              IN THE SUPREME COURT OF IOWA
                                 No. 14–0830

                          Filed June 30, 2017

                      Amended September 26, 2017


STATE OF IOWA,

      Appellee,

vs.

DALE DEAN PETTIJOHN JR.,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Terry Wilson,

Odell McGhee, and William Price, Judges.



      A   defendant   challenges    his   conviction   for   operating   while

intoxicated under Iowa Code section 462A.14(1) (2013).             DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.



      Grant C. Gangestad of Gourley, Rehkemper & Lindholm, P.L.C.,
West Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Heather R. Quick (until

withdrawal), Kevin Cmelik and Louis S. Sloven, Assistant Attorneys

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

County Attorney, for appellee.
                                    2

WIGGINS, Justice.

      The defendant moved to suppress all evidence obtained after an

officer seized the boat he was operating, including the results of a breath

test he submitted to after an officer invoked the implied-consent

procedure set forth in Iowa Code chapter 462A (2013). The district court

denied the motion to suppress, concluding the seizure was justified by

the community-caretaking exception to the warrant requirement and the

administration of the warrantless breath test violated neither the Fourth

Amendment to the United States Constitution nor article I, section 8 of

the Iowa Constitution.   The court convicted the defendant following a

bench trial on the minutes, and the defendant appealed. We retained the

appeal but held the matter in abeyance pending a decision from the

United States Supreme Court.

      We conclude the seizure of the boat the defendant was operating

violated neither the Fourth Amendment nor article I, section 8 because

the officer who stopped the defendant had a reasonable, articulable

suspicion he was committing a crime.         However, because we also

conclude the administration of the warrantless breath test violated

article I, section 8, we reverse the judgment of the district court and

remand the case for a new trial.

      I. Background Facts.

      On August 18, 2013, at approximately 5:00 p.m., Iowa Department

of Natural Resources (DNR) Water Patrol Officer William Wineland

observed Dale Dean Pettijohn Jr. operating a rented pontoon boat in the

no-wake zone of Saylorville Lake in Polk County, a manmade reservoir

created by the U.S. Army Corps of Engineers and fed by the Des Moines

River. At the time, Pettijohn was operating the boat at an appropriate

speed and was not swerving or steering erratically.      However, Officer
                                     3

Wineland noticed a female passenger sitting on a sundeck located at the

rear of the boat with her feet dangling over its back edge near the motor.

      Because he had worked as a water patrol officer for many years,

Officer Wineland was familiar with the location of the propellers on the

rental boats at Saylorville Lake. He knew there was no guard or housing

around the propeller on the rented pontoon boat Pettijohn was operating.

Having previously witnessed severe injuries and even deaths resulting

from people falling off boats and getting entangled in the propeller,

Officer Wineland believed the position of the female passenger on

Pettijohn’s boat posed a danger to her safety.

      As a water patrol officer for the DNR, Officer Wineland had

authority to investigate and enforce violations of the law amounting to

simple misdemeanors, but not serious misdemeanors. Officer Wineland

suspected Pettijohn was committing a simple misdemeanor by operating

the pontoon boat in violation of section 462A.12(1) of the Iowa Code,

which provides, “No person shall operate any vessel . . . in a careless,

reckless or negligent manner so as to endanger the life, limb or property

of any person.” Iowa Code § 462A.12(1); id. § 462A.13 (stating offenses

defined in chapter 462A of the Code constitute simple misdemeanors

unless otherwise specifically provided).

      Officer Wineland decided to stop Pettijohn to inform him that

permitting the passenger to sit so close to the unguarded propeller while

the boat was in motion posed a danger to her safety. Pettijohn complied

with Officer Wineland’s request to stop the boat.

      While speaking with Pettijohn, Officer Wineland observed that he

had bloodshot eyes. He also noticed there were two coolers on the boat.

During their conversation, it appeared to Officer Wineland that Pettijohn

was nervous and avoided making eye contact with him.                 These
                                    4

observations led Officer Wineland to suspect Pettijohn had been

operating the boat while intoxicated in violation of Iowa Code section

462A.14(1), a serious misdemeanor he was without authority to

investigate. See id. § 462A.14(2). Consequently, Officer Wineland sought

assistance from conservation officers authorized to investigate serious

misdemeanor offenses.    In the meantime, Officer Wineland instructed

Pettijohn to proceed to the dock to await the arrival of the conservation

officers and issued him a warning citation for the negligent operation of

the boat. When Officer Wineland explained the reason for the citation,

Pettijohn indicated he had not realized a passenger was sitting on the

bow of the boat and would not have allowed her to remain there had he

known of her location.

      Conservation Officers Dakota Drish and Matt Bruner soon arrived.

Once aboard Pettijohn’s boat, Officer Drish detected the distinct odor of

an alcoholic beverage and observed that Pettijohn was slurring his

speech and had bloodshot eyes.      Based on these observations Officer

Drish administered field sobriety tests, the results of which led him to

conclude that Pettijohn had been operating the boat while intoxicated.

Officer Drish placed Pettijohn in handcuffs, and the officers transported

him to the Polk City Police Department.

      At the station, Officer Drish read to Pettijohn from a standard form

entitled “Implied Consent Advisory” in order to inform him of the

consequences of failing a breath test or refusing to consent to a breath

test. Pettijohn signed his name in a box labeled “confirmation signature”

on the bottom of the form.       Minutes later, Officer Drish formally

requested a sample of his breath. Pettijohn checked a box on a separate

form entitled “Notice and Request Under Iowa Code Section 462A.14,”

indicating he consented to provide a breath sample upon being requested
                                      5

to do so after having been read the implied-consent advisory. Pettijohn

then submitted to a breath test, which indicated his blood alcohol

concentration (BAC) was .194.

      The State charged Pettijohn with operating a motorboat while

under the influence in violation of Iowa Code section 462A.14(1).

Because this was Pettijohn’s first offense, the violation constituted a

serious misdemeanor criminal offense. See id. § 462A.14(2).

      II. Prior Proceedings.

      Before the district court, Pettijohn moved to suppress all evidence

obtained after Officer Wineland stopped his boat, arguing the stop

violated his rights under the Fourth and Fourteenth Amendments to the

United States Constitution and article I, section 8 of the Iowa

Constitution. Pettijohn also moved to suppress the results of the breath

test, arguing the implied-consent procedure he was subjected to violated

the Fourth Amendment to the United States Constitution and article I,

section 8 of the Iowa Constitution because (1) it authorizes the

imposition of a penalty for the exercise of a constitutional right to refuse

a warrantless search, and (2) a person cannot contract away his or her

natural right to use the state’s navigable waterways.         Additionally,

Pettijohn argued the breath-test results should be suppressed because

the implied-consent advisory was inaccurate and thus (1) violated his

substantive due process rights under the Fourteenth Amendment of the

United States Constitution and article I, section 9 of the Iowa

Constitution; (2) violated his statutory rights under the Iowa Code; and

(3) rendered his consent involuntary and coerced in violation of the

Fourth Amendment to the United States Constitution and article I,

section 8 of the Iowa Constitution.
                                    6

      The district court denied Pettijohn’s motion to suppress. First, the

court concluded the stop of Pettijohn’s boat was authorized under the

Fourth Amendment and article I, section 8 because it was justified by the

community-caretaking exception to the warrant requirement.         Second,

the court concluded the administration of a warrantless breath test

pursuant to the implied-consent procedure authorized by the Iowa Code

violates neither the Fourth Amendment nor article I, section 8. Third,

the court concluded any inaccuracies in the implied-consent advisory

read to Pettijohn did not induce or coerce his consent in violation of his

federal or state substantive due process rights.

      Pettijohn waived his right to a jury trial, and the district court

convicted him following a bench trial on the minutes.             Pettijohn

subsequently appealed, and we retained the appeal.

      Following oral argument, we held the appeal in abeyance pending a

decision from the United States Supreme Court on the issue of whether

the   Fourth   Amendment     prohibits   implied-consent   laws   imposing

penalties on motorists suspected of drunk driving for their refusal to

submit to BAC testing. See Birchfield v. North Dakota, 579 U.S. ___, 136

S. Ct. 2160 (2016). After applying a balancing test weighing the degree

to which blood tests and breath tests intrude upon individual privacy

interests and the degree to which such tests are needed to promote the

legitimate government interest in the safety of public highways, the Court

held the Fourth Amendment permits the administration of warrantless

breath tests, but not the administration of warrantless blood tests, as

searches incident to lawful arrests for drunk driving. Id. at ___, ___, 136

S. Ct. at 2176–79, 2185.       Accordingly, the Court determined state

statutes criminalizing the refusal of a motorist arrested on suspicion of
                                     7

drunk driving to submit to a blood test violate the Fourth Amendment.

Id. at ___, 136 S. Ct. at 2185–86.

      Following the issuance of the Birchfield decision, the parties

submitted additional briefs to this court addressing its implications for

our resolution of this appeal. Pettijohn argues Birchfield does not resolve

the question of whether a warrantless breath test may be administered to

an individual arrested on suspicion of boating while intoxicated under

the Fourth Amendment, as the State’s need to ensure the safety of the

public waterways is far less compelling than its need to ensure the safety

of public highways.      He further argues the administration of the

warrantless breath test following his arrest on suspicion of boating while

intoxicated violated article I, section 8 of the Iowa Constitution because

no valid exception to the warrant requirement authorized the warrantless

search.

      In contrast, the State argues that because implied-consent laws

serve the same purpose in the boating context as they serve in the

driving context, the Fourth Amendment permits the warrantless

administration of a breath test as a search incident to a lawful arrest on

suspicion of operating while intoxicated in both contexts. Furthermore,

the State argues that even if a warrantless breath test does not

constitute a search incident to a lawful arrest in the boating context,

because Pettijohn faced only the possibility of civil penalties and

evidentiary consequences for refusal to submit, the procedure invoked

prior to the administration of the breath test did not violate the Fourth

Amendment.     Finally, the State argues article I, section 8 permits the

administration of a warrantless breath test as a search incident to the

lawful arrest of an individual suspected of boating while intoxicated
                                        8

because the interests justifying such a search relate primarily to

evidence preservation.

      III. Issues on Appeal.

      We first consider whether the seizure of the boat Pettijohn was

operating   violated    the   Fourth   Amendment to the          United   States

Constitution or article I, section 8 of the Iowa Constitution.         We next

consider whether administering a warrantless breath test on an

individual arrested on suspicion of boating while intoxicated violates the

Fourth Amendment or article I, section 8. Finally, we consider whether

Pettijohn effectively consented to the warrantless breath test. Because

we conclude he did not, admission of the breath test results violated

article I, section 8. Therefore, we do not reach Pettijohn’s due process

and statutory claims.

      IV. Standard of Review.

      “We review constitutional claims de novo.”           Hensler v. City of

Davenport, 790 N.W.2d 569, 578 (Iowa 2010).                 To the extent a

constitutional claim raises issues of statutory interpretation, however,

our review is for correction of errors at law. State v. Allen, 708 N.W.2d

361, 365 (Iowa 2006).

      V. The Statutory Provisions.

      Chapter 462A of the Iowa Code contains the boating-while-

intoxicated statutes. Section 462A.14B defines the penalties that apply

when a person refuses to submit to a chemical test “for the purpose of

determining   the      alcohol   concentration   or   presence   of   controlled

substances or other drugs.” Iowa Code § 462A.14A(1). It provides,

            1. If a person refuses to submit to the chemical
      testing, a test shall not be given unless the procedure in
      section 462A.14D is invoked. However, if the person refuses
                                     9
      the test, the person shall be punishable by the court
      according to this section.

            2. The court, upon finding that the officer had
      reasonable ground to believe the person to have been
      operating a motorboat or sailboat in violation of section
      462A.14, that specified conditions existed for chemical
      testing pursuant to section 462A.14A, and that the person
      refused to submit to the chemical testing, shall:

           a. Order that the person          shall   not   operate   a
      motorboat or sailboat for one year.

            b. Impose a mandatory civil penalty as follows:

            (1) For a first refusal under this section, five hundred
      dollars.

           (2) For a second refusal under this section, one
      thousand dollars.

            (3) For a third or subsequent refusal under this
      section, two thousand dollars.

             3. If the person does not pay the civil penalty by the
      time the one-year order not to operate expires, the court
      shall extend the order not to operate a motorboat or sailboat
      for an additional year, and may also impose penalties for
      contempt.

Id. § 462A.14B(1)–(3). In addition to these penalties, “proof of refusal is

admissible in any civil or criminal action or proceeding arising out of acts

alleged to have been committed while the person was operating a

motorboat or sailboat in violation of section 462A.14.” Id. § 462A.14A(8).

      The Code also addresses the advisory an officer must administer

when requesting an individual suspected of boating while intoxicated to

submit to a chemical test. Id. §§ 462A.14A(4)(g), .14C(1). Specifically,

section 462A.14A(4)(g) provides,

             g. A person who has been requested to submit to a
      chemical test shall be advised by a peace officer of the
      following:
                                         10
              (1) A refusal to submit to the test is punishable by a
       mandatory civil penalty of five hundred to two thousand
       dollars, and suspension of motorboat or sailboat operating
       privileges for at least a year. In addition, if the person is also
       convicted of operating a motorboat or sailboat while
       intoxicated, the person shall be subject to additional
       penalties.

              (2) If the person submits to the test and the results
       indicate an alcohol concentration equal to or in excess of the
       level prohibited under section 462A.14 and the person is
       convicted, the person’s motorboat or sailboat operating
       privileges will be suspended for at least one year and up to
       six years, depending upon how many previous convictions
       the person has under this chapter, and whether or not the
       person has caused serious injury or death, in addition to any
       sentence and fine imposed for a violation of section 462A.14.

Id. § 462A.14A(4)(g)(1)–(2). Similarly, section 462A.14C provides,

              1. A person who has been requested to submit to a
       chemical test shall be advised by a peace officer of the
       following:

              a. A refusal to submit to the test is punishable by a
       mandatory civil penalty of five hundred to two thousand
       dollars, and suspension of motorboat or sailboat operating
       privileges for at least a year. In addition, if the person is also
       convicted of operating a motorboat or sailboat while
       intoxicated, the person shall be subject to additional
       penalties.

              b. If the person submits to the test and the results
       indicate the presence of a controlled substance or other
       drug, or an alcohol concentration equal to or in excess of the
       level prohibited by section 462A.14, the person’s privilege to
       operate a motorboat or sailboat will be prohibited for at least
       one year, and up to six years.

Id. § 462A.14C(1)(a)–(b). 1




       1We acknowledge that the advisories mandated by sections 462A.14C(1)(b) and
462A.14A(4)(g)(2) of the Code do not precisely match.             However, we need not
contemplate the potential significance of these differences in resolving this appeal.
                                      11

      VI. The Implied-Consent Advisory.

      The following     text   appeared    on   the   form   Pettijohn signed

containing the implied-consent advisory Officer Drish read to him:

                         Implied Consent Advisory:

      (If any peace officer fails to offer a test within two hours the
      preliminary screening test is administered or refused, or the
      arrest is made, whichever occurs first, a test is not required,
      and there shall be no suspension of motorboat or sail boat
      operation privileges.)

                         Notice to Any Peace Officer

      A person who has been requested to submit to a chemical
      test shall be advised by a peace officer of the following:

      (1) A refusal to submit to the test is punishable by a
      mandatory civil penalty of five hundred to two thousand
      dollars, and suspension of motorboat or sailboat operating
      privileges for at least a year. In addition, if the person is also
      convicted of operating a motorboat or sailboat while
      intoxicated, the person shall be subject to additional
      penalties. 2

      (2) If the person submits to the test and the results indicate
      the presence of a controlled substance or other drug, or an
      alcohol concentration equal to or in excess of the level
      prohibited under section 462A.14 (.08 BAC) and the person
      is convicted, the person’s motorboat or sailboat operating
      privileges will be suspended for at least one year and up to
      six years, depending upon how many previous convictions
      the person has under this chapter, and whether or not the
      person has caused serious injury or death, in addition to any
      sentence and fine imposed for a violation of section
      462A.14[.] 3

      VII. The Constitutional Provisions.

      Article I, section 8 of the Iowa Constitution guarantees,




       2Subparagraph (1) of the advisory matched verbatim the text appearing in

sections 462A.14C(1)(a) and 462A.14A(4)(g)(1) of the Code.
      3Subparagraph (2) of the advisory combined language appearing in sections

462A.14A(4)(g)(2) and 462A.14C(1)(b) of the Code.
                                      12
            The right of the people to be secure in their persons,
      houses, papers and effects, against unreasonable seizures
      and searches shall not be violated; and no warrant shall
      issue but on probable cause, supported by oath or
      affirmation, particularly describing the place to be searched,
      and the persons and things to be seized.

Iowa Const. art. I, § 8. The federal counterpart to article I, section 8 is

the Fourth Amendment to the United States Constitution, which was

made applicable to the states through the Due Process Clause of the

Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 654–55, 81 S. Ct.

1684, 1691 (1961). The Fourth Amendment provides,

            The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable searches
      and seizures, shall not be violated, and no Warrants shall
      issue, but upon probable cause, supported by Oath or
      affirmation, and particularly describing the place to be
      searched, and the persons or things to be seized.

U.S. Const. amend. IV. Though the rights set forth in these provisions

apply to all, questions concerning their scope ordinarily arise in

circumstances in which individuals are suspected of engaging in criminal

behavior. State v. King, 867 N.W.2d 106, 110–11 (Iowa 2015).

      Warrantless searches and seizures are per se unreasonable unless

one of several carefully drawn exceptions to the warrant requirement

applies.   State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004); State v.

Kinkead,   570   N.W.2d   97,   100    (Iowa   1997).   To   establish   the

constitutionality of a warrantless search or seizure, the State must prove

by a preponderance of the evidence that a recognized exception to the

warrant requirement applies. State v. Simmons, 714 N.W.2d 264, 272

(Iowa 2006).

      VIII. The Constitutionality of the Seizure.

      The district court apparently concluded the seizure of the boat

Pettijohn was operating constituted a valid exercise of the community-
                                    13

caretaking exception to the warrant requirement. Assessing whether the

community-caretaking exception to the warrant requirement justified a

seizure requires a court to determine (1) whether the officer who effected

the seizure was engaged in a bona fide community-caretaking activity

and (2) whether the public need and interest outweighed the intrusion

upon the privacy of the citizen subject to a seizure. State v. Kern, 831

N.W.2d 149, 173 (Iowa 2013).        Community-caretaking activities are

“totally divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute.”     Id. at 172

(quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528

(1973)).

      We need not reach the question of whether the community-

caretaking exception to the warrant requirement authorized the seizure

at issue in this case, however. Rather, we affirm the district court ruling

that the seizure was constitutional based on an alternate ground urged

by the State below and fully briefed and argued by the parties on appeal.

See, e.g., In re Estate of Voss, 553 N.W.2d 878, 879 n.1 (Iowa 1996);

Johnston Equip. Corp. v. Indus. Indem., 489 N.W.2d 13, 17 (Iowa 1992);

see also Chauffeurs, Teamsters & Helpers, Local Union No. 238 v. Iowa

Civil Rights Comm’n, 394 N.W.2d 375, 378 (Iowa 1986). Specifically, we

conclude the warrantless seizure of the boat Pettijohn was operating was

constitutionally   authorized   because   Officer   Wineland   reasonably

suspected that Pettijohn was violating Iowa Code section 462A.12(1).

      One established exception to the warrant requirement permits an

officer with “a reasonable, articulable suspicion that a criminal act has

occurred, is occurring, or is about to occur” to stop an individual for

investigatory purposes.    State v. Vance, 790 N.W.2d 775, 780 (Iowa

2010). To prove an investigatory stop complies with the requirements of
                                    14

this exception, however, the State must prove by a preponderance of the

evidence that the officer reasonably believed criminal activity was afoot

based on “specific and articulable facts . . . taken together with rational

inferences from those facts.”      Id. at 781.    We determine whether

reasonable suspicion existed in light of the totality of the circumstances

confronting the officer, “including all information available to the officer

at the time the decision to stop is made.” Id. (quoting State v. Kreps, 650

N.W.2d 636, 642 (Iowa 2002)).

      Here, Officer Wineland believed Pettijohn was engaged in an

ongoing misdemeanor because he was endangering the safety of a

passenger on the boat he was operating in violation of the Iowa Code.

The Code provides, “No person shall operate any vessel, or manipulate

any water skis, surfboard or similar device in a careless, reckless or

negligent manner so as to endanger the life, limb or property of any

person.”    Iowa Code § 462A.12(1).      Pettijohn argues a person must

endanger life, limb, or property by driving a boat in a careless, reckless,

or negligent manner to violate this statute. We disagree.

      When we interpret a statute, our goal is to determine legislative

intent.    Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa

2004).     To determine legislative intent, we look at the words the

legislature chose when it enacted the statute, not the words it might have

chosen.     Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759, 770

(Iowa 2016).      When the legislature chooses to “act as its own

lexicographer” by defining a statutory term, we are ordinarily bound by

its definition. Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d

417, 425 (Iowa 2010) (quoting State v. Fischer, 785 N.W.2d 697, 702

(Iowa 2010)). When the legislature fails to define a statutory term, we

examine the context in which the term appears and accord the term its
                                     15

ordinary and common meaning.         Ramirez-Trujillo, 878 N.W.2d at 770.

Interpreting a statute requires us to assess it in its entirety to ensure our

interpretation is harmonious with the statute as a whole rather than

assessing isolated words or phrases. Id.

      For purposes of section 462A.12(1), the legislature has defined the

word “operate” to mean “to navigate or otherwise use a vessel or

motorboat.”     Iowa Code § 462A.2(24).         The common meaning of

“navigate” is to “direct one’s course through any medium.”         Navigate,

Webster’s Third New International Dictionary (unabr. ed. 2002).        Were

this the only legislative definition of the word “operate” appearing in

chapter 462A, it would arguably support interpreting the statute

narrowly as Pettijohn suggests.

      However, according to the definition of the term “operate” the

legislature adopted, a person operates a boat when they navigate it “or

otherwise use” it. Iowa Code § 462A.2(24). The common meaning of the

word “otherwise” is “in a different way or manner.” Otherwise, Webster’s

Third New International Dictionary.    The common meaning of the word

“use” is “to put into action or service.”       Use, Webster’s Third New

International Dictionary. Because the legislature incorporated the phrase

“otherwise use” in the statutory definition of the word “operate,” we

conclude the legislature intended the prohibition in section 462A.12(1) to

apply any time a person uses a boat “in a careless, reckless or negligent

manner so as to endanger . . . life, limb or property,” even if the person is

navigating the boat safely. To illustrate, navigating a boat while it was

carrying weight in excess of its maximum weight capacity would clearly

constitute a violation of section 462A.12(1).

      Here, Pettijohn was operating the pontoon boat with a passenger in

close proximity to an unguarded propeller.        If Pettijohn had made a
                                     16

sudden maneuver, his passenger could have slipped off the boat and into

the propeller.   Under these circumstances, Officer Wineland had a

reasonable, articulable suspicion that Pettijohn was engaged in the crime

defined in section 462A.12(1). Therefore, we conclude the seizure of the

boat violated neither the Fourth Amendment to the United States

Constitution nor article I, section 8 of the Iowa Constitution.

      IX. The Constitutionality of the Search Under the United
States Constitution.

      We begin our analysis concerning the constitutionality of the

breath test by examining the recent decision of the United States

Supreme Court addressing the constitutionality of implied-consent

searches. In Birchfield, the Court considered “whether motorists lawfully

arrested for drunk driving may be convicted of a crime or otherwise

penalized for refusing to take a warrantless test measuring the alcohol in

their bloodstream” consistent with the Fourth Amendment to the United

States Constitution.   579 U.S. at ___, 136 S. Ct. at 2172.       The three

petitioners whose consolidated cases the Court addressed each advanced

the argument “that the criminal law ordinarily may not compel a motorist

to submit to the taking of a blood sample or to a breath test unless a
warrant authorizing such testing is issued by a magistrate.”       Id.   The

Court noted that when

      such warrantless searches comport with the Fourth
      Amendment, it follows that a State may criminalize the
      refusal to comply with a demand to submit to the required
      testing, just as a State may make it a crime for a person to
      obstruct the execution of a valid search warrant.

Id.   As a result, the Court set out to determine whether the

administration of warrantless blood and breath tests is justified by an

exception to the Fourth Amendment warrant requirement when an
                                         17

individual has been lawfully arrested on suspicion of drunk driving. Id.

at ___, 136 S. Ct. at 2173–74.

      The Court first noted the exigent-circumstances exception to the

warrant requirement, which “allows a warrantless search when an

emergency leaves police insufficient time to seek a warrant,” does not

categorically      permit    warrantless      BAC     testing   in   drunk-driving

investigations. Id. at ___, 136 S. Ct. at 2173–74. Rather, the question of

whether the natural dissipation of alcohol from the bloodstream

constitutes an exigency justifying a warrantless BAC test must be

determined by careful case-by-case assessment of “all of the facts and

circumstances of the particular case.”          Id. at ___, 136 S. Ct. at 2174

(quoting Missouri v. McNeely, 569 U.S. 141, 151, 133 S. Ct. 1552, 1560

(2013)     (plurality   opinion)).    The     Court   emphasized     the   exigent-

circumstances exception to the warrant requirement, unlike other

exceptions to the warrant requirement, must be applied in a case-specific

fashion, not categorically. Id.

      The Court next considered whether the search-incident-to-arrest

doctrine applies to breath and blood tests incident to drunk-driving

arrests.     Id.    After acknowledging its prior decisions applying this

doctrine have not been “easy to reconcile” and describing its scope

during colonial times, the Court ultimately determined the question of

whether the doctrine applies “does not depend on whether a search of a

particular arrestee is likely to protect officer safety or evidence.” Id. at

___, 136 S. Ct. at 2175–76.          However, when the doctrine applies, the

Court noted, the very “fact of the lawful arrest” permits “a full search of

the person.”       Id. at ___, 136 S. Ct. at 2176 (quoting United States v.

Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)).
                                    18

      The Court next described the appropriate test for determining

whether the doctrine “should be applied in situations that could not have

been envisioned when the Fourth Amendment was adopted.”                   Id.

“Absent more precise guidance from the founding era,” the Court

concluded such determinations should ordinarily be made “by assessing,

on the one hand, the degree to which it intrudes upon an individual’s

privacy and, on the other, the degree to which it is needed for the

promotion of legitimate governmental interests.”        Id. (quoting Riley v.

California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2484 (2014)).

      Lacking “any definitive guidance” from the founding era as to

whether blood and breath tests to measure BAC should be permitted

incident to arrest, the Court then undertook to apply this test. Id. With

respect to the degree to which BAC testing intrudes upon individual

privacy interests, the Court distinguished between blood and breath

tests, concluding blood tests implicate more significant privacy concerns

than breath tests. Id. at ___, 136 S. Ct. at 2176–78.

      As for the question of whether BAC testing on persons arrested for

drunk driving promotes a legitimate governmental interest, the Court

determined states have compelling interests in both “neutralizing the

threat posed” by drunk drivers behind the wheel and deterring drunk

driving effectively. Id. at ___, 136 S. Ct. at 2178–79. Accordingly, the

Court found implied-consent laws that induce motorists suspected of

drunk driving to submit to BAC testing “serve a very important function”

even after those motorists have been arrested and removed from the

road. Id. at ___, 136 S. Ct. at 2179. In doing so, the Court described

alcohol consumption as “a leading cause of traffic fatalities and injuries”

and emphasized statistics prepared by the National Highway Traffic

Safety Administration (NHTSA) indicating the number of fatalities in
                                     19

accidents attributed to drunk driving in recent years “ranged from

13,582 deaths in 2005 to 9,865 deaths in 2011.” Id. at ___, 136 S. Ct. at

2178.

        In assessing the degree to which implied-consent laws imposing

penalties for refusal to submit to BAC testing are necessary to promote

the legitimate governmental interests related to assuring roadway safety,

the Court rejected the relevance of determining whether “the burden of

obtaining a warrant is likely to frustrate the governmental purpose

behind the search” in the particular case. Id. at ___, 136 S. Ct. at 2179.

Rather, the Court concluded the applicability of the search-incident-to-

arrest exception “has never turned on case-specific variables such as

how quickly the officer will be able to obtain a warrant in the particular

circumstances he faces.”     Id. at ___, 136 S. Ct. at 2180.    The Court

dismissed “alternatives to warrantless BAC tests incident to arrest” as

“poor substitutes”     for implied-consent laws because        many other

strategies available to combat drunk driving are “significantly more

costly,” “target[ed to] only a segment of the drunk-driver population,”

“already in widespread use,” or less effective than more severe penalties

for refusal. Id. at ___, 136 S. Ct. at 2182.

        Finally, because the Court determined requiring warrants for BAC

testing would impose a burden on the states, it concluded the petitioners

needed to support their claims by demonstrating “some special need for

warrants for BAC testing.” Id. at ___, 136 S. Ct. at 2181. In assessing

whether the petitioners had met that standard, the Court described the

benefits requiring warrants would provide as follows:

        Search warrants protect privacy in two main ways. First,
        they ensure that a search is not carried out unless a neutral
        magistrate makes an independent determination that there
        is probable cause to believe that evidence will be found.
                                     20
      Second, if the magistrate finds probable cause, the warrant
      limits the intrusion on privacy by specifying the scope of the
      search—that is, the area that can be searched and the items
      that can be sought.

Id. at ___, 136 S. Ct. at 2181 (citation omitted).         The Court then

concluded the petitioners had not demonstrated a special need for

warrants before BAC testing is conducted. Id. at ___, 136 S. Ct. at 2181–
82. More precisely, the Court determined “requiring the police to obtain

a warrant in every case would impose a substantial burden but no

commensurate benefit” because the facts officers would need to recite to

establish probable cause for a warrant would “consist largely of the

officer’s own characterization of his or her observations” and the scope of

search permitted by the warrant would be the same in every case. Id.

      Balancing these considerations, the Court held the Fourth

Amendment permits the administration of a warrantless breath test, but

not a blood test, to determine the BAC of an individual lawfully arrested

on suspicion of drunk driving as a search incident to arrest. Id. at ___,

136 S. Ct. at 2184–85.      However, the Court cautioned a warrantless

blood test may be justified under another exception to the warrant

requirement, stating,

      Nothing prevents the police from seeking a warrant for a
      blood test when there is sufficient time to do so in the
      particular circumstances or from relying on the exigent
      circumstances exception to the warrant requirement when
      there is not.

Id. at ___, 136 S. Ct. at 2184.

      Pettijohn argues applying the balancing test the Birchfield Court

used to determine whether the search-incident-to-arrest exception

applies to arrests for drunk driving yields a different result in the context

of drunk boating for two reasons. First, he argues the individual interest

at stake in the boating context is more significant than in the driving
                                   21

context because a person has a natural right to navigate state waterways

and does not need a license to operate a boat. Second, he argues the

government interest in preventing drunk boating is far less compelling

than the government interest in preventing drunk driving.

      We reject this analysis. First, in determining whether the search-

incident-to-arrest exception to the Fourth Amendment right to be free

from unreasonable searches applies, the individual interest to be

assessed is the degree to which a warrantless search will intrude upon

his or her privacy interests.    Second, though government statistics

indicate drunk boating causes far fewer annual fatalities than drunk

driving, we conclude the government interest in preventing and deterring

injuries and fatalities is similar in the drunk driving and the drunk

boating contexts. Though we acknowledge government statistics suggest

drunk boating causes far fewer annual fatalities than drunk driving,

alcohol is the leading known contributing factor in both fatal boating

accidents and fatal motor vehicle accidents.

      Applying Birchfield, we conclude the Fourth Amendment permits

the administration of a warrantless breath test to determine the BAC of

an individual lawfully arrested on suspicion of boating while intoxicated.

The BAC test at issue in this case was a breath test rather than a blood

test, and Officer Drish administered it after reading an implied-consent

advisory to Pettijohn following his lawful arrest. Therefore, we conclude

the breath test constituted a search incident to arrest excepted from the

Fourth Amendment’s warrant requirement under Birchfield.

     X. The Constitutionality of the Search Under the Iowa
Constitution.

      The text of the Fourth Amendment to the United States

Constitution and article I, section 8 of the Iowa Constitution are “nearly
                                      22

identical.” State v. Short, 851 N.W.2d 474, 500 (Iowa 2014). However,

the scope of the protections they afford is not. See, e.g., State v. Gaskins,

866 N.W.2d 1, 13 (Iowa 2015); Short, 851 N.W.2d at 506; State v. Ochoa,

792 N.W.2d 260, 291 (Iowa 2010).

        “We jealously guard our right to construe a provision of our state

constitution differently than its federal counterpart, though the two

provisions may contain nearly identical language and have the same

general scope, import, and purpose.” State v. Jackson, 878 N.W.2d 422,

442 (Iowa 2016); see State v. Kooima, 833 N.W.2d 202, 206 (Iowa 2013).

Additionally, whether or not a defendant has advanced the argument

that a different framework applies to a state constitutional claim than

federal cases have used in parallel federal constitutional claims, we

reserve our right to apply a federal standard more stringently than it is

applied in federal caselaw when construing the requirements of our state

constitution. Jackson, 878 N.W.2d at 442; Kooima, 833 N.W.2d at 206.

        A. Searches Incident to Arrest Under Article I, Section 8. Our

caselaw recognizes the search-incident-to-arrest exception to the warrant

requirement under article I, section 8 “must be narrowly construed and

limited to accommodating only those interests it was created to serve.”

Gaskins, 866 N.W.2d at 8 (quoting State v. McGrane, 733 N.W.2d 671,

677 (Iowa 2007)). Applying this principle, in Gaskins we held the scope

of the search-incident-to-arrest exception to the warrant requirement

under article I, section 8 of the Iowa Constitution is narrower than its

scope under the Fourth Amendment to the United States Constitution.

Id. at 13–14.

        Our decision in Gaskins addressed the extent to which the proper

scope    of   the   search-incident-to-arrest   exception   to   the   warrant

requirement under article I, section 8 is limited by its underlying
                                     23

purposes.    Id. at 8–16.   In considering this question, we concluded,

“When lines need to be drawn in creating rules, they should be drawn

thoughtfully along the logical contours of the rationales giving rise to the

rules.” Id. at 12 (quoting State v. Rowell, 188 P.3d 95, 101 (N.M. 2008)).

Accordingly, we determined the proper scope of the search-incident-to-

arrest exception “is tethered to its original underlying dual justifications.”

Id. at 16. We thus held a proper search incident to arrest under article I,

section 8 must serve either the purpose of “protecting arresting officers”

or “safeguarding any evidence the arrestee may seek to conceal or

destroy.” Id. at 8 (quoting Vance, 790 N.W.2d at 786). We also clarified

that in order for the preservation of evidence to justify a warrantless

search incident to arrest under the Iowa Constitution, the search must

serve “the State’s interest in preserving evidence from destruction,” not

merely its interest in collecting evidence expediently. Id. at 14.

      In concluding a warrantless search incident to arrest justified by

the need to preserve evidence must serve the purpose of preventing

evidence destruction under article I, section 8, we squarely rejected the

proposition that collecting “evidence of the crime of arrest” constitutes a

sufficient justification to support a warrantless search under article I,

section 8. Id. at 13–14. Notwithstanding the contrary position taken by

the United States Supreme Court in Arizona v. Gant, 556 U.S. 332, 351,

129 S. Ct. 1710, 1723 (2009), we rejected this general evidence-gathering

rationale as the proper limitation for the permissible scope of searches

incident to arrest under article I, section 8. Gaskins, 866 N.W.2d at 13.

Instead, we concluded the general evidence-gathering rationale approved

in Gant stood “wholly separate from” the underlying justifications for the

search-incident-to-arrest exception to the warrant requirement such that

it was “repugnant to article I, section 8 of the Iowa Constitution.” Id. at
                                     24

13–14.    We reasoned that allowing warrantless searches incident to

arrest based on the need to gather evidence would cause the search-

incident-to-arrest exception “to swallow completely the fundamental

textual rule in article I, section 8 that searches and seizures should be

supported by a warrant.” Id. at 13. We emphasized our holding would

not preclude warrantless searches following an arrest when “the security

of an arresting officer is implicated,” “the arrested person is within reach

of contraband and thus able to attempt to destroy or conceal it,” or

unusual circumstances supporting the application of the exigent-

circumstances exception to the warrant requirement exist. Id. at 15.

      Of course, when the Iowa Constitution is more protective against

government intrusion than the United States Constitution, we must

determine whether the government conduct at issue in a particular case

violated individual rights guaranteed under our state constitution.

Therefore, we must now determine whether the breath test administered

on Pettijohn was justified as a search incident to arrest under article I,

section 8 as construed in Gaskins.

      Relying on our language acknowledging “the important distinction

between the purpose of preserving evidence and the purpose of collecting

evidence” in Gaskins, id. at 14, the State argues the evanescent nature of

BAC evidence places breath tests squarely within the scope of the

search-incident-to-arrest exception to the warrant requirement under

article I, section 8.

      We recognize “that as a result of the human body’s natural

metabolic processes, the alcohol level in a person’s blood begins to

dissipate once the alcohol is fully absorbed and continues to decline until

the alcohol is eliminated.” McNeely, 569 U.S. at 152, 133 S. Ct. at 1560.

We have applied this very concept in interpreting our state statutes well
                                      25

before the United States Supreme Court decided McNeely. See State v.

Harris, 763 N.W.2d 269, 274 (Iowa 2009) (holding the mere dissipation of

alcohol in a person’s bloodstream was not enough to allow a warrantless

search to obtain the driver’s blood alcohol level under our OWI statutes);

State v. Johnson, 744 N.W.2d 340, 344–45 (Iowa 2008) (holding the mere

dissipation   of   alcohol   in   a   person’s   bloodstream   with   exigent

circumstances was enough to allow a warrantless search to obtain the

driver’s blood alcohol level under our OWI statutes); see also State v.

Lovig, 675 N.W.2d 557, 567 (Iowa 2004) (holding police could not enter a

home and obtain a chemical test to determine a person’s blood alcohol

level under the Fourth Amendment merely because the driver’s “blood-

alcohol level might have dissipated while the police obtained a warrant”).

We therefore have acknowledged the evanescent nature of BAC evidence.

      However, it is apparent the evanescent nature of BAC evidence

does not make it susceptible to concealment or destruction by an

arrestee. Plainly, there was nothing Pettijohn could have done to conceal

or destroy the alcohol present in his blood. In Gaskins, we acknowledged

evidence preservation constitutes a justification for warrantless searches

incident to arrest only insofar as they serve the purpose of preventing the

destruction or concealment of evidence by an arrestee. 866 N.W.2d at

14.   We specifically disavowed the notion that the state interest in

collecting evidence expediently, as opposed to the state interest in

preventing evidence from being intentionally destroyed by an arrestee,

constitutes an adequate justification for a search incident to arrest. Id.

      In essence, the State asks us to hold that the proper scope of

searches incident to arrest justified by evidence preservation under

article I, section 8 extends not only to evidence the arrestee might

conceal or destroy, but also to other evidence that might be lost due to
                                    26

its natural dissipation as part of an arrestee’s metabolic processes. We

have previously rejected this claim under our statutory scheme. Harris,

763 N.W.2d at 274. Additionally, we have rejected this claim under the

Fourth Amendment.       Lovig, 675 N.W.2d at 567.        For the following

reasons, we also reject the notion that the natural dissipation of alcohol

justifies the per se application of the search-incident-to-arrest exception

to the warrant requirement under article I, section 8.

      The   implied-consent    statute   in   chapter    462A   establishes

evidentiary presumptions applicable to BAC evidence obtained by breath

tests taken up to two hours after an arrestee is observed operating a boat

that ensure the results of tests taken within this window will constitute

powerful evidence supporting a conviction under section 462A.14. Under

the implied-consent procedure set forth in the Code,

      alcohol concentration established by the results of an
      analysis of a specimen of the defendant’s blood, breath, or
      urine withdrawn within two hours after the defendant was
      operating or was otherwise in physical control of a motorboat
      or sailboat is presumed to be the alcohol concentration at
      the time of operation or being in physical control of the
      motorboat or sailboat.

Iowa Code § 462A.14A(8) (emphasis added); see id. § 462A.14(8)(a).

Moreover, section 462A.14 prohibits not only operating a boat with a

blood alcohol concentration equal to “.08 or more,” but also operating a

boat “under the influence of an alcoholic beverage or other drug or a

combination of such substances.” Id. § 462A.14(1)(a)–(b). Thus, when

combined with officer testimony concerning the facts that created the

probable cause for arresting a defendant in the first place, test results

confirming the presence of any alcohol in the defendant’s blood might be

enough to establish a violation of section 462A.14.
                                      27

      The evidentiary presumption established in the implied-consent

procedure set forth in sections 462A.14 and 462A.14A accounts for

delays inherent to obtaining trial-worthy BAC evidence.       For example,

officers generally conduct evidentiary breath tests on arrestees only after

transporting them to either “a police station, governmental building, or

mobile testing facility where officers can access reliable, evidence-grade

breath testing machinery.” Birchfield, 579 U.S. at ___, 136 S. Ct. at 2192

(Sotomayor, J., dissenting). An officer must also observe an arrestee for

fifteen to twenty minutes before administering a breath test in order to

ensure the arrestee has not “inserted any food or drink into his mouth”

and “to ensure that ‘residual mouth alcohol,’ which can inflate results

and expose the test to an evidentiary challenge at trial, has dissipated.”

Id. (quoting NHTSA & Int’l Ass’n of Chiefs of Police, DWI Detection and

Standardized Field Sobriety Testing Participant Guide, Session 7, p. 20

(2013)).    Finally, when an officer arrives at an adequately equipped

testing location, “if a breath test machine is not already active, the . . .

officer must set it up.”     Id.   Because these steps are necessary to

obtaining reliable BAC evidence, “the standard breath test is conducted

well after an arrest is effectuated.” Id.

      During this necessary window of delay, law enforcement officers

who wish to conduct a breath test on an arrestee can seek a warrant

electronically. In Iowa, law enforcement officers have “the capability to

access the court system from the computer in a police vehicle to request

a search warrant based on probable cause at all times of the day and

night.”    Gaskins, 866 N.W.2d at 17 (Cady, C.J., concurring specially).

This expanded access to the courts enables law enforcement officers

throughout the state to obtain search warrants more quickly than ever

before.    Furthermore, in the context of arrests for operating while
                                          28

intoxicated, the facts establishing probable cause to obtain a search

warrant “are largely the same from one . . . stop to the next and consist

largely of the officer’s own characterization of his or her observations.”

Birchfield, 579 U.S. at ___, 136 S. Ct. at 2181 (majority opinion).

Because documenting the facts needed to establish probable cause is

relatively simple in this context, an officer who has probable cause to

suspect an individual of operating while intoxicated should ordinarily be

able to complete and submit an electronic warrant application within

minutes.

       This     reasoning      is    consistent      with     Iowa     constitutional

jurisprudence. Whenever practicable, the state should obtain a warrant

prior to conducting a search. See Gaskins, 866 N.W.2d at 16 (holding a

search warrant is generally required before a search); Ochoa, 792 N.W.2d

at 285 (holding under the Iowa Constitution we have a warrant-

preference requirement); see also Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct.

1868, 1879 (1968) (“We do not retreat from our holdings that the police

must, whenever practicable, obtain advance judicial approval of searches

and seizures through the warrant procedure . . . .”).                   A recognized

exception to the warrant requirement is when there is probable cause

and exigent circumstances. 4            The state cannot create an exigent

circumstance and profit by it against a defendant’s rights under our

search and seizure jurisprudence. See State v. Ahern, 227 N.W.2d 164,

168 (Iowa 1975).        The legislature does allow police officers to obtain

telephonic search warrants in certain instances.                     See Iowa Code

§ 321J.10(3).     Our electronic document management system (EDMS)


       4We will discuss exigent circumstances in regard to the dissipation of alcohol in

the bloodstream later in this opinion.
                                         29

allows the police to get a warrant almost instantaneously. The failure of

the state to authorize such a procedure cannot create an exigency.

       Moreover, the Iowa Code allows unsworn statements to be the

basis of an affidavit for issuance of a search warrant. The Code provides

in relevant part,

       When the laws of this state or any lawful requirement made
       under them requires or permits a matter to be supported by
       a sworn statement written by the person attesting the
       matter, the person may attest the matter by an unsworn
       written statement if that statement recites that the person
       certifies the matter to be true under penalty of perjury under
       the laws of this state, states the date of the statement’s
       execution and is subscribed by that person.

Iowa Code § 622.1.          By submitting a statement with the proper

certification to a magistrate electronically, a magistrate can issue the

warrant under Iowa Code section 808.3.

       Given that law enforcement officers in Iowa have around-the-clock

access to our electronic court system, 5 “the delays inherent in

administering reliable breath tests generally provide ample time to obtain

a warrant” within the two-hour window that will entitle their results to

the evidentiary presumption set forth in section 462A.14A(8). Birchfield,

479 U.S. at ___, 136 S. Ct. at 2191 (Sotomayor, J., dissenting). Thus, the
evidentiary presumption set forth in the implied-consent procedure

defined in chapter 462A ensures the evanescent nature of BAC evidence

will ordinarily present no immediate risk of evidence loss sufficient to




       5To   the extent law enforcement claims they cannot use the system to access a
warrant, the legislature can make any changes to the law that would allow a judicial
officer to issue a warrant under our EDMS, as the legislature has allowed the issue of
telephonic warrants in certain OWI cases. See Iowa Code § 321J.10.
                                          30

threaten the State’s ability to obtain a successful prosecution under

section 462A.14(1). 6

         As the Supreme Court repeatedly emphasized in Birchfield, when

the search-incident-to-arrest exception to the warrant requirement

applies, it provides law enforcement officers with “categorical” authority

to conduct warrantless searches. Id. at ___, ___, ___, 136 S. Ct. at 2174,

2179, 2183 (majority opinion).          Thus, an officer’s ability to conduct a

warrantless search incident to arrest “does not depend on an evaluation

of the threat to officer safety or the threat of evidence loss in a particular

case.”     Id. at ___, 136 S. Ct. at 2183.          It naturally follows that the

recognition of “categorical exceptions” to the warrant requirement is

appropriate only “where the commonalities among a class of cases justify

dispensing with the warrant requirement for all of those cases, regardless

of their individual circumstances.”            Id. at ___, 136 S. Ct. at 2188

(Sotomayor, J., dissenting).

         For this reason, we previously concluded the proper scope of a

categorical      search-incident-to-arrest       exception      to   the     warrant

requirement is limited to situations in which the commonalities among a

class of cases indicate the application of the exception to that category of

cases would satisfy the underlying purposes justifying its existence. See

Gaskins, 866 N.W.2d at 13.             Here, the State offers no evidence to


         6We  acknowledge the implied-consent statute set forth in chapter 462A
specifically does not bar

         the introduction of any competent evidence bearing on the question of
         whether a person was under the influence of an alcoholic beverage or a
         controlled substance or other drug, including the results of chemical
         tests of specimens of blood, breath, or urine obtained more than two
         hours after the person was operating a motorboat or sailboat.

Iowa Code §§ 462A.14(11), .14A(8).
                                     31

plausibly support the conclusion that commonalities serving the

underlying purposes of the search-incident-to-arrest exception to the

warrant requirement exist across all cases in which an officer seeks to

administer a breath test to determine the BAC of an arrestee suspected

of violating section 462A.14.      In the absence of such evidence, the

application of the categorical search-incident-to-arrest exception to the

warrant requirement to this class of cases would eviscerate the

protections guaranteed by article I, section 8.

      We therefore decline the State’s invitation to conclude the search-

incident-to-arrest exception applies to this category of cases across the

board. Under article I, section 8, mere inconvenience resulting from the

requirement that officers obtain warrants before conducting searches is

inadequate to support the application of the search-incident-to-arrest

exception to the warrant requirement.          See id. at 15.      Therefore,

assuming the search-incident-to-arrest exception under article I, section

8 is at all concerned with the State’s interest in preventing the loss of

evanescent evidence, that concern justifies its application only insofar as

such loss would occur before a warrant could ordinarily be obtained.

The mere fact an individual suspected of boating while intoxicated has

been arrested does not reliably indicate this circumstance exists,

therefore it does not reliably indicate the existence of a threat to the

State’s interest in evidence preservation sufficient to justify application of

the search-incident-to-arrest exception to the warrant requirement under

article I, section 8.

      We note the dissipation of alcohol from the bloodstream may

support the determination that exigent circumstances exist to justify a

warrantless breath test on an arrestee suspected of operating a boat

while intoxicated. Though “experts can work backwards from the BAC at
                                      32

the time the sample was taken to determine the BAC at the time of the

alleged offense, longer intervals may raise questions about the accuracy

of the calculation.” McNeely, 569 U.S. at 156, 133 S. Ct. at 1563. Thus,

when unusual circumstances arise that make an officer obtaining a

warrant within two hours of witnessing the arrestee operating a boat

impracticable,   they   may    support     the   determination   that   exigent

circumstances exist to justify the administration of a warrantless breath

test. See Iowa Code §§ 462A.14(8)(a), .14A(8). As the Supreme Court

stated in McNeely,

            We by no means claim that telecommunications
      innovations have, will, or should eliminate all delay from the
      warrant-application process. Warrants inevitably take some
      time for police officers or prosecutors to complete and for
      magistrate judges to review. . . . And improvements in
      communications technology do not guarantee that a
      magistrate judge will be available when an officer needs a
      warrant after making a late-night arrest.

569 U.S. at 155, 133 S. Ct. at 1562.

      However, as the State rightly concedes, the natural dissipation of

alcohol in the bloodstream and the potential loss of BAC evidence do not

automatically constitute exigent circumstances that subvert the warrant

requirement under the Fourth Amendment or article I, section 8. See
Birchfield, 579 U.S. at ___, 136 S. Ct. at 2174; McNeely, 569 U.S. at 151–

52, 133 S. Ct. at 1560–61, 1563; Harris, 763 N.W.2d at 272. “In short,

while the natural dissipation of alcohol in the blood may support a

finding of exigency in a specific case, . . . it does not do so categorically.”

McNeely, 569 U.S. at 156, 133 S. Ct. at 1563.          In our view, this fact

fatally undermines the State’s argument, as we perceive no meaningful

distinction between concluding the natural dissipation of alcohol justifies

the application of the search-incident-to-arrest exception to the warrant

requirement in every case involving an arrestee suspected of operating
                                          33

while intoxicated and concluding it constitutes a per se exigency

permitting warrantless searches in such cases. 7

       We therefore conclude a warrantless breath test to determine the

BAC of an arrestee suspected of operating a boat while intoxicated does

not fall within the search-incident-to-arrest exception to the warrant

requirement under article I, section 8.               Thus, because the natural

dissipation of alcohol does not justify the per se application of the

search-incident-to-arrest exception to the warrant requirement under

article I, section 8, we conclude the breath test Officer Drish

administered to Pettijohn did not constitute a permissible search

incident to arrest under the Iowa Constitution.

       B. Consent to a Warrantless Search Under Article I, Section 8.

Having determined the breath test administered to Pettijohn did not

constitute a permissible search incident to arrest under article I,

section 8, we must now turn to the question of whether the warrantless

search was justified based on consent.              Under article I, section 8, a

warrant is not required to authorize a search based on consent. State v.

Baldon, 829 N.W.2d 785, 791 (Iowa 2013). Rather, effective consent to a

warrantless search establishes a waiver of an individual’s right to be free

from unreasonable searches and seizures under article I, section 8. Id.

       1.     The statutorily implied consent to submit to chemical testing.

Before considering whether Pettijohn’s affirmative consent to submit to

the breath test effectively waived his right to be free from a warrantless

search under article I, section 8, we first consider whether the consent


       7The  State does not argue exigent circumstances justifying the administration of
a warrantless breath test existed in this case, nor have we identified anything about the
circumstances preceding the breath test other than the natural dissipation of the
alcohol in Pettijohn’s blood that would support such a conclusion.
                                       34

implied under the Iowa Code constituted effective consent justifying the

administration of the warrantless breath test. Section 462A.14A(1) of the

Code states,

             A person who operates a motorboat or sailboat on the
      navigable waters in this state under circumstances which
      give reasonable grounds to believe that the person has been
      operating a motorboat or sailboat in violation of section
      462A.14 is deemed to have given consent to the withdrawal
      of specimens of the person’s blood, breath, or urine and to a
      chemical test or tests of the specimens for the purpose of
      determining the alcohol concentration or presence of
      controlled substances or other drugs, subject to this section.

Iowa Code § 462A.14A(1). If the implied consent to warrantless searches

declared in section 462A.14A constitutes an effective waiver of the right

to be free from warrantless searches guaranteed by article I, section 8,

then the search Pettijohn was subjected to did not violate the Iowa

Constitution.

      We begin our analysis by assessing decisions of the United States

Supreme Court addressing the impact of implied consent in the Fourth

Amendment context. In assessing that caselaw, we remain mindful that

decisions of the Supreme Court addressing the scope of a right

guaranteed by the United States Constitution set a floor below which the

scope of a right guaranteed by the Iowa Constitution may not fall, but

not a ceiling above which it may not rise. See State v. Sweet, 879 N.W.2d

811, 832 (Iowa 2016).

      In   Birchfield,   after   determining   warrantless   blood   tests   on

motorists arrested for drunk driving are not justified as searches incident

to arrest, the Court considered whether such tests are justified such that

they do not violate the Fourth Amendment by virtue of drivers’ legally

implied consent to submit to them. 579 U.S. at ___, 136 S. Ct. at 2185–

86.   The Court ultimately concluded “motorists cannot be deemed to
                                     35

have consented to submit to a blood test on pain of committing a

criminal   offense,”   reasoning   there   must    be   some     “limit   to   the

consequences to which motorists may be deemed to have consented by

virtue of a decision to drive on public roads.”         Id.   In reaching this

conclusion, the Court applied a standard of general reasonableness. Id.

But in doing so, the Court noted this general reasonableness standard

did not differ in substance from concluding motorists may be deemed to

have consented only to conditions that have a nexus to the privilege of

driving and entail proportionally severe penalties. Id. at ___, 136 S. Ct.

at 2186.

      Because the Court had held breath tests may be administered to

motorists arrested on suspicion of drunk driving as searches incident to

arrest, the Birchfield opinion did not address whether statutorily implied

consent may justify warrantless breath tests consistent with the Fourth

Amendment. See id. Nor did the opinion address whether motorists may

be deemed to have consented to blood or breath tests when state law

provides refusal to submit will subject them to civil penalties, as the

petitioners had each been threatened with criminal penalties for refusal.

See id. at ___, ___, 136 S. Ct. at 2170–72, 2185–86. However, the Court

explicitly cautioned the opinion should not be read to suggest implied-

consent laws imposing civil penalties and evidentiary consequences on

motorists who refuse to submit are unconstitutional.           Id. at ___, 136

S. Ct. at 2185.

      Unlike Birchfield, McNeely did not directly address whether

statutorily implied consent to submit to warrantless blood or breath tests

constitutes   consent    for   purposes    of     the   Fourth     Amendment.

Nevertheless, we conclude the clear implication of the McNeely decision is

that statutorily implied consent to submit to a warrantless blood test
                                    36

under threat of civil penalties for refusal to submit does not constitute

consent for purposes of the Fourth Amendment.

      The relevant facts of McNeely are as follows. After the defendant

refused to provide a breath sample, an officer requested an arrestee to

provide a blood sample and advised him that refusal to submit to the test

would subject him to civil penalties for refusal, including the immediate

revocation of his license, and the possibility that his refusal would be

relied upon as evidence in a future prosecution under state law.

McNeely, 569 U.S. at 146, 133 S. Ct. at 1557.           By state statute, any

person who operated a motor vehicle on public highways within the state

was deemed to have given consent to a chemical test subject to civil

penalties for refusal. Id. (citing Mo. Rev. Stat. §§ 577.020, .041 (2011)).

When the defendant refused to provide a blood sample despite the

existence of this statutorily implied consent, the arresting officer ordered

the withdrawal of his blood without applying for a warrant because he

believed obtaining one “was not legally necessary.” Id. at 163, ___, 133

S. Ct. at 1557, 1567.

      The McNeely opinion framed the question before the Court as

“whether   the   natural   dissipation   of   alcohol   in   the   bloodstream

establishes a per se exigency that suffices on its own to justify an

exception to the warrant requirement for nonconsensual blood testing in

drunk-driving investigations.” Id. at 147, 133 S. Ct. at 1558. The Court

held the natural dissipation of alcohol does not create a per se exigency,

and that exigency in the drunk-driving context “must be determined case

by case based on the totality of the circumstances.” Id. at 156, 133 S.

Ct. at 1563. Though the opinion explicitly acknowledged the existence of

other exceptions to the warrant requirement, it did not consider whether

any exception other than exigency might serve as a potential justification
                                          37

for administering warrantless BAC tests on drunk-driving suspects

under the Fourth Amendment. See Birchfield, 579 U.S. at ___, 136 S. Ct.

at 2174 (discussing McNeely).              Thus, the opinion never explicitly

addressed whether statutorily implied consent constitutes effective

consent for purposes of determining whether a warrant was required to

authorize a search under the Fourth Amendment. See id.

       Nevertheless, McNeely clearly did not treat the statutorily implied

consent    in   the    Missouri     statute    as   consent     under     the   Fourth

Amendment. Notably, in a section of the McNeely opinion joined by five

justices, the Court framed the issue to be decided as one concerning the

constitutionality of “nonconsensual blood testing in drunk-driving

investigations.” McNeely, 569 U.S. at 147, 133 S. Ct. at 1558 (emphasis

added).     Furthermore, another passage contemplating the nature of

implied-consent laws explicitly referenced the ability of motorists to

withdraw consent that is statutorily implied:

       States have a broad range of legal tools to enforce their
       drunk-driving laws and to secure BAC evidence without
       undertaking warrantless nonconsensual blood draws. For
       example, all 50 States have adopted implied consent laws
       that require motorists, as a condition of operating a motor
       vehicle within the State, to consent to BAC testing if they are
       arrested or otherwise detained on suspicion of a drunk-
       driving offense. Such laws impose significant consequences
       when a motorist withdraws consent; typically the motorist’s
       driver’s license is immediately suspended or revoked, and
       most States allow the motorist’s refusal to take a BAC test to
       be used as evidence against him in a subsequent criminal
       prosecution.

Id. at 161, 133 S. Ct. at 1566 (plurality opinion) (citation omitted). 8



       8Though only four justices joined the section of the opinion containing this

passage, no opinion by any justice suggested statutorily implied consent falls within the
scope of the consent exception to the warrant requirement. See McNeely, 569 U.S. at
165–66, 133 S. Ct. at 1568–69 (Kennedy, J., concurring in part); id. at 166–76, 133
                                          38

       Following McNeely, a number of state courts concluded the mere

existence     of   statutorily    implied      consent    does     not    permit     the

administration of a warrantless test of an individual’s blood, breath, or

urine consistent with the Fourth Amendment. See, e.g., State v. Butler,

302 P.3d 609, 613 (Ariz. 2013) (en banc); People v. Harris, 184 Cal. Rptr.

3d 198, 207, 213 (Ct. App. 2015); Williams v. State, 771 S.E.2d 373,

376–77 (Ga. 2015); State v. Halseth, 339 P.3d 368, 371 (Idaho 2014);

State v. Declerck, 317 P.3d 794, 804 (Kan. Ct. App. 2014); State v.

Brooks, 838 N.W.2d 563, 573 (Minn. 2013), cert. denied, ___ U.S. ___,

134 S. Ct. 1799 (2014); State v. Modlin, 867 N.W.2d 609, 619 (Neb.

2015); Byars v. State, 336 P.3d 939, 945–46 (Nev. 2014); State v. Smith,

849 N.W.2d 599, 605 (N.D. 2014), abrogated by Birchfield, 579 U.S. at

___, 136 S. Ct. at 2186; State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014);

State v. Wells, No. M2013-01145-CCA-R9-CD, 2014 WL 4977356, at *13

(Tenn. Crim. App. Oct. 6, 2014); Weems v. State, 434 S.W.3d 655, 665

(Tex. Ct. App. 2014), aff’d, 493 S.W.3d 574 (Tex. Crim. App. 2016); State

v. Padley, 849 N.W.2d 867, 879–80 (Wis. Ct. App. 2014).

       A recurrent theme among state court decisions issued in McNeely’s

wake concerned the nature of consent sufficient to justify a warrantless

search consistent with the Fourth Amendment. See, e.g., Halseth, 339

P.3d at 371; Byars, 336 P.3d at 945; Padley, 849 N.W.2d at 879–80. Of

course, it is well-settled law that consent must be voluntarily given to

justify a warrantless search that comports with the Fourth Amendment.

Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059

(1973).   Additionally, effective consent to a warrantless search may be

_____________________
S. Ct. at 1569–74 (Roberts, C.J., concurring in part and dissenting in part); id. at 176–
83, 133 S. Ct. at 1574–78 (Thomas, J., dissenting).
                                          39

limited, qualified, or withdrawn. Florida v. Jimeno, 500 U.S. 248, 252,

111 S. Ct. 1801, 1804 (1991) (“A suspect may of course delimit as he

chooses the scope of the search to which he consents.”); United States v.

Sanders, 424 F.3d 768, 774 (8th Cir. 2005) (“Once given, consent to

search may be withdrawn . . . .”); State v. McConnelee, 690 N.W.2d 27, 30

(Iowa 2004) (acknowledging “consent to a search may be limited or

qualified” and “authorities . . . are constrained by such limitations or

qualifications”); State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991) (“In

consent to search cases, an initial voluntary grant of consent may be

limited, withdrawn or revoked at any time prior to the completion of the

search.”). From these general observations about the nature of effective

consent sufficient to justify a warrantless search, it follows that

statutorily implied consent cannot function as an automatic exception to

the warrant requirement.          Consent is not voluntary and capable of

justifying a warrantless search unless the individual consenting has the

ability to withdraw it. See, e.g., Halseth, 339 P.3d at 371 (“Inherent in

the requirement that consent be voluntary is the right of the person to

withdraw that consent.”); Byars, 336 P.3d at 945 (“A necessary element

of consent is the ability to limit or revoke it.”).

      The implied-consent procedure set forth in chapter 462A of the

Iowa Code clearly anticipates that consent implied under the statute will

ordinarily be subsequently withdrawn or reaffirmed.            Under section

462A.14A(1), an individual is deemed to have consented to chemical

testing when he or she “operates a motorboat or sailboat on the

navigable   waters    in   this   state    under   circumstances   which   give

reasonable grounds to believe that the person has been operating a

motorboat or sailboat in violation of section 462A.14.”            Iowa Code

§ 462A.14A(1). However, even after implied consent has attached to an
                                           40

individual suspected of boating while intoxicated, the statute does not

compel his or her submission to a chemical test. 9 See id. § 462A.14C.

Rather, it requires an officer to request the individual to submit to a

chemical test and advise him or her of the consequences the law attaches

to the choice of submission as well as the choice of refusal.                         Id.

§ 462A.14C(1)(a)–(b). The individual may then choose between affirming

or withdrawing his or her consent to submit to a chemical test. See id.

       We conclude the consent implied by the statutory scheme set forth

in chapter 462A of the Code does not automatically permit a warrantless

search consistent with article I, section 8. 10 Accordingly, to determine

whether the warrantless breath test in this case was permissible by

virtue of consent, we must determine, under the totality of the

circumstances, whether Pettijohn effectively consented to submit to the

breath test after Officer Drish read him the implied-consent advisory.

See, e.g., Birchfield, 579 U.S. at ___, 136 S. Ct. at 2186 (remanding for a

determination as to the voluntariness of a petitioner’s consent based on

the totality of the circumstances); Williams, 771 S.E.2d at 377

       9Section   462A.14A(4)(f) provides, “A person who is dead, unconscious, or
otherwise in a condition rendering the person incapable of consent or refusal is deemed
not to have withdrawn the consent provided by this section.” The State does not claim
Pettijohn was dead, unconscious, or otherwise in a condition that rendered him
incapable of consent or refusal. Therefore, we address this provision only insofar as to
note that the exigent-circumstances exception to the warrant requirement may permit a
warrantless search under such circumstances even if the consent implied under the
statute does not justify a warrantless search.
       10The   State concedes implied consent is not effective consent. However, the
State also relies on prior statements by this court suggesting an individual has no
constitutional right to refuse a warrantless breath test under the United States
Constitution when statutorily implied consent applies. See State v. Massengale, 745
N.W.2d 499, 501 (Iowa 2008); State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981). We
express no opinion on the continued vitality of our prior statements concerning an
individual’s right to refuse a breath test with respect to the United States Constitution.
We simply hold the mere existence of statutorily implied consent does not justify a
warrantless search under article I, section 8.
                                     41

(remanding with instructions to consider the voluntariness of the

defendant’s consent under the totality of the circumstances).

        2. The affirmative consent to submit to the breath test. As we have

previously noted, the United States Supreme Court has determined the

standard for determining the validity of consent under the Fourth

Amendment is “whether the consent was voluntarily given and not a

result of duress or coercion, expressed or implied.” State v. Pals, 805

N.W.2d 767, 777 (Iowa 2011).        Under this standard, the question of

whether consent was voluntarily given is a question of fact to be

determined by considering the totality of the circumstances. Id.

        Under the federal standard for determining whether a warrantless

search was justified based on consent, effective consent does not require

a waiver of the right to be free from unreasonable searches and seizures

meeting the standard that ordinarily applies to the waiver of other

constitutional rights as set forth in Johnson v. Zerbst, 304 U.S. 458, 58

S. Ct. 1019 (1938). See Schneckloth, 412 U.S. at 235–46, 93 S. Ct. at

2051–58; Pals, 805 N.W.2d at 777.         Whereas an effective waiver of a

constitutional right ordinarily requires “an intentional relinquishment or

abandonment of a known right or privilege” under Zerbst, 304 U.S. at

464, 58 S. Ct. at 1023, consent to a warrantless search that “was in fact

voluntarily given, and not the result of duress or coercion, express or

implied” is sufficient to forfeit the Fourth Amendment right to be free

from unreasonable searches. Schneckloth, 412 U.S. at 248, 93 S. Ct. at

2059.    In Pals, we acknowledged the supreme courts in several states

have rejected the federal standard for determining the validity of consent

under their state search-and-seizure constitutional provisions.        805

N.W.2d at 779. In a number of these states, consent to a warrantless

search is valid only if an individual knowingly and intelligently waived
                                    42

his or her rights under the search-and-seizure provision of the state

constitution. Id. at 779, 782.

      The Supreme Court has never reversed a conviction for operating

while intoxicated based on the involuntariness of an individual’s consent

to submit to a BAC test. However, its decisions in two prior cases have

significant implications with respect to the requirements of voluntary

consent in the implied-consent context.

      First, in South Dakota v. Neville, the Court held the privilege

against self-incrimination does not protect an individual’s “refusal to take

a blood-alcohol test, after a police officer has lawfully requested it”

because refusal under such circumstances does not constitute “an act

coerced by the officer.” 459 U.S. 553, 564, 103 S. Ct. 916, 924 (1983).

The Court rested its decision on the ground that “no impermissible

coercion is involved when the suspect refuses to submit to take the test.”

Id. at 562, 103 S. Ct. at 921–22. Nonetheless, though the statute only

provided for civil penalties upon the act of refusal to submit and required

officers to inform suspects of their right to refuse BAC testing, the Court

acknowledged such statutes unquestionably force defendants to make

difficult choices:

             We recognize, of course, that the choice to submit or
      refuse to take a blood-alcohol test will not be an easy or
      pleasant one for a suspect to make. But the criminal
      process often requires suspects and defendants to make
      difficult choices.

Id. at 564, 103 S. Ct. at 922–23.

      Second, in Birchfield, the Court reversed the conviction of a

petitioner who submitted to a blood test after being advised “that

refusing to consent would itself be a crime.” 579 U.S. at ___, ___, 136

S. Ct. at 2172, 2185–86. But the Court remanded the case to the state
                                           43

court for a reevaluation of the voluntariness of the petitioner’s consent in

light of “the partial inaccuracy of the officer’s advisory,” noting the state

supreme court had held his consent was voluntary “on the erroneous

assumption that the State could permissibly compel both blood and

breath tests.” Id. at ___, 136 S. Ct. at 2186. The Court indicated remand

was necessary because voluntariness must be determined “from the

totality of all the circumstances.” Id. (quoting Schneckloth, 412 U.S. at

227, 93 S. Ct. at 2047–48).

       Relying on federal caselaw, in State v. Knous, we indicated that

determining the voluntariness of an individual’s consent to a BAC test

given after an officer invokes implied-consent procedures “requires an

examination of the totality of the circumstances to determine whether the

decision was voluntary or coerced.” 313 N.W.2d 510, 512 (Iowa 1981).11

Nevertheless, in doing so we assumed individuals who asked to submit to

BAC tests have only a “statutory right to withdraw consent which is

deemed to exist by statutory implication,” rather than a constitutional

right to refuse guaranteed by article I, section 8 of the Iowa Constitution.

See id.    On this assumption, we concluded proving an individual had

knowledge of the right to refuse a BAC test “is not a prerequisite” to
establishing his or her consent to submit to such a test was voluntary

and effective. See id. 12 However, we also determined knowledge of the

       11The  implied-consent statute that applies to individuals suspected of operating
a motor vehicle while intoxicated is substantially similar to the statute that applies to
individuals suspected of boating while intoxicated. Compare Iowa Code §§ 462A.14,
.14A, .14B, with id. §§ 321J.6, .8, .9. Therefore, we draw on our relevant context from
cases involving the operation of a motor vehicle while intoxicated in describing the
requirements of voluntary consent in cases involving individuals suspected of boating
while intoxicated.
       12This is consistent with the federal standard for determining the effectiveness of
consent to a warrantless search as expressed in Schneckloth, 412 U.S. at 248–49, 93
S. Ct. at 2059.
                                  44

right to refuse a BAC test nevertheless constitutes a “relevant

circumstance” in determining whether consent to submit to one was

voluntary. Id.

      Our prior caselaw also acknowledges that when an officer invokes

implied-consent procedures and requests an individual to submit to a

BAC test, voluntary consent requires some degree of knowledge.      For

example, we have determined consent to submit to a chemical test is not

voluntary unless it is “freely made, uncoerced, reasoned, and informed.”

State v. Garcia, 756 N.W.2d 216, 220 (Iowa 2008). Similarly, we have

indicated the “ultimate question” in determining the voluntariness of

consent in the implied-consent context is whether the decision to comply

with an officer’s request to submit to the test was “a reasoned and

informed decision.” State v. Overbay, 810 N.W.2d 871, 876 (Iowa 2012)

(quoting State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003)). Thus, our

cases recognize an individual’s consent to submit to a BAC test is

involuntary and invalid if the consent was coerced or the individual was

not reasonably informed of the consequences of failing or refusing the

test at the time consent was given.    Garcia, 756 N.W.2d at 220; see

Overbay, 810 N.W.2d at 880.

      Notably, our caselaw that establishes an individual must have

knowledge concerning the consequences of failing or refusing a BAC test

to voluntarily consent to one have neither invoked the Iowa Constitution

in arriving at this conclusion nor addressed the general requirements of

effective consent under article I, section 8. See Overbay, 810 N.W.2d at

875–80; Garcia, 758 N.W.2d at 219–23; Bernhard, 657 N.W.2d at 471–

73; see also State v. Hutton, 796 N.W.2d 898, 906–07 (Iowa 2011); State

v. Gravenish, 511 N.W.2d 379, 381–82 (Iowa 1994).          Rather than

consider whether effective consent requires a knowing and intelligent
                                     45

waiver of the right to be free from warrantless searches in article I,

section 8 under the Iowa Constitution, we have instead emphasized that

understanding the consequences of refusing or failing a chemical test

when deciding to submit to one is relevant to determining whether that

consent was voluntary. See Overbay, 810 N.W.2d at 880; Garcia, 758

N.W.2d at 220, 223; Berhnard, 657 N.W.2d at 472–73; see also Hutton,

796 N.W.2d at 906–07; Gravenish, 511 N.W.2d at 381–82. Moreover, we

have distinguished between knowledge of the statutory consequences of

failing or refusing a BAC test and knowledge that submitting to a request

for a BAC test involves the relinquishment of the constitutional right to

be free from unreasonable searches.       See Knous, 313 N.W.2d at 512

(distinguishing between the knowledge of the statutory consequences

and the relinquishment of a constitutional right).

      We have yet to consider whether a knowing and intelligent waiver

of the right to be free from warrantless searches and seizures set forth in

article I, section 8 is required to establish the effectiveness of consent

under the Iowa Constitution. See Baldon, 829 N.W.2d at 822; see also

Pals, 805 N.W.2d at 782.        Pettijohn argues effective consent to a

warrantless breath test requires a knowing and intelligent waiver of the

rights set forth in article I, section 8 of the Iowa Constitution. However,

we begin our analysis of the effectiveness of Pettijohn’s consent to submit

to the warrantless breath test by considering whether it met the federal

standard for effective consent, as the State concedes his consent was not

effective under article I, section 8 unless it was “voluntarily given and not

a result of duress or coercion, expressed or implied.” Pals, 805 N.W.2d

at 777.

      “The question of voluntariness requires the consideration of many

factors, although no factor itself may be determinative.” State v. Lane,
                                    46

726 N.W.2d 371, 378 (Iowa 2007). In assessing whether a defendant’s

consent to a warrantless search was voluntary, factors to be considered

include, but are not limited to,

      personal characteristics of the defendant, such as age,
      education, intelligence, sobriety, and experience with the
      law; and features of the context in which the consent was
      given, such as the length of detention or questioning, the
      substance of any discussion between the defendant and
      police preceding the consent, whether the defendant was free
      to leave or was subject to restraint, and whether the
      defendant’s contemporaneous reaction to the search was
      consistent with consent.

United States v. Jones, 254 F.3d 692, 696 (8th Cir. 2001); see Pals, 805

N.W.2d at 786; Lane, 726 N.W.2d at 378.          “This test balances the

competing interests of legitimate and effective police practices against

our society’s deep fundamental belief that the criminal law cannot be

used unfairly.” State v. Lowe, 812 N.W.2d 554, 572 (Iowa 2012); accord

State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001).

      As a starting point in our analysis of the totality of the

circumstances to determine whether Pettijohn’s consent was voluntary

and uncoerced, we note the State does not dispute that Pettijohn was

legally intoxicated when he submitted to the warrantless breath test.

Although by no means dispositive in our analysis of the totality of the

circumstances, evidence that an individual was under the influence of

drugs or alcohol is a factor we consider in evaluating the voluntariness of

an individual’s consent to a warrantless search.       See, e.g., State v.

Prusha, 874 N.W.2d 627, 631 (Iowa 2016); Lowe, 812 N.W.2d at 573–74;

Lane, 726 N.W.2d at 378; Gravenish, 511 N.W.2d at 381. Because it is

undisputed Pettijohn was intoxicated when he submitted to the breath

test, this factor weighs against finding his consent voluntary and

uncoerced.
                                     47

      Similarly, the State does not dispute that officers arrested Pettijohn

and transported him to the police station before he submitted to the

breath test. Though the fact an individual was seized when he or she

consented to a warrantless search is not necessarily determinative under

the totality-of-the-circumstances test, the potential for coercion exists

even in seemingly innocuous circumstances involving seizures.            See

Baldon, 829 N.W.2d at 797–98; Pals, 805 N.W.2d at 782–83. “In other

words, coercion can easily find its way into human interaction when

detention is involved.” Baldon, 829 N.W.2d at 798. For this reason, our

recent caselaw acknowledges that brief seizures such as traffic stops

constitute an “inherently coercive” setting. Pals, 805 N.W.2d at 783; see

also Baldon, 829 N.W.2d at 798; Lowe, 812 N.W.2d at 575 n.11. Such a

setting is inherently coercive because it is one in which “police plainly

have the upper hand and are exerting authority in a fashion that makes

it likely that a citizen would not feel free to decline to give consent for a

search.” Pals, 805 N.W.2d at 783.

      As compared to an ordinary roadside detention, arrest involves an

even greater degree of inherent coercion. Simply put, “the psychological

impact of an arrest immediately preceding a consent to search may not

be ignored” in determining whether consent to a warrantless search was

voluntary under the totality of the circumstances. Ahern, 227 N.W.2d at

166. Consequently, the fact officers arrested Pettijohn and transported

him to the police station before he submitted to the breath test cuts

sharply against finding his consent was voluntary and uncoerced.

      Next, we note the implied-consent advisory read to Pettijohn did

not advise him of his constitutional right to refuse a warrantless search.

Whether an individual had knowledge of his or her constitutional right to

withhold consent is not a prerequisite to finding that consent was
                                       48

voluntary, but it is one factor we consider in determining whether

consent to submit to a warrantless search was voluntary.          Pals, 805

N.W.2d at 783; see Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048.

Conversely, a warning that consenting to a warrantless search involves

the relinquishment of a constitutional right to be free from warrantless

searches may significantly neutralize the coercive context in which a

request for consent is made. Pals, 805 N.W.2d at 783. In the inherently

coercive context of custodial detention, the fact an individual was not

informed that consenting to a warrantless search amounts to giving up

the constitutional right to withhold consent amounts to a “strong factor

cutting against the voluntariness” of his or her consent to an ensuing

search. Id. In the implied-consent context, properly weighing this factor

in analysis of the totality of the circumstances requires us to distinguish

between knowledge of the penalties attached to the choice of refusal and

knowledge that submitting to a request for a BAC test involves the

relinquishment of the constitutional right to be free from warrantless

searches. See Knous, 313 N.W.2d at 512.

        The State does not dispute that the implied-consent advisory

Officer Drish read to Pettijohn did not advise him that consenting to the

warrantless    breath   test   would   involve   the   relinquishment   of   a

constitutional right. Nor does the State dispute that the advisory did not

advise Pettijohn that he had a constitutional right to withhold his

consent.    Accordingly, this factor also cuts against finding Pettijohn’s

consent to the breath test was voluntary and uncoerced, particularly in

light of the fact that he was arrested before he submitted to the breath

test.

        Relatedly, we note the implied-consent advisory administered to

Pettijohn suggested he had no affirmative right to refuse to consent.
                                    49

After all, the advisory unequivocally stated that refusal to consent to a

request to submit to a chemical test was “punishable” by a mandatory

fine and the suspension of his operating privileges.      And the form on

which the advisory was printed indicated no test was “required” only in

the event that no test was offered within two hours of a preliminary

screening test or an arrest.    We therefore conclude the advisory was

misleading because it implied Pettijohn had no constitutional right to

refuse to consent, a factor we weigh strongly against finding his consent

was voluntary and uncoerced.

      Knowledge that criminal penalties will attach to the refusal to

consent to a warrantless search the State cannot properly compel

constitutes a determinative factor to be weighed in assessing the

voluntariness of the consent to a search. See Birchfield, 579 U.S. at ___,

___, 136 S. Ct. at 2172, 2185–86. However, the mere fact an individual

faces only the prospect of civil rather than criminal penalties for refusing

to consent does not render those penalties irrelevant to determining the

voluntariness of his or her consent to a warrantless search.        On the

contrary, that an individual consented to a search knowing civil penalties

would attach if he or she refused to consent is one factor to be weighed

in assessing the voluntariness of his or her consent, particularly when

those civil penalties are potentially as severe as some criminal penalties.

      The advisory Pettijohn received informed him that refusal to

submit was “punishable by a mandatory civil penalty of five hundred to

two thousand dollars, and suspension of motorboat or sailboat operating

privileges for at least a year.” Iowa Code §§ 462A.14A(4)(g)(1), .14C(1)(a).

We note the minimum mandatory civil fine for refusal to submit is

greater than the minimum fines associated with convictions for both
                                          50

simple and serious misdemeanor criminal offenses. 13 Furthermore, the

maximum mandatory civil fine for refusal to submit is greater than the

maximum fines associated with convictions for both simple and serious

misdemeanors as well as the minimum fine associated with a conviction

for an aggravated misdemeanor. 14 Thus, the advisory not only informed

Pettijohn his refusal to submit would subject him to mandatory fines as

punishment, but also reflected those fines would be just as hefty as the

fines he would have received had the implied-consent statute deemed

refusal to be a criminal misdemeanor offense.                This fact cuts against

finding his consent to the warrantless search was voluntary and

uncoerced, as the State could not compel him to submit to the

warrantless breath test under article I, section 8.              See Birchfield, 579

U.S. at ___, ___, 136 S. Ct. at 2172, 2185–86.

       The advisory Pettijohn received was also misleading in that it

indicated his refusal to submit to the request for a breath test could


        13Compare Iowa Code § 462A.14B(2)(b)(1) (providing the court shall impose a

mandatory civil penalty of five hundred dollars upon finding a person refused to
consent to chemical testing when the conditions specified in section 462A.14A existed
for the first time), with id. § 903.1(1)(a) (providing that upon convicting a person of a
simple misdemeanor, the court shall impose “a fine of at least sixty-five dollars”), and
id. § 903.1(1)(b) (providing that upon convicting a person of a serious misdemeanor, the
court shall impose “a fine of at least three hundred fifteen dollars”).
       14Compare   Iowa Code § 462A.14B(2)(b)(3) (providing the court shall impose a
mandatory civil penalty of two thousand dollars upon finding a person refused to
consent to chemical testing when the conditions specified in section 462A.14A existed
for the third or subsequent time), with id. § 903.1(1)(a) (providing that upon conviction
for a simple misdemeanor, the court shall impose “a fine . . . not to exceed six hundred
twenty-five dollars”), id. § 903.1(1)(b) (stating that upon conviction for a serious
misdemeanor, the court shall impose “a fine . . . not to exceed one thousand eight
hundred seventy-five dollars”), and id. § 903.1(2) (providing that upon conviction for an
aggravated misdemeanor, “[t]here shall be a fine of at least six hundred twenty-five
dollars”). Notably, the maximum civil fine associated with refusal to submit also
exceeds the fine the court must assess upon an individual’s first conviction for the
serious misdemeanor offense of operating while intoxicated.                 Compare id.
§ 462A.14B(2)(b)(3), with id. § 462A.14(2)(a)(2).
                                          51

result in the suspension of his boating privileges for just as long as a

conviction for operating while intoxicated might. 15 By statute, refusal to

submit is punishable by a mandatory suspension of boating privileges for

precisely one year, see Iowa Code § 462A.14B(2)(a), whereas a conviction

for operating while intoxicated results in a suspension of boating

privileges for one to six years, see id. § 462A.14(2)(a)(3), (2)(b)(3), (2)(c)(3).

As we previously acknowledged in the course of analyzing a substantive

due process claim in this context, when an individual submits to a

warrantless BAC test after an implied-consent advisory overstates the

penalty associated with refusal to consent, we cannot necessarily be

confident the individual’s decision to consent was unaffected by the

inaccuracy in the advisory. State v. Massengale, 745 N.W.2d 499, 504

(Iowa 2008).       Thus, we must also weigh this misleading aspect of the

advisory in assessing the totality of the circumstances to determine

whether the consent Pettijohn gave was voluntary and uncoerced.

       We recognize that unlike the loss of the ability to drive upon public

roads, the loss of the ability to boat on state waterways ordinarily does

not implicate the fundamental right to earn a living.                 See Gilchrist v.

Bierring, 234 Iowa 899, 914, 14 N.W.2d 724, 732 (1944) (describing the

right to earn a living as being among the “fundamental, constitutional

rights of the citizen” and “the greatest of human rights”). Unlike driving,

however, boating implicates the “paramount” right of Iowans to use state


       15Compare   Iowa Code §§ 462A.14A(4)(g)(1), .14C(1)(a) (requiring an officer to
advise an individual requested to consent to a chemical test that “refusal to submit to
the test is punishable by . . . suspension of motorboat or sailboat operating privileges
for at least a year”), with id. §§ 462A.14A(4)(g)(2), .14C(1)(b) (requiring an officer to
advise an individual requested to consent to a chemical test that if the person submits
to the test and the results indicate his or her BAC exceeds the level prohibited by
section 462A.14, his or her boating privileges will be suspended “for at least one year”
and “up to six years”).
                                           52

waterways for navigational and recreational purposes. See Witke v. State

Conservation Comm’n, 244 Iowa 261, 267, 56 N.W.2d 582, 586 (1953)

(quoting McCauley v. Salmon, 234 Iowa 1020, 1022, 14 N.W.2d 715, 716

(1944)).   This right derives from the very act of Congress that granted

Iowa statehood, in which Congress declared the Mississippi River “and

the navigable waters leading into the same, shall be common highways,

and forever free as well to the inhabitants of said State, as to all other

citizens of the United States.” State v. Sorensen, 436 N.W.2d 358, 361

(Iowa 1989) (quoting section 3 of An Act for the Admission of the States

of Iowa and Florida into the Union, Mar. 3, 1845, reprinted in Iowa Code

volume VI at p. 1534 (2013)). Thus, it reflects the foundational principle

of the public trust doctrine embraced by the English common law and

nineteenth century jurists—“the notion that the public possesses

inviolable rights to certain natural resources.” Id. Given that this notion

played a central role in the founding of this State and to ensure the

associated right to access state waterways maintains its vitality in

modern times, we decline to treat its threatened loss as a matter of little

consequence. 16 Thus, we conclude the fact that Pettijohn faced the loss

       16We  note Pettijohn argues that because operating a boat does not constitute an
affirmatively granted privilege requiring a license, the implied-consent statute set forth
in chapter 462A of the Code is unconstitutional. His argument rests on the assumption
we repudiate today—that the implied-consent statute operates as a legislatively implied
contract whereby an individual waives his right to be free from unreasonable searches
in exchange for a privilege. See State v. Jensen, 216 N.W.2d 369, 373 (Iowa 1974).
Though this alone constitutes a sufficient basis for rejecting this argument, we reject it
on additional grounds as well.
        First, under the Iowa Code, implied consent is deemed to exist whenever any
person operates a motor vehicle or boat within the state under specified conditions. See
Iowa Code § 321J.6(1); id. § 462A.14A(1). Thus, in determining whether implied
consent existed under the implied-consent statutes such that invocation of the
procedures set forth therein was appropriate, licensure is beside the point. Cf. State v.
Kjos, 524 N.W.2d 195, 197 (Iowa 1994) (reversing a conviction for driving while
intoxicated because an officer was statutorily precluded from telling the defendant his
license would be automatically revoked if he did not consent to testing). Second, it is
                                          53

of his right to boat on state waterways does weigh against finding his

consent was voluntary and uncoerced, though we acknowledge the loss

of this right would weigh more strongly against a finding of voluntariness

if it had implicated his ability to earn a living.

       Finally, with respect to the consequences of submitting to the

breath test, the advisory indicated only that Pettijohn would face the loss

of his boating privileges “for at least one year and up to six years” if he

submitted to the breath test and the results led to his conviction under

section 462A.14.       Though the advisory accurately indicated the civil

penalty associated with a conviction for operating while intoxicated, we

note it failed to mention that a conviction for operating while intoxicated

would result in the imposition of significant criminal penalties. See Iowa

Code § 462A.14(2). Namely, a conviction for operating while intoxicated

results in mandatory imprisonment for forty-eight hours to one year and

a mandatory fine of one thousand to seven thousand five hundred

dollars. See id. § 462A.14(2). The fact that the advisory stated the civil

consequences associated with convictions for operating while intoxicated

and failed to mention the serious criminal consequences rendered it

significantly inaccurate and misleading. This factor weighs substantially



_____________________
beyond dispute that regulations addressing the operation of boats on state waterways
may be enacted by the legislature in proper exercise of the State’s police powers. See,
e.g., State v. Jackman, 211 N.W.2d 480, 484 (Wis. 1973); Ex parte Powell, 70 So. 392,
397 (Fla. 1915). The legislature has enacted many limits on the operation of boats
implicating public safety. See Iowa Code § 462A.12. For example, though licensure is
not required to operate a boat on state waterways, boats may generally be operated only
by persons who are at least eighteen years of age, except under limited circumstances.
Id. § 462A.12(6). The existence of these regulations make clear that just as there is no
absolute right to operate a motor vehicle on state highways “under any and all
conditions,” State v. Holt, 261 Iowa 1089, 1094, 156 N.W.2d 884, 887 (1968), there is
no absolute right to operate a boat on state waterways.
                                    54

against concluding the consent Pettijohn gave was voluntary and

uncoerced under the totality of the circumstances.

      We acknowledge the fact an individual was forced to choose

between two unpalatable alternatives does not necessarily defeat the

voluntariness of his or her consent to a warrantless search. Baldon, 829

N.W.2d at 801; see Neville, 459 U.S. at 559–60, 563, 103 S. Ct. at 920–

21, 922. But we remain mindful that an individual put to such a choice

may have essentially “no choice at all” such that coercion may arise.

Baldon, 829 N.W.2d at 801 (quoting Tamez v. State, 534 S.W.2d 686, 692

(Tex. Crim. App. 1976)).     When an individual agrees to submit to a

warrantless search upon request in order to avoid the imposition of

undesirable consequences by the government, we must carefully assess

the relative bargaining power of the parties to determine whether the so-

called consent resulted from a one-sided agreement. See id. at 801–02.

      Relying on basic contract principles, we previously held a parole

agreement containing a provision whereby a prisoner consents to

prospective warrantless searches as a precondition to release is

insufficient to establish his or her consent was voluntary in light of the

relative lack of bargaining power parolees possess as compared to the

government. Id. Arguably, an individual arrested on suspicion of drunk

boating retains a greater degree of bargaining power than a parolee by

virtue of the fact that he or she retains the ability to demand a trial. See

id. at 795. Yet the significance of this distinction is diminished by the

reality that any choice an individual makes when an officer invokes

implied-consent procedure will undermine his or her chance of prevailing

at trial. Certainly, the results of a BAC test constitute powerful evidence

of intoxication culminating in an all-but-certain conviction for operating

while intoxicated if an individual has a BAC of .08 or higher. See State v.
                                     55

Senn, 882 N.W.2d 1, 48 (Wiggins, J., dissenting).       Additionally, under

section 462A.14A(8), “proof of refusal is admissible in any civil or

criminal action or proceeding arising out of acts alleged to have been

committed while the person was operating a motorboat or sailboat in

violation of section 462A.14.” Iowa Code § 462A.14A(8). Having been

advised the outcome following refusal will be the imposition of mandatory

civil penalties and additional penalties if convicted of operating while

intoxicated, an intoxicated individual requested to submit to a BAC test

may believe he or she has no meaningful choice to make.              See id.

§§ 462A.14A(4)(g)(1), .14C(1)(a).

      Pettijohn did not face the promise of a criminal record for refusing

to submit to the BAC test, and the act of refusing to submit did not

require him to commit a crime in the presence of an officer. These facts

weigh in favor of concluding his consent to the warrantless breath test

was voluntary and uncoerced, but they are by no means determinative.

      On the contrary, we think the totality of the circumstances under

which Pettijohn submitted to the breath test indicates his consent to that

warrantless search was not voluntary and uncoerced. The evidence is

undisputed that Pettijohn was intoxicated when he submitted to the

breath test such that his capacity to make reasoned and informed

decisions was diminished.      Before he submitted to the test, he was

arrested and transported to the police station. There, he was advised of

significant civil penalties that would attach to his refusal to submit or

conviction for operating while intoxicated. However, he was not advised

of his constitutional right to withhold consent or the serious criminal

penalties that would result if he submitted to the test and failed it.
                                     56

      The mere fact that Pettijohn submitted to the breath test after

being read the implied-consent advisory is inadequate to establish his

effective consent. Because Pettijohn made the decision to submit to the

breath test in the inherently coercive context of custodial detention with

incomplete and inaccurate information, while intoxicated and facing the

prospect of significant penalties if he refused to submit, we conclude his

consent to the warrantless search was not voluntary and uncoerced.

Accordingly, in light of our conclusion that the State had no right to

compel the warrantless breath test as a search incident to his lawful

arrest, we conclude the admission of the results of the breath test

violated article I, section 8 of the Iowa Constitution.

      Under the totality of the circumstances, the choice to consent to a

warrantless search here was merely illusory. Therefore, under article I,

section 8, we must hold Pettijohn’s submission to the breath test did not

constitute effective consent.

      As we previously recognized,

      We are duty bound to give the liberty in article I, section 8 of
      our constitution the integrity it deserves and demands, and
      we must not allow the government to avoid an important
      constitutional check on its power by using an unfair play on
      human nature.

Baldon, 829 N.W.2d at 802. In this case, our duty to honor and protect

the integrity of article I, section 8 requires us to hold Pettijohn’s

submission to a breath test after an officer invoked the implied-consent

procedure set forth in chapter 462A of the Code did not constitute

effective consent to a warrantless search.
                                           57
      XI. Claim this Decision Makes the Statutory Scheme
Governing the Operation of a Motor Vehicle While Under the
Influence Unconstitutional.

         A person reading this decision should not jump to the conclusion

that our analysis will make the statutory scheme governing the operation

of   a    motor      vehicle   while   under     the   influence     unconstitutional.

Nevertheless,        we   do   not     doubt    evaluating     the   totality   of   the

circumstances could lead to a different outcome in the implied-consent

context in an appropriate case. For example, in the area of operating a

motor vehicle while under the influence, our legislature has chosen not

to make it a criminal offense or have a mandatory monetary civil penalty

when an individual refuses to take the chemical test. 17
         The Hawaii Supreme Court has done this analysis in connection

with its operating a motor vehicle while intoxicated statutes in State v.

Yong Shik Won, 372 P.3d 1065 (Haw. 2015). There, the supreme court

found in the context of drunk driving that an additional penalty above

the normal loss of a person’s license was coercive and thus, made the

defendant’s consent involuntary under its state constitution.                    Id. at

1083–84. However, the court recognized that it has upheld the state’s

implied-consent scheme without the additional penalty when a defendant
is accurately informed of the right to withdraw his implied consent so

that consent is free and voluntary.             Id. at 1080.    In other words, the

additional penalty in Hawaii’s drunk-driving laws, as the additional

penalty in our boating laws, made the consent involuntary, not the mere

loss of driving privileges.



         17CompareIowa Code § 462A.14A(4)(g)(1) (creating a mandatory monetary civil
penalty for refusal to take the test), with id. § 321J.9(1)(a)–(b) (containing neither a
criminal penalty nor mandatory monetary civil penalty).
                                     58

      Accordingly, this decision only applies to the statutory scheme for

operating a boat while under the influence and not to the statutory

scheme for operating a motor vehicle while under the influence.            Any

decision relating to operating a motor vehicle while under the influence

will have to wait for another case raising its constitutionality.

      XII. Disposition.

      Because the officer who stopped the boat had a reasonable,

articulable suspicion that Pettijohn was committing a crime, we conclude

the seizure of the boat did not violate the Fourth Amendment to the

United States Constitution nor article I, section 8 of the Iowa

Constitution.    However, because the State failed to prove Pettijohn

voluntarily consented to the warrantless breath test and failed to prove

the breath test was justified by an exception to the warrant requirement,

we conclude the warrantless administration of the breath test violated

article I, section 8 of the Iowa Constitution. Therefore, we reverse the

judgment of the district court and remand the case for a new trial.

      DISTRICT      COURT       JUDGMENT        REVERSED        AND      CASE

REMANDED.

      Cady, C.J., Appel and Hecht, JJ., join this opinion.          Cady, C.J.,

files a special concurrence.      Waterman, Mansfield, and Zager, JJ.,

dissent.
                                        59
                                                  #14–0830, State v. Pettijohn

CADY, Chief Justice (concurring specially).

      I concur in the opinion of the court.         First, I agree the officer

permissibly stopped Dale Dean Pettijohn Jr. after observing a violation of

Iowa Code section 462A.12(1) (2013). See State v. Vance, 790 N.W.2d

775, 780 (Iowa 2010). Second, I agree the search of Pettijohn’s breath

was   constitutional     under    the    United   States    Supreme     Court’s

interpretation of the search-incident-to-arrest exception to the warrant
requirement of the Fourth Amendment. See Birchfield v. North Dakota,

579 U.S. ___, ___, 136 S. Ct. 2160, 2184 (2016).            Third, I agree the

search was not justified under our independent interpretation of the

search-incident-to-arrest exception to the warrant requirement of Iowa

Constitution article I, section 8. See State v. Gaskins, 866 N.W.2d 1, 16

(Iowa 2015). And, fourth, I agree Pettijohn’s consent to the search was

coerced by the State’s threat of penalties authorized by Iowa Code section

462A.14B(2)(b)(1)–(3).    See State v. Baldon, 829 N.W.2d 785, 802–03

(Iowa 2013). I write separately because I would decide this case solely on

these grounds.

      Consent    is    one   of   the   well-recognized    exceptions   to   the

constitutional requirement that searches must be conducted pursuant to

a warrant. See id. at 791. Consent, however, can only be used as an

exception if it was voluntary. See id. at 792.

      In this case, it is unnecessary to analyze the totality of the

circumstances to determine if Pettijohn voluntarily consented to chemical

testing.   This analysis is unnecessary because the statutory implied-

consent scheme for boating in Iowa is inherently coercive and cannot be

used under the Iowa Constitution to justify a warrantless withdrawal of

blood, breath, or urine based on consent.
                                     60

      Implied-consent laws were enacted in the context of motor vehicle

operation to secure cooperation with breath tests.       See Birchfield, 579

U.S. at ___, 136 S. Ct. at 2168–69. “They provided that cooperation with

[blood-alcohol content] testing was a condition of the privilege of driving

on state roads and that the privilege would be rescinded if a suspected

drunk driver refused to honor that condition.” Id. at ___, 136 S. Ct. at

2169; see also State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981) (“[T]he

implied consent statute is based on the premise ‘that a driver impliedly

agrees to submit to a test in return for the privilege of using the public

highways.’ ” (quoting State v. Hitchens, 294 N.W.2d 686, 687 (Iowa

1980))). In other words, implied-consent laws do not mandate consent to

testing, but require the driver to make a choice when suspected of

operating a motor vehicle while under the influence of alcohol or a

controlled substance: either submit to testing pursuant to the implied

consent previously given in exchange for the privilege of driving, or

revoke it and lose the privilege. In essence, if a driver refuses testing, the

entire arrangement is revoked.

      In Baldon, we analogized the consent given in an agreement with

the state to a contract with the state. 829 N.W.2d at 791. In doing so,

we recognized that the decision to enter into a contract can “involve a

choice between two unpalatable alternatives, which does not defeat the

voluntariness of the consent.” Id. at 801. Yet, we also recognized there

may be some situations in which coercion does surface to defeat the

consent. See id. (“[T]his proposition does not mean a choice between two

unpalatable alternatives can never be coercive.”).

      Under the implied-consent law for boating in Iowa, if a boat

operator revokes the implied consent to testing, so, too, does the state

revoke the corresponding privilege to operate a boat.        See Iowa Code
                                         61

§ 462A.14B(2)(a). In other words, the operator is simply placed back in

the position occupied before being given the privilege to operate a boat.

This component of the implied-consent law for boating is not coercive in

any way. Instead, the choice presented to a boat operator relates to the

benefit exchange that allowed the person to operate a boat. If the person

subsequently decides to withhold the implied consent given to the state,

the state is, in turn, entitled to withhold the benefit bestowed.            These

circumstances do not present coercion, but a return of the parties to

their original positions.

      However, under Iowa’s implied-consent law for boating, the

consequences of withholding consent are not limited to the loss of the

privilege to operate a boat.      The law also imposes a mandatory civil

penalty of at least $500 as punishment for the refusal to submit to

chemical testing. See Iowa Code § 462A.14A(4)(g)(1) (“A refusal to submit

to the test is punishable by a mandatory civil penalty of five hundred

dollars to two thousand dollars . . . .” (Emphasis added.)); see also id.

§ 462A.14B(2)(b)(1)–(3)     (requiring   the    court     impose   the   applicable

penalty).    The threat of this punishment necessarily means the

subsequent consent was obtained by coercion and was thus involuntary.

      In the context of consent, the $500 penalty is coercive for two

central reasons. First, the law requires an officer to tell the boat operator

of the mandatory fine prior to deciding whether to give consent to

chemical    testing    or    to   refuse       chemical     testing.      See   id.

§ 462A.14A(4)(g)(1).   Thus, the person is told the fine is not only an

additional consequence, but a consequence specifically conditioned on

withholding consent. See id. § 462A.14A(4)(g)(1)–(2). Furthermore, the

consequence involves the loss of substantial property.                     See id.

§ 462A.14B(2)(b)(1)–(3).     Second, the penalty is coercive because the
                                       62

court imposes it only if the operator revokes consent. See id. The court

does not impose the penalty as a consequence of a test result in excess of

the legal limit.   Cf. id. § 462A.14(2)(a)–(e) (identifying the penalties for

operating a boat while intoxicated).

      Under these circumstances, the $500 civil penalty serves primarily,

if not entirely, to pressure the person to consent to testing. We simply

cannot ignore what the statute actually seeks to accomplish or fail to

acknowledge how the penalty interferes with the voluntariness of the

decision the boat operator must make when suspected of operating while

intoxicated. The statute, plain and simple, is inherently coercive. Any

person faced with the prospect of being required to pay $500 unless

consent is given would feel the coercion.

      Of course, the boating statute can be written to avoid the element

of coercion. The implied-consent law for motor vehicles is an example.

This law avoids the use of coercion because it only requires an officer to

advise a driver that the department of transportation will revoke the

driver’s license to operate the motor vehicle if consent is not given and

that the same will occur if consent is given and the test reveals the

presence of alcohol or a controlled substance in excess of statutory

limits. Id. § 321J.8(1)(a)–(b); see also Voss v. Iowa Dep’t of Transp., 621

N.W.2d 208, 212 (Iowa 2001) (“The clear intent of [these advisements] is

to provide a person who has been requested to submit [to] a chemical

test a basis for evaluation and decision-making in regard to either

submitting or not submitting to the test.”).        In this way, the only

consequence injected into the decision to consent or refuse is losing the

benefit of the bargain that resulted in obtaining the privilege to drive.

See Iowa Code § 321J.9(1)(a)–(b).
                                     63

      It is true that the law also requires the imposition of a $200 civil

fine “if the department revokes a person’s driver’s license” pursuant to

the implied-consent law. Id. § 321J.17(1). However, unlike the penalty

imposed for refusing consent to testing while boating, this penalty is not

imposed just as a punishment for refusing the test.            Instead, the

department of transportation imposes the fine when it is required to

revoke a license for any reason under the statute. See id. For example,

the department also imposes the fine when a license is revoked for

testing in excess of statutory limits. See id. §§ 321J.12(1), .17(1). Thus,

the $200 penalty under the implied-consent law for motor vehicles

relates to the administrative process of revoking and reinstating a

license, unlike the implied-consent law for boating.           In fact, the

department imposes many additional consequences of license revocation,

see generally id. § 321J.17(1)–(3) (requiring, among other things, a driver

install an ignition interlock device and attend substance abuse

evaluation and treatment), but the only consequence directly relating to

the refusal to consent is the revocation itself.

      Thus, the legislature can rewrite the implied-consent law for

boating to remove the element of coercion and maintain the implied-

consent procedure. Furthermore, operating a boat while intoxicated will

still be a crime in Iowa and can still be prosecuted. Actually, consented-

to breath testing will be available to aid in any prosecution, and boaters

can be prosecuted for operating while intoxicated without the aid of a

chemical test. The only difference without the power of implied consent

is that the refusal to consent to chemical testing will not result in the

loss of boating privileges or the imposition of a penalty, at least until the

law is changed so that it is comparable to the implied-consent law for

motor vehicles.
                                    64

      In Baldon, a “fundamental[]” reason we held parolee consent

searches pursuant to a parole agreement invalid was because the

searches were “conceptually detached from the concept of bargaining.”

829 N.W.2d at 802. The monetary penalty here is similarly unrelated to

the privilege sought to be obtained.     It is coercive, and thus it is the

State’s burden to present additional evidence in the record to reveal

Pettijohn voluntarily consented to the search. See id. The only evidence

in this case is that Pettijohn read and understood the implied-consent

warning required by statute.      As discussed above, that statute was

coercive and therefore could not establish his consent.

      In a court system, judges are required to call a strike a strike and a

ball a ball. The implied-consent law for boating was written to coerce

consent to chemical testing. There is no way around calling this strike a

strike.   While some will see the decision as creating controversy, it

actually identifies the value of a fair and impartial court system and

upholds the integrity of the process of justice.      Perhaps even more

important, the decision upholds the constitutional values Iowans prize.

For these reasons, I concur in the opinion of the court.
                                          65
                                                      #14–0830, State v. Pettijohn

WATERMAN, Justice (dissenting).

       I respectfully dissent and would affirm Dale Dean Pettijohn Jr.’s

conviction for drunken boating. The majority correctly holds that Officer

William Wineland lawfully stopped the boat Pettijohn was operating on

Saylorville Lake and that Pettijohn’s warrantless breath test to measure

his blood alcohol level satisfied the Fourth Amendment.                 The majority

also correctly rejects Pettijohn’s theory that his “natural right” to use
Iowa waterways limits the State’s power to criminalize drunken boating

as it criminalizes drunken driving on Iowa roads. But I part company

with the majority’s unprecedented conclusion that Pettijohn’s breath-test

results must be suppressed under article I, section 8 of the Iowa

Constitution. In my view, that breath test was a constitutional search

incident to arrest and valid under the implied-consent statute.                    See

Birchfield v. North Dakota, 579 U.S. ___, ___, ___, 136 S. Ct. 2160, 2177,

2185 (2016). 18
       Importantly, nothing in today’s opinion invalidates the implied-

consent laws for motorists, which have been in place in our state for over

half a century. Trial judges should accept the word of the majority and
Chief Justice Cady’s special concurrence that today’s decision is limited

to drunken boaters.         The door is closed to any effort to extend this

decision to drunken drivers. Even so, the majority is wrong to suggest

that there is a relevant constitutional distinction between the implied-

consent laws for boating and for driving. If you refuse the breath test as


       18We held over this appeal from last term for supplemental briefing and a second
argument last September in light of Birchfield. Why did we delay our decision by over a
year for Birchfield only to decline to follow its resolution of the constitutionality of
warrantless breath tests?
                                     66

a boater, you receive a mandatory civil penalty of $500 for your first

refusal, and you are not allowed to operate a boat for a year. See Iowa

Code § 462A.14B(2) (2013). On the other hand, if you refuse the breath

test as a driver, you lose your driver’s license for one year for your first

refusal and pay a $200 civil penalty. See Iowa Code §§ 321J.9(1), .17(1).

Now ask yourself, which is a more serious consequence for refusal:

(1) losing your driver’s license for a year and having to pay $200, or

(2) being unable to operate a boat for a year and having to pay $500? I

think the vast majority of Iowans—if they had to choose—would pick the

boating sanction over the driving sanction.       Even though a boater’s

refusal to take the breath test results in a larger monetary penalty, many

people would gladly pay $500 and give up recreational boating in return

for being able to keep their driver’s licenses, especially when they take

into account the impact of a driver’s license suspension on what they will

have to pay in the future for car insurance. If constitutionality turns on

the seriousness of the sanction, then the sanction for a driver’s refusal to

test is more serious than the sanction for a boater’s refusal to test.

      The special concurrence tries to patch this hole in the majority’s

reasoning by asserting that the driver is only “losing the benefit of the

bargain that resulted in obtaining the privilege to drive.”       The State

granted the right to drive, and the State is taking back the right to drive

because the motorist did not consent to testing. The problem with this

reasoning is that it is totally circular.   It assumes the validity of the

“bargain,” i.e., the implied-consent law for driving. One can just as well

argue that the boater is losing only the benefit of his or her bargain,

since the $500 penalty is part of the statutory scheme that the boater

accepts when operating a boat on the state’s waters.
                                         67

       The legislature rationally included a $500 penalty for a boater’s

refusal to submit to a breath test.           Otherwise, drunken boaters could

simply refuse the test without meaningful consequence. Loss of boating

privileges alone is insufficient.       Boating, unlike driving, is typically a

social activity, and most could simply have a friend or family member

operate the boat while they enjoy the ride.

       Well-settled precedent upholds the constitutionality of implied-

consent laws. See, e.g., Birchfield, 579 U.S. at ___, 136 S. Ct. at 2185.

The reasoning of those cases applies equally to boaters.               The majority

misleadingly cites cases requiring warrants for invasive blood tests as if

those courts were talking about breath tests, even as the majority

ignores the nearly unanimous view of courts nationwide upholding

warrantless breath tests under equivalent implied-consent statutes. The

majority    blurs   the dispositive      distinction    between      implied-consent

statutes, lawfully enacted to promote safe driving and boating, and actual

consent put in question by the very intoxication to be measured by the

breath test.

       The majority pretends the technology is already in place to quickly

obtain electronic warrants from the field.           It is not.    In fact, internet

connectivity is spotty or lacking in popular boating areas and much of

rural Iowa.    Iowa law has required most warrants to be presented in

person to a judicial officer. 19          The majority blithely suggests the


       19The  majority notes telephone warrants are permitted under limited
circumstances set forth in Iowa Code section 321J.10(3). In State v. Johnson, we noted
the time-consuming complexities involved in that telephonic warrant procedure:
       Obtaining a warrant by 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
                                           68

legislature fund the technology upgrades for patrol officers statewide for

the brave new world in which instant warrants can be obtained anywhere

in Iowa 24/7. That world is years away.

       Pettijohn did not raise the unsupported theories employed by the

majority to reverse his conviction. The majority goes well beyond what

Pettijohn argued in district court or on appeal and thereby blindsides the

State and unfairly reverses the district court on theories never presented

in that forum. We are supposed to be impartial adjudicators rather than

partisan advocates.        And, by concocting new theories on appeal, the

majority makes new bad law without allowing the State the opportunity

to develop a record affirmatively refuting the flawed factual premise

underlying the majority’s holding—that warrants can be obtained

electronically within minutes. There is no factual support in the record

for that premise. 20




_____________________
       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).
744 N.W.2d 340, 345 (Iowa 2008).
       20The  majority relies on a special concurrence in State v. Gaskins, which states
officers have “the capability to access the court system from the computer in a police
vehicle to request a search warrant based on probable cause at all times of the day and
night.” 866 N.W.2d 1, 17 (Iowa 2015) (Cady, C.J., concurring specially). There was no
factual support for that assertion in Gaskins.
                                       69
     I. Today’s Opinion          Undermines        Public      Safety    Without
Advancing Civil Liberties.

        The majority eviscerates Iowa’s implied-consent regimen for

boaters, but to what end?        Nowhere does the majority or Pettijohn

suggest a neutral magistrate would have refused to issue a warrant for

his breath test on this record.       How have we advanced the rights of

drunken    boaters,   other   than    allowing    them    to    avoid   the   legal

consequences of their actions?        Our courts can and do suppress test

results   in   appropriate    cases    when      statutory     or   constitutional
requirements are not met.      See State v. Walker, 804 N.W.2d 284, 296

(Iowa 2011) (suppressing breath-test results as remedy for violation of

statutory requirement to permit detainee to meet alone and in private

with attorney); State v. Albrecht, 657 N.W.2d 474, 477 (Iowa 2003) (“The

remedy for not substantially complying with the implied-consent

procedure is the exclusion of the test results . . . .”). This is not such a

case.

        A. The Purposes of the Warrant Requirement Are Not Served

by Requiring a Warrant for Breath Tests.                 We have expressed a

preference for warrants.      State v. Breuer, 808 N.W.2d 195, 200 (Iowa

2012). But our rationales for that preference do not support abandoning

the implied-consent law in favor of warrants for breath tests.                 The

particularity requirement precludes general warrants and limits the

scope of the search to “cabin police power” so police do not search places

and things not described in the warrant. See id. (quoting State v. Ochoa,

792 N.W.2d 260, 273 (Iowa 2010)). Only a breath test is at issue here, a

procedure that is “capable of revealing only one bit of information, the

amount of alcohol in the subject’s breath.” Birchfield, 579 U.S. at ___,

136 S. Ct. at 2177; see also id. at ___, 136 S. Ct. at 2181 (explaining
                                     70

warrants would not serve the function of “delineating the scope of a

search” because “[i]n every case the scope of the warrant would simply be

a [blood alcohol content (BAC)] test of the arrestee”).

      A warrant requirement also imposes the “deliberate, impartial

judgment of a judicial officer . . . between the citizen and the police.”

Breuer, 808 N.W.2d at 201 (alteration in original) (quoting United States

v. Grubbs, 547 U.S. 90, 99, 126 S. Ct. 1494, 1501 (2006)).      Here, the

district court correctly found the statutory implied-consent requirements

were met and probable cause existed to search Pettijohn’s breath.

Officer Wineland observed Pettijohn operating the boat, and two other

officers observed Pettijohn’s slurred speech, bloodshot eyes, and poor

performance on field tests for sobriety.     How often does the majority

imagine a magistrate will refuse a warrant for a breath test presented

electronically based on the officer’s stated observations of the suspect’s

intoxication?   See Birchfield, 579 U.S. at ___, 136 S. Ct. at 2181 (“In

order to persuade a magistrate that there is probable cause for a search

warrant, the officer would typically recite the same facts that led the

officer to find that there was probable cause for arrest . . . .”).   What

value are we adding by requiring a warrant? If the requisite grounds for

requesting a breath test are lacking, the test results can and should be

suppressed.     Do we really need our judicial officers to review warrant

applications on nights and weekends when drunk boaters are typically

detained? And, if so, would the magistrate not be better positioned to

assess the grounds for the warrant if the officer appeared in person to

answer questions?

      B. Today’s Decision Creates Practical Problems.         Officers will

have to race the clock as blood alcohol dissipates, set aside their other

duties, and obtain a search warrant for the breath test. This may take
                                    71

over an hour, during which time the officer is unavailable to patrol to

detect other crimes or respond to other emergencies. In rural areas, it

may be impossible to get a warrant in time.       For example, in State v.

Seige, a drunken boater fell off his speedboat while executing a turn, and

his unmanned boat crashed into a sailboat, killing one of the occupants.

No. CR070292771, 2009 WL 659198, at *1 (Conn. Super. Ct. Feb. 11,

2009).   “After the collision, the defendant’s vessel continued to run in

circles at a high rate of speed posing a great danger to other vessels on

the river.” Id. As a result, his boat could not be brought under control

until about forty-five minutes after the accident. Id. The defendant was

not delivered to the dock until approximately one hour after the accident.

Id. at *2. The dock area was crowded because “of the holiday weekend”

and “onlookers brought on by the chaotic scene.” Id. After administering

rushed field sobriety tests in the dock’s parking lot, the officers

transported the defendant to the police station. Id. at *3. Officers were

only able to administer the first blood alcohol test over two hours after

the accident. Id. The defendant’s BAC test results of .15 and .17 were

suppressed because the tests were not administered within two hours as

required by statute. Id. at *3, *5; see also Iowa Code § 462A.14A(4)(b) (“If

the peace officer fails to offer a test within two hours after the

preliminary screening test is administered or refused, or the arrest is

made, whichever occurs first, a test is not required, and there shall be no

suspension of motorboat or sailboat operation privileges.”). Now, imagine

if the officers also had been required to apply for, and receive, a warrant

in the midst of this chaos. We can expect round after round of hearings

to adjudicate exigency exceptions or issues of actual consent.
                                       72

      Indeed, as the Supreme Court cautioned,

             If a search warrant were required for every search
      incident to arrest that does not involve exigent
      circumstances, the courts would be swamped. And even if
      we arbitrarily singled out BAC tests incident to arrest for this
      special treatment . . . , the impact on the courts would be
      considerable. The number of arrests every year for driving
      under the influence is enormous—more than 1.1 million in
      2014. Particularly in sparsely populated areas, it would be
      no small tasks for courts to field a large new influx of
      warrant applications that could come on any day of the year
      and at any hour. In many jurisdictions, judicial officers have
      the authority to issue warrants only within their own
      districts, and in rural areas, some districts may have only a
      small number of judicial officers.

Birchfield, 579 U.S. at ___, 136 S. Ct. at 2180 (citations omitted). There

is good reason no other court or legislature has required search warrants

for breath tests. It is nonsensical.

      Our legislature enacted implied-consent laws to avoid such

problems. “[W]e have continuously affirmed that the primary objective of

the implied consent statute is the removal of dangerous and intoxicated

drivers from Iowa’s roadways in order to safeguard the traveling public.”

Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 594 (Iowa 2011); see

also State v. Wallin, 195 N.W.2d 95, 96 (Iowa 1972) (“The [implied-
consent] law was enacted to help reduce the appalling number of

highway deaths resulting in part at least from intoxicated drivers.”).

That goal of public safety applies to motorists and boaters alike.

      “Alcohol use is the leading known contributing factor in fatal

boating accidents.”      U.S. Coast Guard, 2016 Recreational Boating

Statistics   6   (May   22,   2017),   http://www.uscgboating.org/library/

accident-statistics/Recreational-Boating-Statistics-2016.pdf.        Susan

Stocker, boating law administrator and education coordinator for the

Iowa Department of Natural Resources, recently explained,
                                         73
             One-third of all boating fatalities nationally involved
       alcohol and many of those victims were innocent bystanders
       ....
             The effects of alcohol can be intensified when
       combined with wind and wave action and an extended time
       spent in the sun. Operators may not think they are under
       the influence, but their judgment, reaction time, balance and
       vision indicate that they are . . . .

News Release, Operation Dry Water Starts June 24 (June 21, 2016),

http://www.iowadnr.gov/About-DNR/DNR-News-Releases/ArticleID/

762/Operation-Dry-Water-Starts-June-24.
       Implied-consent laws have withstood the test of time in Iowa for

over a half century. The legislature enacted Iowa’s first implied-consent

law in Iowa in 1963. Welch, 801 N.W.2d at 594 (citing 1963 Iowa Acts,

ch. 114, § 37–50 (codified at Iowa Code ch. 321B (1966))). The general

assembly declared the implied-consent provisions “are necessary in order

to control alcoholic beverages and aid the enforcement of laws

prohibiting operation of a motor vehicle while in an intoxicated

condition.”    1963 Iowa Acts ch. 114, § 37. 21         And now as to drunken

boaters, this court overrides that rational policy choice by our elected

branches of government.

      II. Our Court, and Other State Courts, Have Repeatedly Held
that Implied-Consent Laws Are Not Inherently Coercive.

       Pettijohn concedes that “implied consent schemes have, to date,

passed constitutional muster as they pertain to ordinary operating while

intoxicated cases involving driving of motor vehicles on public highways.”

Although a reader would not know this from the majority opinion, we

have repeatedly rejected constitutional challenges that Iowa’s implied-


       21“In 1986, the implied-consent statutes from chapter 321B were combined with
the criminal OWI laws.” State v. Fischer, 785 N.W.2d 697, 700 (Iowa 2010) (citing 1986
Iowa Acts ch. 1220 (codified at Iowa Code ch. 321J (1987))).
                                     74

consent laws are coercive. State v. Bernhard, 657 N.W.2d 469, 472 (Iowa

2003) (concluding decision to take blood test not coerced even though

defendant “was motivated to agree to a blood test because of the desire

not to lose his license”); State v. Owens, 418 N.W.2d 340, 344 (Iowa

1988) (holding no due process violation because “decision to submit to

chemical testing [was] a reasonable and informed decision to cooperate

with the officers’ investigation rather than a decision coerced by threat”);

State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981) (“Because the State

does not have to prove the accused knew of his right to refuse the test,

we hold that the officers administering the test do not have a due process

obligation to inform him of that right under either the Iowa or United

States Constitution.”); State v. Vietor, 261 N.W.2d 828, 830 (Iowa 1978)

(“We have upheld the constitutionality of this [implied-consent] statute

and have approved the admissibility of such [test] refusal[s] in criminal

trials.”); State v. Johnson, 257 Iowa 1052, 1062, 135 N.W.2d 518, 525

(1965) (rejecting constitutional challenge, stating that Iowa’s implied-

consent “law is almost identical to laws of a like nature upheld in other

states”).   The majority effects a sea change in Iowa law today without

fairly confronting our precedent.

      The majority also fails to acknowledge the legion of cases in other

states rejecting similar constitutional challenges.     See, e.g., People v.

Harris, 170 Cal. Rptr. 3d 729, 734 (App. Dep’t Super. Ct. 2014)

(“[C]onsent is not invalid under the Fourth Amendment simply because it

was given in advance and in exchange for a related benefit, and this is all

the implied consent law accomplishes.”); Johnson v. State, 450 N.E.2d

123, 125 (Ind. Ct. App. 1983) (“Knowledge of a possible penalty for

refusal to submit to the test is not so inherently coercive as to negate [the

defendant’s] consent.”); State v. Brooks, 838 N.W.2d 563, 570–72 (Minn.
                                   75

2013) (rejecting claim that consent was coerced when driver was told

refusal constituted criminal offense); State v. Padley, 849 N.W.2d 867,

876 (Wis. Ct. App. 2014) (“The fact that the driver is forced to make a

difficult choice does not render the consent involuntary.”); Walters v.

State ex rel. Wyo. Dep’t of Transp., 300 P.3d 879, 883 (Wyo. 2013)

(“Explaining the consequences of her choice as to whether to take the

test may or may not have pressured Walters in some sense, but

providing accurate information did not rise to a level of coercion which

would render her consent involuntary.”).

      In Padley, cited by the majority, the Wisconsin Court of Appeals

concluded that its implied-consent statute did not violate the Fourth

Amendment or render an accused’s consent coerced. 849 N.W.2d at 881,

887. The court observed the implied-consent statute “does not authorize

searches, it authorizes law enforcement to require a driver to choose

between giving actual consent to a blood draw, or withdrawing ‘implied

consent’ and suffering implied-consent-law sanctions.” Id. at 880. The

Padley court appropriately distinguished Missouri v. McNeely, 569 U.S.

141, 133 S. Ct. 1552 (2013), upon which the majority relies, because it

was not “a consent case.” Padley, 849 N.W.2d at 881. The Padley court

found that consent was voluntary, stating, “Nowhere does [defendant]

develop a legal argument that the State cannot present a suspect with

the hard choice of giving up a constitutional right or accepting a

permissible penalty.”    Id. at 886; see also People v. Harris, 184

Cal. Rptr. 3d 198, 209 (Ct. App. 2015) (“[W]e conclude that free and

voluntary submission to a blood test, after receiving an advisement

under the implied consent law, constitutes actual consent to a blood

draw under the Fourth Amendment.”); Brooks, 838 N.W.2d at 572

(highlighting implied consent as a “legal tool” and holding consent was
                                      76

not coerced merely because Minnesota attached penalties for refusal);

State v. Modlin, 867 N.W.2d 609, 619–20 (Neb. 2015) (concluding that

driver consented to the blood draw despite implied consent imposing a

“difficult choice” of consent or revocation).

      The reasoning of these cases applies with equal force to boating.

See, e.g., State v. Rossiter, No. A13–2210, 2014 WL 5506964, at *3

(Minn. Ct. App. Nov. 3, 2014) (concluding that boating implied-consent

advisory did not “coerce[] [boater’s] consent”); see also Commonwealth v.

Thompson, 32 N.E.3d 1273, 1277 (Mass. App. Ct. 2015) (“[A]ny person

arrested for a violation of the boating OUI statute does not have a

constitutional right to refuse to submit to a blood test.”). The implied-

consent statute “establishes the basic principle that a driver impliedly

agrees to submit to a test in return for the privilege of using the public

highways.” State v. Hitchens, 294 N.W.2d 686, 687 (Iowa 1980). “If the

driver withdraws that consent by refusing an appropriate request by an

officer to take a test, the statute allows the state to withdraw the driver’s

privilege of using our public highways.”        Id.   The same is true for

operating a motorboat on public waterways. “In the unique context of

giving consent to a search . . . in exchange for a benefit, the person

cannot enjoy the benefit only then to renounce the cost, and expect to

continue enjoying the benefit.” Harris, 170 Cal. Rptr. 3d at 735; see also

State v. Holt, 261 Iowa 1089, 1094, 156 N.W.2d 884, 887 (1968) (“We

know of no reason why a person in order to enjoy the privilege so granted

may not waive such ‘rights’ as he might otherwise have.”).

      III. Gaskins Is Not on Point; This Is a Search of the Person,
Not the Vehicle, Incident to Arrest.

      The majority relies heavily on State v. Gaskins, 866 N.W.2d 1 (Iowa

2015), but misapplies it.    In Gaskins, our court diverged from settled
                                     77

Federal Fourth Amendment precedent to limit warrantless searches

incident to arrest (SITA) to those necessary for officer safety or “justified

by the State’s interest in preserving evidence from destruction, not

merely collecting it expediently.” Id. at 14. Gaskins does not support the

majority’s decision for four reasons. First, Gaskins was wrongly decided.

See id. at 38 (Waterman, J., dissenting); id. at 56 (Zager, J., dissenting).

Second, Gaskins is inapposite because neither actual consent nor

implied consent was at issue.       Third, under Gaskins, a breath test

constitutes a permissible warrantless SITA to preserve evidence given the

rapidly dissipating blood alcohol. See id. at 14 (majority opinion) (“We

conclude the SITA exception to the warrant requirement under article I,

section 8 of the Iowa Constitution is justified by the State’s interest in

preserving evidence from destruction . . . .”); see also Birchfield, 579 U.S.

at ___, 136 S. Ct. at 2182 (equating “preventing the loss of blood alcohol

evidence as the result of the body’s metabolism of alcohol” with

“[s]topping an arrestee from destroying evidence” because “[i]n both

situations the State is justifiably concerned that evidence may be lost”).

      Fourth, and most importantly, Gaskins is inapposite because it

merely limited the search of a vehicle, not a person. It is important to get

to the core concept of the search incident to arrest. See Gaskins, 866

N.W.2d at 13 (majority opinion) (declining to adopt the federal “evidence-

gathering purpose as a rationale for warrantless searches of automobiles

and their contents incident to arrest under article I, section 8 of the Iowa

Constitution” (emphasis added)). When a criminal suspect is arrested,

law enforcement is allowed to search the suspect’s body—to empty the

person’s pockets, go through the person’s clothing, and even require the

person to remove clothing for search purposes. Even my colleagues do

not believe such searches are unconstitutional.
                                      78

       A person’s breath is a part of the body; it is not like a vehicle. Cf.

Gaskins, 866 N.W.2d at 16 (holding warrant required to search locked

safe in vehicle after arrest of driver). And most people would regard a

breath test that takes a few seconds as less invasive of their privacy than

having to remove their clothes. So Gaskins is not the correct analogy at

all.

       As the United States Supreme Court pointed out in Birchfield, the

basis for requiring a warrant before a breath test is administered to an

arrestee would also require a warrant before “searching through objects

found on the arrestee’s possession.” 579 U.S. at ___, 136 S. Ct. at 2180.

Likewise, if a rape victim reported to the police that she had scratched

her male assailant’s chest while resisting, the majority’s reasoning today

would require a warrant before police could ask the arrested assailant to

remove his shirt.    “If a search warrant were required for every search

incident to arrest that does not involve exigent circumstances, the courts

would be swamped.” Id. I dissented in Gaskins, but there is no need to

extend our Iowa search and seizure law relating to automobiles to

searches of the person incident to arrest.

       IV. The Majority Departs from Birchfield.

       Birchfield, as the majority concedes, makes clear that warrantless

breath tests satisfy the Fourth Amendment.        Id. at ___, 136 S. Ct. at

2185 (“Because breath tests are significantly less intrusive than blood

tests . . . , we conclude that a breath test, but not a blood test, may be

administered as a search incident to a lawful arrest for drunk driving.

As in all cases involving reasonable searches incident to arrest, a warrant

is not needed in this situation.”).    I would reach the same conclusion

under article I, section 8 of the Iowa Constitution.
                                      79

      The Supreme Court has drawn a clear distinction between breath

tests and coerced blood draws. See id. at ___, 136 S. Ct. at 2165 (“The

impact of breath tests on privacy is slight . . . . Blood tests, however, are

significantly more intrusive, and their reasonableness must be judged in

light of the availability of the less invasive alternative of a breath test.”);

McNeely, 567 U.S. at ___, 133 S. Ct. at 1568 (“[A] compelled physical

intrusion beneath McNeely’s skin and into his veins to obtain a sample of

his blood for use as evidence in a criminal investigation . . . implicate[d]

an individual’s ‘most personal and deep-rooted expectations of privacy.’ ”

(quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 1616

(1985))). Pettijohn was offered and consented to take the breath test—he

simply had to exhale into a tube.       Any infringement upon Pettijohn’s

privacy was de minimis at best: “Humans have never been known to

assert a possessory interest in or any emotional attachment to any of the

air in their lungs.” Birchfield, 579 U.S. at ___, 136 S. Ct. at 2177.

      The majority misleadingly asserts that “a number of state courts

concluded the mere existence of statutorily implied consent does not

permit the administration of a warrantless test of an individual’s blood,

breath, or urine consistent with the Fourth Amendment.” The majority

supports that assertion by citing thirteen cases, without disclosing that

twelve of the thirteen involved warrantless blood tests, not the breath test

at issue here.    See State v. Butler, 302 P.3d 609, 613 (Ariz. 2013)

(en banc); Harris, 184 Cal. Rptr. 3d at 213; Williams v. State, 771 S.E.2d

373, 377 (Ga. 2015); State v. Halseth, 339 P.3d 368, 371 (Idaho 2014);

State v. Declerck, 317 P.3d 794, 799 (Kan. Ct. App. 2014); Brooks, 838

N.W.2d at 568; Modlin, 867 N.W.2d at 619; Byars v. State, 336 P.3d 939,

945–46 (Nev. 2014); State v. Fierro, 853 N.W.2d 235, 242–43 (S.D. 2014);

State v. Wells, No. M2013–01145–CCA–R9CD, 2014 WL 4977356, at *13
                                         80

(Tenn. Crim. App. 2014); Weems v. State, 434 S.W.3d 655, 665 (Tex. Ct.

App. 2014); Padley, 849 N.W.2d at 887. Even worse, the majority fails to

note that in three of its cited cases, the defendant withdrew his consent,

and a warrantless forcible blood draw was administered over his

objection. Halseth, 339 P.3d at 369; Fierro, 853 N.W.2d at 237; Weems,

434 S.W.3d at 658; see also Byars, 336 P.3d at 945–46 (“The State’s

argument that consent is valid . . . is problematic because the statute

makes the implied consent irrevocable.”).

       The Iowa statute gives the driver a choice to consent or refuse the

breath test.     See Welch, 801 N.W.2d at 595 (“Thus, from a practical

standpoint, and subject to certain exceptions, the driver must actually

consent to the chemical testing.” 22 (Footnote omitted.)). Pettijohn chose

to take the breath test after being read the advisory that tracked the

language of the statute. He, like any other Iowan, could have conferred

with his own attorney for advice whether to consent to the test. Walker,

804 N.W.2d at 290 (citing Iowa Code § 804.20). We have never held the

implied-consent advisory must inform the defendant of his constitutional

right to refuse consent. See Knous, 313 N.W.2d at 511 (“Thus the right

to refuse the test is a statutory right to withdraw consent which is
deemed to exist by statutory implication.”); see also South Dakota v.

Neville, 459 U.S. 553, 560 n.10, 103 S. Ct. 916, 921 n.10 (1983) (“[A]

person suspected of drunk driving has no constitutional right to refuse to

take a blood-alcohol test.”).



       22“Iowa Code section 321J.7 provides that ‘[a] person who is dead, unconscious,
or otherwise in a condition rendering the person incapable of consent or refusal is
deemed not to have withdrawn the consent provided by section 321J.6.’ ” See also
Welch, 801 N.W.2d at 595 n.4 (quoting Iowa Code § 321J.7). Pettijohn was not in such
a condition and freely consented to the breath test.
                                      81

      The Supreme Court has also distinguished between implied-

consent statutes that impose criminal sanctions and those that only

impose civil penalties. In Birchfield, the Court held that a motorist could

not be deemed to have consented to a blood draw when the implied-

consent threatened a criminal penalty for refusal. 579 U.S. at ___, 136

S. Ct. at 2185.      However, the Court distinguished implied-consent

statutes imposing civil penalties, noting,

      Our prior opinions have referred approvingly to the general
      concept of implied-consent laws that impose civil penalties
      and evidentiary consequences on motorists who refuse to
      comply. Petitioners do not question the constitutionality of
      those laws, and nothing we say here should be read to cast
      doubt on them.

Id. (emphasis added) (citations omitted). In State v. Yong Shik Won, cited

by the majority, the Hawaii Supreme Court held its implied-consent

statute unconstitutional when the defendant was informed that if he

refused to submit to a test, he could be convicted of a crime for that test

refusal and subject to thirty days’ imprisonment and a fine of $1000.

372 P.3d 1065, 1069, 1081 (Haw. 2015). By contrast, Iowa’s implied-

consent statutes impose no jail sentence or other criminal penalty for

refusing a breath test.     See Iowa Code § 462A.14B(2) (imposing civil

monetary penalty and license revocation for one year). There is a stark

difference between the thirty days in jail threatened in Yong Shik Won

and the assessment of a monetary civil penalty. Cf. State v. Richardson,

890 N.W.2d 609, 622–23 (Iowa 2017) (“Thus, being incarcerated and

owing a restitution debt are simply not comparable. One is a matter of

liberty, the other a financial obligation.”).

      Not surprisingly, after Birchfield, state courts have continued to

reject constitutional challenges to implied-consent laws imposing civil

penalties for refusing breath tests.        See Espinoza v. Shiomoto, 215
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Cal. Rptr. 3d 807, 831 (Ct. App. 2017) (“[W]e conclude refusal to submit

to a breath test incident to arrest may also be the basis of imposing civil

penalties under the implied consent law, including suspension or

revocation of the motorist’s driver’s license.”); People v. Simpson, 392

P.3d 1207, 1213 (Colo. 2017) (“Colorado’s Expressed Consent Statute

imposes only civil, and not criminal, penalties for refusal. Therefore, . . .

Birchfield sanctions rather than forbids justifying a warrantless blood

draw on the basis of statutory consent.”); Lepre v. Commonwealth, ___

A.3d ___, ___, 2017 WL 1337550, at *4 (Pa. Commw. Ct. Apr. 12, 2017)

(upholding civil penalty of license revocation for refusal to submit to

breath test); Wolfe v. Commonwealth, 793 S.E.2d 811, 815 (Va. Ct. App.

2016) (“Significantly, appellant was not exposed to a criminal penalty if

he refused the breath or blood test.”).     Iowa’s civil penalty for a test

refusal likewise is constitutional.

      None of the cases cited by the majority have held that an implied-

consent procedure offering defendant a choice is invalid as to warrantless

breath tests.    Our court is the first and only court to reach that

conclusion. After Birchfield, courts have upheld implied consent under

both the Federal and State Constitutions. See State v. Navarro, 382 P.3d

1234, 1236 (Ariz. Ct. App. 2016) (holding under art. II, § 8 of Arizona

Constitution “non-invasive breath tests for DUI arrestees” were a “slight

inconvenience” and did not require a warrant (quoting State v. Berg, 259

P.2d 261, 266 (1953), overruled on other grounds by State v. Pina, 383

P.2d 167, 168 (1963))); Williams v. State, 210 So. 3d 774, 776 (Fla. Dist.

Ct. App. 2017) (“[W]e adopt the holding in Birchfield that breath-alcohol

tests are permissible . . . .”); State v. Cornwell, 884 N.W.2d 722, 726–27

(Neb. 2016) (“[P]ost-Birchfield, a warrantless breath test is reasonable

and does not run afoul of the Fourth Amendment. Nor do we find that it
                                       83

runs counter to Neb. Const. art. I, § 7 . . . .”); Commonwealth v. Boone,

No. 3492 EDA 2015, 2017 WL 781664, at *2 n.4 (Pa. Super. Ct. Feb. 28,

2017) (noting that even if issue of warrantless breath test had been

preserved, “it would not warrant relief”); State v. Baird, 386 P.3d 239,

245, 247 (Wash. 2016) (en banc) (concluding there was “no constitutional

right to refuse the breath test” although implied-consent statute granted

right to refuse as aspect of “legislative grace”); State v. Lemberger, 893

N.W.2d 232, 242 n.13 (Wis. 2017) (“[S]uffice it to say that Lemberger

does not adequately establish that Article I, section 11 possesses a

different meaning than the Fourth Amendment to the United States

Constitution in this context.”).    I would follow the legion of cases that

uphold implied-consent statutes for breath tests.

         The Birchfield Court held “the Fourth Amendment permits

warrantless breath tests incident to arrests for drunk driving.” 579 U.S.

at ___, 136 S. Ct. at 2184. I reach the same conclusion under our state

constitution for boaters and motorists alike and would affirm the district

court.

      V. Given the Predictable Legislative Response, the Court’s
Decision Will Lead Us Away from Individualized Justice and Toward
Assembly-Line Justice.

         Finally, I predict that this decision will actually disserve the very

people it is intended to benefit—suspected intoxicated boaters.          Iowa

does not stand still for our court.         In all likelihood, there will be a

legislative response.    This session the legislature authorized electronic

warrants for the first time.      S.F. 358, 87th G.A., 1st Sess. § 4 (Iowa

2017).     Among other steps the general assembly may consider are (1)

making preliminary breath test results admissible, and (2) narrowing
                                    84

Iowa Code section 804.20 to exclude those detained for suspicion of

drunken boating. Let us review them.

      A. Preliminary Breath Test Results Admissible.            Typically, a

preliminary breath test (PBT) is administered at the scene of the stop

when the officer has reasonable grounds to believe the boat operator is

intoxicated.   Under existing law, the results are not admissible, but a

refusal to take the test is.    Iowa Code § 321J.5(2).       Yet as testing

technology has advanced and these tests have become more reliable, why

not just legislate that the PBT results are admissible?

      B. Revision of Iowa Code Section 804.20.            Additionally, once

the implied-consent process is eliminated for boaters, it becomes more

difficult to see the underlying purpose served by Iowa Code section

804.20. This statute allows someone who has been arrested to promptly

call, consult with, and see an attorney or family member. Although it

applies in other contexts, the statute has traditionally been tied to the

implied-consent process. See Walker, 804 N.W.2d at 290 (“Most of our

cases, however, have involved the statutory right to place a telephone call

to an attorney or family member when pulled over for drunk driving.”);

State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (“One purpose of

section 804.20, of course, is to allow an arrestee to call an attorney

before deciding whether to submit to a chemical test.”). Under Iowa Code

section 804.20, the person arrested for drunken boating is given an

opportunity to consult with an attorney before deciding whether to take

the chemical test.

      But if law enforcement is going to have to get a warrant anyway so

the attorney consultation fills no immediate need, why bother? Time is

passing while the parties wait for the attorney to answer the phone or
                                    85

come to the station house.       It would not surprise me to see the

legislature amend section 804.20 to exclude boaters.

      C. Electronic Warrants.      We can also expect to see electronic

warrants pursuant to the new legislation. That is, law enforcement will

submit a sworn warrant application via the court’s electronic data

management system (EDMS) to a judicial officer with a note to call “if

there are questions,” the magistrate will call and recite the oath, and the

approved warrant will then be transmitted electronically back to law

enforcement. If our court upholds this procedure under article I, section

8—and we would be hard-pressed to disapprove it since the majority

mentions EDMS warrants as one justification for its current ruling—we

will then have assembly-line warrants for breath testing.

      So this is our future: in-the-field PBTs may be admissible, no call

or consultation with an attorney will be allowed before chemical breath

tests take place at the station, and warrants will be routinely sought and

issued based on electronic applications without face-to-face contact

between the judicial officer and law enforcement. Taking things further,

a rotation could be devised in which one judicial officer per judicial

district would be assigned one “night shift” per month.       That officer

would sit at her or his computer through the night and handle all of that

district’s electronic warrant requests.      This would meet the legal

requirements of today’s decision, but it would not advance our criminal

justice system.

      For these reasons, I respectfully dissent.

      Mansfield and Zager, JJ., join this dissent.
