State v. Kilby, No. 19-0734

CourtUnited States State Supreme Court of Iowa
Writing for the CourtWATERMAN, Justice.
PartiesSTATE OF IOWA, Appellee, v. HANNAH MARIE KILBY, Appellant.
Docket NumberNo. 19-0734
Decision Date18 June 2021

STATE OF IOWA, Appellee,

No. 19-0734


Submitted October 15, 2020
June 18, 2021

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

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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.,

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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

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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)).

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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

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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...

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