Iowa Supreme Court Clarifies Implied Consent Law, IA Code 321J.6

Iowa case law summary by Attorney Richard Clem: OWI DWI Implied consent.

State of Iowa v. Carrie McIver. Iowa OWI DWI Implied consent

In October 2012, a sergeant of the Polk County Sheriff's Department saw a pickup truck stopped in a parking lot front of a closed business in Des Moines. The truck exited the lot by driving over a grassy area, down the sidewalk, and then over the curb into the street. After following the truck, the sergeant made a traffic stop after observing the truck weaving. When the truck pulled over, the right side went over the curb.

The driver, Carrie McIver, failed some of the field sobriety tests and was taken to the Polk County Jail. At the jail, she was read the implied consent law and was asked to submit to a breath test. She refused, and said she wanted a blood test instead. She told the deputy that she wanted the blood test because she was taking a prescription central nervous system depressant, and this prescription was found in her purse. The deputy informed her that she had to first take a breath test.

She was charged with operating while intoxicated, and moved to suppress the evidence. She argued that the stop was improper, and that the deputy should have administered a blood test. The district court denied the motion and found her guilty. She appealed, and the case was heard by the Iowa Supreme Court.

The high court first held that there was reasonable suspicion for the stop. It was shortly after bar closing time, and the officer testified that it was not uncommon for cars to pull over for intoxicated drivers to urinate outside the car. Here, the vehicle had been stopped outside a closed business. In addition, the operation of the vehicle after leaving the lot was suspicious. Finally, weaving within the lane gave enough suspicion to make the stop.

The Court then turned to the Implied Consent law, Iowa Code 321J.6. McIver argued that the officer must request a blood or urine test if there is a suspicion that the operator is under the influence of substances other than alcohol. The statute states that "“a blood or urine test shall be required” when the officer suspects drugs other than alcohol are involved. The court agreed that there was some ambiguity, but finally concluded that the statute requires that the test "shall be required" of the driver, rather than meaning that the officer is required to offer such a test. Therefore, the court affirmed the defendant's conviction.

Justices Wiggins, Hecht, and Zager dissented in part. They agreed with the defendant that the statute required the officer to offer the test.

No. 13-1106 (Iowa Jan. 9, 2015).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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