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Breath test is a warrantless search

Under Iowa law, a law enforcement officer is authorized to request a bodily specimen—including breath, urine, and blood—if he or she has reasonable grounds to believe that a motorist is under the influence.


However, compliance with that request is not mandatory. That’s because a request for your breath is considered a search of your person. Searches under the Fourth Amendment to the Constitution of the United States, as well as under the Iowa Constitution, require warrants and are per se unreasonable—unless they meet one of a number of narrowly tailored exceptions to the warrant requirement.


One of those exceptions is consent. That’s where your “administrative privilege” to operate a motor vehicle comes in. Under Iowa law, your privilege to operate a motor vehicle is conditioned on your consent to provide to law enforcement a bodily specimen upon request if that officer has such reasonable grounds.


If you refuse, you are not resisting a police officer nor interfering with official acts. You are not being disobedient. You are standing on your constitutional rights to decline the invitation to be searched without a warrant.


But two things are legally true about that in Iowa. First, because Iowa courts do not consider a driver’s license to be a right, your “privilege to operate a motor vehicle” will usually be revoked for twice as long if you refuse than if you consent to the search. This is true even if you are not convicted unless you prevail before the Department of Inspections and Appeals Hearings Division administrative law judge in a matter separate from your criminal prosecution.


Second—and law enforcement officers are not required to tell you this as part of the implied consent advisory—your refusal of the Datamaster DMT breath test can be offered to the jury as evidence of your guilt by the prosecutor at jury trial. The jury may, however, give as much or as little weight to that refusal as it sees fit.

Some may argue that the refusal to consent to a search is testimonial—and therefore evidence of that refusal is a violation of the right to be free from self-incrimination like evidence of the invocation of the right to remain silent. Evidence of "pleading the fifth" is not allowed before the jury.


But a refusal to consent to a bodily search, like the breath test, is not considered by Iowa criminal courts to be the same as the refusal to confess.

It takes a sharp eye and a skilled hand to review the body cam, dash cam, and OWI processing videos in these cases. In our opinion, you should seek someone who specializes in the area of criminal law with an emphasis in Operating While Intoxicated cases, sometimes called DUI in other states. However, we would be remiss if we did not also tell you that there is no special certification in the State of Iowa for DUI. All lawyers receive the same license practice law upon admission to practice.

However, David Cmelik, the firm principal, has over 18 years criminal law experience with acquittals in OWI and vehicular homicide by OWI. He has handled over 4,250+ criminal cases. This is not a general practice firm. We do not write wills or litigate custody here. This is all we do. If you’re looking for a good criminal defense attorney, put us on your list. We’d love to earn your confidence.

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