                IN THE SUPREME COURT OF IOWA
                              No. 126/ 06–0880

                         Filed February 8, 2008


STATE OF IOWA,

      Appellee,

vs.

BRENT ERIC JOHNSON,

      Appellant.


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

Judge.



      Defendant convicted of several alcohol-related offenses appeals on

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

admitted into evidence. AFFIRMED.



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

West Des Moines, for appellant.


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

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

James P. Ward, Assistant County Attorney, for appellee.
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LARSON, Justice.

      Brent Johnson was convicted of serious injury by vehicle (Iowa

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

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

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

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

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

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

321J.10A. We affirm.

      I. Facts and Prior Proceedings.

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

evidence and the transcript of the suppression hearing, found the

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

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

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

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

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

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

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

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

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

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

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

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

district court denied the motion, concluding an emergency situation

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

      II. Discussion.

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

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

urine for purposes of chemical testing for intoxication when there are

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

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

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

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

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

injury reasonably likely to cause death, and there are reasonable

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

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

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

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

      Notwithstanding section 321J.10 [requiring a warrant to
      obtain a blood sample in the absence of consent], if a person
      is under arrest for an offense arising out of acts alleged to
      have been committed while the person was operating a
      motor vehicle in violation of section 321J.2 or 321J.2A, and
      that arrest results from an accident that causes a death or
      personal injury reasonably likely to cause death, a chemical
      test of blood may be administered without the consent of the
      person arrested to determine the amount of alcohol or a
      controlled substance in that person’s blood if all of the
      following circumstances exist:
           a. The peace officer reasonably believes the blood
      drawn will produce evidence of intoxication.
            b. The method used to take the blood sample is
      reasonable and performed in a reasonable manner by
      medical personnel under section 321J.11.
            c. The peace officer reasonably believes the officer is
      confronted with an emergency situation in which the delay
      necessary to obtain a warrant under section 321J.10
      threatens the destruction of the evidence.
                                        4

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

reasonably likely to cause death (medical evidence showed that the

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

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

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

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

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

was confronted with an emergency situation in which the delay

necessary to obtain a warrant threatened the destruction of evidence.

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

Code section 321J.10A(1).

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

addressed by the United States Supreme Court in Schmerber v.

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

Schmerber the Court concluded that the warrantless withdrawal of blood

from an individual implicates the Fourth Amendment to the United

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

Amendment       is   to   protect   personal   privacy    and    dignity   against

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

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

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

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

Despite Fourth Amendment implications, the Court recognized that

alcohol naturally dissipates from the body shortly after its consumption

and concluded the warrantless seizure of blood for purposes of chemical

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

warrant requirement of the Fourth Amendment. The Court stated that

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

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

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

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

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

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

closely with the language of Schmerber.1

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

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

exigent circumstance making it constitutionally permissible to obtain a

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

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

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

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

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

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

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

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

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

evidence on the exigency rationale of Schmerber and Iowa Code section

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


       1
         The destruction of evidence in alcohol-related offenses is unique. This court
has recognized two ways by which evidence of alcohol-related offenses can be destroyed.
“First, a suspect could ingest more alcohol, skewing the alcohol content higher and
corrupting any evidence of prior consumption. Second, the blood alcohol level naturally
dissipates during a delay.” State v. Lovig, 675 N.W.2d 557, 566 (Iowa 2004) (citation
omitted) (footnote omitted). It is the latter that is of concern in the present case.
Alcohol is absorbed into the blood shortly after it is ingested. E. John Wherry, Jr.,
Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 Am. J. Trial Advoc.
503, 515 (1996). Once all of the alcohol has been absorbed from the stomach and the
small intestine into the bloodstream, the level of alcohol in the blood is at a maximum.
Id. Thereafter, the alcohol concentration in the blood slowly decreases as the alcohol
dissipates from the human body. Id. In general, alcohol dissipates from an average
person’s body at a rate of .015% to .020% per hour. Id. at 516. The alcohol will
continue to dissipate until it is completely eliminated from the body. Id. at 515.
                                     6

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

contends the warrantless withdrawal of his blood did not comport with

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

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

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

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

to determine the alcohol concentration at an earlier time through the

process of extrapolation.

      The impact of Schmerber and statutes such as our Iowa Code

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

been discussed by cases from other jurisdictions with mixed conclusions.

The Wisconsin Supreme Court has observed that

            Schmerber can be read in either of two ways: (a) that
      the rapid dissipation of alcohol in the bloodstream alone
      constitutes a sufficient exigency for a warrantless blood draw
      to obtain evidence of intoxication following a lawful arrest for
      a drunk driving related violation or crime—as opposed to
      taking a blood sample for other reasons, such as to
      determine blood type; or (b) that the rapid dissipation of
      alcohol in the bloodstream, coupled with an accident,
      hospitalization, and the lapse of two hours until arrest,
      constitute exigent circumstances for such a blood draw.

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

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

rapid dissipation of alcohol alone constitutes a sufficient exigency to

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

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

403–05.

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

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

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

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

Supreme Court, for example, stated that:

             Contrary to the assertion of the State, Schmerber does
       not stand for the proposition that the loss of evidence of a
       person’s blood-alcohol level through the dissipation of
       alcohol from the body was a sufficient exigency to justify a
       warrantless blood draw. Rather, these three categories of
       “special facts” combined to create the exigency.         The
       evanescence of blood-alcohol was never special enough to
       create an exigent circumstance by itself.

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

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

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

              We . . . conclude that the present record shows no
       violation of petitioner’s right under the Fourth and
       Fourteenth Amendments to be free of unreasonable searches
       and seizures. It bears repeating, however, that we reach this
       judgment only on the facts of the present record. The integrity
       of an individual’s person is a cherished value of our society.
       That we today hold that the Constitution does not forbid the
       States minor intrusions into an individual’s body under
       stringently limited conditions in no way indicates that it
       permits more substantial intrusions, or intrusions under
       other conditions.

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

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

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

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

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

more underlying the seizure of blood in Schmerber than the mere

phenomenon of alcohol dissipation.

       Time-based considerations similar to those in Schmerber are

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

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

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

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

OWI enforcement and fatality investigations was called.             Johnson

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

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

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

drawn.

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

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

his blood-alcohol concentration was continually diminishing due to the

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

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

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

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

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

warrant would threaten the destruction of the evidence.

      B. The Telephone Warrant Argument.              Johnson argues that

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

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

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

provides:

      Notwithstanding      section    808.3      [requiring  written
      applications], the issuance of a search warrant under this
      section may be based upon sworn oral testimony
      communicated by telephone if the magistrate who is asked to
      issue the warrant is satisfied that the circumstances make it
      reasonable to dispense with a written affidavit. The following
      shall then apply[.]

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

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

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

telephone is fairly complicated; an officer cannot simply call up a

magistrate and make a general request for a warrant. The officer must

prepare a “duplicate” warrant and read the duplicate warrant, verbatim,

to the magistrate. The magistrate then must enter, verbatim, what has

been read to him on a form to be considered as the original warrant.

Iowa Code § 321J.10(3)(b). The oral application must set forth facts and

information tending to establish the grounds for the issuance of the

warrant and describe with reasonable specificity the person or persons

whose driving has been involved and from whom the specimen is to be

withdrawn. Id. § 321J.10(3)(c). Gathering of this information, of course,

requires considerable time. If a voice recording device is available to the

magistrate, the magistrate may record the call, but otherwise “shall

cause a stenographic or longhand memorandum to be made of the oral

testimony of the person applying for the warrant.” Id. § 321J.10(3)(d). If

the magistrate is satisfied that the grounds for the issuance of the

warrant have been established, the magistrate shall order the issuance of

the warrant by directing the officer applying for it to sign the magistrate’s

name to the “duplicate” warrant. Id. § 321J.10(3)(e).

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

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

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

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

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

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

the specified conditions are met.

      The Fourth Circuit addressed the effect of telephone warrants

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

court stated:
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             [The defendants] argue that the police should have
      gotten a warrant via the telephone as allowed by Fed. R.
      Crim. P. 41(c)(2). Because of this procedure, they assert that
      no exigency existed.       At first blush, this argument is
      convincing. However, analysis of the intricate requirements
      of Rule 41(c)(2) shows that the existence of the rule does not
      alter the exigency of the situation.
             Rule 41(c)(2)(B) requires that the police prepare a
      document known as “a duplicate original warrant” before
      calling the magistrate judge. Rule 41(c)(2)(B) also requires
      that the police must read the document verbatim to the
      magistrate judge. The magistrate judge must enter verbatim
      what is read to him onto a document known as the original
      warrant. Rule 41(c)(2)(D) requires the magistrate judge to
      place under oath the police officer requesting the warrant
      and anyone whose testimony forms a basis of the
      application. Further, Rule 41(c)(2)(D) requires the magistrate
      judge to record the conversation if a voice recording device is
      available; otherwise, the magistrate judge must arrange for a
      stenographic or longhand verbatim record to be made.
      Obviously, compliance with these rules takes time. Time is
      what is lacking in these circumstances [due to the natural
      dissipation of alcohol.]

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

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

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

agree in this case.

      C. The Extrapolation Argument.          Johnson argues that any

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

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

determined by extrapolation—analyzing a later specimen by applying

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

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

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

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

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

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

approximation. It’s just an estimation.”
                                    11

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

             We are . . . unpersuaded by defendant’s claim that any
      exigency is eliminated because of the possibility an expert
      could testify about the defendant’s blood-alcohol level at an
      earlier point “by extrapolating backward from the later-taken
      results.” As courts have recognized, “such extrapolations
      can be speculative.”

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

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

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

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

      We conclude that the possibility of an extrapolated blood-alcohol

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

contemplates accurate blood-test results obtained from samples that are

reasonably contemporaneous with the event in question—not obtaining

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

concededly less accurate.

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

affirm.

      AFFIRMED.

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