State of Iowa v. Hannah Marie Kilby

IN THE SUPREME COURT OF IOWA
No. 19–0734

Submitted October 15, 2020—Filed June 18, 2021

STATE OF IOWA,

Appellee,

vs.

HANNAH MARIE KILBY,

Appellant.

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

Price, Judge.

A defendant appeals her conviction for operating a motor vehicle

while intoxicated, arguing that the district court erred by allowing evidence

that she refused a breath test. AFFIRMED.

Waterman, J., delivered the opinion of the court, in which

Christensen, C.J., and Mansfield and McDermott, JJ., joined. McDonald,
J., filed a special concurrence, in which Oxley, J., joined. Appel, J., filed
a dissenting opinion.

Grant C. Gangestad (argued) of Gourley, Rehkemper, & Lindholm,

P.L.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines (argued),

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

Maurice Curry, Assistant County Attorney, for appellee.
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WATERMAN, Justice.
In this appeal, a defendant convicted of driving while intoxicated

asks us to strike down as unconstitutional Iowa Code section 321J.16,

which allows into evidence her refusal to submit to a breathalyzer test.

The district court denied her motion in limine to exclude evidence of her

test refusal and convicted her of operating a motor vehicle while

intoxicated. We retained her appeal to decide her constitutional claims.

The defendant relies on State v. Pettijohn, 899 N.W.2d 1, 38–39 (Iowa

2017), which held article I, section 8 of the Iowa Constitution requires a
search warrant for a breathalyzer test of an intoxicated boater. She argues

that Pettijohn should be extended to drunken driving cases, that the State

was thus required to get a search warrant to compel her submission to a

breath test, that her test refusal is inadmissible without a warrant, and

that allowing her test refusal into evidence penalized her exercise of her

constitutional right to refuse the warrantless breath test.

On our review, for the reasons explained below, we overrule Pettijohn

and hold that search warrants are not required for breathalyzer tests of

either boaters or drivers when law enforcement has probable cause to

believe that intoxicated boating or driving occurred. Although we could
decide this case based on the distinction between the intoxicated driving

and the intoxicated boating laws recognized four years ago by the special

concurrence in Pettijohn, the distinction is artificial and has led to

uncertainty. We believe the best course is to overrule Pettijohn.

Once it is clear that law enforcement had a right to obtain a breath

test from the defendant without a warrant, this becomes an easy case to

decide. Defendants have a statutory right to refuse chemical testing, but

that choice carries a statutory evidentiary consequence under Iowa Code

section 321J.16: the test refusal is admissible in the criminal trial. We
 3

therefore reject defendant’s constitutional challenge to section 321J.16

and join the majority of courts holding that it is not an unconstitutional

penalty to admit into evidence the defendant’s refusal to submit to a breath

test.

I. Background Facts and Proceedings.

On the night of July 28, 2018, Des Moines police officer Brian Kelley

responded to a report that a driver was attempting to leave the scene of a

hit-and-run accident. He found Hannah Kilby behind the wheel of her

2002 Chrysler van, parked in the street with several persons around her.

The bystanders told Officer Kelley that Kilby hit someone in the parking

lot of Extra Innings (a bar) and that when she tried to leave, they stopped

her. Kilby told Officer Kelley that she had been at Extra Innings and was

leaving to meet a friend. She said that when she was backing up in the

parking lot, she heard a loud bang, and then someone began pounding on

her van. Officer Kelley observed that Kilby had “red watery blood shot eyes

and a strong odor of an alcoholic beverage emanating from her breath.”

When he asked her how much she had to drink, Kilby answered, “[T]wo or

three.” She did not respond when twice asked if she was “sober.”

At 11:25 p.m., Officer Christopher Mock arrived to assist, and he too
smelled alcohol on Kilby’s breath. Kilby told Officer Mock that she had a

couple of mixed drinks called “Vegas Bombs” before driving her van. She

appeared drowsy and was crying and mumbling at times. Her speech was

slurred. Officer Mock asked Kilby to perform field sobriety tests. Kilby

consented to the Horizontal Gaze Nystagmus (HGN) test. Her balance was

unsteady as she stepped into position. Her HGN test showed four out of

six signs of intoxication.

Officer Mock next asked Kilby to perform a walk-and-turn test and

one-leg-stand test; she refused to perform either test. At 11:45 p.m.,
 4

Officer Mock asked Kilby to submit to a preliminary breath test (PBT), she

refused. Kilby was arrested and taken to the Des Moines police station.

There, Officer Mock read her the implied-consent advisory.1 At 12:32 a.m.,

Officer Mock asked her to consent to the Datamaster breathalyzer test;

Kilby refused the breath test.

On September 6, the State filed a trial information charging Kilby

with operating while intoxicated, second offense.2 Kilby pled not guilty.

On November 19, Kilby filed a motion in limine to exclude evidence of her

refusal to submit to the breath test, citing Pettijohn for the proposition that

a search warrant is required to conduct a breath test under article I,

section 8 of the Iowa Constitution. She filed a twelve-page supporting brief

on January 4, 2019, that argued Pettijohn applied to vehicular driving

cases. The State filed a resistance arguing Pettijohn was limited to boating

and evidence of Kilby’s test refusal was admissible under Iowa Code

1The advisory read to Kilby stated, in part:
The implied consent advisory. The implied consent law requires
that a peace officer advise a person of the following:
Refusal to submit to the withdrawal of a body specimen for
chemical testing will result in revocation of your privilege to operate a
motor vehicle for one year if you have not previously been revoked within
the previous twelve years under the implied consent or drunk driving laws
of this state or for two years if you have one or more revocations within the
previous twelve years. . . . Refusal to submit to a blood or urine test for
drugs other than alcohol or a combination of alcohol and another drug
constitutes a refusal and the above mentioned revocation periods will
apply.
Now, if you consent to chemical testing, and the test results
indicate an alcohol concentration of eight hundredths or more, or if the
test results indicate the presence of a controlled substance or other drugs,
or a combination of alcohol and another drug in violation of Chapter
321J.2, the department shall revoke your privilege to operate a motor
vehicle for a period of 180 days. If you have no revocation within the
previous twelve years under the drunk driving or implied consent law, or
for one year if you have one or more previous revocations under those
provisions.
2Kilby had been convicted of operating a motor vehicle while intoxicated in 2014.
 5

section 321J.16. The district court heard oral arguments on Kilby’s

motion on January 15. Kilby further argued that because she had a

constitutional right to refuse to consent, offering evidence of her refusal

penalized that right in violation of due process rights under the Fourteenth

Amendment of the Federal Constitution and article I, section 9 of the Iowa

Constitution.

On April 5, the district court denied Kilby’s motion in limine. The

district court devoted several pages of its ruling to Pettijohn, analyzing

whether that drunken boater case required exclusion of Kilby’s test

refusal. The court stated, “The statutory scheme presente[d] here

(invoking implied consent and admitting the results) is one that serves a

compelling governmental interest. Welch v. Iowa DOT, 801 N.W.2d 590

(Iowa 2011).” The district court determined that under existing Iowa law,

her breath test refusal was admissible and allowing such evidence would

not violate Kilby’s rights under the Federal or Iowa Constitutions.

Kilby stipulated to a bench trial on the minutes of testimony. The

court found Kilby guilty of operating a motor vehicle while intoxicated

based on evidence including Kilby’s refusal to take the breath test.

II. Standard of Review.
We review constitutional challenges to Iowa Code chapter 321J

de novo. State v. McGee, ___ N.W.2d ___, ___ (Iowa 2021).

In doing so, we must remember that statutes are cloaked with
a presumption of constitutionality. The challenger bears a
heavy burden, because it must prove the unconstitutionality
beyond a reasonable doubt. Moreover, “the challenger must
refute every reasonable basis upon which the statute could be
found to be constitutional.” Furthermore, if the statute is
capable of being construed in more than one manner, one of
which is constitutional, we must adopt that construction.

State v. Senn, 882 N.W.2d 1, 6 (Iowa 2016) (quoting State v. Thompson,

836 N.W.2d 470, 483 (Iowa 2013)).
 6

III. Analysis.

“[T]he criminal process often requires suspects and defendants to

make difficult choices.” State v. Hillery, 956 N.W.2d 492, 500 (Iowa 2021)

(quoting South Dakota v. Neville, 459 U.S. 553, 564, 103 S. Ct. 916, 923

(1983)). Specifically, as recognized by the Supreme Court in South Dakota

v. Neville, “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.” 459 U.S. at 564,

103 S. Ct. at 922–23. Detainees are read an advisory3 and have a statutory

right to consult with counsel before taking or refusing the breath test.

State v. Sewell, ___ N.W.2d ___, ___ (Iowa 2021). But the choice can be a

difficult one because consenting to the breath test may reveal a blood

alcohol level above the legal limit (.08 percent), making a criminal

conviction more likely, while refusing the test carries administrative

(revocation of driver’s license) and evidentiary consequences. Iowa Code

§§ 321J.9, .16 (2018). Iowa Code section 321J.16 provides,

If a person refuses to submit to a chemical test, 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 motor vehicle in violation of
section 321J.2 or 321J.2A.4

3See generally Iowa Code § 321J.8 (governing advisory); State v. Hutton, 796
N.W.2d 898, 905 (Iowa 2011) (“The purpose of section 321J.8’s advisory requirement ‘ “is
to provide a person who has been required to submit [to] a chemical test a basis for
evaluation and decision-making in regard to either submitting or not submitting to the
test.” ’ ” (quoting Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 212 (Iowa 2001)
(en banc))).
4Iowa Uniform Jury Instruction 2500.7 provides:
2500.7 OWI - Refusal To Take Test. The defendant was asked to give a
[breath] [blood] [urine] sample so it could be analyzed to determine the
percent of alcohol in [his][her]blood. [The defendant refused.] [It is alleged
the defendant refused].
A person is not required to give a sample of any bodily substance;
however, you may consider a refusal in reaching your verdict.
 7

Relying on our 2017 decision in Pettijohn, Kilby argues this statute is

unconstitutional. The State responds that Pettijohn is limited to drunken

boating cases, did not involve a test refusal, and was wrongly decided. We

agree with the State and overrule Pettijohn as manifestly erroneous. “The

course we must follow is not to ignore our mistakes, but to correct them.”

State v. Williams, 895 N.W.2d 856, 867 (Iowa 2017).

Eight decades ago, our court rejected constitutional challenges to

the admissibility of a test refusal in State v. Benson, 230 Iowa 1168, 1171–

72, 300 N.W. 275, 277 (1941). Four decades ago, we rejected a due process

challenge to the admissibility of test-refusal evidence under the implied-

consent statute in State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981). We

noted that “[i]n giving the arrested person a right to refuse the test, the

legislature obviously sought to give the person the right to make a

voluntary decision.” Id. But we concluded that this statutory choice “is

not mandated by the due process, privilege against self-incrimination or

right to counsel provisions of the United States Constitution.” Id. (citing

Schmerber v. California, 384 U.S. 757, 760–65, 86 S. Ct. 1826, 1830–33

(1966), abrogated on other grounds as recognized by In re Grand Jury

Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 90–93 (2d Cir.

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 2500.7 (2018). The jury instruction
cites to Iowa Code section 321J.16 for authority. See id. We approve this instruction as
to breath test refusals.
“Most state courts admit evidence of refusal as relevant because the refusal is
conduct that shows a consciousness of guilt in the same manner as destruction of
evidence, flight, or threats against witnesses.” Cox. v. People, 735 P.2d 153, 158 (Colo.
1987) (en banc) (collecting cases); see also State v. Stevens, 580 A.2d 493, 496 (Vt. 1990)
(noting that the state had the burden to prove intoxication and “was entitled to let the
jury know that because defendant refused to perform breath or dexterity tests, the State’s
evidence was limited to the arresting officer’s observations of defendant” and that,
ultimately, “[a]ny inferences to be drawn from the refusal were for the jury’s
consideration, and the jury could ignore the refusal issue if it chose”). The jury
determines the weight to give the test refusal, and “the inference of intoxication . . . is
rebuttable.” Cox, 735 P.2d at 159.
 8

1993)). Until Pettijohn, we continued to uphold the admissibility of test

refusals under Iowa Code section 321J.16 without any suggestion of

constitutional infirmity. See, e.g., State v. Bloomer, 618 N.W.2d 550, 552–

53 (Iowa 2000) (en banc).

Fifth Amendment cases decided after Benson have excluded

evidence of a defendant’s invocation of the right to remain silent or avoid

self-incrimination. The leading case is Griffin v. California, 380 U.S. 609,

612–15, 85 S. Ct. 1229, 1232–33 (1965). Yet, after Griffin, the United

States Supreme Court squarely rejected constitutional challenges to the

admissibility of blood alcohol test refusals under implied-consent statutes

like Iowa’s. Neville, 459 U.S. at 558–64, 103 S. Ct. at 920–23. Neville

remains good law on this point. See 387 U.S. 523 Birchfield v. North

Dakota, 579 U.S. ____, ____, 136 S. Ct. 2160, 2185 (2016) (“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. . . . [N]othing we say here should be read

to cast doubt on them.” (citations omitted)).

“[N]umerous other state courts also have recognized that Birchfield

[v. North Dakota] reinforced that states may lawfully ‘impose civil penalties
and evidentiary consequences on motorists who refuse to comply’ with a

request for a blood draw.” State v. Levanduski, 948 N.W.2d 411, 417 n.6

(Wis. Ct. App. 2020) (emphasis in original) (quoting Birchfield, 579 U.S. at

____, 136 S. Ct. at 2185); see also Fitzgerald v. People, 394 P.3d 671, 676

(Col. 2017) (en banc) (noting the Colorado law at issue “merely allows a

driver’s refusal to submit to testing to be entered into evidence if the driver

is prosecuted for DUI” and “the Supreme Court has all but said that

anything short of criminalizing refusal does not impermissibly burden or

penalize a defendant’s Fourth Amendment right to be free from an
 9

unreasonable warrantless search,” so “introducing evidence of [a

defendant’s] refusal to consent to a blood or breath test . . . did not

impermissibly burden his Fourth Amendment right”); State v. Mulally, No.

119,673, 2020 WL 4032827, at *15–16 (Kan. Ct. App. July 17, 2020),

(analyzing Birchfield and Kansas precedent to reject argument that

admission of test refusal penalized state and federal constitutional rights),

review denied (Nov. 24, 2020); State v. Hood, 917 N.W.2d 880, 892–93

(Neb. 2018) (noting that Birchfield “clarified that the propriety of

evidentiary consequences for a driver’s refusal to submit to a blood draw

should not be questioned” and holding that “evidence of a driver’s refusal

to submit to a warrantless blood draw is admissible in a DUI prosecution”);

State v. Storey, 410 P.3d 256, 269 (N.M. Ct. App. 2017) (concluding that

“Birchfield does not prohibit the introduction of evidence of, and

commentary on, evidence establishing a defendant’s refusal to take a blood

test”); People v. Vital, No. 2016NY041707, 2017 WL 350797, at *2 (N.Y.

Crim. Ct. Jan. 20, 2017) (rejecting argument that Birchfield prohibited

evidence of test refusal at criminal trial); Commonwealth v. Bell, 211 A.3d

761, 775–76 (Pa. 2019) (noting that the Birchfield Court “did not back away

from its prior approval of other kinds of consequences for refusal, such as
‘evidentiary consequences’ ” and holding Pennsylvania’s statutory

“evidentiary consequence” allowing “the admission of that refusal at a

subsequent trial for DUI—remains constitutionally permissible post-

Birchfield” (quoting Birchfield, 579 U.S. at ____, 136 S. Ct. at 2185)), cert.

denied, ___ U.S. ___, ___, 130 S. Ct. 934 (Jan. 21, 2020); Dill v. State, No.

05–15–01204–CR, 2017 WL 105073, at *1–2 (Tex. App. Jan. 11, 2017)

(holding the trial court did not err in denying defendant’s motion to

“exclude evidence of her refusal to provide a breath sample” because there

was no violation of the Fourth Amendment); State v. Rajda, 196 A.3d 1108,
 10

1118–19 (Vt. 2018) (analyzing Birchfield to conclude the Fourth

Amendment does not bar admission into evidence that defendant refused

to submit to chemical test); State v. Baird, 386 P.3d 239, 247–48 (Wash.

2016) (en banc) (plurality opinion) (holding that evidence of test refusal

remains admissible after Birchfield). But cf. Commonwealth v. McCarthy,

No. 2019–SC–0380–DG, 2021 WL 1679306, at *13 (Ky. Apr. 29, 2021)

(holding evidence of defendant’s refusal of a blood test was inadmissible

while noting that had he refused a breath test, “nothing in Birchfield [or

Kentucky precedent] would have precluded admission of that refusal of a

breath test as evidence against him in the DUI prosecution”). Nearly all

courts confronting the question after Birchfield reject state and federal

constitutional challenges to the admissibility of evidence of test refusals in

the criminal trial for operating a motor vehicle while intoxicated.

In Pettijohn, however, our court declined to follow Birchfield under

the Iowa Constitution. 899 N.W.2d at 24–25. The Birchfield Court held

the Fourth Amendment allowed warrantless breath tests as a search

incident to arrest, while requiring a search warrant for the more intrusive

blood tests of a conscious driver absent exigent circumstances. 579 U.S.

at ___, 136 S. Ct. at 2184–85. Pettijohn nevertheless held that search
warrants were required to conduct breath tests of a suspected drunken

boater under article I, section 8 of the Iowa Constitution. 899 N.W.2d at

38–39. The court left open the question whether the warrant requirement

applied to breath tests of motorists. Id. at 38 (“Any decision relating to

operating a motor vehicle while under the influence will have to wait for

another case raising its constitutionality.”). But the majority’s reasoning

applied equally to boaters and drivers. The special concurrence relied on

a $500 penalty for boater test refusals as a reason to differentiate boating

and driving cases. Id. at 40–41 (Cady, C.J., concurring specially). Three
 11

justices dissented. Id. at 42–52 (Waterman, J., dissenting, joined by

Mansfield and Zager, JJ.).

In Pettijohn, a water-patrol officer for the Iowa Department of Natural

Resources (DNR) stopped a pontoon boat in August 2013 because a

passenger was seated at the rear with her feet dangling in the water by the

propeller, putting her at risk of a severe injury. Id. at 9 (majority opinion).

The officer spoke with Dale Pettijohn, the boat operator, and noticed he

had bloodshot eyes, seemed nervous, and avoided eye contact. Id. at 10.

There were two coolers on the boat. Id. A conservation officer joined them

at the dock and detected an odor of an alcoholic beverage on Pettijohn’s

breath and noticed he slurred his words and had bloodshot eyes. Id. The

officer administered field tests for sobriety and determined Pettijohn had

been operating the boat while intoxicated. Id. Pettijohn was handcuffed,

taken to the Polk City Police Department, and read the “Implied Consent

Advisory.” Id. Pettijohn signed a consent form and submitted to the

breathalyzer test, which indicated his blood alcohol level was .194. Id.

The state charged Pettijohn with operating a motorboat while under

the influence in violation of Iowa Code section 462A.14(1). Id. He moved

to suppress the breath test results based on his alleged “natural right to
use the state’s navigable waterways” as well as his argument that the

implied-consent procedure was unconstitutional and inaccuracies in the

implied-consent advisory rendered his consent involuntary. Id. at 10–11.

The district court denied his motion to suppress and convicted him

following a bench trial on the minutes. Id. at 11. We retained his appeal

and, after oral argument in September 2015, held the case in abeyance

pending the Supreme Court’s decision in Birchfield. See id. We requested

supplemental briefing from the parties after Birchfield was decided on

June 23, 2016, and we carried our case over to the next term. See id. Our
 12

court ultimately issued Pettijohn on Friday, June 30, 2017, the last day of

the next term and just ahead of a busy boating weekend before the July 4

holiday. See id. For the first time, our court held that notwithstanding

statutory implied-consent laws, article I, section 8 of the Iowa Constitution

requires a search warrant for a breath test of a suspect arrested for

operating while intoxicated, id. at 38–39, even though Pettijohn never

raised that argument in district court or in his appellate brief or reply brief

and even though Birchfield squarely held warrantless breath tests are

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

2184. As the three-justice dissent in Pettijohn stated,

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.

899 N.W.2d at 43–44 (Waterman, J., dissenting).
This term our court expressly limited Pettijohn to boating cases. See

McGee, ___ N.W.2d at ___. Yet defendants undoubtedly will continue to

argue Pettijohn’s reasoning supports a variety of constitutional challenges

to Iowa’s implied-consent laws governing motorists, including recurring

challenges such as Kilby’s to the admissibility of breath test refusals. We

now elect to clear up the confusion that will persist while Pettijohn remains
on the books. “[S]tare decisis does not prevent the court from

reconsidering, repairing, correcting or abandoning past judicial

announcements when error is manifest, including error in the
 13

interpretation of statutory enactments.” Miller v. Westfield Ins., 606

N.W.2d 301, 306 (Iowa 2000) (en banc). Pettijohn is manifestly erroneous

for multiple reasons.

First, by requiring a search warrant for a breath test, Pettijohn

conflicts with Birchfield, prior Iowa precedent, and the “legion” of state

courts. See Pettijohn, 899 N.W.2d at 46–51 (Waterman, J., dissenting).

Second, as we recently explained in depth, following Pettijohn to

require search warrants for breath tests would impose significant burdens

on law enforcement and the judiciary without advancing the civil liberties

of motorists. See McGee, ___ N.W.2d at ___. This case is typical. Kilby

refused the breathalyzer test after midnight. The statutory prerequisites

to request the breath test were clearly satisfied. Officers observed Kilby’s

bloodshot watery eyes, the odor of alcohol on her breath, her unsteady

balance, slurred speech, crying and confusion. The HGN test indicated

four signs of intoxication. Kilby admitted drinking two or three alcoholic

mixed drinks called “Vegas Bombs” before getting behind the wheel and,

according to witnesses, backing into someone and attempting to flee the

scene. She repeatedly declined to answer whether she was “sober.”

Imposing a warrant requirement would not have protected her from an
unconstitutional search. Notably, Kilby does not argue a neutral

magistrate would have declined a warrant. To the contrary, any judicial

officer would have issued a warrant for a chemical test under these facts.

Requiring a warrant would take the officer away from other duties to

complete a warrant application and interrupt a judicial officer in the

middle of the night for no gain in the driver’s civil liberty. See Pettijohn,

899 N.W.2d at 44 (Waterman, J., dissenting) (“How have we advanced the

rights of drunken boaters, other than allowing them to avoid the legal

consequences of their actions?”). Operating while intoxicated cases don’t
 14

implicate the particularity requirement that precludes general warrants

and cabins police power. “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.’ ” Id. (quoting Birchfield, 579 U.S. at ___,

136 S. Ct. at 2177).

Third, extending Pettijohn’s reasoning to chapter 321J cases would

undermine enforcement of drunk-driving laws, at a cost in lives and to

public safety. If breath test refusals were inadmissible, drunk drivers,

especially repeat offenders,5 would be motivated to decline breath tests as

well as field tests for sobriety. Lawyers consulted under Iowa Code section

804.20 would advise more detainees to refuse the test. It would become

even harder to obtain convictions in test-refusal cases, and more

recidivists would remain on the road. Kilby herself is a repeat offender.

“[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.” State v.

Walker, 804 N.W.2d 284, 290 (Iowa 2011) (quoting Welch v. Iowa Dep’t of

Transp., 801 N.W.2d 590, 594 (Iowa 2011)); accord Birchfield, 579 U.S. at

____, 136 S. Ct. at 2166 (“Drunk drivers take a grisly toll on the Nation’s
roads, claiming thousands of lives, injuring many more victims, and

inflicting billions of dollars in property damage every year. To fight this

problem, all States have laws that prohibit motorists from driving with a

blood alcohol concentration (BAC) that exceeds a specified level.”); State v.

5Iowa Code chapter 321J provides escalating penalties for recidivists convicted of

operating a motor vehicle while intoxicated: a first offense is a serious misdemeanor
punishable by up to one-year imprisonment, a fine of up to $1250, and revocation of the
driver’s license for up to one year; a second offense is an aggravated misdemeanor
punishable by up to two years’ imprisonment, a fine of up to $6250, and revocation of
the driver’s license for one year; and a third offense (and each subsequent offense) is a
class “D” felony punishable by up to five years’ imprisonment, a fine of up to $9375, and
revocation of the driver’s license for six years. See Iowa Code § 321J.2(2)–(5).
 15

Garcia, 756 N.W.2d 216, 220 (Iowa 2008) (stating that Iowa’s implied-

consent law “was enacted to help reduce the appalling number of highway

deaths resulting in part at least from intoxicated drivers” (quoting State v.

Wallin, 195 N.W.2d 95, 96 (Iowa 1972))); State v. Comried, 693 N.W.2d

773, 775 (Iowa 2005) (“We have said the purpose of chapter 321J is ‘ “to

reduce the holocaust on our highways[,] part of which is due to the driver

who imbibes too freely of intoxicating liquor.” ’ ” (alteration in original)

(quoting State v. Kelly, 430 N.W.2d 427, 429 (Iowa 1988) (en banc))).

Fourth, Pettijohn relied heavily on an inapplicable decision, State v.

Gaskins, 866 N.W.2d 1, 14 (Iowa 2015), that departed from federal and

prior Iowa precedent to limit the search-incident-to-arrest (SITA) doctrine.

See Pettijohn, 899 N.W.2d at 48–49 (Waterman, J., dissenting). Gaskins

addressed the search of a sealed container (a locked safe) in an unoccupied

vehicle after the driver was removed from the vehicle and arrested. See id.

at 48; Gaskins, 866 N.W.2d at 3–4.6 A breath test is a form of a search of

a person. We recently noted the SITA doctrine still allows the warrantless

search of an arrestee’s person. See Hillery, 956 N.W.2d at 501 (recognizing

if suspect had been arrested, the narcotics in his pocket inevitably would

have been discovered in the search incident to his arrest). Gaskins does
not preclude a warrantless breath test incident to an arrest; to the

contrary, Gaskins expressly allows a warrantless SITA to “preserv[e]

evidence from destruction.” See 866 N.W.2d at 14; 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

6We subsequently held such searches are still allowed under the automobile
exception to the warrant requirement. See State v. Storm, 898 N.W.2d 140, 156 (Iowa
2017).
 16

“[s]topping an arrestee from destroying evidence” because “[i]n both

situations the State is justifiably concerned that evidence may be lost”).

Fifth, Pettijohn’s faux incrementalism relied on a contrived

distinction between the monetary penalties for test refusals in drunken

boating and driving cases. See Pettijohn, 899 N.W.2d at 42 (Waterman, J.,

dissenting) (“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?”).

Clearly Pettijohn’s reasoning applied equally to driving cases, as defense

counsel routinely argue. Pettijohn is manifestly erroneous and is hereby

overruled.

Without Pettijohn, Kilby has no constitutional right to refuse a

breath test as a search incident to her arrest. Kilby is not aided by State

v. Thomas, which held that under the rules of evidence, it was prejudicial

error to allow evidence that the defendant refused to consent to a

warrantless search of her home. 766 N.W.2d 263, 271–72 (Iowa Ct. App.

2009). A warrant is required to search a home; no warrant is required for

a breath test of a suspected drunken driver or boater when statutory

implied-consent requirements are met. Allowing evidence of Kilby’s refusal
of the breathalyzer test therefore did not penalize her exercise of a

constitutional right, and her challenge to Iowa Code section 321J.16 fails.

The district court correctly denied Kilby’s motion to suppress.

IV. Disposition.

For the foregoing reasons, we affirm the district court’s judgment.

AFFIRMED.

Christensen, C.J., and Mansfield and McDermott, JJ., join this

opinion. McDonald, J., files a special concurrence, in which Oxley, J.,

joins. Appel, J., files a dissenting opinion.
 17
#19–0734, State v. Kilby
McDONALD, Justice (concurring specially).

The Iowa Constitution does not prohibit the state from offering

evidence of a defendant’s refusal to submit to a chemical breath test for

alcohol and arguing an adverse inference of guilt should be drawn from

the defendant’s refusal. Kilby’s arguments to the contrary are not

supported by the original public meaning of the Iowa Constitution or the

most relevant precedents shedding light on the original public meaning of

the Iowa Constitution.
I.

The defendant first contends her state constitutional right to be free

from unreasonable seizures and searches affords her a constitutional right

to refuse a chemical breath test for alcohol. The defendant’s argument is

contrary to the original public meaning of article I, section 8 of the Iowa

Constitution.

Article I, section 8 provides, “The right of the people to be secure in

their persons, houses, papers and effects, against unreasonable seizures

and searches shall not be violated.” At the time of America’s founding and

Iowa’s founding, the prohibition against “unreasonable” seizures and
searches had a particular meaning. See State v. Wright, ___ N.W.2d ___,

___ (Iowa 2021) (discussing history of the Fourth Amendment to the

Federal Constitution and article I, section 8). “Originally, the word

‘unreasonable’ in the Fourth Amendment likely meant ‘against reason’—

as in ‘against the reason of the common law.’ ” Carpenter v. United States,

585 U.S. ___, ___, 138 S. Ct. 2206, 2243 (2018) (Thomas, J., dissenting)

(quoting Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L.

Rev. 1181, 1270 (2016)). Thus, “[e]arly American courts . . . embraced . . .

common law principles of search and seizure.” Torres v. Madrid, 592 U.S.
 18

___, ___, 141 S. Ct. 989, 996 (2021); see also United States v. Carloss, 818

F.3d 988, 1006 (10th Cir. 2016) (Gorsuch, J., dissenting) (stating the

Fourth Amendment “incorporated existing common law restrictions on the

state’s investigative authority”); Santo v. State, 2 Iowa (Clarke) 165, 215

(1855) (stating the term “unreasonable” referred to revolution-era

practices); Thomas Y. Davies, Recovering the Original Fourth Amendment,

98 Mich. L. Rev. 547, 554–55 (1999) (discussing history of Fourth

Amendment); 3 Joseph Story, Commentaries on the Constitution of the

United States §§ 1894–1895 (1833) (stating the prohibition against

unreasonable seizures and searches “is little more than the affirmance of

a great constitutional doctrine of the common law”).

At common law, peace officers had broad authority to arrest

offenders and suspected offenders with or without a warrant. See

generally 4 William Blackstone, Commentaries on the Laws of England

ch. 21 (1768) (discussing the common law of arrest). The authority to

arrest offenders or suspected offenders without a warrant was justified due

to peace officers’ “great original and inherent authority with regard to

arrests.” Id. In addition to this original and inherent authority,

nightwalker statutes allowed watchmen and constables, by virtute officii,
to “arrest all offenders, and particularly nightwalkers, and commit them

to custody till the morning.” Id.

The constitutional prohibition against unreasonable searches and

seizures, as originally understood, did not limit the inherent authority of

peace officers to conduct warrantless arrests.

But it is no where said, that there shall be no arrest without
warrant. To have said so would have endangered the safety
of society. . . . These are principles of the common law,
essential to the welfare of society, and not intended to be
altered or impaired by the constitution. The whole section
 19
indeed was nothing more than an affirmance of the common
law . . . .

Wakely v. Hart, 6 Binn. 316, 318–19 (Pa. 1814). Stated differently, it was

not against reason—as in against the reason of the common law—for peace

officers to conduct warrantless arrests. See Carpenter, 585 U.S. at ___,

138 S. Ct. at 2243 (Thomas, J., dissenting).

Iowa’s constitutional prohibition against unreasonable seizures, as

originally understood, allowed for warrantless arrests. Since the time of

Iowa’s founding, our law has recognized the inherent authority of peace

officers to conduct warrantless arrests. The Code of 1851 allowed an

officer to arrest a person without a warrant “[f]or a public offense

committed or attempted in his presence” or “[w]here a public offense has

in fact been committed and he has reasonable cause for believing the

person arrested to have committed it.” Iowa Code § 2840(1), (2) (1851). In

1854, this court held an officer could conduct a warrantless arrest. See

Hutchinson v. Sangster, 4 Greene 340, 342 (Iowa 1854). Like this case,

Hutchinson v. Sangster involved the warrantless arrest of an intoxicated

person. See id. at 341–42. In Hutchinson, this court explained the

“intoxication of appellant, his consequent unfitness for examination, and

the difficulty in finding a judicial officer” justified the warrantless arrest.

Id. at 342. We concluded the power of warrantless arrest was

“indispensable to the duties of a peace officer. The power is inherent. The

exercise of it often becomes unavoidable.” Id.

A peace officer’s inherent authority to arrest without a warrant was

reaffirmed in the Code of 1860. See Iowa Code § 4548 (1860). This was

unchanged and undisputed for almost 100 years until 1950, when peace

officers were granted additional authority to make warrantless arrests. In

addition to the previous grounds, a peace officer was granted authority to
 20

make an arrest “[w]here he has reasonable ground for believing that an

indictable public offense has been committed and has reasonable ground

for believing that the person to be arrested has committed it.” Iowa Code

§ 755.4(3) (1950). In short, it was and is “well settled in this state that a

peace officer may arrest without a warrant when he has reasonable

grounds for belief that a [crime] has been committed and that the person

before him committed it.” State v. Post, 255 Iowa 573, 582, 123 N.W.2d

11, 16–17 (1963).

Equally well settled in this state is a peace officer’s authority to

conduct a warrantless search of the person incident to an arrest. In 1876,

this court explained:

It is usual and proper for police officers, upon the arrest
of felons to subject them to search and take from them articles
found upon their persons. This often affords the evidence
whereby a crime is proved or the person arrested is identified
as the perpetrator of an offense. . . . Surely there can be no
rule of law forbidding a police officer upon the arrest of one
charged with a felony, from making a close and careful search
of the person of the individual for stolen property, instruments
used in the commission of crimes, or any article which may
give a clue to the commission of crime or the identification of
the criminal. This too may be done promptly on arrest, and
not delayed for authority from a court or a superior. The
offender would speedily dispose of all such articles which
would be found upon his person that might lead to the
discovery of crime.

Reifsnyder v. Lee, 44 Iowa 101, 103 (1876).

As Reifsnyder v. Lee demonstrates, the constitutional prohibition

against unreasonable seizures and searches, as originally understood, did

not limit a peace officer’s inherent authority to conduct a search incident
to arrest. See id.; see also Draper v. United States, 358 U.S. 307, 310–11,

79 S. Ct. 329, 331–32 (1959) (“[T]he arrest, though without a warrant, was

lawful and the subsequent search of petitioner’s person and the seizure of
 21

the found heroin were validly made incident to a lawful arrest . . . .”);

Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 5 (1925) (“The right

without a search warrant contemporaneously to search persons lawfully

arrested while committing crime and to search the place where the arrest

is made in order to find and seize things connected with the crime as its

fruits or as the means by which it was committed, as well as weapons and

other things to effect an escape from custody is not to be doubted.”); Post,

255 Iowa at 582, 123 N.W.2d at 16–17 (“Clearly, the evidence of probable

cause for defendant’s arrest when he was taken into custody is ample.

That being the case, a search and seizure made incident thereto are

likewise valid.”); State v. Lyon, 176 Iowa 171, 175–77, 157 N.W. 742, 743–

44 (1916) (holding a peace officer can conduct a warrantless search

incident to arrest); Com. Exch. Bank v. McLeod, 65 Iowa 665, 667,

19 N.W. 329, 329–30 (1884) (“We think the sheriff was justified in making

the search, and in taking from the person all money or property which was

in any way connected with the crime charged, or which might serve to

identify the prisoner.”).

As the relevant cases make clear, a peace officer is allowed to

conduct a warrantless search of an arrestee incident to arrest by virtue of
the office; the greater power to arrest necessarily includes the lesser power

to search. The officer’s purpose for conducting the search incident to

arrest—whether for the purposes of safety, preventing the destruction of

evidence, or gathering evidence of crime—is immaterial to the legality of

the search. A chemical breath test for alcohol is a valid search incident to

arrest, and Kilby had no constitutional right to decline the test. See Post,

255 Iowa at 582, 123 N.W.2d at 16–17; Lyon, 176 Iowa at 175–77,

157 N.W. at 743–44; Com. Exch. Bank, 65 Iowa at 667, 19 N.W. at 329–

30; Reifsnyder, 44 Iowa at 103; see also State v. Knous, 313 N.W.2d 510,
 22

512 (Iowa 1981) (“In giving the arrested person a right to refuse the test,

the legislature obviously sought to give the person the right to make a

voluntary decision. However, the arrested person’s right to make the

decision is not mandated by the due process, privilege against self-

incrimination or right to counsel provisions of the United States

Constitution.”). Nothing in article I, section 8, as originally understood, is

to the contrary. See Knous, 313 N.W.2d at 512; Reifsnyder, 44 Iowa at

103.

This court deviated from the original meaning of article I, section 8

in State v. Gaskins, 866 N.W.2d 1 (Iowa 2015), and State v. Pettijohn, 899

N.W.2d 1 (Iowa 2017). In Gaskins, this court held that an officer can

conduct a search incident to arrest for the purposes of “officer safety and

protecting evidence.” 866 N.W.2d at 12. The Gaskins court rejected the

“evidence-gathering rationale for warrantless searches incident to arrest

under the Iowa Constitution.” Id. at 13. The court reasoned the evidence-

gathering rationale would swallow the textual rule that searches and

seizures should be supported by a warrant. See id. Relying on Gaskins,

Pettijohn held “a warrantless breath test to determine the [blood alcohol

content] 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.” 899 N.W.2d at 25.

Stare decisis does not justify continued adherence to Gaskins or

Pettijohn. Stare decisis has limited application in constitutional matters.

The Iowa Constitution provides, “This Constitution shall be the supreme

law of the state, and any law inconsistent therewith, shall be void.” Iowa

Const. art. XII, § 1. Notably, the Iowa Constitution does not distinguish

between legislative, executive, and judicial acts. Instead, the Iowa

Constitution provides that any law inconsistent therewith “shall be void.”
 23

Id. Thus, “[w]hen faced with a demonstrably erroneous [constitutional]

precedent, my rule is simple: We should not follow it. This view of stare

decisis follows directly from the Constitution’s supremacy over other

sources of law—including our own precedents.” Gamble v. United States,

587 U.S. ___, ___, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring).

There is “no legitimate reason why a court may privilege a demonstrably

erroneous interpretation of the Constitution over the Constitution itself.”

Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634, 649 (Iowa 2019) (McDonald,

J., concurring specially) (quoting Gamble, 587 U.S. at ___, 139 S. Ct. at

1985).

Gaskins and Pettijohn are both demonstrably erroneous

interpretations of article I, section 8 of the Iowa Constitution and should

be overruled. Nothing within the original meaning of article I, section 8 or

in the relevant precedents applying that original meaning precludes an

officer from conducting a warrantless arrest and further conducting a

search of the person incident to arrest. The power to arrest and search

incident to arrest is inherent in the officer’s authority virtute officii. In

reaching a contrary conclusion, Gaskins and Pettijohn failed to inquire into

the original meaning of article I, section 8; the common law origins of the
article I, section 8; the earliest statutes and precedents illuminating the

original meaning of article I, section 8; or the 150 years of statutory

authority and case law repeatedly affirming a peace officer’s authority to

conduct a search incident to arrest.

Based on the original meaning of article I, section 8, I concur in the

majority’s decision to overrule Pettijohn. To the extent the majority

concludes that considerations of expediency, public policy, and maximum

enforcement of the law are reasons for creating judicial exceptions to the

constitutional prohibition against unreasonable seizures and searches, I
 24

respectfully disagree. See Wright, ___ N.W.2d at ___ (“The ‘mere fact that

law enforcement may be made more efficient can never by itself justify

disregard of the [constitution].’ ” (alteration in original) (quoting Mincey v.

Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414 (1978))).

II.

Even if Kilby had a constitutional right to refuse a chemical breath

test for alcohol, the due process clause of the Iowa Constitution does not

prohibit the state from introducing evidence of her refusal and arguing the

fact finder can infer guilt from the refusal.

As discussed in my special concurrence in State v. Gibbs, the Iowa

Constitution provides less protection than the Federal Constitution in this

area of constitutional law. See 941 N.W.2d 888, 906–10 (Iowa 2020)

(McDonald, J., concurring specially in the judgment). The Iowa

Constitution, unlike the Federal Constitution, does not contain a privilege

against self-incrimination. See id. at 907–10. Because of this textual

difference, the Iowa Constitution does not prohibit adverse comment on or

an adverse-inference instruction regarding the defendant’s pretrial silence

or trial silence. See id. The question of whether an adverse inference of

guilt can be drawn from the defendant’s silence is thus left wholly to the
legislature:

Defendant may choose to introduce no evidence. He may
choose to offer only witnesses other than himself. He may
choose to testify in his own behalf. The choice, in each event,
is that of the defendant. Having made his choice, if he chooses
not to testify in his own behalf, the effect of such choice, as
an inference or presumption of guilt, does not come within the
contemplation of what constitutes due process of law. If the
effect of such choice is to be determined by constitutional
provision, it must be determined by some provision other than
the due process clause. If the constitution contains only the
due process clause, as does our constitution, then the effect
to be given the failure to testify is a matter for the legislature
to determine.
 25

Id. at 907 (quoting State v. Ferguson, 226 Iowa 361, 372–73, 283 N.W. 917,

923 (1939), overruled in part by State v. Johnson, 257 Iowa 1052, 135

N.W.2d 518 (1965)).

By extension, in State v. Benson, 230 Iowa 1168, 1171–73, 300 N.W.

275, 277 (1941), this court held the due process clause of the Iowa

Constitution did not prohibit the state from using as substantive evidence

of guilt the defendant’s pretrial refusal to take a blood test. The court

reasoned,

Defendant did not take the stand in his own defense.
He could not be compelled to testify. However, the fact that
he did not testify was a circumstance to be considered by the
jury and was a proper subject for comment by the county
attorney. His refusal to testify is analogous to his refusal to
submit to a blood test. Were we to concede that, pursuant to
our decisions in State v. Height, Wragg v. Griffin, and State v.
Weltha, defendant could not be compelled to submit to a blood
test, that does not mean that his refusal to submit to it cannot
be shown and considered. He cannot be compelled to testify.
Yet his refusal to testify can be considered and commented
upon. If he cannot be compelled to submit to a blood test it
is because he cannot be compelled to give evidence. But, since
his refusal to give evidence by testifying can be considered,
why cannot his refusal to give evidence by submitting to a
blood test be likewise considered? We think that it can be.

Id. at 1171–72, 300 N.W. at 277 (citations omitted). In support of its
holding, the Benson court relied on the absence of a provision prohibiting

self-incrimination in the Iowa Constitution:

Our constitution contains no express provision
prohibiting self-incrimination. The only constitutional
provision that would appear to guarantee such protection is
the due process clause. The statute is Section 13890 of the
Code, 1939, and provides as follows: “Defendants in all
criminal proceedings shall be competent witnesses in their
own behalf, but cannot be called as witnesses by the state.”
Defendant was not called as a witness by the state. He was
not even called as such in his own behalf. The statutory
prohibition was fully recognized. We then have the question
remaining, Does the due process clause render the testimony
 26
of the deputy sheriff inadmissible? We answer, No. It is
proper to show the defendant’s conduct, demeanor and
statements (not merely self-serving), whether oral or written,
his attitude and relations toward the crime, if there was one.
These are circumstances that may be shown. Their weight is
for the jury to determine.

Id. (citation omitted).

Benson is dispositive of Kilby’s claim, and I would adhere to that

precedent. See id.

III.

For these reasons, I concur in the judgment.

Oxley, J., joins this special concurrence.
 27

#19–0734, State v. Kilby

APPEL, Justice (dissenting).

In this case, a person suspected of driving while intoxicated declined

to provide consent to a preliminary field test and to a standard Datamaster

breath test after she was given the implied-consent advisory at the police

station. At her trial on driving while intoxicated, the State offered and the

trial court admitted evidence that she refused to consent to the testing.

On appeal, the defendant presents a narrow issue. She asserts that

because she had a constitutional right to refuse consent, the state cannot

comment on her refusal to consent to a test in a trial on operating a motor

vehicle while intoxicated.7

For the reasons expressed below, I would reverse the trial court and

remand for further proceedings. I therefore cannot join the majority

opinion and respectfully dissent.

I. Factual Background and Proceedings.

A. Background Facts. The essential facts are not in dispute. On

the evening of July 28, 2018, a group of bikers outside a bar in Des Moines

were pursuing Hannah Kilby because they believed that she had been the

driver in a hit-and-run incident and that she was trying to leave the scene.
Police arrived at 10:59 p.m. and began to investigate. At about 11:25 p.m.,

police requested that Kilby perform field sobriety tests. Kilby consented to

the Horizontal Gaze Nystagmus (HGM) test but declined to participate in

the walk-and-turn and one-leg-standing tests. At 11:45 p.m., police

7This case does not involve the central issue in State v. Pettijohn, namely, whether
consent could be considered voluntary under all the facts and circumstances of the case.
899 N.W.2d 1, 38 (Iowa 2017). Here, consent was not provided. The issue here is
whether, in a criminal proceeding for operating a motor vehicle while intoxicated, the
State may introduce evidence of a refusal to consent to a chemical test.
 28

requested Kilby submit to a preliminary breath test. After she declined,

police arrested Kilby for operating a motor vehicle while intoxicated.

Kilby was transported to the Des Moines police station. Police read

to her the standard implied-consent advisory. At 12:05 a.m., police

requested a chemical specimen of Kilby’s breath for alcohol testing. At

12:32 a.m., police requested a decision on whether to submit to the breath

test and Kilby declined to consent. The state subsequently charged her

with operating while intoxicated, second offense. Iowa Code § 321J.2

(2018).

B. Pretrial Proceedings. Prior to a bench trial, Kilby filed a motion

in limine raising a number of evidentiary issues. Of relevance to this

appeal, Kilby sought to exclude evidence of her refusal to submit to

chemical testing as substantive evidence of her guilt. Kilby maintained

that she had a right to refuse to consent and that offering evidence of her

refusal violated her due process rights under both the Fourteenth

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

the Iowa Constitution. She argued that there was no exception to the

warrant requirement in the case. But, in any event, Kilby asserted that

evidence of a refusal to consent is inadmissible regardless of the legality of
the search. She further argued that any reference to her refusal to consent

to the test would be improper for the court to admit because it would shift

the burden of proof from the State to her.

The district court stated that although there was no breath test

result, “the breath test result in this case is admissible under the current

State of Iowa law.” The district court clearly denied the motion in limine

with respect to the admission into evidence of Kilby’s refusal to submit to

chemical testing.
 29

C. Results of Bench Trial. Kilby stipulated to trial on the minutes

of testimony. Based on the minutes of testimony, Kilby was convicted of

operating a motor vehicle while intoxicated. In reaching its verdict, the

district court specifically relied upon Kilby’s refusals to take the chemical

and preliminary breath tests.

II. Discussion.

A. Introduction. It is well established that the prosecution in a

criminal case cannot introduce evidence of the exercise of the Fifth

Amendment right against self-incrimination as evidence of guilt. Griffin v.

California, 380 U.S. 609, 612–15, 85 S. Ct. 1229, 1232–33 (1965). Does

the same principle apply when a motorist refuses to consent to a

breathalyzer test and the state has not demonstrated a basis for a

warrantless search?

B. Positions of the Parties.

1. Kilby. On appeal, Kilby begins by arguing that she has a

fundamental right not to be subject to a warrantless search under article

I, section 8 of the Iowa Constitution. Kilby argues that a chemical test is

a search, that there was no search warrant in this case, and that the State

did not show any exception to the warrant requirement. See Skinner v.
Ry. Lab. Execs.’ Ass’n, 489 U.S. 602, 612, 616–17, 109 S. Ct. 1402, 1413

(1989) (determining that a deep lung breath test implicates bodily integrity

and is therefore a search); California v. Ciraolo, 476 U.S. 207, 211, 106

S. Ct. 1809, 1811–12 (1986) (holding that a search occurs when a

government agent intrudes on an area where a person has reasonable

expectation of privacy); State v. Pettijohn, 899 N.W.2d 1, 28–29 (Iowa 2017)

(confirming the right to refuse a warrantless breath test is a constitutional

right under Iowa Constitution); State v. Ryce, 368 P.3d 342, 369–70 (Kan.

2016) (holding that a driver has the right to refuse chemical testing even
 30

though driving is characterized as “privilege”). She therefore asserts that

introduction of evidence by the State of her refusal to consent to a

breathalyzer test violated her right to be free from a warrantless search

under article I, section 8 of the Iowa Constitution.

In support of her article I, section 8 argument, Kilby marches

through the potential bases for a warrantless search. She asserts that she

explicitly refused to consent to the breath test. Therefore, she contends

the State cannot claim consent to justify the search. She argues that the

notion of a search incident to arrest does not apply under State v. Gaskins.

866 N.W.2d 1, 14 (Iowa 2015). Finally, she points out that there was no

exigent circumstances that might support a warrant. Birchfield v. North

Dakota, 579 U.S. ___, ___, 136 S. Ct. 2160, 2173–74 (2016). Indeed,

according to Kilby, police did not consider obtaining a warrant during the

investigation and the State did not argue at the motion to suppress hearing

that exigent circumstances were present or offer any evidence suggesting

that it was impracticable to obtain a warrant. In any event, as a backup

argument, Kilby argues that even if there was a basis for a warrantless

search, “evidence of a refusal to consent to a search is inadmissible

regardless of the legality of the search.” Elson v. State, 659 P.2d 1195,
1199 (Alaska 1983).

Kilby also asserts a due process violation under the Fourteenth

Amendment of the Federal Constitution and article I, section 9 of the Iowa

Constitution. She focuses her fire on Iowa Code section 321J.16, which

authorizes admission of a person’s decision to withhold consent even when

the search was illegal and the evidence would not otherwise be admissible

in a criminal proceeding. But, according to Kilby, due process prohibits

penalizing the exercise of a constitutional right.
 31

In support of her argument, Kilby cites State v. Thomas, 766 N.W.2d

263 (Iowa Ct. App. 2009), and Longshore v. State, 924 A.2d 1129, 1159

(Md. 2007), to demonstrate that while a refusal to consent to a search may

be admissible “for some purpose other than to simply penalize the

defendant for exercising a constitutional right,” Thomas, 766 N.W.2d at

270, the refusal “cannot be used as evidence of [the defendant’s] guilt if

the constitutional protection against unreasonable search and seizure is

to have any meaning.” Longshore, 924 A.2d at 1159 (holding the refusal

to consent to a warrantless search was inadmissible). Kilby suggests her

situation is comparable to cases where courts have refused to allow

admission of a refusal to talk with law enforcement after invoking their

Fifth Amendment privilege. See United States v. Goodwin, 457 U.S. 368,

372, 102 S. Ct. 2485, 2488 (1982) (“To punish a person because he has

done what the law plainly allows him to do is a due process violation ‘of

the most basic sort.’ ” (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363,

98 S. Ct. 663, 668 (1978))); United States v. Prescott, 581 F.2d 1343, 1351–

52 (9th Cir. 1978) (prohibiting government from commenting on

defendants silence); Bargas v. State, 489 P.2d 130, 132 (Alaska 1971) (“It

would make meaningless the constitutional protection against
unreasonable searches and seizures if the exercise of that right were

allowed to become a badge of guilt.”); State v. Palenkas, 933 P.2d 1269,

1279 (Ariz. Ct. App. 1996) (“We can see no valid distinction between the

privilege against self-incrimination and the right to be free from

warrantless searches, when invoked, that would justify a different rule

about inadmissibility as evidence of guilt.”); State v. Glover, 89 A.3d 1077,

1082 (Me. 2014) (“It would seem . . . illogical to extend protections against

unreasonable searches and seizures, including the obtaining of a warrant

prior to implementing a search, and to also recognize an individual’s right
 32

to refuse a warrantless search, yet allow testimony regarding such an

assertion of that right at trial in a manner suggesting that it is indicative

of one’s guilt.” (omission in original) (quoting Commonwealth v. Welch, 585

A.2d 517, 519 (Pa. Super. Ct. 1991))).

Yet, Kilby recognizes that over forty years ago, the United States

Supreme Court held in South Dakota v. Neville that states were authorized

to force drivers to submit to blood alcohol tests and to use a defendant’s

refusal in court on the question of guilt. 459 U.S. 553, 559–64, 103 S. Ct.

916, 920–23 (1983). Similarly, this court in State v. Knous, characterized

the right to refuse to submit to a chemical test as a statutory right. 313

N.W.2d 510, 512 (Iowa 1981).

But, according to Kilby, the law in the area has shifted since Neville

and Knous. In particular, Kilby cites the Iowa cases of State v. Harris, 763

N.W.2d 269 (Iowa 2009) (per curiam), and Pettijohn, 899 N.W.2d 1, and

the United States Supreme Court cases of Missouri v. McNeely, 569 U.S.

141, 133 S. Ct. 1552 (2013), and Birchfield, 579 U.S. ____, 136 S. Ct. 2160.

Under these more current cases, according to Kilby, there is no per se

exigency that forgoes the need to obtain a search warrant in the case of

chemical testing of drivers suspected of intoxicated driving.
From these cases, Kilby argues that an individual has a

constitutional right not to be subjected to an unlawful warrantless search.

Where a person exercises a constitutional right not to be searched, Kilby

asserts, there can be no penalty for exercise of that right through the

admission of a refusal to consent as evidence in a criminal trial. See

Thomas, 766 N.W.2d at 270 (“[T]he defendant’s right not to be penalized

for exercising such a privilege is paramount.”); see also United States v.

Runyan, 290 F.3d 223, 249 (5th Cir. 2002) (noting in a child pornography

case that “the circuit courts that have directly addressed this question
 33

have unanimously held that a defendant’s refusal to consent to a

warrantless search may not be presented as evidence of guilt.”); United

States v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000) (stating in drug

prosecution case that Fourth Amendment entitled a defendant to withhold

consent to search and admitting evidence of that refusal is inconsistent

with due process).

2. The State. The State emphasizes that in this case, there was, in

fact, no search. Instead, the issue is whether the defendant has a right to

refuse to submit a breath test. The State then notes that in Fitzgerald v.

People, the Colorado Supreme Court rejected a Fourth Amendment claim

that the state is prohibited from introducing the refusal to consent to a

blood test under the authority of Neville. 394 P.3d 671, 674–76 (Colo.

2017) (en banc). As in this case, the Fitzgerald court emphasized that no

search actually occurred. Id. at 674. The State notes that the Fitzgerald

court cited the permissive approach in Neville to distinguish the exercise

of Fourth Amendment rights from the Fifth Amendment rights exercised

in Griffin v. California. Id. The Fitzgerald court, the State points out, cited

a footnote in Neville where the United States Supreme Court observed that

“[u]nlike the defendant’s situation in Griffin, a person suspected of drunk
driving has no constitutional right to refuse to take a blood-alcohol test.

The specific rule of Griffin is thus inapplicable.” Id. at 674–75 (quoting

Neville, 459 U.S. at 560 n.10, 103 S. Ct. at 921 n.10).

The State cites cases from other state courts. For example, in

Commonwealth v. Bell, a Pennsylvania court reversed a trial court

determination that introduction of evidence of a refusal to consent to a

blood test during a criminal prosecution for intoxicated driving was

unconstitutional. 167 A.3d 744, 749 (Pa. Super. Ct. 2017). Relying on

Neville, the Pennsylvania court on appeal held that the introduction of the
 34

refusal was not a penalty for the exercise of a constitutional right but

instead an evidentiary consequence of a refusal to comply with a request

for a blood test. Id. at 748–49. The State cites similar cases from Vermont

and Washington. See State v. Rajda, 196 A.3d 1108, 1120 (Vt. 2018); State

v. Baird, 386 P.3d 239, 247 (Wash. 2016) (en banc).

In the alternative, the State argues that in this case, any alleged

error was harmless. The State asserts that the observations at the scene

by police officers that she was dull, drowsy, confused, mumbling, and

unsteady establish that any error was harmless beyond a reasonable

doubt.

C. Merits.

1. Relevant evidence or impermissible penalty? The central thrust

of Kilby’s argument is that there was no basis for a warrantless search

through chemical testing and that, as a result, the State could not be

permitted to comment on her validly exercised constitutional right in a

criminal proceeding against her for intoxicated driving. There is, of course,

considerable precedent for the proposition that the state may not use

evidence of invocation of Fifth Amendment rights in a criminal proceeding

as evidence of guilt. In Griffin, the United States Supreme Court
emphasized that a person should not be penalized for the exercise of

constitutional rights. 360 U.S. 609, 614, 85 S. Ct. 1229, 1233 (1965).

And, in State v. Gibbs, we recognized the need to protect the Fifth

Amendment privilege against self-incrimination from dilution through a

jury instruction that commented on an individual’s failure to report

conduct with criminal implications. 941 N.W.2d 888, 897–900 (Iowa

2020).

The question arises whether the same principle should apply in the

context of the exercise of constitutionally established rights in the area of
 35

search and seizure. Search and seizure rights are, of course, different

than the right against self-incrimination. But, if permitting an adverse

inference of guilt from exercise of Fifth Amendment rights eviscerates the

scope of the right, why does the same principle not apply to search and

seizure rights? Aren’t those constitutionally established rights, with their

long and deep historical pedigree, of equal importance?

A number of courts have been protective of the right to refuse

consent to blood alcohol testing where the ordinary constitutionally

required elements of a valid search are not met. For example, in State v.

Wilson, a Hawai‘i appellate court held that a defendant had a state

constitutional right to refuse to consent to a warrantless blood and breath

tests. 413 P.3d 363, 367–68 (Haw. Ct. App. 2018). A number of other

courts, like our decision in Harris, have emphasized the need to satisfy

ordinary search and seizure requirements to support a request for

chemical testing. See, e.g., State v. Blank, 90 P.3d 156, 162 (Alaska 2004)

(holding a warrantless search under implied-consent statute valid

provided there were exigent circumstances); McDuff v. State, 763 So.2d

850, 855 (Miss. 2000) (en banc) (holding the Mississippi implied-consent

statute invalid to the extent it mandated search and seizure absent
probable cause); Commonwealth v. Kohl, 615 A.2d 308, 313 (Pa. 1992)

(holding implied-consent statute does not provide basis for avoiding

probable cause requirements of Fourth Amendment), disapproved of on

other grounds by Commonwealth v. Myers, 164 A.3d 1162, 1180 (Pa. 2017).

There is a question of whether the request for a breathalyzer test

should be treated differently for purposes of search and seizure analysis

than a request for a blood draw. That distinction was made by the United

States Supreme Court in Birchfield. 579 U.S. at ___, ___, 136 S. Ct. at

2178, 2185. But both the request for a breathalyzer test and a blood draw
 36

are searches. Id. at ___, 136 S. Ct. at 2173. As described in earlier

caselaw, “[s]ubjecting a person to a breathalyzer test, which generally

requires the production of alveolar or ‘deep lung’ breath for chemical

analysis implicates similar concerns about bodily integrity . . . , should

also be deemed a search.” Skinner, 489 U.S. 602, 616–17, 109 S. Ct. at

1413 (citation omitted). While intrusions of the body are sometimes

minimized, Justice Scalia hit the mark when, in a case considering the

validity of a buccal swab, he declared that “I doubt that the proud men

who wrote the charter of our liberties would have been so eager to open

their mouths for royal inspection.” Maryland v. King, 569 U.S. 435, 482,

133 S. Ct. 1958, 1989 (2013) (Scalia, J., dissenting). The same goes for a

deep blast from the innards of our lungs. See Paul A. Clark, Do

Warrantless Breathalyzer Tests Violate the Fourth Amendment?, 44 N.M. L.

Rev. 89, 93 (2014); Catherine Norton, comment, Keeping Faith with the

Fourth Amendment: Why States Should Require a Warrant for Breathalyzer

Tests in the Wake of Birchfield v. North Dakota, 87 Miss L.J. 237, 242

(2018).

And, in State v. Gaskins, we limited the scope of search incident to

arrest to evidence preservation, not evidence gathering, under article I,
section 8 of the Iowa Constitution. 866 N.W.2d at 14. We rejected the

notion in Harris and in Pettijohn that the search incident to arrest doctrine

applies to situations involving the natural dissipation of alcohol. Harris,

763 N.W.2d at 274; Pettijohn, 899 NM.W.2d at 19. As a result, the doctrine

invoked by the Supreme Court in Birchfield to support a warrantless

breathalyzer test is not available in this case under the Iowa Constitution.

Instead, in order to support a warrantless search, the State must show

exigent circumstances under the traditional exigent circumstances

doctrine. See McNeely, 569 U.S. at 153–54, 133 S. Ct. at 1561 (“In those
 37

drunk-driving investigations where police officers can reasonably obtain a

warrant before a blood sample can be drawn without significantly

undermining the efficacy of the search, the Fourth Amendment mandates

that they do so.”).

In this case, the State did not even attempt to establish that there

were exigent circumstances under all the facts and circumstances to

support a warrantless search. There is simply nothing in the State’s

resistance about exigent circumstances or any explanation for why

obtaining a warrant was impractical in this case. Further, there is nothing

in the transcript of the hearing where the State asserted the presence of

exigent circumstances to support a search in this case. Thus, the issue is

fairly presented: May the refusal of an individual to consent to an unlawful,

warrantless, breathalyzer search be offered as evidence of guilt in a

criminal proceeding? Stated differently, is there a parallel line of analysis

between invoking the privilege against self-incrimination verses the right

to be free from unlawful searches and seizures?

There is at least one distinction between search and seizure rights

and the right against self-incrimination that has been offered in the

literature. If commentary about a person’s exercise of the right against
self-incrimination is offered in a criminal trial as evidence of guilt, the

substantive underlying right, the right not to self-incriminate, has been

violated. Kenneth J. Melilli, The Consequences of Refusing Consent to a

Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary

Issue, 75 S. Cal. L. Rev. 901, 910–13 (2002). On the other hand, if

evidence that a person refused to consent to a search without a warrant is

offered as evidence of guilt, the underlying privacy interests are not

invaded by the state since the search did not actually occur. Id.
 38

Perhaps so. But the commentary in a criminal proceeding about a

lawful exercise of search and seizure rights—Get a Warrant!—should not

be subject to a penalty. That is the point in Griffin. Just as the

commentary in Griffin described that the penalty for exercising the Fifth

Amendment privilege “cuts down on the privilege by making its assertion

costly,” Griffin, 380 U.S. at 614, 85 S. Ct. at 1232–33, Kilby’s lawful refusal

to consent to an otherwise unlawful search cannot be so penalized.

And, search and seizure rights should not be discounted. As noted

in a United States Supreme Court case argued by former Iowa Supreme

Court Justice John F. Dillon:

No right is held more sacred, or is more carefully guarded by
the common law, than the right of every individual to the
possession and control of his own person, free from all
restraint or interference of others, unless by clear and
unquestionable authority of law.

Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001 (1891).

And, in an observation made describing the United States Constitution but

even more applicable under the Iowa Constitution, “built into the general

structure of the Constitution is a libertarian bias based on checks against

constitutionally suspect laws and in favor of the broadest of the various
constructions of [our rights].” Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425, 1504 (1987).8 In particular, search and

seizure rights under article I, section 8 of the Iowa Constitution are not to

be frittered away through application of a misguided newly discovered

doctrine of radical pragmatism where the scope of the constitutional

8Pragmatic arguments are sometimes advanced to eviscerate constitutional rights.
With respect to warrants and drunk driving, however, field studies suggest that “although
warrants do impose administrative burdens, their use can reduce breath-test-refusal
rates and improve law enforcement’s ability to recover BAC evidence.” McNeely, 569 U.S.
at 162, 133 S. Ct. at 1567 (citing Nat’l Highway Traffic Safety Admin., U.S. Dep’t of
Transp., DOT HS 810 852, Use of Warrants for Breath Test Refusal: Case Studies 36–38
(2007).
 39

protections waxes and wanes through judicial maximization of the state’s

interest in law enforcement and minimization of individual interests in

freedom from arbitrary searches and seizures. See State v. Wright, ___

N.W.2d ___, ___ (Iowa 2021) (Appel, J., concurring specially); State v.

McGee, ___ N.W.2d ___, ___ (Iowa 2021) (Appel, J., dissenting).

In short, citizens have a constitutional right to refuse to consent to

an unconstitutional warrantless search. Camara v. Mun. Ct., 387 U.S.

523, 540, 87 S. Ct. 1727, 1737 (1967) (“[A]ppellant had a constitutional

right to insist that the inspectors obtain a warrant to search . . . .” );

Pettijohn, 899 N.W.2d at 29 n.10; State v. Banks, 434 P.3d 361, 368 (Or.

2019) (“[I]nvocation of a constitutional right cannot be admitted at trial as

evidence of a defendant’s guilt.”); Baird, 386 P.3d at 254 (McCloud, J.,

dissenting) (outlining the constitutional right to refuse a search). If the

search was constitutional, there would be no right to refuse, but if the

search is unconstitutional, there “is definitely a right to refuse.” Baird,

386 P.3d at 253; see also Banks, 434 P.3d at 368. Where there is a “right

to refuse,” the state cannot use invocation of that right in a criminal

proceeding to establish the guilt of the accused.

Professor LaFave agrees. “What the cases indicate is that when the
defendant’s refusal was within the context of a recognized search-warrant

required category, then the Fourth Amendment prohibits admission of that

refusal into evidence.” 4 Wayne R. LaFave, Search & Seizure § 8.1(l), at

165 (6th ed. 2020). We apply that principle here.

As a result of the above reasoning, Kilby’s refusal to consent to a

breathalyzer test should not have come into evidence in her criminal case.

D. Harmless Error.

1. Positions of the parties. In this case, the State in the alternative

argues that error, if any, was harmless. This was a trial on the minutes of
 40

testimony. Among other things, the district court noted that minutes of

testimony established that an officer observed that Kilby had “red and

waterily [sic] bloodshot eyes, the strong odor of an alcoholic beverage

emanating from her breath, and stated that she had two or three drinks

before driving.” Another officer saw her as being “dull, drowsy, and at time

crying” and observed that her “speech was slurred and at times she was

confused and mumbling.” The other officer characterized the alcohol odor

as “moderate.” She exhibited four clues on the HGM test and she did not

participate in other field sobriety tests.

Kilby responds that the trial court specifically relied upon Kilby’s

refusal to take the tests. The district court summarized the State’s

evidence cited above but further declared that it

takes into consideration the fact that Ms. Kilby refused to
submit to a chemical test both as to the PBT and as to the
Datamaster after the invocation of implied consent. Based
upon all the foregoing, the Court finds that the State has
established by evidence beyond a reasonable doubt that Ms.
Kilby is guilty of OWI first offense

Thus, Kilby claims it is clear that the district court considered her

refusal to consent to tests in arriving at a determination of guilt. She

further asserts that in light of the consideration of the evidence by the
district court, the error cannot be considered harmless under State v.

Moorehead, 699 N.W.2d 667, 673 (Iowa 2005).

2. Discussion. In order for constitutional error to be harmless, the

court must be able to declare it harmless beyond a reasonable doubt.

State v. Simmons, 714 N.W.2d 264, 275 (Iowa 2006). This is not a case,

however, where substantially the same evidence is already in the record.

State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986). Further, the district

court specifically relied upon the refusal to consent in reaching the guilty
 41

verdict. Under the circumstances, I cannot say that the error in this case

was harmless beyond a reasonable doubt.

III. Conclusion.

For the above reasons, I would reverse the judgment of the district

court. As a result, I respectfully dissent from the majority opinion.