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Warrant may supersede refusal in DUI homicide or serious injury investigation


Linn County Courthouse by David A. Cmelik Law PLC
A judge can issue a warrant over the breath test refusal of a DUI suspect if an officer has grounds to believe that the suspect was driving and their intoxication proximately caused either a homicide or serious injury by motor vehicle.

Under Iowa law, a refusal to consent to testing of a bodily specimen does not prohibit law enforcement from seeking a warrant for blood or urine if officers are investigating a DUI homicide or serious injury by motor vehicle.


Pursuant to Iowa Code § 321J.10, a law enforcement officer may seek a warrant for a motorist’s blood or urine if the following conditions are met in a vehicular homicide or serious injury by motor vehicle:


a. A traffic accident resulted in a death or personal injury reasonably likely to cause death.

b. There are reasonable grounds to believe that a person’s driving was the proximate cause of an accident and they were violating Iowa Code § 321J.2 at the time of the accident.


This appears to be subject to the requirement that overall probable cause must exist to believe that the motorist has violated Iowa Code § 321J.2—not just reasonable grounds. The Iowa Supreme Court in State v. Breuer seems to support this, when it interpreted the 2009 version of this statute, and noted that “[t]he warrant was supported by probable cause and signed by a neutral, detached magistrate.” State v. Breuer, 808 N.W.2d 195, 202 (Iowa 2012).


Moreover, officers may forcibly execute the warrant though this is rare. The Iowa Supreme Court has noted that a motorist “may be compelled under this statute to submit to withdrawal of a specimen for chemical testing pursuant to a search warrant issued as part of an involuntary manslaughter investigation.” State v. Owens, 418 N.W.2d 340, 345 (Iowa 1988).


This is the rare situation where a test subject may object to providing over the thing ordered by the warrant. The law in Iowa allows a test subject to object to a blood draw—as long as they provide an alternative sample like breath, providing that a testing machine is nearby and the officer does not also suspect that the subject is under the influence of a drug or drug other than, or in addition to, alcohol. Law enforcement officers and medical assistants must use reasonable care in extracting the sample.


A good lawyer will examine the drunk driving warrant application, the warrant itself, and its execution to determine if there are flaws. While the criminal justice system prefers warrants, they can and sometimes will be overturned if an officer omits or adds artifacts that materially disregard the truth. Officers also must follow both state and constitutional law in other ways. If police violate that law, a bodily specimen, rarely, be can be excluded from evidence the prosecutor may present at jury trial. This is known as the operation of the exclusionary rule. If a prosecutor knows that their evidence cannot be used at trial, they may be more willing to negotiate downward the charge. However, this is rare. A skilled DUI lawyer can help spot these defects in the prosecution.


If you or a loved one have been arrested for Operating While Intoxicated, or, OWI—Iowa’s DUI law—contact us for a free initial consultation.