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  • Writer's pictureDavid A. Cmelik Law PLC

DUI blood draw warrant req'd? Iowa court says 'it depends'

The Iowa Supreme Court has this month decided State v. McGee, holding that a 2019 United States Supreme Court decision allowing warrantless blood draws from unconscious drunk driving suspects applied, but ruling that this case required more fact finding and thus sending it back to the lower court.

At issue is Iowa Code § 321J.7, part of Iowa’s DUI statute, which allows police to take a warrantless blood draw from an unconscious patient if a doctor or nurse certify that the patient was in no condition to withdraw “implied consent.” When a driver in Iowa becomes a licensed driver, he or she “impliedly consents” to the withdrawal of a bodily specimen for chemical testing if a law enforcement officer has reasonable grounds to believe they are impaired. When conscious, the suspect may “withdraw” this consent following a proper advisory and timely request. Such refusal may then be used as evidence of guilt by the jury, however. The patient may be certified unconscious to take blood with neither a warrant nor consent under this law. Now, there is a new requirement that a warrant is required—but only if no other "pressing needs or duties" interfere with getting a warrant. Pressing needs and duties will almost always take precedence over a warrant, the Court conceded, but they must be established with evidence.

In McGee, law enforcement and emergency medical technicians hospitalized a drunk driving suspect following a two-car accident. The suspect was unconscious and a nurse told a police officer that the suspect was in no condition to withdraw consent. The police officer filled out the required form per Iowa Code § 321J.7 and requested a blood draw for evidentiary purposes.

Eleven minutes after the nurse certified the DUI suspect’s unconscious condition, he stirred in a “muddled” state, according to the decision but then passed out again.

Medical personnel drew blood which showed traces of marijuana metabolites like THC. Under Iowa’s zero tolerance law, “any amount” of a controlled substance is per se impaired.

Prosecutors indicted the suspect with Operating While Intoxicated and he moved to “suppress,” or, exclude, the blood draw and the positive drug test, arguing that waking up required the nurse to reassess his ability to refuse consent—and that the warrantless blood draw required “exigent,” or, emergency circumstances preventing them from obtaining a warrant.

The Court first ruled that police and the nurse followed the DUI law in Iowa under Iowa Code Sec 321J.7. The officer properly requested and obtained the nurse’s certification that the patient and suspect was unconscious. Their adherence to the state law was legal, the Court reasoned.

The Court next turned to the Fourth Amendment challenge—that the warrantless blood draw violated the constitutional mandate search warrants where no exception applies. In 2019, the United States Supreme Court ruled in Mitchell that warrantless blood draws from unconscious, hospitalized DUI suspects are almost always an emergency unless evidence shows that getting a warrant would not interfere with “other pressing needs or duties.”

Because the lower court in McGee did not address whether “other pressing needs or duties” would interfere with getting a warrant, the Iowa Supreme Court sent it back down for another hearing on that issue.

Part of the confusion here is that officers usually have conscious suspects. When they do not get warrants in those cases, Iowa Code § 321J.6 usually applies. That law requires that motorists be read an implied consent advisory and asked to either consent or refuse a breath, blood, or urine test. If they consent, the results are used as evidence. If they refuse, the refusal may also be used as evidence of guilt.

When the patient and suspect are unconscious, they are deemed to have “impliedly consented” to a blood draw at the time they were licensed—a social bargain all drivers strike with the government for the privilege to operate a motor vehicle. Nevertheless, seeking a blood draw is a highly invasive search—and searches typically require search warrants unless an exception to the warrant requirement exists.

Because ethanol “dissipates” as it is being metabolized, the theory is that the evidence will be gone before officers obtain a warrant. This case stands for the proposition that warrantless DUI blood draws are therefore almost always legal—unless getting a warrant would not interfere with “other pressing needs or duties.”

If you or a loved one have been arrested for DUI, or, Operating While Intoxicated, Iowa’s drunk driving law, contact us for a free initial consult. If you’re looking for the best DUI lawyer, we want to be on your list of candidates.


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