State of Iowa v. Robert Lee Miller III

IN THE COURT OF APPEALS OF IOWA

No. 23-1409
Filed December 18, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBERT LEE MILLER III,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,

Judge.

A defendant appeals his convictions for vehicular homicide and serious

injury by vehicle by operating while intoxicated. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Heard by Tabor, C.J., Greer, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

TABOR, Chief Judge.

After a seven-day trial, a jury convicted Robert Miller III of vehicular

homicide by operating while intoxicated (OWI) and serious injury by vehicle by

OWI.1 On appeal, Miller claims that the district court erred in denying his motion

to suppress because police unconstitutionally searched his hospital rooms and

then included information from those searches—and omitted other material

evidence—in the warrant application for a sample of his blood. He also claims that

the State failed to lay proper foundation under Iowa Code section 321J.11(1)

(2022) for admission of his alcohol test result because it did not show that a nurse

used “new equipment” to draw his blood. Miller seeks a new trial on all his

convictions, “or at a minimum all convictions for offenses including elements of

intoxication or recklessness.” Finding the district court properly admitted evidence

of Miller’s blood alcohol content, we affirm.

I. Facts and Prior Proceedings

On a Tuesday afternoon in December 2022, Miller and his friend Keith

Jones spent hours at the Wicked Rabbit Sports Bar in Des Moines. Surveillance

cameras inside the bar captured Miller taking shots of liquor, drinking beer, and

playing pool. Miller and Jones left the bar shortly before 6:00 p.m. and exited the

parking lot at the same time. Miller was driving a black Genesis sedan; Jones was

driving a black SUV. After Miller and Jones left the bar, a string of witnesses saw

the Genesis and the black SUV travelling “at a very high rate of speed” and

1 The jury also convicted Miller of vehicular homicide by reckless driving, vehicular

homicide by drag racing, and serious injury by reckless driving.
3

“weaving in and out of traffic.”2 As they drove north on Fleur Drive towards Gray’s

Lake, Jones’s black SUV “went over in the right lane” while Miller’s Genesis

“stayed in the left lane.” Then Miller “cut off the black SUV” by changing lanes,

“lost control,” and “went over the median into the southbound lane.”

At the same time, M.D.C. was driving south on Fleur with her eight-year-old

son and four-year-old nephew, M.F., in the backseat of her Honda Accord. After

she passed the entrance to Gray’s Lake Park, she saw a “black vehicle crossing

over the median.” The crash happened “so fast” that she could not react. M.D.C.

recalled, “At that point, . . . I knew I had been hit, and I looked back because I

wanted to make sure the boys were okay. . . . And I remember looking at my leg

and I could see my bone underneath the skin.” Then she realized she was trapped

in the driver’s seat. Bystanders helped pull the two boys out of the car and stayed

with them until first responders arrived at the scene.

Ambulances transported M.D.C. and the two boys from the crash scene to

hospitals. M.D.C. suffered severe injuries in the crash, including a broken spine,

a shattered knee, internal bleeding, and ruptured intestines. But fortunately, she

survived. Her son also survived with bruising and a dislocated collar bone. Four-

year-old M.F., however, was not so lucky—he suffered multiple blunt force injuries

in the crash that resulted in his death at the hospital.

Miller’s Genesis struck M.D.C.’s car with such force that the Genesis split

in half. Data from the vehicle showed that Miller was driving between 108 and 114

2 Several surveillance cameras also captured the two vehicles along their route

after Miller and Jones left the bar.
4

miles per hour in the last five seconds before the crash. 3 One witness recalled, “I

saw what I can only describe as an explosion of car parts. It was like a Hollywood

movie. And a piece of a car was thrown up in the air.” After the crash, Miller was

“laying in the middle of the median.” According to a bystander, he “was lying there

gasping for air. . . . [H]e was a little bit out of it at first, and then when I started

talking to him, he started to come around.” His only visible injury was “bleeding on

his hands.”

An ambulance transported Miller from the crash scene to the hospital.

According to a firefighter who attended to him in the ambulance, “He was alert, but

he was disoriented, so he could answer some questions. He would be able to tell

me his name, his birth date, but then he’d be confused. He would say, ‘What’s

going on? What happened?’” After arriving at the hospital, Miller was initially seen

by medical personnel in the trauma bay. He was then transported on a gurney to

a room in the emergency department.

Des Moines Police Officer Brian Foster went to the hospital to investigate

whether Miller showed signs of impairment.4 Officer Foster stayed in the hallway

outside Miller’s room in the emergency department for about five minutes “waiting

for the nursing staff to finish their initial work.” Then, he entered the room to speak

with Miller. Once inside the room, Officer Foster introduced himself, told Miller he

wasn’t under arrest, and read Miranda warnings. Miller was wearing a C-collar

and lying on a backboard, so he “wasn’t able to move around.” The officer then

3 The speed limit was 40 miles per hour on the section of Fleur Drive where the

crash happened.
4 Officer Foster did not respond to the crash scene.
5

asked Miller if he wished to speak with him. Miller answered, “No, yes, I mean.”

Officer Foster replied, “okay, no problem at all,” and began questioning him about

the crash. Miller said he didn’t know what happened but admitted that he “had

some drinks” that day. Miller also said he was in pain and could “barely breathe,”

so he couldn’t give a preliminary breath test.5 Officer Foster asked Miller what time

he had drinks that day. Miller answered, “Twelve, maybe.” Miller also told Officer

Foster that he drives a Genesis.

After that interaction, Officer Foster left Miller’s room. 6 He then spoke over

the phone with another Des Moines police officer, Brian Kelley, who drafted a

search warrant application for samples of Miller’s blood, urine, and breath. While

drafting the application, Officer Kelley also spoke with Officer Slawomir

Blondowski, who responded to the crash scene and briefly spoke to Miller in the

ambulance before he arrived at the hospital. After a Polk County judge authorized

the warrant for a blood sample, Officer Kelley delivered it to Officer Foster at the

hospital. At that time, Miller had been moved to a room in the critical care unit.

Officer Foster followed Miller to that room.

Molly Froehle, a medicolegal death investigator and registered nurse from

the Polk County medical examiner’s office, arrived at the hospital shortly after

11:00 p.m. to obtain the blood sample from Miller. Officer Foster stayed in the

room during the blood draw. After Froehle completed the blood draw, Officer

5 Officer Foster testified that at that point, he knew medical personnel suspected

Miller had “some spinal fractures,” but he “didn’t know anything additional to that”
about Miller’s injuries.
6 Before he left the room, Officer Foster took off his body camera and set it to the

side of Miller’s bed. The camera was facing Miller and continued video recording
while Foster was outside the room.
6

Foster asked Miller more questions about the crash. In response, Miller told Officer

Foster that he didn’t “recall who he was with or what happened with the accident,”

but he remembered that “he had been drinking at a bar someplace on the south

side,” and “typically when he gets drunk like he did . . . he would call someone to

drive his car for him.”7 The toxicologist who tested Miller’s blood sample found an

alcohol concentration (BAC) of 0.066 at the time of the blood draw—more than five

hours after the crash.

The State charged Miller with five counts for causing the crash that killed

M.F. and severely injured M.D.C.—(1) vehicular homicide by operating while

intoxicated (OWI), a class “B” felony in violation of Iowa Code section 707.6A(1);

(2) vehicular homicide by reckless driving, a class “C” felony in violation of section

707.6A(2)(a) and (c); (3) vehicular homicide by drag racing, a class “D” felony in

violation of section 707.6A(3); (4) serious injury by vehicle by OWI, a class “D”

felony in violation of section 707.6A(4); and (5) serious injury by reckless driving,

a class “D” felony in violation of section 707.6A(4). Miller pleaded not guilty.

Miller moved to suppress the statements he made to Officer Foster at the

hospital and all evidence Officer Foster obtained by entering his hospital rooms,

including the search warrant for the blood draw and the blood alcohol test result.

Miller further sought to exclude his blood alcohol test result from evidence by

arguing that the State did not lay the required foundation under Iowa Code section

321J.11(1). Officers Foster, Kelley, and Blondowski, along with Froehle and the

7 Defense counsel conceded at the motion to suppress hearing that these
additional incriminating statements Miller made to Officer Foster in the critical care
unit room were not included in the search warrant application because “the search
warrant had already been prepared and obtained at that point.”
7

toxicologist who tested Miller’s blood sample, testified at the suppression hearing.

Officer Blondowski and Officer Foster’s body camera videos showing their

interactions with Miller on the night of the crash were also admitted into evidence

at the hearing.

After the hearing, the district court denied Miller’s motion to suppress his

statements to Officer Foster and the blood draw evidence, finding that Foster did

not violate Miller’s Miranda rights, that Miller did not have a reasonable expectation

of privacy in his room in the emergency department, and that the warrant

application established probable cause to seize Miller’s blood.8 The court also

ruled that it had “no choice but to exclude the use of the blood test results unless

the State can establish the . . . swab used [for the blood draw] was sanitary, sterile,

and new.”

A jury heard Miller’s case in May 2023. After an offer of proof, the court let

the State introduce Miller’s blood alcohol test result into evidence. The State also

offered—without defense objection—photos of Miller taken by a crime scene

investigator at the hospital and excerpts from Officer Foster’s body camera videos

showing his interactions with Miller in the emergency department and critical care

unit rooms—including Miller’s admissions to drinking.

The jury found Miller guilty of all charges. The district court entered

judgment and sentenced Miller to 25 years imprisonment for vehicular homicide by

8 The court granted Miller’s motion to suppress statements he made after invoking

his right to counsel, as well as the toxicologist’s retrograde extrapolation analysis
of Miller’s blood sample, which estimated that his BAC at the time of the crash was
between 0.118 and 0.197.
8

OWI and 5 years imprisonment for serious injury by vehicle by OWI, running

consecutively to one another.9 Miller appeals.

II. Scope and Standards of Review

“We review suppression rulings raising constitutional questions de novo.”

State v. Harbach, 3 N.W.3d 209, 217 (Iowa 2024). But in reviewing a challenge to

the sufficiency of a search warrant, “we do not make an independent determination

of probable cause.” Id. Instead, “we review the information actually presented to

the judge and determine whether the issuing judge had a substantial basis for

concluding that probable cause existed.” Id. (quoting State v. Baker, 925 N.W.2d

602, 613 (Iowa 2019)).

“When the admission of evidence depends on the interpretation of a statute,

we review for correction of errors of law.” State v. Palmer, 554 N.W.2d 859, 864

(Iowa 1996).

III. Analysis

Miller raises two issues on appeal. First, he claims that the district court

erred in denying his motion to suppress. That claim has two layers: Miller contends

(1) the State obtained evidence by unconstitutionally searching his hospital rooms

and (2) the search warrant application for his blood sample included prohibited

information from those searches and omitted other material information. Second,

he claims that the State failed to lay the required foundation under Iowa Code

section 321J.11(1) for admission of his blood alcohol test result into evidence

9 The court merged the convictions for vehicular homicide by reckless driving and

vehicular homicide by drag racing into the vehicular homicide by OWI conviction.
The court also merged the serious injury by reckless driving conviction into the
serious injury by vehicle by OWI conviction.
9

because it did not establish that “new equipment” was used to take the blood draw.

We will address each claim in turn.

A. Suppression Claims

1. Hospital Room Search

Miller first argues that Officer Foster, by entering his hospital rooms without

a warrant, performed a search in violation of the Fourth Amendment to the United

States Constitution and article I, section 8 of the Iowa Constitution. 10 He claims

that Officer Foster’s warrantless entries were unreasonable searches under both

the trespass test and the expectation-of-privacy test. And he asserts that “all

evidence stemming from those searches—including photographs, video,

observations, and Miller’s statements—should be suppressed.”11

The Fourth Amendment to the United States Constitution and article I,

section 8 of the Iowa Constitution “safeguard ‘[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures.’” State v. Abu Youm, 988 N.W.2d 713, 718 (Iowa 2023) (alteration in

original) (quoting U.S. Const. amend. IV). Warrantless searches are per se

unreasonable, unless one of the narrow exceptions to the warrant requirement

exists. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005).

The question before us is whether Officer Foster’s entries into Miller’s

hospital rooms were searches in the first place. We look for an answer through

two approaches. Under the trespass test, when the State “obtains information by

10 Miller doesn’t argue for a separate Iowa constitutional analysis
11 Because Miller only addresses the search warrant for the blood draw without

elaborating on his claim that other evidence should have also been suppressed,
we will focus our analysis on the blood draw evidence.
10

physically intruding on persons, houses, papers, or effects, a search within the

original meaning of the Fourth Amendment has undoubtedly occurred.” Florida v.

Jardines, 569 U.S. 1, 5 (2013) (cleaned up). Under the expectation-of-privacy test,

a search occurs when the State intrudes upon an area in which the defendant has

a subjective expectation of privacy which is objectively reasonable. See State v.

Brooks, 888 N.W.2d 406, 411 (Iowa 2016). This determination “is made on a case-

by-case basis, considering the unique facts of each particular situation.” Id.

(citation omitted).

A plurality of our supreme court adopted the trespass test in State v. Wright,

holding that “the expectation-of-privacy test is relevant only to the question of

whether a seizure or search was unreasonable within the meaning of article I,

section 8 and not whether a seizure or search has occurred.” 961 N.W.2d 396,

414 (Iowa 2021). But—as Miller acknowledges in his brief—because a majority of

the court did not join that portion of the plurality opinion, the expectation-of-privacy

test is still a viable approach to determining whether a search has occurred under

article I, section 8 of the Iowa Constitution. See id. at 420 (Appel, J., concurring

specially).

Because Miller’s arguments under the two approaches largely overlap, we

will apply the expectation-of-privacy test.12 Starting with the first prong of that test,

Miller contends that he had a subjective expectation of privacy in his hospital

rooms because he “was lying on a bed in a state of undress”; his “property was

12 The State also challenges error preservation as to Miller’s trespass argument

because he did not make that argument in his motion to suppress. Because we
choose to evaluate Miller’s challenge under the expectation-of-privacy test, we
need not reach this question of preservation.
11

there”; he “remained in the hospital for two nights, presumably eating and sleeping

in his room”; and he “was advised by medical staff he had authority to exclude

others.” He also challenges the district court’s conclusion that, by speaking with

Officer Foster and not objecting to the officer’s entry, Miller did not establish he

had a subjective expectation of privacy.

As the State points out, only Officer Foster’s observations and Miller’s

statements he made in his room in the emergency department were included in

the search warrant application.13 So we consider only Miller’s reasonable

expectation of privacy in that room—not in the room he was moved to in the critical

care unit. Miller was not an overnight guest in the room in the emergency

department, and he did not know how long he would be staying in the hospital

when Officer Foster entered that room. What’s more, he did not ask anyone to

leave that room, nor did he decline to speak with Officer Foster after being advised

of his Miranda rights. He also did not ask anyone to close the door, which was

open when Officer Foster entered and remained open while they spoke. As the

State further points out, Miller’s property was in the room because hospital staff

brought it there. And he was “in a state of undress” because a firefighter had cut

off his clothes in the ambulance to check for injuries—not because he believed the

room was private enough to disrobe. Under these circumstances, we find that

13 Miller’s counsel conceded this point at oral argument.
12

Miller failed to establish he had a subjective expectation of privacy in his room in

the hospital’s emergency department.

As for the second prong, Miller contends that his expectation of privacy was

objectively reasonable because his room in the emergency department had walls

and a door, and he had some authority to exclude people from the room. On this

point, he claims that this case is distinguishable from State v. Lomax, 852 N.W.2d

502 (Iowa Ct. App. 2014), which addressed whether a patient can have an

objectively reasonable expectation of privacy in an emergency room. In Lomax,

we held that “while a patient has an expectation of privacy in their belongings

brought into the emergency room, no such expectation of privacy exists in the

trauma center locale, which is under the exclusive control of the hospital staff.”

852 N.W.2d at 506. Thus, we concluded that Lomax’s Fourth Amendment rights

were not violated when a police officer entered the hospital’s trauma center, “which

he described as ‘a big, open bay’ divided by curtains,” and “detected an odor of

alcohol arising from the area in which Lomax was laying.” Id. at 505–07.

True, the emergency department room in which Miller was treated had four

walls and a door. But the State argues that layout does not distinguish this case

from Lomax, because “the wall and door that separated [Miller’s] hospital room

from the open bay were made of transparent glass,” and the curtain on the glass

wall “was never drawn over the doorway (nor was the door closed) at any point

when Officer Foster entered that room.” And according to the State, “[n]o patient

in an emergency ward can reasonably expect to have any right to exclude hospital
13

employees or others who play a role in emergency response—including police

officers.”

While we agree with Miller that the layout of his room in the emergency

department differed from the “big, open” trauma center bay in Lomax, we do not

find that distinction dispositive. Like the officer in Lomax, Officer Foster went to

the hospital to determine whether probable cause existed to obtain a blood sample;

he entered the area of the emergency department where Miller was being treated

without objection from hospital staff; and he observed signs of Miller’s intoxication

after he entered that area. See id. at 504–05. Under these circumstances, we

reach the same conclusion as we did in Lomax. Miller had no objectively

reasonable expectation of privacy in his room in the hospital’s emergency

department. Thus, Officer Foster did not violate Miller’s constitutional rights when

he entered that room, observed signs that Miller was intoxicated, and elicited

incriminating statements from him.14

2. Omission from Search Warrant Application

Next, Miller argues that the police intentionally or recklessly omitted material

information from the search warrant application for his blood sample. “Affidavits

included in search warrant applications are presumed to be true.” Harbach, 3

N.W.3d at 218. “To overcome that presumption, a defendant challenging the

veracity of a warrant application must make a ‘substantial preliminary showing that

a false statement knowingly and intentionally, or with reckless disregard for the

truth, was included by the affiant in the warrant affidavit.’” Id. (quoting Franks v.

14 Miller does not appeal the district court’s ruling that Officer Foster did not violate

his Miranda rights at the hospital.
14

Delaware, 438 U.S. 154, 155–56 (1978)). “A defendant may also challenge the

warrant application as intentionally omitting material facts that, if included, would

cast doubt on the existence of probable cause.” Id.

When Officer Kelley was drafting the search warrant application for Miller’s

blood sample, Officer Foster told him that Miller admitted drinking earlier that day

and that he had “bloodshot” and “watery eyes,” but he did not have slurred speech

and did not smell of alcohol. Officer Kelley also spoke with Officer Blondowski,

who responded to the crash scene and briefly spoke to Miller in the ambulance

before he arrived at the hospital. Blondowski gave Kelley a description of the crash

based on information bystanders communicated to law enforcement. 15

Blondowski also told Kelley that Miller “was found outside the vehicle.”

The search warrant application specified that Miller had “bloodshot eyes,”

“watery eyes,” and “judgment impaired,”16 and that these observations began at

“approximately 1930.” The application also shared that Miller was “unable to do”

standardized field sobriety tests and admitted to “drinking at noon.” The narrative

of the application stated:

The following observations and conclusions for a traffic violation
were made by these officers at the scene:
The suspect was travelling at a high rate of speed drag racing with
an [unidentified] vehicle. He was operating a black 2022 Genesis G
70 Base bearing Iowa plate ITL969 (VIN number
KMTG34TA6NU085803). The suspect vehicle lost control, crossed
the center median, and struck another vehicle.

Officers know Suspect was operating the motor vehicle because:

15
None of the responding officers personally witnessed the crash.
16 At the suppression hearing, Officer Kelley testified that he included the
“judgment impaired” factor in the application based on “the fact that [Miller] was
drag racing with another vehicle at a high rate of speed in thick traffic and [lost]
control of his vehicle.”
15

The suspect was located outside of his vehicle. He admitted to being
the sole occupant but didn’t recall driving. The vehicle was
registered to the suspect and an Iowa State Patrol traffic citation
issued to the suspect in September of 2022, with his information and
the 2022 Genesis G 70 Bases’ information on it, was located within
the 2022 Genesis G 70 Base. The suspect admitted to drinking
alcoholic beverages around noon but did not recall anything else
after that.

A Polk County judge reviewed the application and authorized the search warrant.

Miller claims that Officers Blondowski, Foster, and Kelley intentionally or

recklessly omitted material information from the application—namely, “that the

crash was severe enough to split Miller’s car in half, that Miller was ejected and

badly injured, that he was in pain when he was observed by Foster, that he was

having trouble breathing and speaking, that he could not stand, [and] that he was

under sedation.” He contends that “[h]is physical condition and the fact he was

under medication both account for his alleged bloodshot, watery eyes, and gave

necessary context to why he ‘could not perform’ field sobriety tests as indicated

but unexplained in the application.” Thus, according to Miller, “the application

misled the judge” and “produce[d] the same practical effect as an affirmative

misstatement that Miller was physically fine, but suspected of intoxication.”

Miller also argues that the corrected search warrant application would not

establish probable cause to search his blood.

If the court finds that any misstatements or material omissions were
made either intentionally or with reckless disregard for the truth, the
false statements are excised, the omitted statements are added, and
the affidavit’s remaining content is examined to determine whether it
establishes probable cause to support issuing the search warrant.

Harbach, 3 N.W.3d at 218. Miller claims that “[r]emoving the information obtained

from the unconstitutional searches—that [he] had bloodshot, watery eyes and
16

admitted to drinking several hours before the crash—leaves only that [he] was

driving at a high rate of speed and crashed.” He also alleges that “[e]ven if the

information obtained during the searches remains, adding the omitted information

renders unreasonable any inference there was probable cause to believe a sample

of Miller’s blood would reveal evidence he had operated a motor vehicle while

intoxicated.”

Having already found that Officer Foster’s observations and Miller’s

admission to drinking while he was in the emergency department room were not

fruits of an unconstitutional search, we decline Miller’s invitation to excise that

information from the warrant application. And while including information about

the severity of the crash and Miller’s injuries would have given the reviewing judge

potential alternative explanations for Officer Foster’s observations, “[a]n officer is

not required to include all facts in the warrant application, even those exculpatory

to the defendant.” Id. at 222. “The judge only needs to receive the information

necessary to determine whether probable cause exists under the totality of the

circumstances.” Id. at 223. Probable cause exists when “a person of reasonable

prudence would believe . . . evidence of a crime could be located” in the place to

be searched. State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987).

Nor does the record support Miller’s claim that the officers “intentionally or

recklessly omitted information about [Miller]’s physical condition in an attempt to

mislead the judge.” Harbach, 3 N.W.3d at 223. Officer Foster’s “observation of

bloodshot and watery eyes does not become misleading simply because there

may be an alternate explanation that was not explicitly included in the warrant

application.” Id. None of the officers personally witnessed the crash. And Officer
17

Kelley testified that he was unaware Miller’s vehicle split in half or that Miller was

ejected from the vehicle.

In sum, Miller has not shown that the officers intentionally or recklessly

omitted material information from the search warrant application. And even with

more information included, the totality of the circumstances in the application would

have provided the issuing judge with a substantial basis for concluding that

probable cause existed to issue the warrant for Miller’s blood. See Baker, 925

N.W.2d at 614 (“We draw all reasonable inferences to support the judge’s finding

of probable cause and decide close cases in favor of upholding the validity of the

warrant.”). The district court correctly denied Miller’s motion to suppress his blood

alcohol test result based on his challenge to the search warrant application.

B. Foundation for Blood Evidence

Second, Miller argues that the State failed to lay proper foundation for

admission of his blood alcohol test result into evidence. He points to this final

sentence in Iowa Code section 321J.11(1): “Only new equipment kept under

strictly sanitary and sterile conditions shall be used for drawing blood.” (emphasis

added).17 That sentence, according to Miller, sets the foundational requirements

for admission of the test results. And the State bears the burden to show

17 The predecessor version of the statute mandated: “Only new, originally factory

wrapped, disposable syringes and needles, kept under strictly sanitary and sterile
conditions shall be used for drawing blood.” Iowa Code § 321B.4 (1981)
(emphasis added); State v. Charlson, 154 N.W.2d 829, 832 (Iowa 1967). Section
321J.11(1) replaced the italicized portion of that statute with the term “new
equipment.” Miller argues that change signaled the legislative intent for section
321J.11(1) to apply to all equipment used in a blood draw. We agree. Cf. State v.
Binkley, 201 N.W.2d 917, 919–920 (Iowa 1972) (finding under the former language
of section 321B.4 that “the legislature implied by omission the vial need not be
sterile”).
18

compliance with those requirements. See State v. DeBerg, 288 N.W.2d 348, 350

(Iowa 1980). In Miller’s view, the State did not meet its burden to prove that “new

equipment” was used to draw his blood because it could not show the expiration

dates for the disinfecting swab, needle, syringe, and transfer device taken from a

supply drawer in Miller’s hospital room in the critical care unit.18 Miller maintains

that “literal compliance” is required for blood test evidence to be admissible. Id.

(quoting State v. Boner, 186 N.W.2d 161, 163 (Iowa 1971)). And failure to comply

is grounds for reversing his conviction. Id. (citing State v. Wallin, 195 N.W.2d 95,

98 (Iowa 1972); State v. Shelton, 176 N.W.2d 159, 161 (Iowa 1970)).

The State disputes that proof-of-expiration-date is a foundational

requirement under section 321J.11(1). In its interpretation, “new” means “unused”

without showing that any expiration date on the equipment had not passed.

Beyond the definition of new, the State challenges Miller’s reliance on the literal-

compliance standard from DeBerg, Boner, Wallin, and Shelton. To define “new,”

the State argues, “[t]he better rubric is substantial compliance, as explained and

adopted in State v. Charlson.” See 154 N.W.2d at 835.19

18 The state-issued blood collection kit that Officer Foster provided nurse Froehle

carried an expiration date that had not expired. But Froehle only used the blood
storage vials (vacutainer tubes) from that kit. She testified that the Polk County
medical examiner’s office “never used the collection devices within the kit because
they are not very safe” for the person performing the blood draw.
19 Later cases distinguish Charlson because that driver requested a blood test, so

the implied-consent statute did not govern. See Wallin, 195 N.W.2d at 97. In a
similar vein, we question whether the foundational requirements in the implied-
consent chapter apply to Miller’s blood draw obtained through a search warrant
issued under Iowa Code chapter 808, not chapter 321J. But because this
distinction was not argued, we assume section 321J.11(1) applies.
19

Before settling the parties’ debate, we turn to the facts of the blood draw.

Just after 10:00 p.m. on the night of the crash, Des Moines police obtained a

search warrant for Miller’s blood under Iowa Code chapter 808. Nurse Froehle

testified at the suppression hearing that she ensured that the warrant was signed

by a judge before she gathered the equipment to perform the blood draw. Under

questioning by defense counsel, Froehle testified that she could not “ascertain”

whether the swab she used “was new or expired.” Following the suppression

hearing, the district court ruled that it had “no choice but to exclude the use of the

blood test results unless the State can establish the . . . swab used [for the blood

draw] was sanitary, sterile, and new.”

During the State’s offer of proof at trial, Froehle testified that she did not

know the brand names, lot numbers, or expiration dates of the disinfecting swab,

needle, or syringe she used for Miller’s blood draw, nor did she keep their

packaging. But she recalled that all the items were in their original, sealed

packages before she used them. And as for the swab she used, she testified, “I

cannot state whether it was expired. It was new because it was packaged. So

when I opened it, therefore it is new.”

Following that offer of proof, the court ruled that the State met the

foundational requirements of section 321J.11(1), reasoning:

As I understand, there is a blood kit that Officer Foster
had. . . . My understanding is the blood kits have an expiration
date. . . . [I]n this case, the expiration date . . . indicated that the
blood kit that Officer Foster had had not expired . . . .
....
So the issue boils down to whether the instruments that were
used—and the key instruments are the needle, the syringe, the
transfer device, and in this case, the swab. Based upon the
20

testimony that I’ve heard today, I believe the State has established
that they were all new. The packaging, as I understand from Ms.
Froehle, . . . is for the purpose of sanitary and sterile conditions.
....
And so, I’m finding that the necessary foundation has been laid to
establish that these items, the needle, syringe, and transfer device,
and swab were new and kept under sanitary and sterile conditions.

During her testimony before the jury, Froehle produced—as demonstrative

exhibits—a transfer device, needle, and syringe like the ones that she used during

Miller’s blood draw. She obtained these items from the emergency department of

the hospital where Miller was treated in December 2022. The packaging for the

needle had a date of September 20, 2022, printed on it next to an hourglass

symbol. Froehle testified that “could be” an expiration date, but it might have been

the manufacturing date. But the two other items she produced bore dates that had

not yet occurred, next to the same hourglass symbol.

Highlighting that testimony, Miller contends that “[t]he State failed to

establish compliance with section 321J.11(1), because it did not establish

equipment used to draw Miller’s blood was new.” That challenge, as the State

notes in its routing statement, raises an issue of first impression regarding the

meaning of “new equipment.” Neither the code nor our case law defines “new

equipment” as used in the statute. Without an official definition, “we construe the

statute according to the term’s ordinary meaning.” State v. Boone, 989 N.W.2d

645, 650 (Iowa 2023).

Citing the Merriam-Webster dictionary, Miller asserts that the ordinary

meaning of “new” is “having recently come into existence.” And, according to

Miller, “expired” is an antonym to “new.” Thus, Miller urges that “to establish it
21

used ‘new equipment’ for a blood draw as required by section 321J.11(1), the State

must at minimum establish that equipment was not expired.” Based on Froehle’s

testimony about the equipment’s unknown expiration dates and the State’s “failure

to produce the equipment used or otherwise memorialize its compliance with

section 321J.11(1),” Miller argues that his blood alcohol test result was

inadmissible.

The State counters that “Miller’s argument creates a new requirement for

foundation that does not appear anywhere in the text of section 321J.11(1), nor in

any of the cases that apply any version of section 321J.11(1) or its predecessors.”

And, according to the State, “the evolution of the statute makes it clear that no

such requirement exists.” The State urges that Froehle’s testimony that she

removed all the blood-draw items from the factory packaging showed the

equipment was “new” under section 321J.11(1). The State insists that the antonym

of “new” is “used” under the statute. To illustrate that point, the State compares

the blood-draw equipment to a new car that has been on a dealer’s lot for years.

In the State’s analogy, that car will “remain ‘new’ up until the moment that it is sold

for consumer use.”20 The State also points out that none of the cases Miller cites

discussing the statute’s foundational requirements mention a “proof-of-expiration-

date requirement.” See Binkley, 201 N.W.2d 917; Shelton, 176 N.W.2d 159;

DeBerg, 288 N.W.2d 348. In the State’s estimation, “[t]he best way to resolve this

20 Miller responds that “analogizing to a product which includes an expiration date

(milk, for example), shows the fatal flaw in the State’s position. No reasonable
person would believe milk is ‘new,’ even if it is still on the store shelf and unopened,
after its expiration date has passed.”
22

case is to reject Miller’s proposed definition of the term ‘new equipment’ in section

321J.11 and hold that equipment is new if it has never been used.”

As for the evolution of the statute, the State contends that when the

legislature deleted the requirement that any equipment used for a blood draw must

be “originally factory wrapped” in adopting section 321J.11(1), it “envisioned

situations where equipment could be ‘new’ even if not in the original packaging.”

In those situations, according to the State, “it would likely be impossible to prove a

specific expiration date for any such equipment (because that date is typically

printed on the packaging).” We find this contention persuasive. The revised

language in section 321J.11(1)—adopted in 1986—does not require the State to

show that the equipment was in the original factory packaging. So that language

cannot be read to require the State to show that any expiration dates on that

packaging had not expired before it could satisfy the foundational requirements for

admission of the test result.

In interpreting these foundational requirements, we appreciate that

“withdrawal of blood from the body of a person accused of a crime for use as

evidence in proving the crime is a serious matter.” See Shelton, 176 N.W.2d at

160. And section 321J.11(1)—like its forerunner at section 321B.4—serves “to

assure, so far as reasonably possible, accuracy and reliability of the test and

minimize danger of infection to the person undergoing it.” Charlson, 154 N.W.2d

at 835. But to be clear, Miller is not contending that nurse Froehle re-used old

equipment. Or that the equipment was not “kept under strictly sanitary and sterile

conditions.” Indeed, she testified that the swab, syringe, needle, and transfer

device were in unopened packages before she used them. Nor is Miller alleging
23

that she used expired equipment to draw his blood. Rather, he is contending that

the State did not offer proof of any expiration dates that may have been on

packaging of the equipment taken from the hospital’s supply.

The trouble with Miller’s contention is that section 321J.11(1) does not

mention expiration dates. And superimposing that requirement goes beyond the

language used by the legislature. See State v. Davis, 922 N.W.2d 326, 330 (Iowa

2019) (“[O]ur primary goal is to give effect to the legislature’s intent as expressed

in the statute’s words.”). In short, Miller is asking too much of the word “new.” We

may not enlarge a statutory term beyond what the legislature adopted. State v.

Childs, 898 N.W.2d 177, 184 (Iowa 2017). When a proposed interpretation

requires us to “read something into the law that is not apparent from the words

chosen by the legislature,” we must reject it. Id. (citation omitted).

It is not apparent from the legislature’s use of the word “new” that it expected

the State to prove that any expiration dates on the original packaging for the

equipment fell after the blood draw. Our case law does not intend that the

foundational requirements for admission of the test results be difficult to establish.

See Shelton, 176 N.W.2d at 161. To that end, the testimony from nurse Froehle

showed that the equipment she used satisfied the “basic protections” noted in

Charlson. Id. The district court’s acceptance of that testimony as proper

foundation did not “dilute the statutory protection afforded [Miller].” Id. Because

the State offered proper foundation for admission of the test results, that evidence

could be considered by the jury.
24

To recap, neither the suppression claim nor the foundational challenge

provide Miller relief. Thus, we affirm his convictions for homicide by vehicle and

serious injury by vehicle under the OWI alternatives.

AFFIRMED.