Can I be FORCED to provide a breath sample to law enforcement if I am suspected of OWI?
As criminal defense attorneys specializing in OWI defense, we often get questions about what to do if arrested for an OWI. Many of the questions surround what to do if asked for a sample from your body:
If I am suspected of OWI, can the cops require me to give them a breath test? What about a urine or blood test? Can’t I just refuse? I thought I could refuse a test and they just take my license for longer, right? Can a cop get a warrant for my blood if I get arrested for OWI? If the cops DO get a warrant, do I have to comply with a warrant? Can they actually HOLD ME DOWN and stick a needle in my arm or a catheter in my bladder?
This blog aims to answer some of these questions and highlight some of the current issues concerning the taking of samples for testing in OWI cases.
For decades, a typical OWI investigation would go something like this:
A person commits an alleged traffic violation (speed, running a stop light, failing to signal, etc.) or exhibits poor driving which would indicate the person was intoxicated. The officer would then pull the vehicle over to the side of the road. The officer would then ask the driver if they had been drinking. If the person said yes or if the officer saw signs that the person might be intoxicated, he or she would be asked to step out of the vehicle to participate in field sobriety testing. After field sobriety testing, the officer then would typically ask the person to blow into a device called a preliminary breath testing (PBT) machine, which spits out a breath alcohol concentration number (.080% is the “legal limit”). The PBT result is not admissible in court but is intended to help the officer make his or her arrest decision. Based on all these results, the officer arrests the person and takes them back to the station for what is called implied consent testing. The officer then reads the person a long advisory that essentially tells the person that the officer is seeking another sample, typically a sample of the person’s breath on what is called the Datamaster machine. The result of this machine IS admissible in court and has consequences for a person’s driver’s license. If the person consents to the test and the result is over .08%, the person loses their driver’s license for 180 days if it is their 1st offense and for 1 year if it is their second offense within 12 years; if they refuse the test, the person loses their license for DOUBLE that amount of time- 1 year for a first offense and 2 years for a second offense. If the person consents to the test, the result can be used against them in court. If the person refuses, the government typically gets to use the refusal of the test against them in court.
This is the typical “implied consent process” that has been followed in OWI cases for decades.
The main point here is that there is a bargain that is made between the state and drivers on the road. The person suspected of OWI has a CHOICE: the person can decide to take the test and if it is over .08, the government gets to use that result against them at trial but the driver’s license revocation period is shorter; on the flipside, if a person refuses to submit, the government does not have a numerical result to bring to the jury to prove that a person is intoxicated but the person’s license will typically be suspended for twice as long as if they had consented and failed.
BOTTOM LINE: Typically, if you refuse to submit a specimen of your blood, breath or urine to law enforcement for testing, that’s it. The state has no way to require you to provide a sample…
That is, unless they obtain a warrant.
Iowa Code Chapter 321J controls OWIs and when a warrant can be obtained in an OWI situation. Under the OWI chapter of the Iowa Code, there are very limited situations when law enforcement can ask a court to require a person to provide a sample from a person’s body. Under the OWI chapter, a search warrant for an OWI can only be issued if two things occur:
- A traffic accident has resulted in a death or personal injury reasonably likely to cause death.
- There are reasonable grounds to believe that the persons whose driving was the cause of the accident was under the influence at the time of the accident.
If both of these conditions occur, then law enforcement has the ability to obtain a warrant to compel a person to provide a sample of breath, blood, or urine.
If the State gets a warrant under that chapter, can a person still refuse a blood test? It appears so, from the language of the code. The law contemplates situations in which a person may object to a withdraw of a blood sample. The code says that if a person objects to a blood sample and a “direct breath testing instrument” is readily available, the warrant may be executed by obtaining a sample of breath. If the officer believes that the person is under the influence of a drug other than alcohol or a combination of alcohol and another drug, then the officer can collect a urine sample if the person is capable of giving a sample and it can be collected without the need to physically compel it. In other words, if a person can urinate into a collection cup and they don’t have to be compelled (i.e. catheterized) to provide the sample, then the state can get the sample that way. If a person still knowingly resists or thwarts the execution of a warrant, then the person can be subject to contempt punishable by a fine of $1000 or up to a year in county jail or both.
BOTTOM LINE: Again, warrants in OWI cases can only be obtained when there is a death or injury likely to cause death and the is evidence that person driving who caused the accident was under the influence at the time of the accident. This was the way that OWI cases in Iowa worked in Iowa for decades.
That is, until recently…
Recently, the State presumably decided that it was too hard to obtain a conviction on a “run of the mill” OWI when a person refused to submit to a breath test. Apparently, the State did not like to allow a jury to simply rely upon their observations of a person on the dashcam and body camera videos, and use their own common sense to determine if the person was under the influence of alcohol. In their mind, the government clearly wasn’t getting enough convictions easily enough by going about things this way, as they had been done for decades in Iowa. Apparently now, they ABSOLUTELY NEED that numerical result to show the jury in order to obtain a conviction. So why not change the rules to help get more convictions? Well, that’s exactly what the State started doing.
Remember, in run of the mill OWI cases, the only legal way of obtaining a sample from a person was to give the person a choice to submit or not and allow the person to determine for themselves if they wanted to provide the sample given the driver’s license consequences of consenting (180 day revocation) or refusing (1 year revocation). Again, warrants for OWIs are only allowed in accident cases that result in death or serious injury likely to lead to death.
But the State has recently argued that they could get a warrant under another chapter of the Iowa Code: the general warrant provision, Iowa Code Chapter 808. In essence, the government argues that they can get around implied consent and the OWI warrant provisions if they just seek a warrant though a different chapter of the code. Due to a fairly recent decision from the Iowa Court of Appeals, State v. Frescoln, the government has been successful in arguing to many judges in Iowa that they can circumvent the “normal” OWI process in favor of this “808 warrant” process and obtain warrants in basically any OWI case, even ones without death or personal injury. Some officers, now armed with these “808 warrants,” have even started telling OWI suspects that they will hold the person down and forcibly extract a sample from their body even if the person refuses!
This new warrant procedure seems to violate the basic bargain between the state and motorists: to give a person suspected of OWI the choice to consent or refuse and maintain their personal bodily autonomy, but in return for that autonomy, the person must face the consequences of their choice.
GRL Law attorneys have begun to push back on these new so-called “808 warrants,” arguing that the law does not authorize a warrant in non-accident, non-death cases. Our attorneys have successfully convinced multiple judges of this in several recent cases.
Ultimately, it seems very likely that this issue is headed for the Iowa Supreme Court. The government has asked the Iowa Supreme Court to review several cases in which GRL Law attorneys have been successful in arguing that these new “808 warrants” are illegal. Time will tell how the Iowa Supreme Court will decide this important issue. In the meantime, it will still be common practice for law enforcement to seek warrants on even “basic” or “run of the mill” OWI cases, especially on Second and Third Offense OWIs. If you find yourself on the wrong end of a warrant (or a needle!), call the experienced attorneys at GRL to help you defend your personal privacy and civil rights.