violated the 

controlled substance prongs of Iowa Code section 321J.2(1). See Iowa Code 

§ 321J.2(1)(a) & (c); State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011) (“[A]

trained officer’s detection of a sufficiently distinctive odor, by itself or when 

accompanied by other facts, may establish probable cause.”); State v. 

McMullen, 940 N.W.2d 456, 461 (Iowa Ct. App. 2019) (“McMullen points to 

no authority requiring the officer to describe the odor with the specificity 

of a sommelier.”). However, there was not enough here for a drunk driving 

probable cause determination. So the question we need to answer is 

whether Mitchell extends to controlled substances.

 

3As we discuss below, this Mitchell rule shares some characteristics with our 1966

holding under both the Fourth Amendment and article I, section 8 in a case involving an 

unconscious driver suspected of driving under the influence of alcohol. See State v. 

Findlay, 259 Iowa 733, 743, 145 N.W.2d 650, 656 (1966).
13

We think it does. At least one commentator has expressed this view:

Mitchell could also provide justification for warrantless blood 

draws in cases where someone is suspected of driving under 

the influence of drugs, which also present a continuous risk 

that evidence is being destroyed through the suspect’s 

metabolic processes. . . . Mitchell will likely play a role in 

future cases with drivers who are under the influence of 

drugs, which present similar, if not elevated, potential health, 

safety, and law enforcement needs.

The Supreme Court, 2018 Term—Leading Cases, 133 Harv. L. Rev. 302, 

310 n.86 (2019). 

Additionally, the South Carolina Supreme Court utilized the Mitchell

plurality’s standard in a case of controlled substances. See State v. McCall,

839 S.E.2d 91 (S.C. 2020). In McCall, the driver was involved in a very 

serious accident. Id. at 92. Officers “quickly believed that [the driver] was 

impaired by a substance other than alcohol.” Id. at 95. The court found 

that exigent circumstances existed for a warrantless blood draw given the 

other duties of the officers and the likelihood that it would have taken 

ninety minutes to obtain a warrant. Id. at 95. The court added, “While 

alcohol has a relatively steady dissipation rate, other substances dissipate 

much faster.” Id. In a footnote, the court adverted to expert testimony 

that the active ingredient in marijuana (THC) metabolizes more rapidly 

than alcohol. Id. at 95 n.2.

We have noted in our cases that “nonimpairing metabolites” of 

marijuana can remain in the body for some time and that any amount of 

these metabolites in blood or urine can constitute a violation of Iowa Code 

section 321J.2. See State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017); see 

also State v. Newton, 929 N.W.2d 250, 256–59 (Iowa 2019). THC itself 

apparently dissipates much more quickly. See Andrea Roth, The Uneasy 

Case for Marijuana as Chemical Impairment Under a Science-Based 

Jurisprudence of Dangerousness, 103 Calif. L. Rev. 841, 885 (2015) (“THC 
14

from smoked cannabis is ‘detectable in plasma within seconds after the 

first puff,’ with peak plasma concentration generally happening within 

three to ten minutes.” (quoting Priyamvada Sharma et al., Chemistry, 

Metabolism, and Toxicology of Cannabis: Clinical Implications, 7 Iran J. 

Psychiatry 149, 151 (2012))). While THC can be found in the body “several 

hours or even days after consumption, depending on the frequency and 

amount of usage,” id., and “marijuana’s unpredictable properties render 

nearly impossible any inference about the likely psychoactive effect on the 

brain of a specific THC blood level,” id. at 887, the presence of THC in the 

blood makes the case for impairment stronger than it otherwise would be.

Law enforcement is not required to settle for the minimum in 

suspected OWI drug cases. Detection of the nonimpairing and long-lasting 

metabolite carboxy-THC is enough to establish OWI under Iowa law. See 

Newton, 929 N.W.2d at 256–59; Childs, 898 N.W.2d at 184. That’s the 

bare minimum. But there are legitimate reasons why law enforcement 

would want more—namely, proof that fast-dissipating THC itself was in 

the driver’s system. For one thing, evidence that the driver actually had 

the active ingredient and not merely an inert byproduct in their system 

might help avoid jury nullification in an era when criminalization of 

marijuana use has become increasingly controversial. 

Also, if the driver unintentionally caused a serious injury to another 

person by operating a motor vehicle while intoxicated, that’s a class “D”

felony. See Iowa Code § 707.6A(4). In State v. Adams, a prosecution for 

the related crime of causing someone’s death while intoxicated, we 

indicated that the State has the burden “to prove a causal connection 

between the defendant’s intoxicated driving and the victim’s death.” 810

N.W.2d 365, 371 (Iowa 2012). So, if there is a potential for serious injuries, 

the State needs proof that the defendant was actually under the influence, 
15

and not merely had vestiges of past marijuana use in their bloodstream. 

We recognize that a report had come back from the hospital that the five

occupants of the other vehicle had not suffered serious injuries. Still, 

situations like this can be fluid. Here, one of the injured children needed 

thirteen stitches, missed two weeks of school, and was still scared of 

traveling in a car three and a half months later. 

Additionally, from a victim restitution standpoint, it matters whether 

the defendant was under the influence of THC or just technically had a 

nonimpairing metabolite in their system. See Iowa Code § 910.1(6) 

(defining “pecuniary damages” for purposes of victim restitution as 

damages “which a victim could recover against the offender in a civil action 

arising out of the same facts or event”); State v. Shears, 920 N.W.2d 527, 

539 (Iowa 2018) (“[M]any of our criminal restitution cases employ the 

causation test applicable in ordinary tort settings.”). Notably, the 

restitution award here amounted to more than $10,000.

We have ourselves analogized the body’s natural elimination of 

drugs to its natural elimination of alcohol, and upheld a warrantless 

stomach pump for drug evidence on that basis. See State v. Strong, 493 

N.W.2d 834 (Iowa 1992). Thus, in Strong, we explained,

[I]t is common knowledge that cocaine, once ingested orally, 

is absorbed into the blood and, like alcohol, is eliminated by 

the body. Therefore, the passage of time alone will operate to 

destroy the evidence. We conclude, under the rationale 

of Schmerber, that exigent circumstances existed here which 

justified a warrantless search.

Id. at 837. Notably, the rationale of Schmerber, which we relied upon in 

Strong, is essentially the rationale of Mitchell. See Mitchell, 588 U.S. at ___, 

139 S. Ct. at 2537.

For all these reasons, we conclude that the Fourth Amendment 

standards in Mitchell apply when law enforcement has probable cause to 
16

believe that an incapacitated person committed OWI with respect to 

marijuana instead of alcohol.4 This then leads to the question whether we 

should apply those standards ourselves or remand for the district court to 

do so. With verve and gusto, the State has gone through the minutes in 

its appellate briefing and detailed for us how it believes the Mitchell

exigent-circumstances standard was met. In the State’s view, this was a 

very busy Saturday afternoon for the Des Moines police.

But no one had a real opportunity to make a record in the district 

court because the Supreme Court had not decided Mitchell yet. 

Accordingly, we think the appropriate course under the Fourth 

Amendment is to reverse and remand with directions to conduct a 

suppression hearing under the Mitchell test: Is this a situation where 

Officer Fricke “could not have reasonably judged that a warrant 

application would interfere with other pressing needs or duties”? Id. at 

___, 139 S. Ct. at 2539. Other state appellate courts have followed this 

course of action in light of Mitchell. See, e.g., McGraw v. State, 289 So. 3d 

836, 838–39 (Fla. 2019); State v. Chavez-Majors, 454 P.3d 600, 607–08

 

4One of the dissenting opinions argues that the State had to “present[] facts to the 

district court to support the compelling need to obtain evidence of active THC.” This 

would be inconsistent with Mitchell, where the plurality instead relied on legislative facts 

to establish a general rule upholding warrantless blood draws from incapacitated drivers

suspected of drunk driving, subject only to an exception where the “police could not have 

reasonably judged that a warrant application would interfere with other pressing needs 

or duties.” Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539. As the plurality elaborated in a 

footnote,

[W]e adopt a rule for an entire category of cases—those in which a motorist 

believed to have driven under the influence of alcohol is unconscious and 

thus cannot be given a breath test. This rule is not based on what 

happened in petitioner’s particular case but on the circumstances 

generally present in cases that fall within the scope of the rule.

Id. at ___ n.2, 139 S. Ct. at 2534 n.2.
17

(Kan. 2019); State v. Key, 848 S.E.2d 315, 349 (S.C. 2020).5 Now we do 

so as well.

C. Constitutionality of the Blood Draw Under Article I, Section 

8. We believe State v. Findlay provides the starting-point for article I, 

section 8 analysis of warrantless blood draws of allegedly intoxicated but 

incapacitated drivers. 259 Iowa 733, 145 N.W.2d 650 (1966).6 In Findlay, 

the defendant was traveling down an Iowa highway northbound when his 

vehicle collided with another automobile traveling in the opposite 

direction. Id. at 735, 145 N.W.2d at 652. All occupants of both 

automobiles were injured. Id. At the scene of the accident, witnesses 

observed a semi-conscious defendant who smelled strongly of liquor. Id.

Upon arriving at the hospital, the sheriff asked the attending doctor to 

obtain a blood sample from the defendant, who was now unconscious. Id.

The physician refused, but did sign the certification form that the 

defendant was unconscious and not capable of consenting. Id. On the 

sheriff’s order, a registered nurse took the blood sample. Id. It was sent 

 

5McGee asserts that the State did not argue exigent circumstances below. That 

is correct but not surprising since Mitchell had yet not been decided. Instead, McGee

argued there were no exigent circumstances. However, he did not utilize the definition 

which Mitchell later gave to that term, but a narrower meaning taken from McNeely, 

Birchfield, and State v. Pettijohn, 899 N.W.2d 1 (Iowa 2017). The State countered that the 

Iowa Code section 321J.7 procedure for incapacitated drivers was constitutional and its 

constitutionality had not been affected by McNeely, Birchfield, or Pettijohn. The fact that 

neither party had a chance to make a record on the Mitchell standard highlights, again, 

why a remand would be appropriate.

6The State discussed Findlay at some length in its briefing. McGee did not even 

cite Findlay. We caution parties that the vintage of an Iowa constitutional precedent is 

not, in itself, a reason to forgo discussion of that precedent. For example, in 2014 we 

treated State v. Cullison, 173 N.W.2d 533 (Iowa 1970), as the governing precedent in an 

article 8, section 1 case. See State v. Short, 851 N.W.2d 474, 506 (Iowa 2014) (discussing 

and relying on Cullison). We did so even though Cullison does not mention article I, section 

8, and even though our court had not cited Cullison for any reason between 1970 and 

2010.
18

for testing where results indicated the defendant was intoxicated. Id. at 

735–36, 145 N.W.2d at 652.

Following his OWI conviction, the defendant appealed, raising the 

inadmissibility of the blood test. Id. We found the statute had been 

complied with. Id. at 737–38, 145 N.W.2d at 653. We observed that Iowa’s 

implied-consent law for driving, which was then only three years old, 

“properly and clearly provides a workable rule governing ‘searches and 

seizures,’ which rule takes into account the ‘practical demands of effective 

criminal investigation and law enforcement.’ ” Id. at 737, 145 N.W.2d at 

653 (quoting Ker v. California, 374 U.S. 23, 34, 83 S. Ct. 1623, 1630

(1963)). We also concluded that neither the Fourth Amendment nor article 

I, section 8 had been violated, noting that blood tests “are recognized as 

commonplace in these days of periodic physical examinations, the 

quantity of blood needed for the test is minimal, and for most people the 

procedure involves virtually no risk, trauma or pain.” Id. at 739, 145 

N.W.2d at 654. We added,

The public interest requires a holding that the disappearing 

evidence due to bodily assimilation created an emergency 

requiring prompt action. Under these conditions we find no 

unreasonable search and seizure and no substantial violation 

of defendant’s constitutional right of due process.

Id. at 740, 145 N.W.2d at 655. Our analysis on this point rested heavily 

on Schmerber. See id. at 738–39, 741–42, 744, 145 N.W.2d at 654–57.

Thus, Findlay upheld a warrantless blood draw performed on an 

incapacitated driver against both state and federal constitutional 

challenges. At its core, Findlay largely forecasts the plurality opinion in 

Mitchell. We say “largely” because the exigent-circumstances discussions 

in the two opinions are not exactly the same. Mitchell adopts a rule that 

exigent circumstances are “almost always” present, with the only 
19

exception being a light police workload. Findlay likewise gives leeway to 

the State, but focuses on the potential loss of evidence. Hence, Findlay

indicates that when the officer “reasonably believed he was confronted 

with an emergency, a situation in which the delay necessary to obtain a 

warrant threatened ‘the destruction of evidence,’ he can rightfully order 

the blood withdrawal and complete the test.” Id. at 742, 145 N.W.2d at 

656 (citation omitted) (quoting Preston v. United States, 376 U.S. 364, 367, 

84 S. Ct. 881, 883 (1964)). Moreover, Findlay implies that when two hours 

and ten minutes have passed since the accident, exigent circumstances 

are per se present. See id. at 743, 145 N.W.2d at 656.7

Despite the existence of the Findlay precedent, and its heuristic

resemblance to Mitchell, each side in this case prefers that we not follow 

Mitchell under the Iowa Constitution. McGee urges us to apply State v. 

Pettijohn, 899 N.W.2d 1 (Iowa 2017), to his case. Pettijohn held that a 

warrant is ordinarily required under article I, section 8 before taking a 

breath test for blood alcohol from a suspected drunken boater. Id. at 22–

25. We indicated that any exigent-circumstances exception to this warrant 

requirement under the Iowa Constitution should be available only rarely:

[W]hen 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.

Id. at 24 (emphasis added). Although decided under the Iowa Constitution, 

Pettijohn borrowed from the discussions of exigent circumstances in 

McNeely and Birchfield and suggested that the scope of that exception 

 

7Notably, the lapse of time between the accident and the blood draw at the hospital 

was two hours and ten minutes both in Findlay and in the present case.
20

would dwindle in OWI cases as electronic warrants became more 

widespread. See id. at 23–25.

Invoking Pettijohn, McGee argues that a warrant should be required 

for a blood draw from an allegedly intoxicated driver except in the 

infrequent situation when the State cannot feasibly get a warrant on time. 

We decline to adopt that position for two reasons. First, in Pettijohn, we 

expressly limited our decision to boating while intoxicated. Id. at 38. To 

make this clear, we devoted a separate section of the opinion and a 

separate heading to this point. Id.8 Second, if we extended Pettijohn to 

driving, there would be no principled way to limit the extension to blood 

tests. Pettijohn, after all, involved a breath test. And we believe there 

would be significant practical costs in presumptively requiring warrants in 

OWI driving cases—without any corresponding gains in civil liberties.

Intoxicated driving often occurs when intoxication occurs, that is, at 

night and on weekends. And it is unfortunately rather prevalent. In 2019, 

the Iowa Department of Transportation reported 14,395 OWI revocations 

statewide. Iowa DOT, Iowa OWI Revocations by Year and County 2001–

2020 (2021), https://iowadot.gov/mvd/stats/owirevocations.pdf 

[https://perma.cc/69FP-4825]. So if warrants were presumptively 

required, we expect thousands of off-hours warrant applications every 

year. It is true that some drivers might consent, but the scales of the 

consent law could no longer be tipped with adverse consequences for not 

consenting. The typical driver suspected of OWI would therefore have 

 

8A special concurrence articulated reasons why Pettijohn would not apply to 

driving. 899 N.W.2d at 40–41 (Cady, C.J., concurring specially). A dissent criticized 

these distinctions as unsound. Id. at 42–43 (Waterman, J., dissenting). Yet the dissent 

also stated, “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.” Id. at 42.
21

every incentive to buy time by not consenting, thereby forcing law 

enforcement to go through the hoops of obtaining a warrant.

And to what gain in civil liberties? Independent review by a judicial 

officer of the asserted grounds for searching a house, an apartment, a 

computer, or a cellphone matters. A wide variety of reasons for such 

searches exist, and there is no single formula that separates the proper 

from the improper search. Someone needs to sift through the asserted 

grounds for the search, make sure there is probable cause, and limit the 

search appropriately. With OWI, however, there are few if any judgment 

calls by the time a chemical test would be administered. Notably, in this 

case, McGee has not argued that probable cause for a blood draw was 

lacking. That is typical; only in the rare case does the defendant argue 

that implied consent was improperly invoked due to the lack of probable 

cause. More often, the defendant challenges the initial vehicle stop or 

alleges a violation of some statutory procedure. Here the police could have

obtained a warrant and, according to Officer Fricke, would have done so if 

they had been investigating a more serious crime such as OWI third. 

Moreover, with OWI, the relevant events giving rise to probable cause 

happen over a matter of minutes. Recording of those events is feasible, 

unlike with the events allegedly supporting probable cause for search of a 

home. Law enforcement has the incentive to record encounters with 

drivers suspected of OWI under the existing implied-consent regime, and 

those recordings provide more protection to defendants than a formalistic 

warrant requirement would.9

Once a warrant had issued based on law enforcement’s 

representations about signs of intoxication, which we believe would 

 

9See Pettijohn, 899 N.W.2d at 52 (Waterman, J., dissenting) (questioning the value 

of “assembly-line warrants” in OWI cases).
22

routinely occur, the defendant would have great difficulty challenging the 

test results. See State v. Shanahan, 712 N.W.2d 121, 132 (Iowa 2006) 

(noting that once a warrant issues “[w]e do not attempt to independently 

determine probable cause but rather ‘merely decide whether the issuing 

judge had a substantial basis for concluding probable cause existed’ ”

(quoting State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997))). By contrast, 

“[t]he State bears the burden of proving by a preponderance of the evidence 

that a warrant was not needed to authorize a warrantless search.” State 

v. Jackson, 878 N.W.2d 422, 429 (Iowa 2016).

In sum, a presumptive warrant requirement for cases under Iowa 

Code section 321J.2, similar to the one we recognized in Pettijohn for 

section 462A.14 cases, would consume significant resources, both for the 

police and the courts. At the same time, we doubt it would add 

meaningfully to the existing protections for drivers derived from the 

implied-consent law.

Implied-consent laws have been present in all fifty states since the 

1960s and they have not changed all that much during those six decades. 

Their universal adoption suggests that they work and that they aren’t 

viewed as especially controversial. This may explain why the Supreme 

Court in Mitchell seemingly pulled back from its tone in McNeely and 

Birchfield, while gesturing as to the importance of blood alcohol testing. 

See Mitchell, 588 U.S. at ___, 139 S. Ct. at 2535–38 (plurality opinion). The 

Mitchell plurality opinion is inelegant, it reads more like a debater’s 

pamphlet than a tightly written legal analysis, and yet to us it generally 

makes sense.

At the same time that we are reluctant to tow Pettijohn onto dry land 

as McGee asks, we must also decline the State’s invitation to hold Iowa 

Code section 321J.7 per se compliant with the Iowa Constitution. The 
23

State wants us to recognize implied consent as a “free-standing exception”

to the article I, section 8 warrant requirement. The Supreme Court has 

not taken this step in its Fourth Amendment jurisprudence. We agree 

with the State that, in theory, nothing prevents us from adopting a 

narrower interpretation of article I, section 8 than the Supreme Court’s 

interpretation of the Fourth Amendment. Still, in this case, at this time, 

we are not inclined to do so.

Warrant exceptions need to be grounded in an underlying purpose 

or principle. One such principle is that warrantless searches are

permissible when it would be impractical or unduly formalistic to obtain a 

warrant. This has led us to recognize warrant exceptions for exigent 

circumstances, searches incident to arrest, automobile searches, and 

consent. However, an exception needs to be based on something other 

than the legislation that created the exception. The problem with implied 

consent is that it is an artificial construct of Iowa Code chapter 321J. As 

the State acknowledges, implied consent “is not actual consent.” See also 

Mitchell, 588 U.S. at ___, 139 S. Ct. at 2533 (“[O]ur decisions have not 

rested on the idea that these laws do what their popular name might seem 

to suggest—that is, create actual consent to all the searches they 

authorize.”).

For now, therefore, we agree with the State’s fallback position. 

Article I, section 8 does not demand a more rigorous standard than the 

Mitchell plurality imposed for warrantless blood draws on incapacitated 

drivers. Mitchell is a workable state constitutional standard. Accordingly, 

the Fourth Amendment remand we have ordered will resolve any issues 

under article I, section 8.

D. Equal Protection Issues. Finally, McGee argues that it violates 

both the Fourteenth Amendment and article I, section 6 equal protection 
24

for unconscious drivers suspected of OWI to be treated differently from 

conscious drivers. We disagree. Since neither a suspect class nor a 

fundamental right is involved, we apply the rational basis test.10 There are 

rational reasons for treating the two categories of motorists differently. 

Someone who is conscious can decide whether to consent or not to consent 

to testing. So it is logical to give them the choices delineated in Iowa Code 

sections 321J.6 and 321J.9. An unconscious driver by definition can’t 

consent, and it would be unfair to allow such a driver to refuse. Unfair to 

the driver, who would suffer license revocation under section 321J.9; and 

unfair to the State, which would be unable to put the refusal into evidence 

because there had been no exercise of a choice. The Colorado Supreme 

 

10McGee argues that there is a fundamental right involved because a blood draw 

implicates his article I, section 8 right to be free from unreasonable searches of his body. 

This approach is off the mark because it muddles the distinction between equal protection 

and other express constitutional guaranties. The fundamental rights analysis is most 

gainfully employed when a classification impinges upon the exercise of a fundamental 

right that lacks its own explicit constitutional guaranty—such as the right to marry or 

the right to travel. See Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584 (2015); 

Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322 (1969). Where, however, a law has 

already been found not to violate an explicit constitutional guaranty, it usually does not 

add to the analysis to argue that the classification drawn by the law should be subject to 

strict scrutiny because it affects the fundamental right shielded by that same guaranty. 

Instead, at that point, the rational basis test is typically applied.

A good example of this approach is Baker v. City of Iowa City, 867 N.W.2d 44 (Iowa 

2015). After determining that the Iowa City Civil Rights Ordinance did not infringe the 

Bakers’ freedom of association, we then rejected their argument that their equal 

protection claim should reviewed under strict scrutiny. Id. at 57. As we put it,

In their brief, the Bakers argue the ordinance infringes on their 

fundamental right to freedom of association under the First Amendment, 

and we should apply a strict scrutiny analysis. However, we have 

previously decided in this opinion the ordinance does not infringe on their 

fundamental right to freedom of association. Thus, we will not apply strict 

scrutiny. Therefore, rational basis review applies to the Bakers’ federal 

equal protection claim.

Id.

In sum, the fundamental rights branch of equal protection analysis is usually not 

viewed as a way to expand the recognized substantive scope of other express 

constitutional guaranties. If it were, litigants would be raising it in just about every case 

involving alleged infringement of some other express constitutional provision.
25

Court recently explained these points well in rejecting a similar challenge

to Colorado’s OWI law:

When drivers are unconscious, law enforcement officers are 

deprived of the evidence they typically rely on in drunk-driving 

prosecutions: unlike conscious drivers, unconscious drivers 

cannot perform roadside maneuvers, display speech or 

conduct indicative of alcohol impairment, or admit to alcohol 

consumption. In order to effectively combat drunk driving, 

the state needs some means of gathering evidence to deter and 

prosecute drunk drivers who wind up unconscious. Section 

42–4–1301.1(8) satisfies that need. Therefore, Hyde’s equal 

protection challenge, like his Fourth Amendment claim, fails.

People v. Hyde, 393 P.3d 962, 969 (Colo. 2017) (en banc); see also People 

v. Kates, 428 N.E.2d 852, 855 (N.Y. 1981) (“[D]enying the unconscious 

driver the right to refuse a blood test does not violate his right to equal 

protection.”). Accordingly, we hold that section 321J.7 does not violate the 

Fourteenth Amendment or article I, section 6.

IV. Conclusion.

For the foregoing reasons, we reverse McGee’s judgment and 

conviction and remand for further proceedings consistent with this 

opinion.

REVERSED AND REMANDED.

Christensen, C.J., and Waterman, McDonald, and McDermott, JJ., 

join this opinion. McDermott, J., files a special concurrence in which 

Christensen, C.J., and Waterman, J., join. Appel, J., files a dissenting 

opinion. Oxley, J., files a dissenting opinion in which Appel, J., joins.
26

#19–1219, State v. McGee

McDERMOTT, Justice (concurring specially).

I join the majority opinion, but I write separately because I believe 

the Iowa Constitution’s search and seizure protections in article I, section 

8 do not mandate the procedures to establish “exigent circumstances” that 

the United States Supreme Court announced in its plurality opinion in 

Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019). 

We generally interpret the search and seizure provisions in the Iowa 

Constitution to track with federal interpretations of the Fourth 

Amendment to the United States Constitution. State v. Brown, 930 

N.W.2d 840, 847 (Iowa 2019). Yet we nonetheless have a duty to interpret 

provisions of the Iowa Constitution independently, even when two 

constitutional provisions “contain nearly identical language and have the 

same general scope, import, and purpose.” State v. Brooks, 888 N.W.2d 

406, 410–11 (Iowa 2016) (quoting State v. Jackson, 878 N.W.2d 422, 442 

(Iowa 2016)).

As the majority points out, the United States Supreme Court’s recent 

decisions applying the Fourth Amendment to blood alcohol testing have 

wound a twisted path culminating most recently in Mitchell. The plurality 

opinion in Mitchell permits a warrantless draw of blood from an 

unconscious driver based on probable cause except—and here’s the 

catch—where law enforcement “could not have reasonably judged that a 

warrant application would interfere with other pressing needs or duties.” 

588 U.S. at ___, 139 S. Ct. at 2539. Stated differently, under the federal 

application of the probable cause requirement, in cases involving an 

unconscious driver suspected of alcohol intoxication, a blood draw from 

the driver is permissible without a warrant only if some other circumstance 
27

“creates pressing health, safety, or law enforcement needs that would take 

priority over a warrant application.” Id. at ___, 139 S. Ct. at 2537.

Under the Mitchell plurality’s holding, when the police come upon 

the scene of a crash and find an unconscious driver, whether probable 

cause exists to conduct a blood draw without a search warrant doesn’t 

depend on circumstances inherent to the driver or the crash but on 

whether the police have some other more important task that takes priority 

over getting a warrant. Our constitution provides protection from 

“unreasonable” searches and seizures. But I find nothing in the Iowa 

Constitution’s search and seizure protections that would require us to 

adopt the Supreme Court’s difficult-to-administer rule from Mitchell to 

ensure “reasonableness.” State v. Tyler, 830 N.W.2d 288, 294 (Iowa 2013)

(referring to reasonableness as “[t]he touchstone of the Fourth 

Amendment” (alteration in original) (quoting United States v. Knights, 534 

U.S. 112, 118, 122 S. Ct. 587, 591 (2001))); see also Kentucky v. King, 563 

U.S. 452, 460, 131 S. Ct. 1849, 1856 (2011).

The “exigent circumstances” exception to the Fourth Amendment’s 

warrant requirement applies when law enforcement’s need to prevent the 

imminent destruction of evidence is so compelling that a warrantless 

search is “objectively reasonable” under constitutional search and seizure 

protections. State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011); see also 

King, 563 U.S. at 460, 131 S. Ct. at 1856. In a drunk-driving investigation,

evidence erodes with each passing moment as alcohol dissipates naturally 

from the driver’s bloodstream. State v. Johnson, 744 N.W.2d 340, 342–43 

(Iowa 2008). The imminent destruction of evidence of suspected 

intoxicated driving implicates the exigent-circumstances doctrine. Id.; see 

also Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 

(1966).
28

But instead of holding simply that exigent circumstances exist to 

conduct a blood draw of an unconscious driver suspected of alcohol 

intoxication only if law enforcement’s to-do list contains some other 

pressing tasks (as the plurality in Mitchell held), I would adopt the 

reasoning of Justice Thomas’s concurring opinion that exigent 

circumstances exist in these situations regardless of whatever other work 

police officers might have on their plates. Mitchell, 588 U.S. at ___, 139 

S. Ct. at 2539–40 (Thomas, J., concurring in judgment). Probative 

evidence of intoxication dissipates at the same rate regardless of whether 

a warrant application would interfere with an officer’s other 

responsibilities. Id. at ___, 139 S. Ct. at 2540–41. The “other pressing 

needs or duties” inquiry has nothing to do with whether probable cause 

exists to support the unconscious driver’s blood draw. If a blood draw is 

per se reasonable based on an officer’s finding of probable cause of 

intoxicated driving when the police have other pressing duties, then there 

should be an equal quantity of probable cause supporting the blood draw 

when the police do not have other pressing duties.

Requiring a law enforcement officer dealing with an unconscious 

driver to ponder and measure the fuzzy question “Just how pressing are 

my other job responsibilities right now?” in deciding whether it’s necessary 

to get a warrant will expose the officer to protracted second-guessing in 

later court proceedings. In the relatively short time since Mitchell came 

down, other jurisdictions have already started grappling with these

questions. See, e.g., McGraw v. State, 289 So. 3d 836, 839 (Fla. 2019) 

(remanding for a determination of whether the search fell within the “other 

pressing needs or duties” exception); State v. Chavez-Majors, 454 P.3d 

600, 608 (Kan. 2019) (same); State v. Key, 848 S.E.2d 315, 321 (S.C. 2020) 

(same). In some cases, the exercise required in Mitchell will allow evidence 
29

essential to enforcement of intoxicated driving laws to erode while officers 

assess their other pressing needs or wait for a warrant to issue.

And to what end? The “other pressing needs or duties” inquiry 

comes with negligible upside for the protection of a suspect’s civil liberties. 

When an officer attests to an unconscious driver’s suspected intoxication, 

an overwhelming percentage of the time the court will find probable cause 

exists and issue a warrant for the blood draw. We should not, and need 

not, adopt as a matter of constitutional “reasonableness” the Mitchell

plurality’s complicated rule that secures virtually no protection against 

unreasonable searches and seizures yet constrains enforcement of 

intoxicated driving laws. As a matter of Iowa constitutional law, I would 

thus hold that law enforcement’s investigation of an unconscious driver 

suspected of alcohol intoxication meets the exigency exception to the 

warrant requirement to permit a blood draw consistent with Iowa Code 

section 321J.11 without the need for a warrant.

The majority decides this case under the Fourth Amendment of the 

United States Constitution, and correctly so. When the Iowa Constitution 

provides less protection than the Federal Constitution, government 

officials must nonetheless comply with the more stringent provisions of 

the Federal Constitution. I thus join the majority opinion but urge our 

court to adopt, for purposes of Iowa’s constitutional search and seizure 

protections, the straightforward per se rule described above in place of the 

Mitchell plurality’s test.

Christensen, C.J., and Waterman, J., join this special concurrence.
30

#19–1219, State v. McGee

APPEL, Justice (dissenting).

I respectfully dissent. The preserved issue in this case is whether 

Iowa’s implied-consent statute provides a constitutional justification for a 

warrantless search of an unconscious driver suspected of drugged driving. 

Because of the lack of voluntary consent, the unconstitutional nature of 

the condition in the statute, and the similarity of the implied-consent 

statute to a general warrant, I think the answer to this question is firmly 

no under the search and seizure provision of article I, section 8 of the Iowa 

Constitution, and alternatively, under the Fourth Amendment to the 

United States Constitution. 

The majority seeks a work-around to avoid the question regarding 

Iowa’s implied-consent statute by answering a second question, namely, 

whether the warrantless search in this case could be justified under a 

modified version of the exigent-circumstances exception recently 

developed by the United States Supreme Court in the case of Mitchell v. 

Wisconsin, 588 U.S. ___, ___, 139 S. Ct. 2525, 2534–37 (2019).

There are two problems with the majority approach. First, the State 

did not pursue the fact-bound exigent-circumstances exception before the 

district court. As a result, the question is not preserved in this case. State 

v. Baldon, 829 N.W.2d 785, 789–90 (Iowa 2013).

In any event, I would not adopt the innovations to the traditional 

exigent-circumstances exception to the warrant requirement cobbled 

together by a narrow majority of the United States Supreme Court in 

Mitchell under the search and seizure provision of the Iowa Constitution. 

As in this case, the question of exigent circumstances in Mitchell was not 

raised below. Nonetheless, apparently to avoid the implied-consent issue 

similar to the one in this case, the Mitchell Court announced modification 
31

of the exigent-circumstances exception for purposes of the Fourth 

Amendment in cases involving blood draws, without the benefit of briefs 

of the parties or amici on the issue. In my view, by adopting Mitchell on 

the unpreserved issue, the majority has uncritically adopted a flawed

Federal Court decision when a better model is available, specifically, the 

approach of the Supreme Court only a few years earlier in Missouri v. 

McNeely, 569 U.S. 141, 133 S. Ct. 1552 (2013). 

Because the State loses on the merits of the only preserved claim, I 

would reverse and remand the case to the district court. In the alternative, 

if we were to consider the proposed reconstruction of the exigentcircumstances exception to the warrant requirement under a second bite 

of the apple theory, I would require on remand that the State prove what 

it has always been required to prove under the exigent-circumstances 

exception, namely, a compelling need and a showing that obtaining a 

warrant in a timely fashion was impracticable. In caselaw shorthand, I 

would follow the approach of the United States Supreme Court in McNeely, 

and not that developed in Mitchell.

The majority suggests that a Mitchell-type approach is especially 

necessary where drugged driving involving marijuana is involved. I view 

Mitchell as objectionable for a host of reasons as will be explained below. 

In my view, however, whether to adopt a new and specialized regime for 

blood draws seeking evidence of marijuana consumption should await a 

case where the record is fully developed both with respect to the toxicology 

involved and the ability of the state to obtain a warrant. 

The specific issues posed in this case might be characterized as quite 

narrow, and, indeed they seem to be. But we have learned in search and 

seizure law that it is very important to keep exceptions to the warrant 

requirement narrow and disciplined. Or, to put it colloquially, in the law 
32

of search and seizure, one thing leads to another. I write with some energy 

to prevent erosion of search and seizure rights under article I, section 8 of 

the Iowa Constitution.

I. Background.

A. Facts. This case involves a traffic accident that occurred on 

December 8, 2018, at 1:59 p.m. in Des Moines. Brian McGee, a driver of 

one of the vehicles, was taken to the hospital in an unconscious state. 

About two hours after the accident, a Des Moines police officer, Tim Fricke,

asked a nurse for a certification that the patient was “in a condition 

rendering [him] incapable of consent or refusal” under Iowa Code section 

321J.7 (2018). The nurse signed the certification and a blood draw was 

taken about ten minutes later. Just prior to the blood draw, McGee 

aroused enough to urinate but then returned to bed. The results of the 

blood draw showed traces of lorazepam and delta-tetrahydrocannabinol 

(THC) along with the presence of both the impairing and nonimpairing THC 

metabolites. 

B. Motion to Suppress. McGee was charged with OWI, first 

offense, in violation of Iowa Code section 321J.2. The trial information 

charged McGee with two alternatives under the statute: driving while 

under the influence and driving with any amount of a controlled substance 

in his bloodstream.

McGee filed a motion to suppress, and argued the search was 

conducted without a warrant and that under Iowa law, such a search is 

unconstitutional absent a “jealously and carefully drawn exception.” 

McGee argued that the blood draw in his case was not a search incident 

to arrest, no exigent circumstances were present, and he did not consent 

to the chemical testing. 
33

The district court held a hearing on the motion to suppress on May 7 

and 8, 2019. At the hearing, McGee asserted that the warrantless blood 

draw was unconstitutional under the Fourth Amendment and article I, 

section 8 of the Iowa Constitution. McGee argued that the blood draw was 

a search, that the warrant requirement applied, and that the exigent 

circumstances and consent exceptions to the warrant requirement did not 

apply. McGee further argued that the blood draw was improper because 

he had gained consciousness after the nurse had signed the certification 

but prior to the blood draw. In addition, McGee asserted at the hearing 

that it would violate equal protection to require a warrant in a case 

involving a conscious driver but not in a case involving an unconscious 

driver.

The State responded to McGee’s legal arguments by asserting that 

the blood draw pursuant to the implied-consent scheme of Iowa Code

chapter 321J fell within the consent exception to the warrant requirement. 

The State did not claim that the blood draw could be supported by the 

exigent-circumstances or search-incident-to-arrest exceptions to the 

warrant requirement.

The district court opened the hearing as follows:

[THE COURT:] The motion to suppress in general is 

based on the warrantless taking of Mr. McGee’s blood in 

violation of the Fourth Amendment of the United States 

Constitution and Article 1, Section 8 of the Iowa Constitution. 

That would appear to put the burden on the State to go 

forward with the evidence. Are you in agreement with that, 

Mr. Curry, or not?

MR. CURRY: Yes, your Honor.

Consistent with its stipulated burden, the State proceeded to offer 

evidence at the hearing. The State’s first witness was Fricke, who was an 

eleven-year veteran of the traffic unit at the time of the accident. His 
34

training included attendance at the Advanced Roadside Impaired Driving 

Enforcement program (ARIDE). 

Fricke testified that he received a call regarding a serious injury 

accident and that he was to proceed to the hospital to obtain testing of a 

suspected impaired driver. Fricke testified regarding events at the 

hospital, including the sedated condition of McGee and his obtaining a 

certificate under Iowa Code section 321J.7 because the suspect was not 

able to consent due to his medical condition. 

On cross-examination, Fricke was asked about his failure to obtain 

a warrant before the blood draw was taken. Below are all of the relevant 

transcript passages on the issue of failure to obtain a warrant: 

Q. Officer, was there anything preventing you from 

getting a warrant in this case? A. No. This is a -- for an OWI 

first that did not result in a fatality with this case, no.

Q. So you concede that you could have obtained a 

warrant, correct? A. I don’t believe that you can get a warrant 

for a first offense for an OWI.

Q. Do you think that the procurement of a warrant 

depends on the number of offense on the OWI, that’s your 

understanding? A. My understanding is that for an OWI first 

that does not result in a serious injury or a traffic fatality, that 

I would not be able to get a warrant for that.

. . . .

Q. You wouldn’t dispute though the legal certainty that 

you can get a warrant based on probable cause, correct? 

A. No, I don’t dispute that.

Q. But you didn’t get a warrant here? A. I did not.

. . . .

Q. Now, officer, one further point from the video, you 

would agree that blood was withdrawn at 1610, correct? 

A. That’s correct.

Q. And at that time you did not have a warrant, 

correct? A. I did not.
35

Q. You hadn’t made any efforts to procure a warrant, 

is that correct? A. No.

Q. You didn’t think you needed one? A. No.

. . . .

Q. As you began your OWI investigation, in that 30 to 

40 minutes that it took you to get to the hospital, did you 

make any efforts during that time to secure a warrant? A. No.

Q. How about in terms of the officer that initially called 

you, did you instruct that officer to make efforts to secure a 

warrant? A. No.

. . . .

Q. Did you instruct that officer, the officer with whom 

you spoke with at the hospital, to make any efforts to get a 

warrant? A. No, I did not.

Q. And the officer that you spoke with at the hospital, 

is that the officer who would have followed Brian to the 

hospital, followed my client to the hospital? A. Yes.

Q. So I know I am kind of hammering it home. Safe to 

say no one involved in this OWI investigation made any efforts 

to procure a warrant, correct? A. Correct.

Fricke was also examined about the passage of twelve minutes 

between the signing of the certificate by medical personnel and the actual 

blood draw. The defense offered into evidence a video of officer Fricke’s 

body camera that showed McGee arising from his bed and urinating during 

this time frame. 

Aside from the testimony of Fricke and the admission of the 

certification, the State offered no further evidence. The defense rested 

without the introduction of evidence. 

At the close of evidence, the district court heard oral arguments from 

the parties. The State argued that “implied consent is an exception to the 

warrant requirement.” According to the State, the provision of Iowa Code 

section 321J.7 (providing a certification process where a driver is 

incapable of consent) is “the crux of the case before the court today.” The 
36

State argued that once a certification pursuant to Iowa Code section 

321J.7 is obtained, “[t]here is nothing more needed.” The State closed its

argument by emphasizing that “[t]he scheme itself[, Iowa Code section 

321J.7,] is [the] exception.” 

McGee argued that the implied-consent statute did not provide a 

basis for a warrantless blood draw. According to McGee, “the person who 

is asked to provide consent must be able to provide consent and when you 

have someone who is by definition incapable of providing consent, you 

cannot proceed under a consent-based exception.” McGee further argued 

that if the implied-consent provisions of Iowa Code section 321J.7 were a 

stand-alone exception to the warrant requirement, a serious equal 

protection argument would be raised. According to McGee, conscious 

persons would be entitled to the protection of the warrant requirement, 

while unconscious persons would not. McGee also attacked the 

certification in the case in light of the twelve-minute gap and the video 

showing that McGee arose and urinated after the certification was 

executed. 

At the conclusion of the hearing, the district court denied the motion 

from the bench. The district court found that 321J cases are an “exception 

to the warrant requirement.” The district court further held that the State 

met its burden of showing that the statutory requirements of section 

321J.7 were met and that there was no requirement of recertification 

because of the delay in obtaining the blood draw. The district court 

explicitly stated that the testimony of Fricke regarding whether he could 

get a warrant was “immaterial to this matter as none was required.” The 

district court concluded that the State had met its burden of showing that 

the requirements of 321J were properly complied with by a preponderance 

of the evidence and, as a result, the motion to suppress was denied. 
37

The district court did not discuss, and made no factual findings

regarding, the possible application of the exigent-circumstances exception 

to the warrant requirement—a claim that the State did not make before 

the district court.

C. Trial on the Minutes. After the motion to suppress was denied, 

the parties agreed to a bench trial on the minutes of testimony. The 

district court convicted McGee under the alternative of the statute that 

prohibited driving with any trace of a controlled substance, see Iowa Code 

§ 321J.2(1)(c). The district court concluded, however, that there was 

insufficient evidence to support a conviction on driving under the 

influence, see id. § 321J.2(1)(a). 

D. Issues Raised on Appeal. McGee appealed his conviction. On 

appeal, McGee contends that a warrant to draw blood was required under 

both the Fourth Amendment to the United States Constitution and 

article I, section 8 of the Iowa Constitution. He attacks head-on the 

district court’s conclusion that the certification provisions of Iowa Code 

section 321J.7 provides an exception to the warrant requirement. 

McGee asserts that any claim that the evidence was admissible 

under the exigent-circumstances exception was not relied upon by the 

State and was thus not preserved. In the alternative, however, McGee 

asserts that exigent circumstances were not demonstrated in this case. 

McGee again asserted that any approach that permitted a conscious 

person to insist on a warrant but denied the same right to an unconscious 

person would violate equal protection. Finally, McGee raises the statutory 

assertion that the terms of Iowa Code section 321J.7 were not complied 
38

with because of the approximately twelve-minute delay between the 

certification and the blood draw.11

II. Overview of Applicable Search and Seizure Principles. 

A. Introduction. In considering any important legal issue, it is 

important to establish the legal context. By legal context I mean the larger 

environment of concepts and principles that touch upon and relate to the 

specific question at hand. If we immediately “cut to the chase,” we may 

decide a case that is at odds with the larger legal environment. Further, 

our caselaw will become transactional, result-oriented, less coherent, and 

provoke unintended consequences. Only when the general legal principles 

governing search and seizure are canvassed and understood can we drill 

down and apply those general principles to the specific issue at hand. 

Below is a summary of the legal principles that set the framework 

for the decision in this case. The concepts presented below have a 

relatively high degree of generality. I have made no attempt to compare or 

contrast the potentially different doctrines of search and seizure under the 

Iowa Constitution compared to the Fourth Amendment. We are free, of 

course, to depart from federal caselaw under the Fourth Amendment when

interpreting the search and seizure provisions of the Iowa Constitution. 

B. Generally Applicable Constitutional Principles of Search and 

Seizure. 

1. The purpose of search and seizure law is to protect individuals 

from overreaching government action. As is apparent from the history of 

search and seizure law, the purpose of the constitutional protections is to 

prevent governmental overreach. Search and seizure law is designed to 

 

11On appeal, McGee claimed that under the statute his prior certification was no 

longer valid after a twelve-minute delay and that the results of the blood draw should be 

suppressed on statutory grounds. On this point, I concur with the majority opinion 

rejecting McGee’s claim. 
39

draw boundaries around permissible government action. Constitutional 

protections against unlawful searches and seizures are not a minor 

inconvenience but play a crucial role in our constitutional governance by 

drawing lines that protect individuals from arbitrary government invasions 

of their privacy and dignity. As noted by Justice Jackson after his return 

from Nuremberg, search and seizure rights

are not mere second-class rights but belong in the catalog of 

indispensable freedoms. Among deprivations of rights, none 

is so effective in cowing a population, crushing the spirit of 

the individual and putting terror in every heart. Uncontrolled 

search and seizure is one of the first and most effective 

weapons in the arsenal of every arbitrary government.

Brinegar v. United States, 338 U.S. 160, 180, 69 S. Ct. 1302, 1313 (1949) 

(Jackson, J., dissenting). 

It is true that search and seizure restrictions complicate the job of 

law enforcement. But as noted by one state court, “Duties of law 

enforcement officials are extremely demanding in a free society. But that 

is as it should be. A policeman’s job is easy only in a police state.” People 

v. Spinelli, 315 N.E.2d 792, 795 (N.Y. 1974). 

Our Iowa constitutional history demonstrates the importance of bill 

of rights protections against government overreach. George Ells, Chair of 

the Committee on the Preamble and Bill of Rights, declared, “[T]he Bill of 

Rights is of more importance than all the other clauses in the Constitution 

put together, because it is the foundation and written security upon which 

the people rest their rights.” 1 The Debates of the Constitutional Convention 

of the State of Iowa, 103 (W. Blair Lord rep. 1857), 

http://www.statelibraryofiowa.org/services/collections/law-library/iaconst. 

Ells cautioned that “[t]he annals of the world . . . furnish many instances 

in which the freest and most enlightened governments that have ever 

existed upon earth, have been gradually undermined, and actually 
40

destroyed, in consequence of the people’s rights.” Id. at 100–01. In order 

to protect the nascent state democracy, Ells stated the express desire

to put upon record every guarantee that could be legitimately

placed [in the constitution] in order that Iowa not only might 

be the first State in the Union, unquestionably as she is in 

many respects, but that she might also have the best and 

most clearly defined Bill of Rights. 

Id. at 100. Of course, article I, section 8 of the Iowa Constitution provides:

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.

Given the importance of the search and seizure provisions of the 

United States and Iowa Constitutions, they are not designed to be efficient. 

Without question, in all cases, they make the ability of the state law 

enforcement to engage in searches and seizures somewhat less efficient. 

But that is true with many precious rights. The right to a jury trial, with 

careful procedures to ensure representation of a fair cross section of the 

community in jury panels, is hardly efficient. So, the importance or value 

of a constitutional protection is not determined by efficiency 

considerations. Indeed, by placing the protections in the constitutional 

firmament, the founders desired to ensure that specifically enumerated 

constitutional rights remained firmly entrenched notwithstanding their

inefficient characteristics. The scope of the bill of rights was not to be 

subject to periodic pragmatic adjustments by the legislature.

2. The generally applicable bright-line search and seizure rule is “get 

a warrant.” Like its federal counterpart, article I, section 8 of the Iowa 

Constitution has a “reasonableness” clause and a “warrant clause.” We 

have repeatedly stated that the reasonableness clause is informed by or 
41

linked to the warrant clause. See, e.g., State v. Ochoa, 792 N.W.2d 260, 

268–69 (Iowa 2010). In other words, subject to certain narrow exceptions, 

the general rule is that a warrant is required to conduct a search or 

seizure. Id. at 269. 

The strong warrant preference approach was outlined decades ago 

by the United States Supreme Court in Coolidge v. New Hampshire: 

[T]he most basic constitutional rule in this area is that 

“searches conducted outside the judicial process, without 

prior approval by judge or magistrate, are per se unreasonable 

under the Fourth Amendment—subject only to a few 

specifically established and well delineated exceptions.” The 

exceptions are “jealously and carefully drawn,” and there 

must be “a showing by those who seek exemption . . . that the 

exigencies of the situation made that course imperative.”

403 U.S. 443, 454–55, 91 S. Ct. 2022, 2032 (1971) (omission in original) 

(footnotes omitted) (first quoting Katz v. United States, 389 U.S. 347, 357, 

88 S. Ct. 507, 514 (1967); then quoting Jones v. United States, 357 U.S. 

493, 499, 78 S. Ct. 1253, 1257 (1958); and then quoting McDonald v. 

United States, 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948)).

While the United States Supreme Court cases began to undercut the 

tradition of the warrant requirement in cases like Griffin v. Wisconsin, 483 

U.S. 868, 107 S. Ct. 3164 (1987), United States v. Knights, 534 U.S. 112, 

122 S. Ct. 587 (2001), and Samson v. California, 547 U.S. 843, 126 S. Ct. 

2193 (2006), there seems to have been a resurgence in at least some 

Supreme Court cases. In a memorable recent phrase, Chief Justice John 

Roberts declared in a search and seizure context that the applicable 

approach, at least in the case at hand, was to “get a warrant.” Riley v. 

California, 573 U.S. 373, 403, 134 S. Ct. 2473, 2495 (2014). 

Our cases demonstrate that “get a warrant” is the general command 

of the search and seizure provisions of article I, section 8 of the Iowa 

Constitution, subject to certain exceptions. E.g., State v. Coleman, 890 
42

N.W.2d 284, 286 (Iowa 2017). We have stated that Iowa courts “strongly 

favor the warrant requirement, subject only to ‘jealously and carefully 

drawn exceptions.’ ” Id. (quoting State v. Strong, 493 N.W.2d 834, 836 

(Iowa 1992)); see also State v. Gaskins, 866 N.W.2d 1, 7 (Iowa 2015) (“ ‘A 

warrantless search is presumed unreasonable’ unless an exception 

applies.” (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997))); 

Ochoa, 792 N.W.2d 260, 285 (“We have also generally endorsed the 

warrant-preference requirement.”).

3. The generally applicable bright-line “get a warrant” rule is subject 

to narrow and well-defined exceptions that should be “jealously guarded”

against even small incursions. “[T]he basic rule [is] that ‘searches 

conducted outside the judicial process, without prior approval by judge or 

magistrate, are per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-delineated 

exceptions.’ ” Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 

(2009) (quoting Katz, 389 U.S. at 357, 88 S. Ct. at 514). Although the 

general rule is get a warrant, we have recognized that there are certain 

exceptions to the warrant requirement. Two exceptions to the warrant 

requirement are consent and exigent circumstances. 

These exceptions, however, must be tightly controlled lest they 

overcome the general rule that search warrants are required. The risk of 

encroachment was recognized by the Supreme Court in its first major 

search and seizure case, Boyd v. United States, 116 U.S. 616, 633–35, 

6 S. Ct. 524, 534–35 (1886). In Boyd, the Court declared:

[C]onstitutional provisions for the security of person and 

property should be liberally construed. A close and literal 

construction deprives them of half their efficacy, and leads to 

gradual depreciation of the right, as if it consisted more in 

sound than in substance. It is the duty of courts to be 
43

watchful for the constitutional rights of the citizen, and 

against any stealthy encroachments thereon.

Id. at 635, 6 S. Ct. at 535. 

And, as stated by Justice Jackson in his classic discussion of search 

and seizure law, “any privilege of search and seizure without warrant” will 

be “push[ed] to the limit.” Brinegar, 338 U.S. at 182, 69 S. Ct. at 1314

(Jackson, J., dissenting). As observed in Almeida-Sanchez v. United 

States: “The needs of law enforcement stand in constant tension with the 

Constitution’s protections of the individual against certain exercises of 

official power. It is precisely the predictability of these pressures that 

counsels a resolute loyalty to constitutional safeguards.” 413 U.S. 266, 

273, 93 S. Ct. 2535, 2540 (1973).

Any exceptions to the warrant requirement thus must be “jealously 

and carefully drawn” and subject to strict judicial oversight. Jones, 357 

U.S. at 499, 78 S. Ct. at 1257. As noted by Justice Stevens, “The 

ascendancy of the warrant requirement in our system of justice must not 

be bullied aside by extravagant claims of necessity.” California v. Carney, 

471 U.S. 386, 401, 105 S. Ct. 2066, 2075 (1985) (Stevens, J., dissenting). 

4. The taking of a blood draw by the state is a search involving 

invasions of a person’s most personal and deeply rooted expectations of 

privacy. There is no serious doubt that the taking of a blood draw is a 

search. See, e.g., Birchfield v. North Dakota, 579 U.S. ___, ___, 136 S. Ct. 

2160, 2173 (2016). It involves an invasion of “an individual’s ‘most 

personal and deep-rooted expectations of privacy.’ ” McNeely, 569 U.S. at

148, 133 S. Ct. at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760, 105 

S. Ct. 1611, 1616 (1985)). A blood draw places in the hands of the state a 

very large amount of private medical facts, for instance, whether a person 

“is epileptic, pregnant, or diabetic.” See Skinner v. Ry. Lab. Execs., 489 
44

U.S. 602, 617, 109 S. Ct. 1402, 1413 (1989). Just as a cell phone is now 

a repository of huge amounts of personal information, the materials 

obtained in a blood draw can tell us many highly personal things about 

the individual. See State v. Martines, 331 P.3d 105, 111 (Wash. Ct. App. 

2014) (“Testing of a blood sample can reveal not only evidence of 

intoxication, but also evidence of disease, pregnancy, and genetic family 

relationships or . . . [other] ‘private medical facts.’ ” (quoting Skinner, 489 

U.S. at 617, 109 S. Ct. at 1413)). Because of the invasive nature of the 

intrusion and the vast amount of private information that is subject to 

exposure, a blood test presumptively requires a search warrant based on 

probable cause. See McNeely, 569 U.S. at 148, 152, 133 S. Ct. at 1558, 

1561. 

5. When applying the narrow and well-defined exceptions to the 

warrant requirement, per se rules are disfavored. As a general proposition, 

exceptions to the warrant requirement are fact-based, not rule-based. The 

determination of whether a warrantless search meets a narrow and 

jealously guarded exception is not subject to “Procrustean application” of 

reasonability. Ker v. California, 374 U.S. 23, 33, 83 S. Ct. 1623, 1630

(1963). “[T]here is no formula for the determination of reasonableness. 

Each case is to be decided on its own facts and circumstances.” Id.

(quoting Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 

S. Ct. 153, 158 (1931)). Thus, the Supreme Court has stated “that for the 

most part per se rules are inappropriate in the Fourth Amendment 

context.” United States v. Drayton, 536 U.S. 194, 201, 122 S. Ct. 2105, 

2111 (2002). As noted in United States v. Banks,

[T]he facts of cases so various that no template is likely to 

produce sounder results than examining the totality of 

circumstances in a given case; it is too hard to invent 

categories without giving short shrift to details that turn out 
45

to be important in a given instance, and without inflating 

marginal ones.

540 U.S. 31, 36, 124 S. Ct. 521, 525 (2003). This observation applies in 

the context of determining whether a warrantless search may be justified 

based on a narrow and jealously guarded exception. 

6. The burden is on the state to show the circumstances necessary 

to support the narrow exceptions to the “get a warrant” requirement. In 

applying exceptions to the warrant requirement, the burden is on the state 

to show that an exception applies. See Coolidge, 403 U.S. at 454–55, 91 

S. Ct. at 2032; Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 1972 

(1970).

The rationale for placing the burden with the state is doublebarreled. First, as a general matter, the party seeking an exception to a 

general rule carries the burden of proof. See Welsh v. Wisconsin, 466 U.S. 

740, 749–50, 104 S. Ct. 2091, 2097 (1984) (stating that the government 

bears a “heavy burden” to show exigent circumstances). Second, the 

evidence that might support the fact-intensive features of the exception 

rests with the state. Cf. United States v. N.Y., New Haven & Hartford R.R., 

355 U.S. 253, 256 n.5, 78 S. Ct. 212, 214 n.5 (1957) (“The ordinary rule, 

based on considerations of fairness, does not place the burden upon a 

litigant of establishing facts peculiarly within the knowledge of his 

adversary.”). With these two well-established principles related to 

allocation of the burden of proof, it would be odd indeed to shift the burden 

of proof to a defendant to establish that the exception does not apply. 

7. A warrant is not required under the “jealously and carefully” 

applied concept of voluntary consent. For many years, the Supreme Court

had not discovered a consent doctrine to avoid the warrant requirement. 

However, in Bumper v. North Carolina, the Supreme Court stated, “When 
46

a prosecutor seeks to rely upon consent to justify the lawfulness of a 

search, he has the burden of proving that the consent was, in fact, freely 

and voluntarily given.” 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968). 

The Supreme Court elaborated on the consent doctrine in Schneckloth v. 

Bustamonte, noting that “whether a consent to a search was in fact 

‘voluntary’ or was the product of duress or coercion, express or implied, is 

a question of fact to be determined from the totality of all the 

circumstances.” 412 U.S. 218, 227, 93 S. Ct. 2041, 2047–48 (1973). Just 

as an unconscious person cannot consent to sexual relations, Schneckloth

recognized that if “a person is unconscious or drugged or otherwise lacks 

capacity for conscious choice,” there can be no voluntary consent. Id. at 

224, 93 S. Ct. at 2046 (quoting Paul M. Bator & James Vorenberg, Arrest, 

Detention, Interrogation and the Right to Counsel: Basic Problems and 

Possible Legislative Solutions, 66 Colum. L. Rev. 62, 72 (1966)). And, if an 

individual is told he has no right to resist the search, the resulting search 

is not a result of voluntary consent. See Bumper, 391 U.S. at 548–49, 88 

S. Ct. at 1791–92. 

The consent doctrine has been characterized by the Supreme Court 

as “jealously and carefully drawn.” Georgia v. Randolph, 547 U.S. 103, 

109, 126 S. Ct. 1515, 1520 (2006) (quoting Jones, 357 U.S. at 499, 78 

S. Ct. at 1257); see also State v. Lowe, 812 N.W.2d 554, 572 (Iowa 2012)

(“The State has the burden to prove the consent was voluntary, and 

voluntariness is a ‘question of fact to be determined from the totality of all 

the circumstances.’ ‘The State is required to establish the consent was 

voluntary by a preponderance of the evidence.’ ” (citations omitted) (first 

quoting State v. Lane, 726 N.W.2d 371, 378 (Iowa 2007); and then quoting 

State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001) (en banc))). Plainly, 

consent is not created by law—it arises from facts.
47

Once given, however, consent to search may be 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.”); see also 4 Wayne R. LaFave, Search & Seizure: A Treatise on 

the Fourth Amendment § 8.2(f), at 124 (6th ed. 2020) (“A consent to search 

is not irrevocable, and thus if a person effectively revokes his prior consent 

prior to the time the search is completed, then the police may not 

thereafter search in reliance upon the earlier consent.” (footnote omitted)).

The right to revoke consent to search is consistent with other areas of the 

law where consent may be revoked. See, e.g., Miranda v. Arizona, 384 U.S. 

436, 469–79, 8 S. Ct. 1602, 1625–30 (1966) (describing that there is a 

right to revoke waiver of the right to counsel). The state has the burden of 

proving that consent had been “freely and voluntarily given.” Bumper, 391 

U.S. at 548–50, 88 S. Ct. at 1792. 

A number of state courts have rejected the Schneckcloth “totality of 

the circumstances” test in favor of the more stringent standard of knowing 

and voluntary waiver announced in Johnson v. Zerbst, 304 U.S. 458, 464–

69, 58 S. Ct. 1019, 1023–25 (1938). In State v. Pals, we found it 

unnecessary to address the question of a more stringent standard under 

article I, section 8 of the Iowa Constitution. 805 N.W.2d 767, 782 (Iowa 

2011). Both tests, however, are fact-based and must be determined in 

each individual case. 

8. Exigent circumstances have been recognized as a narrow and 

jealously guarded exception to the warrant requirement where the state 

makes a factual showing of compelling need and obtaining a warrant is 

impracticable. The exigent-circumstances exception applies where “ ‘the 

exigencies of the situation’ make the needs of law enforcement so 

compelling that [a] warrantless search is objectively reasonable under the 
48

Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 

1849, 1856 (2011) (alteration in original) (quoting Mincey v. Arizona, 437 

U.S. 385, 394, 98 S. Ct. 2408, 2414 (1978)). In order to invoke the exigentcircumstances exception, the state must show a “compelling need for 

official action and no time to secure a warrant.” Michigan v. Tyler, 436 

U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978). 

The exigent-circumstances exception has been applied where police 

need to provide help to a “seriously injured” occupant of a house or there 

is an imminent threat of such injury to that person, Brigham City v. Stuart, 

547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006), when officers are in “hot 

pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–

43, 96 S. Ct. 2406, 2409–10 (1976), and to enter a burning building to put 

out a fire, Tyler, 436 U.S. at 509, 98 S. Ct. at 1950. The threat of 

destruction of evidence may give rise to exigent circumstances. See 

Santana, 547 U.S. at 43, 96 S. Ct. at 2410. 

Like other exceptions to the warrant requirement, the state bears 

the burden of proof on the exigent-circumstances exception. See, e.g., 

Welsh, 466 U.S. at 749–50, 104 S. Ct. at 2097. The warrant requirement 

cannot be excused absent a showing that “the exigencies of the situation 

made [the search] imperative.” McDonald, 335 U.S. at 456, 69 S. Ct. at 

193. 

9. Administrative convenience can never by itself justify disregard of 

search and seizure principles. In Johnson v. United States, the Supreme 

Court observed that “the inconvenience to the officers and some slight 

delay necessary to prepare papers and present the evidence to a 

magistrate[] . . . are never very convincing reasons and, in these 

circumstances, certainly are not enough to bypass the constitutional 

requirement [of a warrant].” 333 U.S. 10, 15, 68 S. Ct. 367, 369 (1948).
49

A few years later, the Supreme Court stated that the warrant requirement 

was not “an inconvenience to be somehow ‘weighed’ against the claims of 

police efficiency.” Coolidge, 403 U.S. at 481, 91 S. Ct. at 2046. And, in 

Mincey v. Arizona, the Supreme Court again emphasized that “the mere 

fact that law enforcement may be made more efficient can never by itself 

justify disregard of the Fourth Amendment.” 437 U.S. at 393, 98 S. Ct. at 

2414. Obviously, “the investigation of crime would always be simplified if 

warrants were unnecessary.” Id. But, “the Constitution recognizes higher 

values than speed and efficiency.” Stanley v. Illinois, 405 U.S. 645, 656, 

92 S. Ct. 1208, 1216 (1972). 

10. The Iowa Supreme Court “zealously” protects authority to engage 

in independent search and seizure analysis. It is well established that a 

state supreme court has the ultimate authority to determine the meaning 

of state constitutional provisions and that there is no obligation to simply 

follow federal precedent even where the federal and state constitutional 

provisions are nearly identical. We have departed from federal search and 

seizure precedents on a number of occasions. See, e.g., State v. Ingram,

914 N.W.2d 794, 799–801, 820–21 (Iowa 2018); State v. Short, 851 N.W.2d 

474, 492, 506 (Iowa 2014); Baldon, 829 N.W.2d at 790–91, 802–03; Ochoa, 

792 N.W.2d at 267; State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000). We 

have stated that we zealously reserve the right to engage in independent 

analysis. See, e.g., Ochoa, 792 N.W.2d at 267; Zaber v. City of Dubuque, 

789 N.W.2d 634, 654–55 (Iowa 2010); State v. Hoskins, 711 N.W.2d 720, 

725 (Iowa 2006). This court has canvassed in detail the rationale for 

independent state constitutional analysis and that need not be reprised in 

detail here. See, e.g., Short, 851 N.W.2d at 481–92; Baldon, 829 N.W.2d 

at 789–91; Ochoa, 792 N.W.2d at 264–68. 
50

C. Statutory Provisions of Iowa Code Chapter 321J. Iowa Code 

chapter 321J, entitled “Operating While Intoxicated,” has various 

statutory provisions relating directly to the authority of police officers to 

obtain warrantless blood draws of nonconsenting persons. The provisions 

relate to implied consent, the testing of dead or unconscious persons, the 

consequences of refusal to submit to testing, written or telephonic search 

warrants, and obtaining samples without a warrant. See Iowa Code 

§§ 321J.6, .7, .9, .10, .10A. 

Three provisions are particularly germane to this case. Iowa Code 

section 321J.6 provides that “a person who operates a motor vehicle in 

this state . . . is deemed to have given consent to the withdrawal of 

specimens of the person’s blood . . . for the purpose of determining the 

alcohol concentration or presence of a controlled substance or other 

drugs.”

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.” 

Iowa Code section 321J.10 provides for, among other things, 

telephonic warrants where “[a] traffic accident has resulted in a death or 

personal injury reasonably likely to cause death.” 

Iowa Code section 321J.10A states that a police officer may obtain 

a sample without a warrant if the person is under arrest for operating a 

vehicle unlawfully and the police “officer reasonably believes the blood 

drawn will produce evidence of intoxication,” the method used is 

reasonable and “performed in a reasonable manner,” and the officer 

“reasonably believes the officer is confronted with an emergency situation 
51

in which the delay necessary to obtain a warrant . . . threatens the 

destruction of the evidence.” 

III. Overview of Applicability of the Warrant Requirement for 

Bodily Intrusions of Unconscious Suspects.

A. Introduction. Having examined the generally applicable search 

and seizure principles and relevant statutory provisions, I now consider 

whether the state may engage in warrantless blood draws of unconscious 

persons either based on “implied consent” (i.e., implied by law under 

Iowa’s implied-consent statute) or based on exigent circumstances that 

make application for a warrant impracticable. 

Before diving into the caselaw, it is important to distinguish between 

two distinctly different consent issues under implied-consent laws. The 

first question is whether actual consent given by a suspect pursuant to an 

implied-consent statute is “voluntary” under search and seizure law. That 

was a key issue in State v. Pettijohn, 899 N.W.2d 1, 25–38 (Iowa 2017), and 

has proven controversial. There is authority in the cases that tends to 

indicate that the state may place some level of pressure on a suspect to 

obtain consent for a blood draw, but there is a question of where to draw 

the line. Some courts, including recently the United States Supreme 

Court, have determined that consent is not involuntary for Fourth 

Amendment purposes if the consequence of refusal is an administrative 

penalty and not a criminal sanction. See, e.g., Birchfield, 579 U.S. at ___, 

136 S. Ct. at 2185; McNeely, 569 U.S. at 159–61, 133 S. Ct. at 1565–66. 

In Pettijohn, the majority considered whether “implied consent” to a blood 

draw obtained by law enforcement without a warrant was voluntary. 

Pettijohn, 899 N.W.2d at 25–38. For the purposes of a boating impliedconsent statute, consent was not deemed voluntary in light of 
52

administrative sanctions imposed by the statute and other relevant 

factors. Id. at 29, 36–38. 

While the fact-based question in Pettijohn involved, in part, whether 

the civil sanctions threated by Iowa’s implied-consent statute applicable 

to boating rendered the consent involuntary, the issue in this case is 

whether the State can “deem” a driver consented to waiver of search and 

seizure rights by merely driving on the roads of the state. 

B. United States Supreme Court Precedent Regarding 

Unconsented and Warrantless Bodily Invasions by the State. The trail 

of United States Supreme Court cases dealing with blood draws begins 

with two due process cases. In Rochin v. California, law enforcement 

forcibly broke into the home of the accused and observed him place 

something in his mouth. 342 U.S. 165, 166, 72 S. Ct. 205, 206 (1952). 

The police unsuccessfully tried to pry the material out of his mouth. Id. 

The officers then took the accused to the hospital where a doctor pumped 

the suspect’s stomach without his consent. Id. The pumping succeeded 

and the suspect regurgitated narcotic pills. Id. The Rochin Court 

concluded that the coerced body invasion “shocks the conscience” and was 

“too close to the rack and the screw” to avoid condemnation under the Due 

Process Clause. Id. at 172, 72 S. Ct. at 209–10.

In a second due process case, Breithaupt v. Abram, the Supreme 

Court considered the validity of a manslaughter conviction based, in part, 

on a blood draw obtained from an unconscious defendant without a 

warrant after a traffic accident. 352 U.S. 432, 433, 77 S. Ct. 408, 409 

(1957). The Breithaupt majority rejected a due process challenge to the 

search on the merits, concluding that blood draws were not “brutal” or 

“offensive.” Id. at 435, 77 S. Ct. at 410. With respect to a potential search 

and seizure violation, the Breithaupt Court held that no relief was available 
53

because the exclusionary rule was not incorporated against the states 

under the Fourteenth Amendment. Id. at 434, 77 S. Ct. 409–10 (citing 

Wolf v. Colorado, 338 U.S. 25, 33, 69 S. Ct. 1359, 1364 (1949)). 

Chief Justice Warren, joined by Justice Black and Justice Douglas, 

dissented. The Chief Justice found little meaningful difference between a 

stomach pump and an invasion of the skin through a needle. Id. at 440–

42, 77 S. Ct. at 412–14 (Warren, C.J., dissenting). The searches in both 

Rochin and Breithaupt were involuntary. Id. The fact that Rochin was able

to physically resist, while Breithaupt could not, was not consequential. Id. 

In a separate dissent, Justice Douglas, joined by Justice Black, observed 

that the indignity of an invasion is the same whether a person is conscious 

or unconscious. Id. at 442–44, 77 S. Ct. at 414 (Douglas, J., dissenting). 

In Schmerber v. California, the Supreme Court considered the 

validity of a blood draw taken involuntarily from an arrested but 

hospitalized driver without a warrant. 384 U.S. 757, 758–59, 86 S. Ct. 

1826, 1829 (1966). The defendant challenged the blood draw on Fourth 

and Fifth Amendment grounds. Id. at 759, 86 S. Ct. at 1829.

By a narrow 5–4 margin, the Schmerber Court sustained the 

warrantless blood draw as a search incident to arrest. Id. at 770–71, 86 

S. Ct. at 1835–36. The Schmerber majority emphasized that ordinarily the 

involvement of a “neutral and detached magistrate” is required before 

allowing a law enforcement officer to “invade another’s body in search of 

evidence of guilt is indisputable and great.” Id. at 770, 86 S. Ct. at 1835

(quoting Johnson, 333 U.S. at 14, 68 S. Ct. at 369).

Nonetheless, the Schmerber majority emphasized that the officer 

reasonably believed, under the circumstances, that there was a threatened 

“destruction of evidence” based on the elimination of alcohol from the 

accused’s system. Id. at 769, 86 S. Ct. at 1835. The Schmerber Court 
54

stated that “[p]articularly in a case such as this, where time had to be 

taken to bring the accused to a hospital and to investigate the scene of the 

accident, there was no time to seek out a magistrate and secure a 

warrant.” Id. at 770–71, 86 S. Ct. at 1836. The majority explained that 

the police officer “might reasonably have believed that he 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 (quoting Preston v. United States, 376 U.S. 364, 

367, 84 S. Ct. 881, 883 (1964)). 

Yet, the Schmerber Court did not want to give law enforcement 

sweeping authority or permit warrantless, unconsented bodily intrusions. 

According to the Schmerber majority:

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.

Id. at 772, 86 S. Ct. at 1836. 

Chief Justice Warren, Justice Black, and Justice Douglas dissented 

on Fifth Amendment grounds. Id. at 773, 86 S. Ct. at 1837 (Warren, C.J., 

dissenting). Justice Douglas separately dissented on Fourth Amendment 

grounds. Id. at 778, 86 S. Ct. at 1839–40 (Douglas, J., dissenting). He 

was having none of it. He wrote that “the Fourth Amendment . . . 

guarantees the right of the people to be secure ‘in their persons.’ No clearer 

invasion of this right of privacy can be imagined than forcible bloodletting 

of the kind involved here.” Id. at 778–79, 86 S. Ct. at 1840 (citation 

omitted) (quoting U.S. Const., amend. IV).
55

In 2013, the Supreme Court in McNeely, returned to the question of 

unconsented blood draws. 569 U.S. 141, 133 S. Ct. 1552. In McNeely, a 

speeding driver crossed the center line and was stopped by a police officer. 

Id. at 145–46, 133 S. Ct. at 1556–57. The driver declined a preliminary 

blood test and was taken to a nearby hospital for a blood draw. Id. The 

police officer never attempted to secure a warrant. Id. The state trial court 

granted a motion to suppress, concluding that there were no exigent 

circumstances justifying the warrantless search. Id. The state supreme 

court agreed, finding that there were no factors justifying a warrantless 

search other than the natural dissipation of blood alcohol and that 

dissipation alone was insufficient to meet the exigent-circumstances 

exception to the warrant requirement. Id. at 147, 133 S. Ct. at 1557. On 

appeal to the Supreme Court, the state urged the adoption of a per se rule 

for intoxicated driving, namely, that exigent circumstances are always 

present in drunk-driving cases due to the dissipation of alcohol from the 

blood stream. Id. at 151–52, 133 S. Ct. at 1560. 

The Supreme Court was fractured in McNeely. Writing for a 

majority, Justice Sotomayor rejected the state’s per se rule for suspected 

drunk drivers. Id. at 165, 133 S. Ct. at 1568. Justice Sotomayor

repeatedly emphasized the fact-based nature of the inquiry. Id. at 150–

51, 133 S. Ct. at 1559–60. She noted that Schmerber relied on “special 

facts.” Id. (quoting Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836). She 

canvassed Fourth Amendment caselaw that demonstrated each case must 

be evaluated based on the facts and circumstances of the particular case. 

Id. at 148–51, 133 S. Ct. at 1558–60. According to Justice Sotomayor:

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. Whether a warrantless blood 

test of a drunk-driving suspect is reasonable must be 
56

determined case by case based on the totality of the 

circumstances.

Id. at 156, 133 S. Ct. at 1563. Further, citing McDonald v. United States, 

333 U.S. at 456, 69 S. Ct. at 193, Justice Sotomayor emphasized that law 

enforcement could not create their own exigent circumstances to evade the 

warrant requirement. Id. at 152–53, 133 S. Ct. at 1561.

Finally, Justice Sotomayor noted that a sizeable majority of the 

states now have various remote methods, such as telephone, radio, email, 

and video conference, to apply for search warrants. Id. at 154–55, 133 

S. Ct. at 1561–62. The Chief Justice noted in his opinion concurring in 

part and dissenting in part that judges often issue warrants in five to 

fifteen minutes. Id. at 173, 133 S. Ct. at 1573 (Roberts, C.J., concurring

in part and dissenting in part). 

A few years after McNeely, the Supreme Court, in Birchfield v. North

Dakota, considered a challenge to a search where the suspect consented 

only after being informed of the consequences of failure to consent under 

a state’s implied-consent law. 579 U.S. at ___, 136 S. Ct. at 2185–86. The 

question in Birchfield was whether, under the totality of circumstances, 

the consent obtained by law enforcement could be considered voluntary 

for purposes of the Fourth Amendment and therefore excuse the state from 

obtaining a warrant prior to the search. Id. at ___, 136 S. Ct. at 2186–87.

The Birchfield Court distinguished between blood tests and breath 

tests. Id. at ___, 136 S. Ct. at 2176–78. The Birchfield Court found that 

unlike breath tests, blood tests “implicat[e] significant privacy concerns.” 

Id. at ___, 136 S. Ct. at 2178 (alteration in original) (quoting Skinner, 489 

U.S. at 626, 109 S. Ct. at 1418). The Birchfield Court also noted that “a 

blood test, unlike a breath test, places in the hands of law enforcement 

authorities a sample that can be preserved and from which it is possible 
57

to extract information beyond a simple [blood alcohol] reading.” Id. at ___, 

136 S. Ct. at 2178. The Birchfield Court further observed,

It is true that a blood test, unlike a breath test, may be 

administered to a person who is unconscious . . . . But we

have no reason to believe that such situations are common in 

drunk-driving arrests, and when they arise, the police may 

apply for a warrant if need be.

Id. at ___, 136 S. Ct. at 2184–85. 

The Birchfield Court concluded that the state could not establish 

voluntary consent for a blood draw through its implied-consent laws if the 

consequence of refusal to submit to a blood test was committing a criminal 

offense. Id. In short, the Birchfield Court permitted the state, through its 

implied-consent laws, to put some pressure on a suspect, such as a threat 

of administrative penalty, but not too much pressure. Id. 

Finally, the Supreme Court considered whether law enforcement 

could obtain a warrantless blood draw from an unconscious driver 

suspected of driving while intoxicated in Mitchell, 588 U.S. ___, 139 S. Ct. 

2525. Like this case, the state in Mitchell relied exclusively on the theory 

that warrantless blood draws may be supported by implied-consent laws. 

Id. at ___, 139 S. Ct. at 2532. The lower court accepted the state’s theory 

as did the Supreme Court of Wisconsin. Id. A plurality of the United 

States Supreme Court, however, had different ideas. The plurality elected 

to decide the case based upon the exigent-circumstances exception to the 

warrant requirement. Id. at ___, 139 S. Ct. at 2534–37.

Justice Alito wrote for a four-person plurality. In canvassing the 

implied-consent precedents, the plurality noted that “our decisions have 

not rested on the idea that these laws do what their popular name might 

seem to suggest—that is, create actual consent to all the searches they 

authorize.” Id. at ___, 139 S. Ct. at 2533. Instead, the Alito plurality 
58

emphasized that the cases have dealt with “the specific constitutional 

claims in each case.” Id. at ___, 139 S. Ct. at 2533.

The Alito plurality next considered the public policy grounds for 

obtaining blood draws. Id. at ___, 139 S. Ct. at 2535–37. The Alito 

plurality noted that “highway safety is a vital public interest,” that federal 

and state laws have long maintained that tests measuring blood alcohol 

content aid the public safety interest, and that enforcing blood alcohol 

content laws “requires a test . . . accurate enough to stand up in court.” 

Id. at ___, 139 S. Ct. at 2535–37.

The Alito plurality reviewed Schmerber, giving it a very narrow gloss. 

Id. at ___, 139 S. Ct. at 2537–38. The Alito plurality concluded that in the 

drunk-driving context, police are often “engag[ing] in a form of triage” in 

allocating resources and that law enforcement faces the choice of getting 

a warrant “to the detriment of critical health and safety needs.” Id. at ___, 

139 S. Ct. at 2538. 

The Alito plurality then announced its conclusion. According to the 

Alito plurality, police would “almost always” be entitled to conduct a 

warrantless blood draw to measure a driver’s blood alcohol content where 

the unconsciousness of the driver requires that the driver be taken to a 

hospital or similar facility. Id. at ___, 139 S. Ct. at 2539. But the Alito 

plurality did not rule out the possibility that a driver could show that police 

would not have taken a blood draw or that “police could not have 

reasonably judged that a warrant application would interfere with other 

pressing needs or duties.” Id. at ___, 139 S. Ct. at 2539.

There was one other important limitation in Mitchell. Justice Alito 

emphasized that the legal conclusions in the opinion rested upon the fact 

that “a breath test is impossible.” Id. at ___, 139 S. Ct. at 2531. This 

important limitation appears in various forms throughout the plurality 
59

opinion. See, e.g., id. at ___, 139 S. Ct. at 2531 (“[T]he driver is 

unconscious and therefore cannot be given a breath test.”); id. at ___, 139 

S. Ct. at 2534 (“[The police had] no reasonable opportunity to give Mitchell 

a breath test . . . .”); id. at ___, 139 S. Ct. at 2537 (“Thus, in the case of 

unconscious drivers, who cannot blow into a breathalyzer, blood tests are 

essential for achieving the compelling interests described above.”). In 

other words, the sweeping, nearly per se rule in Mitchell is limited to 

situations involving an unconscious defendant. 

Justice Thomas provided the fifth vote by concurring in the result of 

the case. Id. at ___, 139 S. Ct. at 2539–41 (Thomas, J., concurring in 

judgment). Justice Thomas, however, would hold that there is a per se or 

categorical exception to the warrant requirement where the “failure to act 

would result in ‘the imminent destruction of evidence.’ ” Id. at 2540

(quoting King, 563 U.S. at 460, 131 S. Ct. at 1856). Justice Sotomayor, 

joined by Justice Ginsburg and Justice Kagan, dissented. Id. at ___, 139 

S. Ct. at 2541–51 (Sotomayor, J., dissenting). She wrote that the plurality 

rested on the false premise that the states must choose between attending 

to emergency situations and obtaining a warrant. Id. at ___, 139 S. Ct. at 

2541. She wrote that the answer under the Fourth Amendment was clear: 

“If there is time, get a warrant.” Id. at ___, 139 S. Ct. at 2541.

Justice Sotomayor emphasized that there were “carefully 

circumscribed exceptions to the warrant requirement,” including exigent

circumstances. Id. at ___, 139 S. Ct. at 2543. She had a different view of 

Schmerber than the plurality, noting that “special facts” in that case “left 

the police with ‘no time to seek out a magistrate and secure a warrant.’ ” 

Id. at ___, 139 S. Ct. at 2544 (quoting Schmerber, 348 U.S. at 770–71, 86 

S. Ct. at 1836). She noted that attempts to categorically exclude blood 

draws from the warrant requirement were rejected in McNeely and 
60

Birchfield. Id. at ___, 139 S. Ct. at 2544. According to Justice Sotomayor, 

the plurality engaged in a “considerable overgeneralization,” which had 

been rejected in McNeely. Id. at ___, 139 S. Ct. at 2550 (quoting McNeely, 

569 U.S. at 153, 133 S. Ct. at 1561). Justice Sotomayor wrote that “no 

one suggests that the warrant process should interfere with medical care” 

but in many cases, “the police will have enough time to address medical 

needs and still get a warrant before the putative evidence . . . dissipates.” 

Id. at ___, 139 S. Ct. at 2550.

Justice Sotomayor acknowledge that drunk drivers are a cause for 

great concern on the road, but argued that it is “ ‘[p]recisely because the 

need for action . . . is manifest’ in such cases that ‘the need for vigilance 

against unconstitutional excess is great.’ ” Id. at ___, 139 S. Ct. at 2551 

(alteration and omission in original) (quoting Skinner, 489 U.S. at 635, 109 

S. Ct. at 1423 (Marshall, J., dissenting)). Justice Sotomayor observed that 

“a small delay to obtain a warrant is hardly a recipe for lawless roadways.” 

Id. at ___, 139 S. Ct. at 2548. 

Justice Sotomayor also addressed the question of whether the 

Supreme Court should even consider the exigent-circumstances exception 

given the state of the record. Id. at ___, 139 S. Ct. at 2545–47. Justice 

Sotomayor noted that the State of Wisconsin had never argued for 

application of the exigent-circumstances exception in the litigation. Id. at 

___, 139 S. Ct. at 2545–47. Further, she observed that the Court granted 

certiorari to answer “[w]hether a statute authorizing a blood draw from an 

unconscious motorist provides an exception to the Fourth Amendment 

warrant requirement.” Id. at ___ n.5, 139 S. Ct. at 2546 n.5 (alteration in 

original). Sotomayor accused the plurality of taking on an issue that 

Wisconsin had “knowingly and intentionally abandoned.” Id. at ___, 139 

S. Ct. at 2545–46. The plurality thus operated without a developed factual 
61

record or the usual give and take of the adversary process on legal 

questions. Id. at ___, 139 S. Ct. at 2546.

Justice Sotomayor concluded by accusing the plurality of “act[ing]

recklessly” in deciding a significant constitutional issue without a factual 

record and fully developed adversary proceeding. Id. at ___, 139 S. Ct. at 

2546. According to Justice Sotomayor,

The plurality today carries that burden [demonstrating 

the availability of exigent circumstances exception] for a State 

that never asked it to do so, not only here but also in a 

scattershot mass of future cases. Acting entirely on its own 

freewheeling instincts—with no briefing or decision below on 

the question—the plurality permits officers to order a blood 

draw of an unconscious person in all but the rarest cases, 

even when there is ample time to obtain a warrant. The 

plurality may believe it is helping to ameliorate the scourge of 

drunk driving, but what it really does is to strike another 

needless blow at the protections guaranteed by the Fourth 

Amendment.

Id. at ___, 139 S. Ct. at 2551. 

Justice Gorsuch in a brief dissenting opinion noted certiorari was 

granted to consider whether Wisconsin drivers impliedly consent to blood 

draws “thanks to a state statute.” Id. at ___, 139 S. Ct. at 2551 (Gorsuch, 

J., dissenting). The Court, Justice Gorsuch observed, chose to decide the 

case “on an entirely different ground.” Id. at ___, 139 S. Ct. at 2551. 

Justice Gorsuch wrote that “the application of the exigent circumstances 

doctrine in this area poses complex and difficult questions that neither the 

parties nor the courts below discussed.” Id. at ___, 139 S. Ct. at 2551. As 

a result, Justice Gorsuch “would have dismissed [the petition] as 

improvidently granted.” Id. at ___, 139 S. Ct. at 2551. 
62

C. State Court Precedents Involving Warrantless and 

Unconsented Invasions of Bodily Integrity by the State. 

1. Implied consent. I now turn to an examination of state court 

precedents regarding the constitutionality of invasions of bodily integrity

by the state based on “implied consent” laws where the suspect has not 

given actual consent. As will be apparent, there are many jurisdictions 

that have come to the conclusion that implied-consent laws are not a 

stand-alone exception to the warrant requirement under both the Fourth 

Amendment and the search and seizure provisions of their state 

constitutions. What follows below is a summary of the important reasons 

supporting these state court decisions.

Many of the state court cases rely upon Supreme Court cases in 

their discussion of the validity of warrantless searches of unconscious 

persons based upon implied-consent statutes. Many cases also cite to

parallel search and seizure provisions under the applicable state 

constitutions. The state cases, however, do not generally provide a 

separate analysis of state constitutional provisions. 

Many state court cases involving unwarranted bodily invasions of 

unconscious people by the state focus on the notion that in order to have 

“consent” sufficient to avoid the warrant requirement, the consent must 

be the product of a conscious mind in order to be “voluntary.” The notion 

of consent as a voluntary act has existed in Anglo-American jurisprudence 

for time out of mind. A corollary to the requirement of a conscious mind 

is the necessity of the power to limit or revoke consent. Because the 

features of a conscious mind are not present when blood draws are taken 

from an unconscious person and an unconscious person is not capable of 

limiting or revoking consent, state courts have repeatedly pounded that 

the voluntariness required for a person to waive the warrant requirement 
63

is not present. See, e.g., State v. Havatone, 389 P.3d 1251, 1255 (Ariz. 

2017) (“We conclude that the unconscious clause can be constitutionally 

applied only when case-specific exigent circumstances prevent law 

enforcement officers from obtaining a warrant.”); People v. Arredondo, 199 

Cal. Rptr. 3d 563, 573 (Ct. App. 2016) (“[C]onsent of this kind cannot be 

characterized as ‘free[].’ ” (alteration in original) (quoting People v. Michael, 

290 P.2d 852, 853 (Cal. 1955) (en banc))); People v. Ling, 222 Cal. Rptr. 3d 

463, 469 (App. Dep’t Super. Ct. 2017) (“[I]t needs no citation of authorities 

to state that an unconscious man is incapable of giving consent.” (quoting 

Carrington v. Superior Ct., 107 Cal. Rptr. 546, 549 (Ct. App. 1973))); State 

v. Wulff, 337 P.3d 575, 581 (Idaho 2014) (“[I]rrevocable implied consent 

operates as a per se rule that cannot fit under the consent exception 

because it does not always analyze the voluntariness of that consent.”); 

Byars v. State, 336 P.3d 939, 946 (Nev. 2014) (en banc) (“[T]he statute does 

not allow a driver to withdraw consent, thus a driver’s so-called consent 

cannot be considered voluntary.”); State v. Romano, 800 S.E.2d 644, 653

(N.C. 2017) (“The State did not present any other evidence [other than the 

implied-consent statute] of consent or argue that under the totality of the 

circumstances [that the] defendant consented to a blood draw.”);

Commonwealth v. Myers, 164 A.3d 1162, 1173 (Pa. 2017) (“[C]onsent 

always must be revocable.”); State v. Fierro, 853 N.W.2d 235, 241–42 (S.D. 

2014) (holding that when the trial court found no consent, the state did 

not meet the burden of showing an exception to warrant requirement);

State v. Villarreal, 475 S.W.3d 784, 799 (Tex. Crim. App. 2014) (“[A] . . . 

necessary element of valid consent is the ability to limit or revoke it.”). 

The state court cases involving bodily invasions of unconscious 

people without a warrant by the state further emphasize that whether 

consent for purposes of search and seizure law has been provided by an 
64

individual raises a question of fact and not law. Thus, the notion of 

“implied consent” pursuant to a statute is said to be an inaccurate 

description. As noted by a California appellate court in People v. 

Arredondo,

“[I]mplied consent” is a misleading, if not inaccurate, label in 

this context. Certainly consent sufficient to sustain a search 

may be “implied” as well as explicit, but it is nonetheless 

actual consent, “implied” only in the sense that it is 

manifested by conduct rather than words.

199 Cal. Rptr. 3d at 571. In other words, “ ‘implied consent’ in the statute 

does not mean that police may require drivers to consent to [testing] simply 

because they drove.” State v. Baird, 386 P.3d 239, 247 (Wash. 2017)

(en banc). Instead, it means that “in situations that the legislature has 

specified, if a driver chooses not to consent, the driver agrees that he or 

she will incur the consequences of that decision.” Id. (footnote omitted); 

see also State v. Padley, 849 N.W.2d 867, 876 (Wis. Ct. App. 2014) 

(“ ‘Implied consent’ is not an intuitive or plainly descriptive term with 

respect to how the implied consent law works. We suspect that it is a 

source of confusion.”). The Arredondo court further noted that under the 

law of contracts, consent may be implied but it is consent “in fact,” inferred 

from conduct that constitutes an actual manifestation of consent. 199 

Cal. Rptr. 3d at 571; see also Villareal, 475 S.W.3d at 799 (stating that the 

question of the voluntariness of consent is a fact question).

The state court cases involving unwarranted bodily invasions of 

unconscious people by the state also express concern regarding the power 

of the state legislature to override constitutional commands in impliedconsent statutes. The Arredondo court discussed this concern at length, 

noting that “[a] state legislature does not have the power to ‘deem’ into 

existence ‘facts’ operating to negate individual rights.” 199 Cal. Rptr. 3d 
65

at 574. But further, the Arredondo court worried about the implications 

of legislatively-imposed consent:

It is far from implausible, for example, that a legislative body—

state or federal—might decree, in the name of public safety or 

national security, that the use of the mails, or the phone lines, 

or the Internet—all of which rely to a greater or lesser extent 

on publicly owned property or facilities or publicly provided 

services—constitutes consent to search the contents of all 

communications thus conducted. Consent to search homes 

might be “deemed” to be given by anyone taking advantage of 

various publicly provided or subsidized privileges—like use of 

public utilities, libraries, or schools. Consent to search the 

person might be “deemed” to be given by use of a public 

sidewalk or occupancy of a public place.

Id. at 577–78; see also Hannoy v. State, 789 N.E.2d 977, 987 (Ind. Ct. App. 

2003) (“To hold that the legislature could nonetheless pass laws stating 

that a person ‘impliedly’ consents to searches under certain circumstances 

where a search would otherwise be unlawful would be to condone an 

unconstitutional bypassing of the Fourth Amendment.”); Meyers, 164 A.3d

at 1174 (“[L]egislative proclamation that motorists are deemed to have 

consented to chemical tests is insufficient to establish the voluntariness 

of consent that is necessary to serve as an exception to the warrant 

requirement.”). 

Some of the cases focus on the fact that where officers can 

practically obtain a warrant without significantly undermining the 

efficiency of such search, the officers are required to obtain the warrant. 

Bailey v. State, 790 S.E.2d 98, 103 (Ga. Ct. App. 2017). 

2. Exigent circumstances. I now turn to state court cases 

considering whether the exigent-circumstances exception applies in the 

context of obtaining blood draws from unconscious drivers suspected of 

driving while intoxicated. Using Schmerber as a springboard, the states

are decidedly split. Some courts are relatively demanding in requiring the 
66

state to make a strong showing of exigent circumstances, while other 

courts seem more receptive to warrantless searches of unconscious drivers 

under the exception.

For example, in State v. Bohling, the Supreme Court of Wisconsin 

held, over a dissent, that Schmerber created a per se exigent exception to 

the warrant requirement. 494 N.W.2d 399, 401–02, 406 (Wis. 1993). The 

Bohling majority relied upon: (1) the language in Schmerber; (2) the 

language in Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. at 624–

25, 109 S. Ct. at 1416–17, where the court minimized the intrusive nature 

of blood draws; (3) interpretations of Schmerber by other courts; and (4) an 

examination of the state’s interest in drunk-driving laws. Bohling, 494 

N.W.2d at 402. 

But, in contrast, the Supreme Court of Utah came to the opposite 

conclusion in State v. Rodriguez. 156 P.3d 771, 774–80 (Utah 2007). The 

Utah court relied upon Justice Brennan’s later explanation of Schmerber, 

that “[t]he intrusion perhaps implicated Schmerber’s most personal and 

deep-rooted expectations of privacy, and the Court recognized that Fourth 

Amendment analysis thus required a discerning inquiry into the facts and 

circumstances to determine whether the intrusion was justifiable.” Id. at 

775 (alteration in original) (quoting Winston v. Lee, 470 U.S. at 760, 105 

S. Ct. at 1616). 

There are at least three state court cases dealing with the application 

of the exigent-circumstances exception to the warrant requirement in the 

context of dissipation of marijuana metabolites. In Byars v. State, the 

Supreme Court of Nevada noted that “[t]here [was] no indication in the 

record that Trooper Murwin was prevented from seeking a warrant 

telephonically.” 336 P.3d at 944. On the record of the case, the court held 
67

that the state failed to establish exigent circumstances to justify the 

warrantless search. Id. at 944–45.

A similar result occurred in City of Seattle v. Pearson, 369 P.3d 194 

(Wash. Ct. App. 2016). In that case, a Washington appellate court 

observed,

Absent other extenuating circumstances, the natural 

dissipation of THC in a suspect’s bloodstream will constitute 

an exigency sufficient to forgo the warrant requirement only if 

the party seeking to introduce evidence of a warrantless blood 

test can show that waiting to obtain a warrant would result in 

losing evidence of the defendant’s intoxication.

Id. at 200. Further, the Washington court went on to state,

[W]e hold that the natural dissipation of THC from the 

bloodstream is a relevant consideration in an exigent 

circumstances analysis but is not a per se exigent 

circumstance that justifies an exception to the warrant 

requirement for nonconsensual blood draws in DUI cases.

Id. at 201. Based on the record, the court concluded that the warrantless 

blood draw was not justified in that case. Id. 

In State v. Anderson, however, a Washington appellate court 

concluded, based on the record, that the state had made an adequate 

showing of exigent circumstances in an alcohol and THC case based on

the facts and circumstances presented. 447 P.3d 176, 182 (Wash. Ct. App. 

2019). 

D. Iowa Cases Involving Warrantless Blood Draws. 

1. Implied consent. Although they do not deal specifically with 

implied consent, we have considered a number of search and seizure cases 

that generally applied the notion of consent found in Schneckloth under

both the Fourth Amendment to the United States Constitution and article 

I, section 8 of the Iowa Constitution. In these cases, we applied the familiar 

fact-based, totality-of-the-circumstances test. In some cases, we found 
68

that the state failed to show valid consent. See, e.g., Reinier, 628 N.W.2d 

at 467–69; State v. Horton, 625 N.W.2d 363, 364 (Iowa 2001) (en banc). In 

other cases, we held that the state successfully demonstrated consent. 

State v. Reinders, 690 N.W.2d 78, 84 (Iowa 2004). These cases show 

consistent application of a nuanced, case-specific approach to consent.

We considered a question of a categorical, nonfact-based approach 

in State v. Ochoa. 792 N.W.2d at 287–91. In Ochoa, the state asserted 

that its executive action in imposing “search conditions” in parole 

agreements authorized law enforcement officials to search the residence of 

a parolee at any time and for any reason. Id. at 262. We noted that the 

scope of the state’s asserted power was “stunningly broad.” Id. at 287–88. 

We expressed concern about the “categorical nature” of the treatment of 

the issue by the United States Supreme Court. Id. at 289. We rejected 

the artificial “act of grace,” “waiver,” or “constructive custody” theories. Id.

at 290–91. We noted that the asserted power of the state too closely 

resembled a general warrant, where a search could be conducted without 

any meaningful mechanism of control. Id. at 291. Although the case did 

not expressly involve consent, we showed in Ochoa firm resistance to 

broad, generalized policies imposed by the executive branch designed to 

defeat individualized claims of search and seizure protection under the 

Iowa Constitution. See id.

We considered the issue of consent in the context of a traffic stop in 

Pals. 805 N.W.2d at 770–71. In Pals, we concluded, based again on the 

totality of circumstances, that Pals’s consent could not be considered 

voluntary under article I, section 8 of the Iowa Constitution. Id. at 782–

84. Among other factual factors, we considered the fact that Pals was 

subject to a pat-down search, that he was detained in a police vehicle, that 

he was not told that he was free to leave, and that the officer had not told 
69

Pals that the business related to the stop was concluded. Id. Our review 

of the consent issue was clearly fact-intensive. 

We considered an important consent issue in State v. Baldon. 829 

N.W.2d at 789–91. In Baldon, the question was whether a signature by a 

parolee convicted of drug offenses on a parole agreement that consented 

to future warrantless searches of his home, vehicle, and belongings was a 

valid consent under article I, section 8 of the Iowa Constitution. Id. at 

787–91. The courts across the country were split on the issue. Id. at 792–

95. After review of the cases, we sided with the jurisdictions that held that 

the execution of a parole agreement did not categorically establish consent. 

Id. at 800–03. A prospective consent-to-search provision in a parole 

agreement did not solely give rise to a valid consent. Id. at 800. We noted 

that there was no additional evidence in the record to reveal Baldon 

voluntarily consented to a search. Id. at 802. But the state relied solely 

on the parole agreement, which we found was insufficient. Id. We stated 

that “more is needed.” Id. at 803. 

The above principles have generally been applied by this court in the 

context of claims of consent via implied-consent statutes. In State v.

Garcia, we considered whether an individual voluntarily submitted to a 

blood test when an officer invoked implied-consent procedures. 756 

N.W.2d 216, 220 (Iowa 2008). We emphasized that in order to be 

voluntary, the consent must be “freely made, uncoerced, reasoned, and 

informed.” Id. The issue of consent was not “deemed” to be satisfied 

merely by the statute, but needed to be proved, as a matter of fact, by the 

state. Id. at 220–21, 223.

A second implied-consent case is State v. Overbay, 810 N.W.2d 871 

(Iowa 2012). In that case, we determined that consent could be voluntary 

under an implied-consent regime provided that the decision to submit to 
70

the test was “a reasoned and informed decision.” Id. at 876 (quoting State 

v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003)). Again, the statute itself 

was insufficient for consent to be “deemed” to have been satisfied. Id.

Instead, the state was required to prove that the consent, pursuant to the 

statute, satisfied the voluntariness requirement. Id. at 879–80. 

Finally, we considered the issue of implied consent in Pettijohn. 899 

N.W.2d at 25–29. In that case, we considered the constitutionality of a 

warrantless breath test obtained from a boater suspected of drunk 

boating. Id. at 25–26. We canvassed jurisdictions, noting that consent 

must be voluntary and must be subject to limitation or withdrawal. Id. at 

28. Consistent with Garcia and Overbay, we rejected the state’s claim that 

the implied-consent statute dealing with drunken boaters provided per se 

consent sufficient to justify the warrantless breath test in the case. Id. at 

29. We therefore held that the consent implied by the statute did not 

automatically permit a warrantless search consistent with article I, section 

8 of the Iowa Constitution. Id. 

We then turned to the question of whether consent was given by 

Pettijohn under the totality of circumstances to be sufficiently voluntary 

to pass constitutional muster under article I, section 8. Id. at 29–38. We 

canvassed the facts, including the intoxication of the boater, the detention 

of the boater at the police station, the inaccuracy of the implied-consent 

agreement read to him by the officers, and the imposition of a penalty of 

at least $500 for failing to provide consent. Id. at 32–38. We concluded 

that in light of all the facts and circumstances, consent was not voluntary 

in the case. Id. at 37–38.

The majority opinion was qualified in one important respect. 

According to the majority, the evaluation of the totality-of-thecircumstances test could lead to different outcomes in a different case. Id.
71

at 38. The majority stated “[a]ny decision relating to operating a motor 

vehicle while under the influence will have to wait for another case raising 

its constitutionality.” Id. 

2. Exigent circumstances. In State v. Findlay, we considered 

whether a search of the body of an unconscious person not under arrest 

amounted to an unreasonable invasion of privacy. 259 Iowa 733, 735, 145 

N.W.2d 650, 651–52 (1966). The Findlay court recognized that a warrant 

was generally required and that the administrative “inconvenience to the 

officers” and the “delay necessary to prepare the papers and present the 

evidence to the magistrate” is not an “exceptional circumstance” sufficient 

to avoid the warrant requirement. Id. at 739, 145 N.W.2d at 654. But the 

Findlay court emphasized that “the situation [was] different where the 

delay will cause the destruction of the evidence, and where . . . there is a 

showing the officer believes delay will result in a loss of the vital evidence.” 

Id. at 740, 145 N.W.2d at 654. 

Although the opinion is cryptic, it is an early version of the exigentcircumstances exception to the warrant requirement in the context of an

unconscious driver suspected of driving while intoxicated. On the one 

hand, it is clear that expressions of administrative convenience clearly are 

insufficient to avoid the warrant requirement. On the other hand, when 

law enforcement produces expert testimony stating that, under the facts 

and circumstances, the state faced imminent destruction of evidence, the 

state might not be required to seek a warrant. Findlay is a something for 

everyone case. 

There are two more recent Iowa exigent-circumstances cases that 

provide additional guidance. The first case is State v. Johnson, 744 N.W.2d 

340 (Iowa 2008). The case concerned a driver involved in an accident and

suspected of drunk driving and was arrested and taken to the Des Moines 
72

police station. Id. at 341. After the suspect refused a breath test, he was 

taken to the hospital and a blood sample was taken without his consent. 

Id. 

In Johnson, we directly confronted the two strands of authority 

emanating from Schmerber. Id. at 343–45. We rejected the per se 

approach to exigency adopted by the Supreme Court of Wisconsin in

Bohling, 494 N.W.2d at 402, in favor of the more fact-based approach 

adopted by the Supreme Court of Utah in Rodriguez, 156 P.3d at 776. 

Johnson, 744 N.W.2d at 344. 

The second case is State v. Harris, 763 N.W.2d 269 (Iowa 2009) (per 

curiam). In Harris, we considered a warrantless blood draw where the 

driver in a single vehicle accident had killed a pedestrian. Id. at 270. 

Under the applicable statute, a warrantless blood draw was permitted if 

“[t]he peace officer reasonably believes the officer is confronted with an 

emergency situation in which the delay necessary to obtain a warrant . . . 

threatens the destruction of the evidence.” Id. at 271–72 (quoting Iowa 

Code § 321J.10A(1)(c) (2006)).

In Harris, we again considered the question of the scope of 

Schmerber. Id. at 272–73. We again noted that Schmerber required more 

than the mere dissipation of alcohol to justify a warrantless search. Id. at 

272. We also stressed the Schmerber language that for the warrantless 

blood draw in that case, there was not time to obtain a warrant and that 

“given these special facts,” a warrantless search was permitted. Id.

(emphasis omitted) (quoting Schmerber, 384 U.S. at 770–71, 86 S. Ct. at 

1835–36). In short, we clearly aligned with the line of cases that 

interpreted Schmerber to be a case about “special facts” and not a case 

about the categorical endorsement of warrantless searches for blood 

draws. See id.
73

We then turned to analysis of the facts in Harris. The record showed 

that the officer was acting at the direction of the county attorney with 

respect to the warrant application. Id. at 273–75. The officer’s testimony 

included the following:

Q: . . . [C]ould you tell the Court what the emergency 

situation was in this case that caused you to draw blood . . . 

without a warrant . . . . A: Well, I was following the guidelines 

from [the county attorney]. . . .

. . . .

Q: Was the emergency situation that [the county 

attorney] says take the blood? A: This is what the county 

attorney—we had all what we thought we may have, what we 

might have, and this was the decision of the county attorney.

Q: And you followed his instructions? A: And I 

followed his instructions.

Id. at 274 n.2 (first alteration and first, second, third, and fifth omissions 

in original).

As a result, the suppression was affirmed. Id. at 275. Harris plainly 

stands for the proposition that the reasonability component of the exigentcircumstance exception, at least in Iowa, has an objective and subjective 

component.

IV. Discussion of the Merits.

A. Implied Consent. In my view, the precise issue presented and 

decided by the district court, and raised on appeal, is whether an 

unconscious driver may be “deemed” to have consented to a blood draw 

under Iowa’s implied-consent statute consistent with the Fourth 

Amendment and article I, section 8, has a clear answer: No.

At the outset, as noted by the authorities in more than a dozen 

states, the narrow and jealously guarded theory of consent to avoid the 

warrant requirement in search and seizure cases is fact-based. Whether 
74

one operates under the consent approach of Schneckloth or the more 

demanding waiver theory of Zerbst, the notion of the surrender of 

constitutional rights by the individual requires a deliberate and voluntary 

act. The basic premise of consent is that it is an act of free will, given 

voluntarily. And, it has been repeatedly said, in order for consent to be 

voluntary, it must be subject to limitation and, ultimately to revocation.

See, e.g., Jimeno, 500 U.S. at 252, 111 S. Ct. at 1804. But see Iowa Code 

§ 321J.7 (prohibiting revocation of “implied consent”). The notion of 

voluntary consent is a question of fact and is a constant across different 

fields of law. See, e.g., Johnson v. Associated Milk Processors, 886 N.W.2d 

384, 390 (Iowa 2016) (holding in contract law consent may be express or 

implied “from acts and conduct” (quoting Davenport Osteopathic Hosp. 

Ass’n of Davenport, Iowa v. Hosp. Serv., Inc., 261 Iowa 247, 253, 154 

N.W.2d 153, 157 (1967))); State v. Plaster, 424 N.W.2d 226, 229 (Iowa 

1988) (en banc) (holding that determining consent to intercourse is “the 

consequential fact” in a sexual abuse case); Jarvis v. Stone, 216 Iowa 27, 

35, 247 N.W. 393, 397 (1933) (determining that whether an automobile is

driven without the owner’s consent is a question of fact). 

None of these features are present when consent is “deemed” to have 

occurred solely based on the legislature’s declaration in Iowa’s impliedconsent statute. See Iowa Code § 321J.6. Consistent with the vast 

majority of state court cases, our caselaw under article I, section 8 has 

consistently rejected artificial, categorical approaches to consent, and 

instead requires the state to show that consent was truly voluntary based 

on an individualized, fact-based inquiry. See, e.g., Pettijohn, 899 N.W.2d 

at 29–38; Baldon, 829 N.W.2d at 800–03; Overbay, 810 N.W.2d at 879–

80; Ochoa, 792 N.W.2d at 287–91; Garcia, 756 N.W.2d at 220–23.
75

Further, the notion that a driver is “deemed” to have consented to a 

blood draw solely based upon driving on the highways imposes an 

unconstitutional condition on a government benefit. This issue was 

explored in one of the amicus briefs filed in Mitchell. See Brief of Amicus 

Curiae California DUI Lawyers Ass’n in Support of Petitioner at 4–10,

Mitchell, 588 U.S. ___, 139 S. Ct. 2525 (2019) (No. 18–6210), 2019 WL 

1092735, at *4–10 [hereinafter Mitchell Amicus Brief]. The brief noted that

in Frost v. Railroad Commission, 271 U.S. 583, 46 S. Ct. 605 (1926), the 

Supreme Court struck down a state law that, as a condition of operating 

on its highways, required private carriers to become public carriers. 

Mitchell Amicus Brief, at 4–5, 2019 WL 1092735, at *4–5. The Supreme 

Court declared: 

If the state may compel the surrender of one constitutional 

right as a condition of its favor, it may, in like manner, compel 

a surrender of all. It is inconceivable that guaranties 

embedded in the Constitution of the United States may thus 

be manipulated out of existence.

Frost, 271 U.S. at 594, 46 S. Ct. at 607; see also; Koontz v. St. John’s River 

Water Mgmt. Dist., 570 U.S. 595, 606, 133 S. Ct. 2586, 2595 (2013) (“[T]he 

unconstitutional conditions doctrine forbids burdening the Constitution’s 

enumerated rights by coercively withholding benefits from those who 

exercise them.”); Arredondo, 198 Cal. Rptr. 3d at 570–71, 577–78 (listing 

possible extension of unconstitutional conditions). Similarly, the amici 

argued, implied-consent laws contain the implied condition of forfeiting 

one’s search and seizure rights against a warrantless search in order to 

drive. Mitchell Amicus Brief, at 7, 2019 WL 1092735, at *7.

If the door is open to unconstitutional conditions, the amici 

suggested, the end result could severely undermine our panoply of 
76

constitutional rights. Id. at 9–10, 2019 WL 1092735, at *9–10. The amici 

cited United States v. Scott, where the Ninth Circuit noted:

Government is a monopoly provider of countless services,

notably law enforcement, and we live in an age when 

government influence and control are pervasive in many 

aspects of our daily lives. Giving the government free rein to 

grant conditional benefits creates the risk that the 

government will abuse its power by attaching strings 

strategically, striking lopsided deals and gradually eroding 

constitutional protections.

450 F.3d 863, 866–67 (9th Cir. 2006); see also Kathleen M. Sullivan, 

Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1492 (1989). 

If implied-consent statutes can, as a matter of law, require all drivers 

to waive search and seizure protections with respect to warrantless blood 

draws, may the state, then, pass a statute declaring that all drivers must 

waive search and seizure protections for their cell phones, their car 

interiors, their glove compartments, or the persons in their car? And the 

reach of statutorily created consent could extend well beyond the highway. 

May the government condition the granting of a building permit on implied 

consent to search the premises without a warrant? See Elkins v. District

of Columbia, 710 F. Supp. 2d 53, 56–61, 65 (D.D.C. 2010), vacated on 

other grounds, 690 F.3d 554 (D.C. Cir. 2012). In short, the replacement 

of the established, fact-based, constitutionally required voluntary consent 

with a statutory system of trumps would have the potential to eliminate 

the effectiveness of our State and Federal Bill of Rights. That sharp sound 

one hears in the background is George Ells and his compatriots screaming,

“NO, NO, NO!” to the State’s claim of legislative supremacy to override the 

precious terms of article I of the Iowa Constitution.

And, the notion that the legislature can as a matter of law “deem” a 

driver to have consented to a search by simply using the roads amounts 

to a general warrant or writ of assistance—the very reasons for the 
77

development of American search and seizure law. See Ochoa, 792 N.W.2d 

at 263–74; see also Riley, 573 U.S. at 403, 134 S. Ct. at 2494. If all of the 

tens of thousands of persons driving on the Iowa roads each day “consent” 

by force of law to “waive” the constitutional protections of the Fourth 

Amendment and article I, section 8, is that not a legislative enactment of 

a general warrant? In Maryland v. King, Justice Scalia described the hated

general warrants as “warrants not grounded upon a sworn oath of a 

specific infraction by a particular individual, and thus not limited in scope 

and application.” 569 U.S. 435, 466, 133 S. Ct, 1958, 1980 (2013) (Scalia, 

J., dissenting). Isn’t that exactly what Iowa Code sections 321J.6 and 

321J.7 do? Doesn’t the implied-consent statute mean that blood draws 

for everyone on the open road are now permitted without an oath, without 

particularity, and unlimited in scope? Preventing the state from having 

the power to generally search large groups of people without a warrant was 

precisely the abuse that search and seizure law was designed to prevent. 

For all of the above reasons, even the United States Supreme Court 

is, currently at least, unwilling to justify warrantless searches of an 

unconscious person based on implied-consent statutes. From a process 

point of view, Mitchell is surely a procedural pretzel, with the Supreme 

Court taking a case to resolve the question of whether implied consent 

permitted the warrantless search of an unconscious driver, and then 

twisting the case to decide the unraised question of exigent circumstances 

that was not briefed by the parties and, indeed, was conceded by the state 

below. This extraordinary maneuver suggests the Supreme Court did not 

want to touch the hot stove issue of warrantless searches based on the 

legal concept of implied consent. 

In any event, I would reject the notion that a statute can “deem” the 

fact of consent under the Iowa Constitution in light of the free will nature 
78

of consent embraced in the caselaw, rejection of unconstitutional 

conditions, the similarity of implied consent to a general warrant or writ of 

assistance, and our consistent recent caselaw. See Pettijohn, 899 N.W.2d 

at 28–29 (rejecting mere existence of statutory implied consent to permit 

administration of a warrantless test and stating “we must determine, 

under the totality of the circumstances, whether Pettijohn effectively 

consented to submit to the breath test”); Baldon, 829 N.W.2d at 802 

(“Considering our obligation to ensure that consent remains a doctrine of 

voluntariness that functions with integrity, we conclude a parole 

agreement containing a prospective search provision is insufficient 

evidence to establish consent.”); Ochoa, 792 N.W.2d at 291 (“[A] parolee 

may not be subjected to broad, warrantless searches by a general law 

enforcement officer without any particularized suspicion or limitations to 

the scope of the search.”). 

The only rationale for avoiding a warrant presented by the State at 

the district court was that consent was “deemed” under Iowa’s impliedconsent statute. The State made no effort to show exigent circumstances 

to avoid the warrant requirement. As a result, McGee’s motion to suppress 

should have been granted. I would thus vacate McGee’s conviction and 

remand the matter to the district court. 

B. Exigent Circumstances.

1. Preservation of error. There is an initial issue of preservation of 

error. As is apparent from an examination of the transcript of the legal 

argument at the hearing, the State made no claim at all of exigent 

circumstances below. Further, the district court made no factual or legal 

findings on the issue. This is thus not a case where a change of law 

occurred while a claim of exigency was pending before the court. The State 

simply did not claim exigency, period. 
79

A decision not to pursue exigent circumstances would not have been 

careless as, under our caselaw, there was little chance that the State could 

prevail on the issue. The facts reveal that the case has a striking parallel 

to Harris, where we held that if the only reason advanced for not getting a 

warrant was the directives of the prosecutor, exigent circumstances have

not been established. 763 N.W.2d at 270, 275. A decision not to proceed 

would be consistent with a strategic decision not to present a meritless 

claim. 

We have previously considered a case where the state did not make

a claim in the district court during a suppression hearing and then 

attempted to resurrect it for the first time on appeal. See Baldon, 829 

N.W.2d at 789. In State v. Baldon, the state, before the district court,

asserted that Baldon had consented to a search through a parole 

agreement, but did not raise any generalized argument under a “balancing 

test” or “special needs” theory. Id. (quoting New Jersey v. T.L.O., 469 U.S. 

325, 351, 105 S. Ct. 733, 748 (1985) (Blackmun, J., concurring in 

judgment)). We stated:

The State did not introduce evidence of any particular need 

for the parole officer to search Baldon, either predicated on 

individual suspicion, background information particular to 

Baldon that would have been known to the parole officer, or 

the general mission of parole. Thus, the only issue we address 

on appeal is whether a parole agreement containing a 

consent-to-search clause renders suspicionless and 

warrantless searches of parolees reasonable under the search 

and seizure clause of the Iowa Constitution.

Id. at 789–90. A dissent argued that we should have considered the issues 

not presented because of caselaw developments that occurred after the 

district court proceedings. Id. at 847 (Mansfield, J., dissenting). The 

question of issue preservation in this case presents nearly identical 
80

circumstances as the issue preservation question presented and decided 

in Baldon. 

We have stated that “[i]t is a fundamental doctrine of appellate 

review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.” Meier v. Senecaut, 

641 N.W.2d 532, 537 (Iowa 2002). Here, there is no question that the 

State did not raise exigent circumstances before the district court. Thus, 

if the preservation ruling in Meier v. Senecaut, as applied in Baldon, is to 

be followed, we would not address the exigent-circumstances issue raised 

by the State for the first time on appeal. I would follow our precedent and 

decline to consider the exigent-circumstance question which the State did 

not raise in the trial court below. 

The problem here is especially acute when we are asked to depart 

from past precedent and adopt the newly developed approach in Mitchell 

to a blood draw designed to obtain evidence of marijuana use. No record 

has been developed to guide us in the potential fashioning or refurbishing 

of our traditional approach to exigent circumstances. We should not 

engage in significant constitutional innovations without a thorough record 

below. 

2. Discussion. If I were to address the question posed on appeal as 

a first responder, without a record or decision of the district court on the 

issue, I would find the constitutional innovations to the Fourth 

Amendment law introduced by the Supreme Court in Mitchell problematic

and inapplicable to our consideration of the question under article I, 

section 8 of the Iowa Constitution. To the extent I would look to federal 

caselaw for guidance, I find the opinions of Justice Sotomayor in McNeely

and Mitchell far more persuasive than the Mitchell plurality opinion. 

Further, I would rely on the better reasoned traditional Iowa and state law 
81

precedents that have consistently employed a narrow exception to the 

warrant requirement based on exigent circumstances demonstrated by the 

state, on the record, of a compelling need and impracticability of obtaining 

a warrant. 

The problems with Mitchell are manifest. First, remarkably, it shifts 

the burden to the defendant of showing that an exception to the warrant 

requirement does not exist. See Mitchell, 588 U.S. at ___, 139 S. Ct. at

2539. That innovation is inconsistent with our caselaw and is an 

undesirable development. Obtaining a warrant is the norm and exigent 

circumstances the exception. The burden of proving an exception to the 

generally applicable rule, especially one of such importance as the warrant 

requirement, should rest with the state. See, e.g., Welsh, 466 U.S. at 749–

50, 104 S. Ct. at 2097 (stating the government bears a “heavy burden” to 

show exigent circumstances); Armijo ex rel. Armijo Sanchez v. Peterson, 601 

F.3d 1065, 1070 (10th Cir. 2010) (“The officers bear the burden of 

establishing that the threats posed exigent circumstances justifying the 

warrantless entry.”); Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir. 

2009) (“[A]s with other exceptions to the warrant requirement, the 

Government bears the burden of demonstrating that the search at issue 

meets the[] parameters.” (quoting United States v. Stafford, 416 F.3d 1068, 

1074 (9th Cir. 2005))); Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996)

(“To excuse the absence of a warrant, the burden rests on the State to 

show the existence of these exceptional situations.”).

Further, the information necessary to prove the exception is in the 

possession of the state, not the defendant. See, e.g., N.Y., New Haven & 

Hartford R.R., 355 U.S. at 256 n.5, 78 S. Ct. at 214 n.5 (“The ordinary rule, 

based on considerations of fairness, does not place the burden upon a 

litigant of establishing facts peculiarly within the knowledge of his 
82

adversary.”); cf. Breese v. City of Burlington, 945 N.W.2d 12, 23 (Iowa 2020)

(“Given the function of the state-of-the-art defense, placing the burden on 

the party challenging the defense is illogical because the defendant will 

normally have access to information regarding when the improvement was 

made.”). Why could the State not obtain a warrant? How long would it 

have taken? What other tasks did the officers have to do? How many were 

available? Are we prepared to provide the defendant with the kind of 

discovery necessary to attempt to put the needle through the camel’s eye

created by Mitchell? If not, have we created an impossible burden? Indeed, 

was that not the goal in Mitchell? And is the Mitchell Court ensuring that 

the exigent-circumstances exception is “narrow and jealously guarded?” 

At least one state supreme court has already rejected the burden shifting 

in Mitchell. See State v. Key, 848 S.E.2d 315, 316 (S.C. 2020) (“We have 

carefully considered the Mitchell holding and conclude we will not impose 

upon a defendant the burden of establishing the absence of exigent 

circumstances.”).

Second, even assuming the defendant is entitled to robust discovery, 

the substantive standard is nearly impossible for a defendant to show. A 

defendant must prove a remarkable negative, “that police could not have 

reasonably judged that a warrant application would interfere with other 

pressing needs or duties.” Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539. 

As the Supreme Court has noted, “as a practical matter it is never easy to 

prove a negative.” Elkins v. United States, 364 U.S. 206, 218, 80 S. Ct. 

1437, 1444 (1960); see also Rivera v. Woodward Res. Ctr., 865 N.W.2d 

887, 898 (Iowa 2015) (“Plaintiffs are rarely required to prove a negative.”); 

Commonwealth v. Buonopane, 599 A.2d 681, 683 n.2 (Pa. 1991) (“[A] 

virtually impossible burden [is] placed upon a party required to prove a 

negative.” (quoting Commonwealth v. DeHart, 516 A.2d 656, 668 (Pa. 
83

1986))). Police always have other things they could be doing. Under 

Mitchell, obtaining a warrant in a drunk-driving case may be excused by 

officers who state they had other responsibilities. Indeed, police 

departments can structure their staffing arrangements to ensure that a 

warrant is never required in a drunk-driving case because of thin staffing. 

Mitchell does not mention the traditional view that administrative 

convenience does not justify evasion of the warrant requirement. See 

Coolidge, 403 U.S. at 481, 91 S. Ct. at 2046 (stating that the constitutional 

command of the warrant requirement “is not an inconvenience to be 

somehow ‘weighed’ against the claims of police efficiency.”).

Third, the approach in Mitchell is inconsistent with our prior 

caselaw. For instance, consider Harris where we rejected the state’s effort 

to escape the warrant requirement where a warrant was not obtained as a 

result of adherence to a policy of the local prosecutor. 763 N.W.2d at 275. 

Here, the record before the district court shows that Officer Fricke did not 

pursue a warrant based upon his understanding of department policy. A 

rational state actor would have recognized that there were no “special 

facts” to support exigent circumstances and Harris foreclosed any 

argument based on compliance with policy. 

Fourth, it is inconsistent with the case-by-case approach that has 

been applied to determining exigency. McNeely, of course, dealt with the 

dissipation of alcohol, but its principles apply here with full applicability. 

Indeed, the caselaw suggests that McNeely adequately handles claims of 

exigency arising from drugged driving. See, e.g., Byars, 336 P.3d at 944–

45; Anderson, 447 P.3d at 182; Pearson, 369 P.3d at 201. 

Fifth, our cases should not whipsaw around like a wild caboose at 

the end of a federal caselaw train. See Ochoa, 792 N.W.2d at 266 (noting

instances of “whipsaw” in caselaw where the court reversed precedents 
84

based solely upon changes in United States Supreme Court doctrine). 

Here, the United States Supreme Court has not been remotely consistent. 

In McNeely, Justice Sotomayor’s opinion was protective of Fourth 

Amendment rights, carefully sought to follow applicable precedent, and 

was consistent with the search and seizure principles outlined at the 

beginning of this opinion. In Mitchell, decided only a few years later, the 

Court embarked on a dramatically different path, explainable only by 

changes in the Court’s membership. Mitchell runs against traditional 

principles of search and seizure law, including the need to carefully defend 

the protections of the Bill of Rights against state encroachment, the need 

to fashion only narrow exceptions to the warrant requirement, the notion 

that search and seizure protections are not defeated by mere 

administrative convenience, and the placement of the burden of 

demonstrating exceptions to the warrant requirement on the state. So, if 

the issue had been preserved, I would adhere to the approach in McNeely 

under article I, section 8 of the Iowa Constitution. 

While there is a substantial body of scientific literature on the 

dissipation of alcohol, less is known about the dissipation of marijuana.12

If the issue had been actually litigated in the district court, we would know 

more. We might also know how long it takes to get a warrant in an OWI

 

12Unlike the level of alcohol in the bloodstream, the level of marijuana metabolites

in the bloodstream may not be a reliable indicator of intoxication. As noted by one 

resource, 

The nationally recognized level of impairment for drunken driving is .08 

g/mL blood alcohol concentration. But there is no similar national 

standard for drugged driving. Drugs do not affect people consistently. 

Drugs such as marijuana can also stay in the system for weeks, thus 

appearing in roadside tests while no longer causing impairment. 

Drugged Driving: Marijuana-Impaired Driving, Nat’l Conf. of State Legislatures (Nov. 9, 

2020), https://www.ncsl.org/research/transportation/drugged-driving-overview.aspx 

[https://perma.cc/PG26-2R4S]. 
85

case. In this case, however, we are flying blind. So, on this appeal, I see 

no basis for developing some kind of new legal standard for marijuana, 

particularly one simply copied from Mitchell—a decision based solely on 

alcohol. Whether the State could have met its burden in this case under 

the traditional exigent-circumstances requirements, I do not know, but 

what I do know is that the State did not try to make the required showing. 

I would not remand for a second chance. But to the extent the State is 

entitled to a second chance, it should not be based upon a newly developed 

framework fashioned by this court on appeal on a completely inadequate 

record.

13

 

13In this case, McGee also raises a claim that the application of Iowa’s impliedconsent law to him violates equal protection and that strict scrutiny should apply because 

the classifications affect his fundamental constitutional rights. The equal protection 

claim is viable only if the court finds Iowa Code sections 321J.6 and 321J.7 

constitutionally applied in this case to validate the blood draw. The majority declines, 

however, to apply the terms of the implied-consent statute in this case. That’s a good 

thing, as the statute is, as demonstrated by this opinion, unconstitutional under article 

I, section 8 of the Iowa Constitution. As a result, McGee’s equal protection question is 

moot. That means the majority’s discussion of the issue is dicta. Because I have found 

that the implied-consent provisions cannot constitutionally be applied against McGee, 

the equal protection claim is also moot under my approach. As a result, it is not necessary 

to address it on the merits. 

There is also a reference in the majority opinion to Baker v. City of Iowa City, 867 

N.W.2d 44 (Iowa 2015), in a footnote. In Baker, we held that where the basis for an 

assertion of a fundamental right was a constitutional claim and that claim failed, the 

classification would be judged on a rational basis test. Id. at 57. 

The majority cites to People v. Hyde, 393 P.3d 962, 969 (Colo. 2017) (en banc), 

and People v. Kates, 428 N.E.2d 852, 855 (N.Y. 1981), two cases from other jurisdictions 

where an equal protection challenge to an implied-consent law was rejected because the 

court found no search and seizure violation. 

Although I agree that Baker was properly decided, the principle in that case is 

extremely narrow. It depends on the proposition that the fundamental interest asserted 

as giving rise to strict scrutiny for equal protection purposes is entirely eliminated by the 

adverse ruling on the individuals’ other constitutional claim. In other words, the claim 

supporting the assertion of a fundamental interest must be completely extinguished for 

Baker to apply. If the implied-consent law implicates a fundamental right and is invalid, 

any classifications might well be subject to strict scrutiny. But, as noted above, the claim 

is moot and needs not be addressed here.
86

V. Conclusion.

For the above reasons, I would reverse the judgment of the district 

court and remand the case with instructions that the motion to suppress 

should have been granted. I note that my approach does not prevent the 

state from searching for evidence through blood draws from an 

unconscious individual suspected of intoxicated driving. The state is never 

powerless to get such a blood sample, it only must get a search warrant or 

show the exigent circumstances that make obtaining such a warrant 

impracticable. As noted by Justice Gorsuch when serving as a judge on 

the Tenth Circuit, “The [Fourth] Amendment and the common law from 

which it was constructed leave ample room for law enforcement to do its 

job. A warrant will always do.” United States v. Carloss, 818 F.3d 988, 

1015 (10th Cir. 2016) (Gorsuch, J., dissenting).

But my approach does not have the analytical overkill of Mitchell;

rather, it permits warrantless blood draws only in the narrow 

circumstances historically permitted by search and seizure doctrine. The 

only downside to my approach is that it might be less efficient. But the 

fact that obtaining a warrant requires some time and effort is not 

constitutionally significant. A blood draw involves the state thrusting a 

needle into your body and drawing out a substance that can provide many 

intimate details of health and life. It is a grave error to generally exempt 

such intrusions from the warrant requirement where truly exigent 

circumstances are not present.

 

With respect to the Hyde and Kates cases, these cases found no constitutional 

violation and, therefore, there could be no fundamental interest for equal protection 

purposes that would trigger strict scrutiny based on the unfounded constitutional claim. 

These cases, and Baker, are limited to their narrow context. Nothing in the 

majority opinion or the footnote should affect the ability of a party to plead multiple, 

overlapping constitutional claims. The loss of one constitutional claim, of course, does 

not necessarily affect another. 
87

#19–1219, State v. McGee

OXLEY, Justice (dissenting).

In this case, on this record, I do not believe that the United States 

Supreme Court would extend Mitchell v. Wisconsin’s holding that the 

exigent circumstances involving suspected OWI from alcohol consumption 

apply equally to cases involving marijuana. 588 U.S. ___, 139 S. Ct. 2525 

(2019). Absent an exigency, the State violated McGee’s Fourth 

Amendment rights when it took the blood draw without obtaining actual 

consent or a warrant. I therefore respectfully dissent.

After describing the exigent circumstances exception to the Fourth 

Amendment’s warrant requirement as being met only when “there is 

compelling need for official action and no time to secure a warrant,” id. at

___, 139 S. Ct. at 2534 (quoting Missouri v. McNeely, 569 U.S. 141, 149, 

133 S. Ct. 1552, 1559 (2013)), Justice Alito went to great lengths to 

describe the “compelling need” that justified a warrantless blood test taken 

from an unconscious driver suspected of drunk driving, id. at ___, 139 

S. Ct. at 2535–37. Justice Alito summarized: 

The importance of the needs served by BAC testing is 

hard to overstate. The bottom line is that BAC tests are 

needed for enforcing laws that save lives. The specifics, in 

short, are these: Highway safety is critical; it is served by laws 

that criminalize driving with a certain BAC level; and enforcing 

these legal BAC limits requires efficient testing to obtain BAC 

evidence, which naturally dissipates. So BAC tests are crucial 

links in a chain on which vital interests hang. And when a 

breath test is unavailable to advance those aims, a blood test 

becomes essential.

Id. at ___, 139 S. Ct. at 2535 (emphasis added).

He then supported how compelling the need was with wellestablished and undisputed empirical data: alcohol-related accidents took 

ten to twenty thousand lives per year between 1982 and 2016; “federal 

and state lawmakers have long been convinced that specified BAC limits
88

make a big difference” in reducing the number of alcohol-related accidents; 

and, critically, “[e]nforcement of BAC limits . . . requires prompt testing 

because it is ‘a biological certainty’ that ‘[a]lcohol dissipates from the 

bloodstream at a rate of 0.01 percent to 0.025 percent per hour[;] . . . 

[e]vidence is literally disappearing by the minute.’ ” Id. at ___, 139 S. Ct. 

2536 (second alteration and omission in original) (emphasis added)

(quoting McNeely, 569 U.S. at 169, 133 S. Ct. at 1570–71 (Roberts, C.J., 

concurring in part and dissenting in part)). Even then, Justice Alito 

recognized continued adherence to McNeely, “the constant dissipation of 

BAC evidence alone does not create an exigency,” and a warrant is still 

required unless there is “no time to secure a warrant.” Id. at ___, 139 

S. Ct. at 2537 (citing McNeely, 569 U.S. at 150–51, 133 S. Ct. at 1552).

The fact that THC may dissipate from the blood “quickly” is not both 

the beginning and the end analysis. If that is all that was needed to find 

a “compelling need,” Justice Alito would not have described in such detail 

the reliability of the science surrounding blood alcohol concentration

(BAC) levels, the significant impact a specific BAC level has for law 

enforcement’s ability to enforce laws, and the effectiveness of laws setting 

particular BAC limits at reducing alcohol-related traffic accidents. See id.

at ___, 139 S. Ct. at 2535–37.

Rather, the rationale for collecting the disappearing evidence is 

critical in determining whether the State has a compelling need that 

overrides Fourth Amendment protections. Evidence of a certain level of 

THC does not carry the same meaning as evidence of a BAC level. Whereas 

all fifty states and the District of Columbia outlaw driving with a BAC 

above .08, there is no magic number for THC. There is no magic number 

because marijuana is a much more complicated drug than alcohol, not 

only with respect to how and when it dissipates from the blood, but also 
89

with respect to the extent to which it impairs a driver’s abilities. See 

Andrea Roth, The Uneasy Case for Marijuana as Chemical Impairment 

Under a Science-Based Jurisprudence of Dangerousness, 103 Calif. L. Rev. 

841, 897 (2015) [hereinafter Roth] (“Applying this DUI alcohol framework 

to the marijuana context, it is clear that the THC blood limits chosen by 

states have no scientific basis if their purpose is to target dangerous 

driving. On the contrary, the science that does exist strongly suggests that 

these levels do not correspond with dangerous driving impairment. This 

is not to say that driving while stoned is safe; it is only to say that, as of 

this writing, THC blood levels cannot legitimately be used to define 

chemical impairment under a science based jurisprudence of 

dangerousness.”). 

Justice Alito’s description of the importance of BAC levels makes 

clear that the sought-after evidence must be practically necessary for the 

administration of law enforcement’s duties, in addition to being time 

sensitive. The uniform and scientifically verified .08 BAC level has made 

accurate BAC determinations a necessary mechanism for enforcing 

alcohol-related offenses. It is inappropriate to recast that logic in the 

context of marijuana, where there is no scientific consensus regarding 

marijuana impairment, at what levels impairment arises, or what certain 

evidence says about current impairment. It would be wrong to say that a 

blood test for THC is foundational to highway safety the same way BAC 

testing is.

At least partially in recognition of the difficulties with measuring and 

evaluating impairment caused by marijuana use, Iowa law criminalizes 

operating a motor vehicle “while any amount of a controlled substance is 

present . . . in the person’s blood or urine.” Iowa Code § 321J.2(1)(c)

(2018). The presence of carboxy-THC, the nonimpairing metabolite of 
90

marijuana, satisfies the “any amount of a controlled substance” prong of 

operating while intoxicated. See State v. Childs, 898 N.W.2d 177, 184 

(Iowa 2017) (“The Iowa legislature chose to cast a wider net, criminalizing 

driving with any amount of prohibited substances in one’s body, including 

the nonimpairing metabolite at issue commonly found in urine after 

marijuana use.”); see also Iowa Code § 321J.1(4) (defining “controlled 

substance” to include “any metabolite or derivative of the drug, substance, 

or compound” listed in section 124.204).14 “The strict standard relates in 

part to the current hurdles in testing drug impairment. For example, [in 

2019], there [wa]s no device for a peace officer to identify marijuanaimpaired driving or even an accepted standard to identify such an 

impairment.” State v. Newton, 929 N.W.2d 250, 258 n.2 (Iowa 2019) 

(citation omitted). The legislature has, effectively, taken care of any 

exigency caused by dissipation of active THC by allowing officers to charge, 

and a court to convict, an individual for OWI based only on the presence 

of carboxy-THC. 

McGee was charged and convicted with operating a motor vehicle 

under the “any amount” prong of OWI. See Iowa Code § 321J.2(1)(c). The 

majority does not dispute that there are no exigent circumstances related 

to testing for carboxy-THC, the only substance needed to support a 

conviction under section 321J.2(1)(c), since that metabolite is admittedly 

 

14In State v. Childs, we justified “[t]he harshness of Iowa’s flat ban [a]s ameliorated 

by the fact that the motorist would be asked to submit to chemical testing only after the 

officer performed a lawful traffic stop and had reasonable grounds to believe the driver 

was impaired.” 898 N.W.2d at 185. And just two years ago we rejected a due process 

challenge to the “any amount” statute as applied to metabolites of a controlled substance 

that remains in the blood for days based on the “broader ‘statutory scheme’ ” under which 

“a properly invoked blood or urine test is part and parcel to a criminal prosecution under 

Iowa Code section 321J.2(1)(c).” State v. Newton, 929 N.W.2d 250, 256–57 (Iowa 2019)

(quoting State v. Robinson, 618 N.W.2d 306, 315 (Iowa 2000) (en banc)). Query what the 

majority’s opinion does to that broader statutory scheme.
91

detectible for at least “some time.” A conviction under subsection (1)(c) 

subjects the defendant to the same punishment as a conviction for 

operating under the influence under subsection (1)(a). See Iowa Code 

§ 321J.2(2) (imposing same penalties for any violation of subsection 1). 

With respect to enforcing Iowa’s OWI laws, law enforcement’s compelling 

need for evidence is satisfied the same whether the blood is drawn quickly 

in an attempt to capture active THC or after a bit of a delay when carboxyTHC may be the only thing still present. Despite the clear lack of any 

exigency in capturing carboxy-THC in a suspect’s blood, and despite the 

majority’s own recognition that active THC can stay in the body for hours 

or even days and marijuana’s unpredictable properties make inferences 

about its psychoactive effect nearly impossible, the majority nonetheless

leaps to the conclusion that the presence of active THC in the blood “makes 

the case for impairment stronger than it otherwise would be.” The majority 

then uses this unsupported conclusion to move from a clear lack of 

exigency in this case involving an any-amount OWI (which requires no 

evidence of impairment, so there is no need to strengthen “the case for 

impairment”) to the broad generalization that because active THC 

dissipates quickly, evidence of marijuana use always creates an exigency. 

The majority justifies its broad holding by proclaiming that law 

enforcement should not have to “settle” for lesser evidence when stronger 

evidence is available. Except they should when it comes to infringing on 

a citizen’s Fourth Amendment protections without a warrant—unless they 

can prove a compelling need to support the exigency exception to the 

warrant requirement. See Mitchell, 588 U.S. at ___, 139 S. Ct. at 2535.

It may be that “there are legitimate reasons why law enforcement 

would want more,” including, at least theoretically, avoiding jury 

nullification or the need to support the causation element of a charge 
92

under Iowa Code section 707.6A(4), as offered by the majority. But 

“compelling need,” not hypothetical “legitimate reasons,” is the standard 

for establishing exigent circumstances. See Mitchell, 588 U.S. at ___, 139 

S. Ct. at 2535 (“BAC tests are crucial links in a chain on which vital 

interests hang. And when a breath test is unavailable to advance those 

aims, a blood test becomes essential.” (emphasis added)). Further, those 

justifications must come from the State in support of its reliance on the 

exigent-circumstances exception to the warrant requirement, not as an 

after-the-fact rationalization created by this court. See State v. Watts, 801 

N.W.2d 845, 850 (Iowa 2011) (“The State has the burden of proving ‘by a 

preponderance of the evidence that a warrantless search falls within one 

of these exceptions.’ ” (quoting State v. Naujoks, 637 N.W.2d 101, 107–08

(Iowa 2001))). 

Even then, the jury nullification rationale presupposes the jury 

would ignore a judge’s instruction that the presence of a marijuana 

metabolite satisfies our laws, a presumption we repeatedly decry. See, 

e.g., State v. Gomez Garcia, 904 N.W.2d 172, 183 (Iowa 2017) (“We 

presume jurors follow the court’s . . . instructions.”). This is hardly a 

compelling state interest that can be equated with a scientifically proven 

BAC level that saves thousands of lives to support overriding a driver’s 

Fourth Amendment rights. 

I do agree with the majority that the need for evidence of active THC 

to support a section 707.6A(4) charge, which requires proof of a causal 

connection between impaired driving and serious injuries, could 

potentially support the exigent circumstances needed to dispense with a 

warrant—if it could be shown that active THC levels correlated to impaired 

driving. But there is no evidence in this record to support that proposition. 

And it is not so well established that we should be doing our own research 
93

and relying on student notes and commentators’ views to find post hoc 

support for the State’s compelling interest needed to establish an exigency. 

Cf. State v. McCall, 839 S.E.2d 91, 95 n.2 (S.C. 2020) (discussing 

toxicologist’s testimony regarding THC metabolization); City of Seattle v. 

Pearson, 369 P.3d 194, 201 (Wash. Ct. App. 2016) (same). Indeed, 

Professor Roth explains that “even if . . . scientists could straightforwardly 

infer proximity of use from THC blood levels, marijuana’s unpredictable 

properties render nearly impossible any inference about the likely 

psychoactive effect on the brain of a specific THC blood level.” Roth, 103 

Calif. L. Rev. at 887.

Another more fundamental problem with this justification is that 

McGee was not charged with violating section 707.6A(4). Recognizing this 

deficiency, the majority combed the record to find evidence of the victim’s 

injuries, concluding thirteen stitches, two weeks of missed school, and a 

fear of riding in a car support its conclusion that “situations like this can 

be fluid,” so an exigency exists in this case. Under the majority’s rationale, 

an exigency exists in any case involving any type of injury. 

But the State did not offer the potential for a section 707.6A(4) 

charge as a justification at the suppression hearing. To the contrary, 

Officer Fricke expressly (and repeatedly) testified at the suppression 

hearing that he did not even attempt to obtain a warrant because he 

understood he could not get one in this case because there were no serious 

injuries. Thus, as a factual matter, that need cannot support an exigency 

in this particular case. See Mitchell, 588 U.S. at ___, 139 S. Ct. at 2537–

39 (plurality rejecting Justice Thomas’s lone view for a per se exception to 

the warrant requirement for drunk-driving cases and maintaining the 

case-by-case analysis recently espoused in McNeely). 
94

On the facts presented at the suppression hearing, the State failed 

to establish the exigent circumstances necessary to avoid procuring a 

warrant, and I would hold that McGee’s Fourth Amendment rights were 

violated. In fairness, Mitchell came down after the suppression hearing, 

where the State relied on the implied-consent statute and offered no 

evidence of exigency even in light of McGee’s argument that an exigency 

was required to support the warrantless blood draw. At a minimum, the 

State should be tasked with presenting facts to the district court to 

support the compelling need to obtain evidence of active THC, as opposed 

to evidence of carboxy-THC, when the officers chose to forego a warrant. 

As it stands, the majority has found a compelling need as a matter of law, 

and the State gets a pass on that required showing. 

I do not believe the Supreme Court would extend Mitchell’s 

categorical rule for driving under the influence of alcohol to driving with 

any amount of marijuana in the driver’s blood or urine, and I therefore 

respectfully dissent. 

Appel, J., joins this dissent.