Iowa Supreme Court to Decide Whether Refusal of a Breath Test May Be Used Against a Person as Evidence of Guilt at Trial in an Operating While Intoxicated Case

Recently, GRL Law attorney Grant Gangestad argued the case of State v. Kilby before the Iowa Supreme Court.  The case dealt with an Operating While Intoxicated (OWI) charge.  The client’s charge stemmed from a fender bender in a parking lot.  Officers were called to the scene and began an investigation into possible intoxication of the driver.  The officers conducted Standardized Field Sobriety Tests and requested a preliminary breath test, which the client refused.  She was arrested and transported to the station.  At the station, officers read her an advisory which requested a breath test; if validly consented to, this breath test result could be used against her at trial.  The arresting officer also informed her what would happen to her license if she consented to the test and blew .08 or over or if she refused the test.  She ultimately chose to refuse the test.

Later at trial, the State attempted to use the breath test refusal against her at trial.  Essentially, the State wanted to argue that “the defendant refused the test, so she must be guilty.” An Iowa law, Iowa Code section 321J.16, specifically allows the prosecution to bring up the refusal and attempt to use it against the defendant at trial.

GRL Law attorneys challenged the use of this kind of refusal evidence and the law that allows prosecutors to try to bring this refusal evidence into trial to convict the person.  Typically, in order to conduct a search to obtain evidence from a person, the State must obtain a warrant or must have a valid exception to the warrant requirement in order to compel the person to provide evidence to law enforcement.  Without a warrant or a valid exception, a search cannot legally be conducted.  Any evidence that is illegally obtained without a warrant or an exception will be excluded at trial.

Here, the evidence the officers were seeking was a breath test.  A breath test has been deemed by the Supreme Court to be a search of a person.  Therefore, the State needs a warrant or an exception to the warrant requirement to obtain a breath test.  In this case, the officers did not have a warrant to obtain a breath test from Ms. Kilby.  GRL Law attorneys argued that the State had no exception to the warrant requirement that would allow the State to force Ms. Kilby to give them a breath test.  Therefore, Ms. Kilby was completely within her constitutional right to refuse to provide a breath test.

Here comes the crux of the argument: How can a person have a constitutional right to do something (refuse a breath test) but then be subjected by Iowa law to allow the prosecutor to ask the jury to infer that “the person didn’t submit, so they must be guilty?” If I have the right to refuse, how can my right be burdened by a statute that says, “Constitutional right to refuse, be damned, if you refuse, the State can argue that you’re guilty simply for exercising your constitutional right to be free from unreasonable searches.”  The answer is that the law violates the constitution and should be invalidated.

Let’s use a similar example in a different context: Say officers want to search Joe Schmoe’s house because they think Joe has drugs in there, but they don’t have a warrant or any other exception to search Joe’s house.  Say that they later decide to charge Joe with possession of drugs but never searched Joe’s house.  How on earth would we allow the prosecutor to argue that “the officers didn’t search Joe Schmoe’s house, but you should find him guilty based on the fact that he refused to allow us to search his house???”

That’s exactly what the current law allows the prosecutors to do in OWI cases.

GRL Law attorney Grant Gangestad argued that, if you have the constitutional right to refuse to consent to a search (the breath test), that right can’t be burdened by allowing the prosecutor to comment on the use of that right.  Allowing the prosecutor to comment on the exercise of the person’s right to refuse basically renders the exercise of the right useless.

This case has the potential to have broad-ranging impact.  If this argument is successful, the decision will impact almost every OWI refusal case in the state.  The Iowa Supreme Court will render a decision on this issue during the 2020-21 judicial term.