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STATE v. GREEN5/15/1991
Under our implied consent law, must a peace officer make a written request for withdrawal of a body specimen when the person to be tested is incapable of consenting to or refusing chemical testing? The district court thought so and suppressed the results of a blood test because the officer did not make such a request. We reverse and remand for further proceedings consistent with this opinion.
Patricia Green was injured in a one-car accident. She was driving the car at the time. She was taken to the hospital because of her injuries. There a highway patrol trooper orally requested Green's treating doctor to withdraw a blood sample for a blood alcohol analysis. The doctor certified in writing that Green was incapable of consenting to or refusing chemical testing. The doctor then withdrew a blood [470 NW2d Page 17]
sample that tested out at .181. Under our implied consent law the legal limit is .10. See Iowa Code §§ 321J.1, 321J.6 (1989).
Green was charged with operating while intoxicated. See Iowa Code § 321J.2. Later she moved to suppress the results of the blood test on several grounds. The district court suppressed the blood test results on one of these grounds. The court ruled that our implied consent law had been violated because the trooper did not make a written request for a blood sample pursuant to Iowa Code section 321J.6(1).
The State sought our permission for discretionary review of the ruling, which we granted. See Iowa R. App. P. 201.
The State relies on Iowa Code section 321J.7. Under that statute, the State insists no written request for a chemical test is necessary when the person to be tested is incapable of consenting to or refusing chemical testing.
Under section 321J.6(1) a peace officer who has reasonable cause to believe that a person was operating a motor vehicle while intoxicated may invoke the implied consent procedure after arresting the person on that charge. To invoke the procedure the officer must request, in writing, that the person submit to chemical testing. The question here is whether such a written request is necessary when the person is incapable of consenting to or refusing the test. To answer this question we must construe and harmonize Iowa Code sections 321J.6(1), 321J.7, and 321J.8.
The three sections pertinently provide:
321J.6 Implied consent to test.
1. A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 is deemed to have given consent to the withdrawal of specimens of the person's blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2, and if any of the following conditions exist:
b. The person has been involved in a motor vehicle accident or collision resulting in personal injury or death.
321J.7 Dead or unconscious persons.
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 certifies in advance of the test that the person is dead, unconscious, or otherwise in a condition rendering that person incapable of consent or refusal.
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