The Iowa Supreme Court reversed the conviction of a Des Moines man who pleaded guilty to operating while intoxicated and sent the case back to Polk County Court last week.
Brian McGee, 20, was charged with operating while intoxicated after allegedly causing a 2018 crash in which he and five others were injured. He pleaded guilty on July 22, 2019, and was sentenced to a year in jail, with all but seven days suspended. McGee was also ordered to pay a $1,250 fine and $10,000 in restitution to the victims before he appealed.
Around 2 p.m. Dec 8, 2018, investigators said McGee was traveling at a high rate of speed and failed to yield before making a left turn, which caused a two-vehicle crash in the 1500 block of Euclid Avenue. Five occupants of the other vehicle were treated at a local hospital for injuries that were not life-threatening.
One of the injured children needed 13 stitches, missed two weeks of school and was still scared of traveling in a car months later, Justice Edward Mansfield wrote in last week’s 5-2 decision.
McGee was found unconscious in his vehicle and had to be extricated from the driver’s seat before being transported to a local hospital. Medics at the scene noted a strong smell of marijuana, according to the ruling.
At the hospital McGee was sedated and remained unconscious and could not consent to having his blood drawn.
An on-call Des Moines police officer did not attempt to get a warrant for the blood draw. The officer could have gotten a warrant, but said that at the time Des Moines Police Department policy only allowed officers to obtain warrants for blood testing non-responsive drivers for their OWI offense or if there were serious injuries or deaths in a crash, according to the decision. Your stories live here.Fuel your hometown passion and plug into the stories that define it
McGee briefly woke up around 4 p.m. a few moments after the officer requested that a nurse draw his blood. But McGee was incoherent at the time and did not respond to questions, the decision said.
He fell unconscious again and had his blood drawn without his consent at 4:10 p.m. Results showed traces of THC, the psychoactive component in marijuana, and non-impairing metabolites.
The Iowa Supreme Court agreed with the district court that the law was followed here.
“Certifications do not expire in eleven minutes, at least without clearer evidence that the driver has become capable of refusing or consenting in the meantime,” the decision said.
But the Iowa Supreme Court wanted the district court to consider a 2019 U.S. Supreme Court ruling that whenever probable cause exists to believe a driver committed drunk driving, a warrantless blood draw is almost always acceptable.
In that case, Gerald Mitchell was arrested in Wisconsin in May 2013 for operating while intoxicated. At a hospital, Mitchell was unconscious and did not consent to a blood draw, which showed he had a blood alcohol concentration of .222.
“If McGee had smelled of an alcoholic beverage rather than marijuana, there would be no doubt that Mitchell applies to this case,” Mansfield said.
McGee’s erratic driving and the strong odor of burnt marijuana gave police probable cause to conclude he violated Iowa’s controlled substance laws, the decision said. But there was not enough probable cause to conclude he was driving drunk, Mansfield said.