State v. McGee

• Citation: 959 N.W.2d 432
• Decision Date: 14 May 2021
• Docket Number: No. 19-1219,19-1219
• Parties: STATE of Iowa, Appellee, v. Brian De Arrie MCGEE, Appellant.
• Court: United States State Supreme Court of Iowa

959 N.W.2d 432

STATE of Iowa, Appellee,

v.Brian De Arrie MCGEE, Appellant.

No. 19-1219

Supreme Court of Iowa.

Submitted December 16, 2020

Filed May 14, 2021

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued), Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven (argued), Assistant Attorney General, John P. Sarcone, County Attorney, Maurice Curry and Kailyn Heston, Assistant County Attorneys, for appellee.

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

MANSFIELD, Justice.

"Affirm if you can, reverse if you must, but never remand." We receive this advice often from our colleagues on the trial bench. Here, however, the law changed after this case was heard in the district court. In June 2019, the United States Supreme Court decided that the Fourth Amendment "almost always" permits warrantless blood draws from unconscious drivers when the police have probable cause to believe the driver was operating while under the influence of alcohol. Mitchell v. Wisconsin , 588 U.S. ––––, ––––, 139 S. Ct. 2525, 2539, 204 L.Ed.2d 1040 (2019) (plurality opinion). The Court allowed for an exception in the "unusual case" where the defendant can "show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties." Id. at ––––, 139 S. Ct. at 2539. As we discuss herein, this significant development in the law necessitates a remand.

The defendant caused a two-vehicle accident by driving recklessly. The occupants of both vehicles were injured. The defendant was rendered unconscious, suffered a head injury, and was taken to the hospital smelling strongly of marijuana. A police officer was dispatched to the hospital to arrange for blood testing of the defendant. The defendant had been sedated for treatment and a medical professional certified pursuant to Iowa Code section 321J.7 (2018) that the defendant was unable to consent or refuse blood testing. Testing was performed, therefore, without the defendant's permission. It confirmed that the defendant had both THC and THC metabolites in his system. The defendant's motion to suppress this testing was overruled and the defendant was convicted of operating while intoxicated (OWI) in violation of Iowa Code section 321J.2.

On appeal, the defendant argues that this warrantless blood draw violated Iowa Code section 321J.7, the Fourth Amendment to the United States Constitution, and article I, section 8 of the Iowa Constitution. We find the State complied with section 321J.7. Regarding the Fourth Amendment, we hold that Mitchell applies to cases of suspected driving while under the influence of controlled substances, in addition to alcohol-related cases. However, because the parties did not have an opportunity to make a record under the Mitchell standard, we must utilize that dreaded remand. We also hold that article I, section 8 does not provide greater protection from warrantless blood draws than the Mitchell standard. Accordingly, we reverse the judgment below and remand for further proceedings in accordance with this opinion.

I. Facts and Procedural Background.

On the afternoon of Saturday, December 8, 2018, at around 2 p.m., a call went out to Des Moines police to alert them of a vehicle collision on Euclid Avenue. Dispatch indicated there were numerous injuries and one person unconscious. Brian McGee was extracted from the driver's seat of one of the vehicles at the scene and taken to the hospital in critical condition, having suffered a head injury and having been rendered unconscious from the accident. Witnesses at the scene of the accident indicated to police that McGee had been traveling at a high rate of speed and failed to yield before making a left turn. This led to the collision with the other vehicle. Five occupants of the other vehicle were injured and had to be transported by medics to the hospital as well. It was determined when they reached the hospital that their injuries were not life-threatening.

Traffic was diverted away from the collision area. Both vehicles were towed away. It took until 4:30 p.m. to restore traffic. As police officers and medics tended to McGee, they noticed a strong odor of marijuana coming from his person. An on-call Des Moines police officer—Tim Fricke—was summoned to report for duty and assigned the task of arranging for testing of McGee based on suspicions that he had been driving while impaired.

Upon arriving at the hospital, Officer Fricke was informed by medical staff that McGee had been sedated and would be unable to perform any initial screening tests for impairment or to provide a refusal or consent for blood testing. Also, Officer Fricke could see that McGee was unresponsive. Officer Fricke did not attempt to obtain a warrant. He later testified that he could have done so, but the Des Moines Police Department policy was to obtain a warrant for blood testing of a nonresponsive driver only if the offense would be a third or subsequent OWI or there was a serious injury or death.

Shortly before 4 p.m., Officer Fricke handed an official request for blood testing and a certification form to an advanced registered nurse practitioner who was present. The nurse completed and signed the certification that McGee was presently unable to give consent or refusal for testing. At this point, the medical staff initiated the steps necessary to draw blood from McGee. While this was going on, McGee suddenly awoke in a muddled state. McGee repeated the word "pee" frantically and began to urinate on himself as medical staff and his family attempted to help him sit up and urinate into a receptacle. During this time, McGee did not respond or even attempt to answer questions asked about his condition. He passed out again after being calmed by family and further attended to by medical staff. At around 4:10 p.m., McGee's blood was drawn. Results from the tests showed traces of lorazepam and delta-tetrahydrocannabinol (THC) along with the presence of both the impairing and nonimpairing THC metabolites.¹

On March 13, 2019, the State filed a trial information in the Polk County District Court charging McGee with OWI first offense. On April 11, McGee filed a motion to suppress the evidence obtained as a result of the warrantless blood draw, arguing the State needed "a warrant or exigent circumstances."

An evidentiary hearing took place on May 7 and 8 at which Officer Fricke testified and both his body cam video and the certification form were received in evidence. At the conclusion of the hearing, the district court denied McGee's motion to suppress. The district court ruled the State had complied with Iowa Code section 321J.7 in undertaking the warrantless blood draw and that neither the United States Constitution nor the Iowa Constitution required the State to obtain a warrant for the blood draw.

Thereafter the parties stipulated to a trial on the minutes. The district court found McGee guilty of first-offense OWI under the Iowa Code section 321J.2(1)(c ) alternative ("any amount of a controlled substance is present in the person, as measured in the person's blood"). The district court expressly declined to find McGee guilty under section 321J.2(1)(a ) (the "under the influence" alternative). McGee was sentenced to one year in jail with all but seven days suspended, fined $1250, and ordered to pay over $10,000 in restitution to various victims.

II. Standard of Review.

McGee's motion to suppress raised both statutory and constitutional grounds. As to the statutory ground, our review is for correction of errors at law and the district court's findings of fact are binding if supported by substantial evidence. See State v. Smith , 926 N.W.2d 760, 762 (Iowa 2019). With respect to the constitutional grounds, our review is de novo. State v. Fogg , 936 N.W.2d 664, 667 (Iowa 2019).

III. Legal Analysis.

Iowa Code section 321J.7 provides,

A person who is dead, unconscious, or otherwise in a condition rendering the person incapable of consent or refusal is deemed not to have withdrawn the consent provided by section 321J.6, and the test may be given if a licensed physician, physician assistant, or advanced registered nurse practitioner certifies in advance of the test that the person is unconscious or otherwise in a condition rendering that person incapable of consent or refusal.²

In this case, an advanced registered nurse practitioner certified at 3:59 p.m. on December 8, 2018, that McGee was incapable of consent or refusal, having received intravenous injections of Ativan, Fentanyl, and Haldol. McGee maintains that the blood draw was unlawful and violated both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.

A. Compliance with Iowa Code Section 321J.7. Before getting to the constitutional questions, we will address McGee's claim that the blood draw did not comply with the statute. When the nurse completed the certification at 3:59 p.m., McGee was sedated and appeared to be asleep. As preparations were being made for the blood draw around 4:04 p.m., McGee stirred. He made some irregular movements and indicated he had to "pee." With assistance he sat up at the front of the hospital bed. He urinated—initially on himself and on the floor of the hospital room and later into a urinal that was held for him. At approximately 4:06 p.m., McGee was helped to lie back down. He appeared to fall back asleep. The actual blood draw occurred four minutes later at 4:10 p.m.

McGee claims that a new certification should have been obtained in light of his waking...