                   IN THE SUPREME COURT OF IOWA
                                   No. 07–0045

                              Filed March 6, 2009


STATE OF IOWA,

      Appellant,

vs.

REMIE PHIL HARRIS,

      Appellee.



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

Judge.



      State seeks interlocutory review of district court’s suppression of blood

test results on ground State had failed to establish the foundational

requirement set forth in Iowa Code section 321J.10A(1)(c). AFFIRMED.



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

Attorney General, John P. Sarcone, County Attorney, and Jess W. Vilsack,

Assistant County Attorney, for appellant.



      Matthew      Lindholm   of   Gourley   Rehkemper   &   Lindholm,    PLC,

Des Moines, for appellee.
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PER CURIAM.

      In this interlocutory appeal, the State seeks review of a district court

ruling suppressing the results of a blood test drawn from the defendant,

Remie Harris, without a search warrant. The blood test was administered

following a single-vehicle accident wherein the defendant struck and killed a

pedestrian. The trial court suppressed the blood sample and test result on

the ground the State had failed to establish “the peace officer reasonably

believe[d] the officer [was] confronted with an emergency situation in which

the delay necessary to obtain a warrant under section 321J.10 threaten[ed]

the destruction of the evidence.” See Iowa Code § 321J.10A(1)(c) (2005). We

now affirm.

      I. Facts and Prior Proceedings.

      At the suppression hearing conducted on November 14, 2006, the

following undisputed facts were elicited. On April 17, 2006, at 7:12 p.m.,

Iowa State Patrol Officer David Overton was dispatched to Interstate 80, just

east of Merle Hay Road, to a location where a pedestrian had been struck by

a vehicle. Overton arrived at the scene within minutes. Upon his arrival, he

observed medical personnel attending to an elderly female victim. Overton,

therefore, turned his attention to closing the interstate and securing the

scene.

      Once further assistance arrived, Overton began to gather information

from which he determined Harris was the driver of the vehicle that had

struck the victim.   As he approached the defendant, Overton detected a

strong odor of alcohol on the defendant’s breath. He also observed Harris’s

eyes were bloodshot and watery, and his speech was slurred.            Harris

declined Overton’s request to perform field sobriety tests.       Harris did,

however, agree to take a preliminary breath test (PBT).        The PBT was

administered at 7:38 p.m. and the result was .125 percent.
                                     3

      Harris was then examined by medical personnel. After Harris declined

further treatment, Overton placed him under arrest.     The defendant was

transported to the state patrol post where, upon arrival, he was allowed to

make several phone calls. Harris called his wife and also made attempts to

contact an attorney. During this time, Harris was informed by Overton of

the implied-consent law. Overton also notified the on-call assistant county

attorney, Jim Ward, who advised the officer to begin preparing a search

warrant application for obtaining a blood sample from the defendant.

      Overton did not begin working on the search warrant application

immediately, but waited until Ward’s arrival at approximately 8:40 p.m. At

8:54 p.m., Overton invoked implied consent. The defendant refused to give

his consent.   After further consultation with Ward, the officer decided to

obtain a warrantless blood specimen from the defendant while continuing to

work on the warrant application.     The blood specimen was drawn by a

technician from the medical examiner’s office at 9:06 p.m. A warrant was

obtained between 10 and 10:30 p.m.

      II. Discussion.

      A. Scope of Review. The district court based its decision to suppress

the blood sample on its interpretation of Iowa Code section 321J.10A. When

suppression rulings are based upon statutory interpretation, the case is

reviewed for correction of errors of law. State v. Demaray, 704 N.W.2d 60,

62 (Iowa 2005). When the language of a criminal statute is clear, the court

looks no further for meaning than its express terms. State v. Jorgensen, 758

N.W.2d 830, 835 (Iowa 2008).

      B. Statutory Framework.      When a traffic accident has resulted in

death or in injury reasonably likely to cause death and there are reasonable

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

intoxicated, Iowa Code section 321J.10 allows for the withdrawal of a
                                      4

specimen of blood for chemical testing over the individual’s objection,

pursuant to a search warrant. Iowa Code § 321J.10. Withdrawal of blood

without a warrant is, however, permitted in certain circumstances.         Id.

§ 321J.10A(1). Iowa Code 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.
Id. § 321J.10A(1).

      C. Arguments of the Parties.          The State asserts the officer,

consistent with Iowa Code section 321J.10A, reasonably believed he was

faced with an emergency situation in which the time required to obtain a

warrant threatened the destruction of evidence.     The State also contends

that, even if the officer could have obtained a warrant by telephone, he was

not required to do so once he reasonably determined an exigency existed.

Moreover, the State argues the exigency was not eliminated by the possibility

extrapolation could be used to estimate the defendant’s blood alcohol level at

the time of the accident. Such extrapolations, the State asserts, are affected

by numerous variables and are, therefore, speculative.         See People v.

Thompson, 135 P.3d 3, 12 (Cal. 2006).
                                            5

       The defendant argues the district court did not err in suppressing the

warrantless blood test because Overton did not personally recognize an

emergency situation and because no emergency situation actually existed.

Additionally, the defendant contends that if an emergency situation existed,

it was created by the officer and assistant county attorney, and the State

cannot rely on these circumstances to forego the warrant requirement.1

       D. Prior Precedent.        We recently addressed the application of Iowa

Code section 321J.10A(1) in light of the Fourth Amendment protections

against unwarranted intrusions into personal privacy and dignity in State v.

Johnson, 744 N.W.2d 340 (Iowa 2008). In Johnson, the court was faced with

the same question it must address here:                 “[W]hether 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.” 744 N.W.2d at 342.

       In Johnson, we noted Iowa case law follows the rationale set forth in

Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908

(1966), “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.” Id. at 343 (emphasis added) (citing

State v. Legg, 633 N.W.2d 763, 772 (Iowa 2001); State v. Findlay, 259 Iowa

733, 743, 145 N.W.2d 650, 656 (1966)).              We agreed, however, with those

courts that found Schmerber required more than the mere phenomenon of

alcohol dissipation. Id. at 344 (citing State v. Rodriquez, 156 P.3d 771, 776

(Utah 2007) (“Schmerber does not stand for the proposition that the loss of

evidence of a person’s blood-alcohol level through the dissipation of alcohol

        1Although the defendant notes that seizure of the defendant’s blood was made at the

state trooper post, as opposed to a hospital setting or other medical environment, he does
not seriously attack the district court’s conclusion that “the requirements of Sections
321J.10A(1)(a) and (b) are met.” Therefore, we give this issue no further consideration.
                                      6

from the body [alone] was a sufficient exigency to justify a warrantless blood

draw.”)). Schmerber required additional circumstances, such as time-based

considerations, to support a warrantless intrusion under the Fourth

Amendment. Schmerber, 384 U.S. at 770, 86 S. Ct. at 1835–36, 16 L. Ed. 2d

at 920 (“Particularly 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 not time to seek out a magistrate and secure a warrant. Given

these special facts, we conclude that the attempt to secure evidence of blood-

alcohol content in this case was an appropriate incident to petitioner’s

arrest.” (Emphasis added.)).

      In Johnson, those additional circumstances/time-based considerations

were satisfied by the facts of the case. When officers arrived at the scene of

the accident, time had to be taken by the police officers to attend to the

victim, interview witnesses, and locate the defendant. Johnson, 744 N.W.2d

at 344. Once the defendant was located, additional time was expended in

transporting him to the traffic office and eventually to the hospital where the

blood sample was drawn without a warrant.         Id.   In finding the officer’s

actions complied with section 321J.10A and the Fourth Amendment, we

stated:

            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.

Id. at 344–45.
                                      7

      E. Application to Facts. Section 321J.10A(1)(c) requires the peace

officer reasonably believes he is confronted with an emergency situation in

which the delay necessary to obtain a warrant threatens the destruction of

the evidence. Section 321J.1(8) defines “peace officer” to include a member

of the highway patrol, but this definition does not include the county

attorney or his assistants.    See Iowa Code § 321J.1(8).     The defendant

contends the evidence, including Overton’s testimony, establishes that the

officer was not acting in response to an emergency situation with which he

believed he was confronted, but was acting on instructions from the

assistant county attorney. Therefore, the defendant claims, the requirement

of Iowa Code section 321J.10A(1)(c) was not met. See Johnson, 744 N.W.2d

at 344 (finding “traffic officer[’s] testi[mony] that he believed evidence of

[defendant’s] blood-alcohol concentration would be destroyed if he waited to

draw blood until after a search warrant was obtained” supported compliance

with section 321J.10A).

      In reviewing the facts, we note that nearly two hours had passed

between the time of the fatal accident and the time of the blood draw.

During this time, Overton was engaged in assisting with the closing of the

interstate, interviewing witnesses, and determining the identity of the driver

of the vehicle. Once an identification was made, further time was expended

transporting Harris to the post. Although instructed by the assistant county

attorney to begin the warrant application, Overton chose to wait until Ward

arrived because he was unfamiliar with the process and needed assistance

with the preparation.     In the meantime, the defendant was provided an

opportunity to contact his family and to attempt to locate an attorney. It

was not until 8:54 p.m., when the defendant affirmatively refused to consent

to providing a blood specimen, that the decision was made to go ahead with

the warrantless blood draw.     Overton testified that, after the defendant
                                                 8

refused to give a breath sample, the assistant county attorney advised him to

go ahead and get a blood sample.

           While factual similarities exist between this case and Johnson, there is

one important distinguishing fact.                   In Johnson, the officer testified he

believed evidence of the blood-alcohol concentration would be destroyed if he

waited to draw blood until after a search warrant was obtained. Johnson,

744 N.W.2d at 344.               Here, Overton repeatedly testified his reason for

ordering the blood draw was that he was following the instructions of the

assistant county attorney, not any specific concern or knowledge on his part

that the time it would take to obtain a warrant would result in the

destruction of evidence.2


           2At
           the hearing, the following exchanges took place between counsel for the State
and Officer Overton:
                  Q: After the refusal was a decision made to take a blood sample from
           the defendant? A: Jim Ward had told us to go ahead and get a sample from
           the defendant, yes.
                  Q: So you made that decision after consulting with the county
           attorney, who was Jim Ward in this case? A: Yes.
                  ....
                   Q: . . . Did you know how long it would take to actually get a warrant
           in this case? A: No, I did not.
                  ....
                  Q: When the decision was made—or prior to the decision being made
           to take the blood sample, were you having a discussion with the county
           attorney about the rationale for taking the blood sample? A: He wanted to
           get—Jim Ward wanted to get the blood sample within the two-hour time
           frame.
           Subsequently, the following exchange took place between defense counsel and the
officer:
                   Q: Do you know what the significance is of that two-hour window? A:
           Well, I know that Jim wanted the blood withdrawn within that two hours.
           And as time goes on, alcohol’s going to metabolize in the system.
                  ....
                   Q: So the two hours runs from the administration of the PBT or the
           arrest, whichever occurs first? A: That’d be correct.
      When the officer was questioned about obtaining a telephonic warrant, the following
exchange took place:
                                             9

      While Overton was aware that blood-alcohol levels dissipate over time

and that this natural dissipation will result in the destruction of evidence,

this knowledge alone is not sufficient to satisfy the statute.                See State v.

Lovig, 675 N.W.2d 557, 566 (Iowa 2004) (in considering whether exigent

circumstances existed to justify a warrantless search, the court noted the

actual time to obtain a warrant is an important fact, and if the time is

relatively short, fear over dissipation will be alleviated). The statute requires

that the peace officer, not the county attorney, reasonably believe that the

delay involved in obtaining a search warrant would result in the destruction

of evidence.    Cf. State v. Palmer, 554 N.W.2d 859, 865–66 (Iowa 1996)

(holding statutory conditions required for implied consent included that


             Q: . . . [A]re you familiar with being able to obtain a search warrant
      not in written form, but by an oral request to a judge? A: This was how
      Mr. Ward wanted to do it, so that’s how I went about it, was how Mr. Ward
      wanted to do this. . . . A: I don’t work with search warrants enough. I was
      asking Jim Ward if we can do it by phone, and I believe he said no, and we
      were doing it, and this is the way we were going to do it.
      When defense counsel inquired as to what was the specific emergency, the following
exchanges took place:
             Q: Do you happen to know as you sit here today why you didn’t fulfill
      that written request and actually present that warrant to the judge prior to
      the withdrawal of blood from my client? A: Mr. Ward told me that we could
      go ahead and get the blood from the defendant, and then later we had the
      search warrant signed.
             ....
               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 Jim Ward. And then the other thing was,
      like I said, we didn’t know as far as—we could have been looking at a
      vehicular homicide or something like that, so that’s why we wanted to get the
      blood as soon as we could, because like I said, evidence does dissipate over
      time. . . .
             ....
             Q: Was the emergency situation that Jim Ward 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.
                                     10

section’s definition of “peace officer”).   Overton acknowledged he was

unaware of the time it would take to obtain a warrant due to his lack of

familiarity with the process. More importantly, however, he never asserted

the reason he ordered the warrantless blood sample was his belief that the

time it would take to obtain the warrant would result in the destruction of

evidence.   The entire gist of his testimony was that he was acting on the

instructions of the assistant county attorney. The undisputed impetus for

his ordering the warrantless blood draw was the instruction from the

assistant county attorney.    For this reason, the district court correctly

determined the requirement of Iowa Code section 321J.10A(1)(c) was not

met. The order suppressing the test results must be affirmed.

      AFFIRMED.

      All justices concur except Wiggins and Baker, JJ., who take no part.

      This opinion shall be published.
