- Associated Press - Friday, June 30, 2017

DES MOINES, Iowa (AP) - With the Fourth of July holiday weekend approaching, the Iowa Supreme Court on Friday struck down a portion of the state’s drunken boating law that allows officers to seek alcohol breath tests, ruling that it is unconstitutional and coercive.

The decision that comes amid one of the busiest and deadliest boating times of the year opens the door to a challenge of Iowa’s similar drunken driving law. The case virtually eliminates the process by which officers can seek breath tests in drunken boating cases. Unless officers are willing to wait to get a warrant from a judge, they’ll be forced to charge drunken boaters based on their appearance and behavior.

The court in a 4-3 decision concluded an Iowa Department of Natural Resources officer violated the constitutional rights of Dale Dean Pettijohn Jr. by requiring him to undergo an alcohol content breath test when he was stopped in August 2013 while driving a pontoon on Saylorville Lake northwest of Des Moines. The boat was stopped because a passenger was dangling her feet over the edge of it, near the motor’s propeller, and the officer deemed it a danger.

Pettijohn was suspected of being drunk and was given a field sobriety test, handcuffed and arrested. At a nearby police station, officers had him sign a consent form and administered a breath test revealing a blood alcohol level of 0.194 percent, above the 0.08 percent legal limit for boating in Iowa.

Pettijohn was convicted of operating a motorboat while under the influence and he appealed claiming the portion of Iowa’s boating law that allows alcohol breath tests without a warrant violates the constitutional protection against unreasonable searches and seizures.

The court said the officers violated Pettijohn’s constitutional rights because he was drunk and “his capacity to make reasoned and informed decisions was diminished.” He was arrested and taken to a police station, where he was told he faced a fine of at least $500 if he refused the test. However, the court said, he was not told about the serious criminal penalties he faced if he failed the breath test.

The justices concluded his decision to submit to the breath test was coerced. They ordered his case returned to district court for a new trial, where the results of the breath test cannot be used.

Justice David Wiggins, writing for the majority, said the court “must not allow the government to avoid an important constitutional check on its power by using an unfair play on human nature.”

Chief Justice Mark Cady, in a separate opinion agreeing with the court’s conclusion, said the state’s drunken boating law is inherently coercive because it requires payment of a $500 fine for anyone refusing to consent to a breath test. He said the Iowa Legislature can rewrite the statute to avoid coercion by removing the fine for declining a breath test.

Pettijohn’s attorney, Grant Gangestad, said he took the case because he believed it was unfair for people to be compelled to provide evidence to the state through breath tests. “While obviously we don’t want people to endanger others, we also don’t want to erode our constitutional freedoms to a point where they don’t exist anymore,” he said.

Prosecutors in Pettijohn’s case did not immediately return a message seeking comment.

Justice Thomas Waterman and two other more conservative justices said in a dissenting opinion that the decision could create a nightmare for officers and judges who may be asked to approve warrants for breath tests.

“This may take over an hour, during which time the officer is unavailable to patrol to detect other crimes or respond to other emergencies. In rural areas, it may be impossible to get a warrant in time,” Waterman wrote.

Under Iowa’s drunken driving law, motorists can lose their driver’s licenses for refusing to take breath tests, and a $200 payment is required to get a license back. Gangestad said that is likely to be challenged now.

Wiggins warned that the decision only applies to drunken boating and not drunken driving, but he appeared to leave open the possibility that the state’s drunken driving law could face a similar challenge.

“Any decision relating to operating a motor vehicle while under the influence will have to wait for another case raising its constitutionality,” he wrote.


Follow David Pitt on Twitter at https://twitter.com/davepitt

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