State of Iowa v. Carrie McIver

               IN THE SUPREME COURT OF IOWA
                               No. 13–1106

                          Filed January 9, 2015


STATE OF IOWA,

      Appellee,

vs.

CARRIE McIVER,

      Appellant.



      Appeal from the Iowa District Court for Polk County, James D.

Birkenholz, Judge.



      Appellant challenges the rulings by the district court to deny her

motions to suppress. AFFIRMED.



      Brandon J. Brown of Parrish Kruidenier Dunn Boles Gribble &

Gentry, L.L.P., Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Joseph Williams, Student Legal Intern, John P.

Sarcone, County Attorney, and Maurice W.B. Curry, Assistant County

Attorney, for appellee.
                                      2

CADY, Chief Justice.

      In this appeal from a judgment and sentence entered by the

district court against a motorist for operating while intoxicated, first

offense, we must first decide if the peace officer made a valid stop under

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

section 8 of the Iowa Constitution. If the stop was valid, we must then

decide if a peace officer is required to offer a blood or urine test instead of

a breath test to a motorist reasonably suspected of driving under the

influence of a controlled substance or a drug other than alcohol. We find

the stop was valid. We also conclude our legislature did not intend for

the implied consent law to mandate a blood or urine test under such

circumstances, but only intended to impose the implied consent penalty

of license revocation for motorists suspected of driving under the

influence of drugs other than alcohol who refuse to submit to a blood or

urine test when requested by a peace officer. We conclude the district

court properly overruled the pretrial motions to suppress the evidence,

and we affirm the judgment and sentence of the district court.

      I. Background Facts and Proceedings.

      In the early morning hours of October 14, 2012, an experienced

Polk County Sheriff’s sergeant observed a pickup truck stopped in a

parking lot of an eastside Des Moines business located on Northeast

14th Street. The parking lot was located in front of the building and was

separated from the road by an area of grass and a sidewalk that ran

parallel to the street.   The entrance and exit to the parking lot was

located on an adjacent side street. The headlights of the pickup truck

were illuminated, and the business was closed.

      As the sergeant positioned his squad car to investigate, the pickup

truck was driven from the parking lot onto Northeast 14th Street by
                                     3

traveling over the grassy area, down the sidewalk for a brief period of

time, and then over the curb of the street.      The sergeant followed the

pickup truck in his squad car and initiated a traffic stop after further

observing the pickup truck weaving within its lane of travel. As it pulled

over, the right side of the pickup went over the curb of the street.

      During the stop, the sergeant discovered the pickup was driven by

Carrie McIver. Her speech was slurred, and she was slow to respond to

the sergeant’s request for information. There were three passengers in

the pickup, including McIver’s husband.

      The sergeant had McIver perform a variety of field sobriety tests.

She failed most of the tests, but the sergeant did not detect any odor of

an alcoholic beverage on her breath. He also attempted to administer

several preliminary breath tests, but was unable to obtain a reading.

The sergeant felt McIver was attempting to manipulate the test.          She

eventually refused further preliminary testing.      The sergeant arrested

McIver for improper use of lanes in violation of Iowa Code section

321.306 (2013). 1    She was transported to the Polk County Jail for

processing by a Polk County deputy.

      At the jail, the transporting deputy invoked the implied consent
law and requested McIver submit to a breath test.         She refused and

requested a blood test be performed instead. McIver informed the deputy

she wanted a blood test because she was taking prescription medication,

including a central nervous system depressant. She denied that she had

been drinking alcoholic beverages, although the deputy detected a slight

odor of alcohol emanating from McIver. The deputy informed McIver that


       1All references to the Iowa Code are to the 2013 Code unless otherwise

indicated.
                                      4

she could obtain a blood test after submitting to a breath test.         She

continued to refuse a breath test and insisted on a blood test.          The

deputy continued to insist on a breath test.      As a result, no test was

administered. Three prescription bottles were found in McIver’s purse,

including the prescription for a central nervous system depressant.

      McIver was subsequently charged with operating while intoxicated,

first offense. She moved to suppress the evidence against her, claiming

the stop was made without probable cause or reasonable suspicion in

violation of the United States and Iowa Constitutions. She also claimed

the implied consent statute was violated when the deputy failed to

administer a blood test after acquiring reasonable grounds to believe she

was impaired by a prescription drug.

      The district court denied the motions to suppress.        McIver then

waived her right to a trial by jury and stipulated to a trial on the minutes

of testimony. The district court found McIver guilty of operating while

intoxicated, first offense, and sentence was imposed.

      McIver appealed.     She claims on appeal that the district court

erred in failing to suppress the evidence against her because there was

no reasonable suspicion for the stop and the implied consent law was

violated when the officer failed to request a blood or urine test.

      II. Standard of Review.

      We review constitutional issues de novo.        State v. Baldon, 

829 N.W.2d 785, 789

 (Iowa 2013).              Our review of issues involving

interpretation of a statute is for correction of errors at law.      State v.

Lukins, 

846 N.W.2d 902, 906

 (Iowa 2014).

      III. Validity of Stop.

      McIver asserts the stop of the vehicle she was driving violated her

right to be free from unreasonable search and seizure under the Fourth
                                     5

Amendment to the United States Constitution and article I, section 8 of

the Iowa Constitution.       We follow an independent approach in the

application of our state constitution. State v. Pals, 

805 N.W.2d 767, 771

(Iowa 2011).   However, when a party does not argue an independent

approach, “we ordinarily apply the substantive federal standards but

reserve the right to apply the standard in a fashion different from federal

precedent.” State v. Tyler, 

830 N.W.2d 288

, 291–92 (Iowa 2013). McIver

does not articulate any distinction in the scope and effect of the two

constitutional provisions.     Therefore, we consider the constitutional

provisions separately, but proceed to apply them in the same manner for

the purpose of resolving the claim in this case.

      A traffic stop is permissible under our Iowa and Federal

Constitutions when supported by probable cause or reasonable suspicion

of a crime. Delaware v. Prouse, 

440 U.S. 648

, 654–55, 

99 S. Ct. 1391

,

1396–97, 

59 L. Ed. 2d 660

, 667–68 (1979); Pals, 

805 N.W.2d at 774

;

State v. Tague, 

676 N.W.2d 197, 201, 204

 (Iowa 2004). Probable cause of

a crime supports an arrest, while reasonable suspicion of a crime allows

a peace officer to stop and briefly detain a person to conduct a further

investigation. See Tague, 

676 N.W.2d at 201, 204

. When a peace officer

observes any type of traffic offense, the violation establishes both

probable cause to stop the vehicle and reasonable suspicion to

investigate. State v. Harrison, 

846 N.W.2d 362, 365

 (Iowa 2014).

      McIver argues that the manner in which she drove her vehicle did

not support probable cause to believe she violated a rule of the road. The

State suggests a variety of statutes governing the operation of motor

vehicles in this state were violated by her operation of the pickup truck.

We find it unnecessary to decide whether the officer actually observed a

violation of a rule of the road.    Instead, we conclude the officer had
                                     6

reasonable suspicion of intoxicated driving to stop the vehicle and

investigate.

      Reasonable suspicion to stop a vehicle for investigative purposes

exists when articulable facts and all the circumstances confronting the

officer at the time give rise to a reasonable belief that criminal activity

may be afoot. Tague, 

676 N.W.2d at 204

; see also State v. Kooima, 

833 N.W.2d 202, 206

 (Iowa 2013), cert. denied, 

134 S. Ct. 1934

 (2014).

Thus, we do not evaluate reasonable suspicion based on each

circumstance individually, but determine the existence of reasonable

suspicion by considering all the circumstances together.        See United

States v. Arvizu, 

534 U.S. 266, 273

, 

122 S. Ct. 744, 750

, 

151 L. Ed. 2d 740

, 749–50 (2002); State v. Kreps, 

650 N.W.2d 636, 642

 (Iowa 2002).

      In this case, the stop occurred shortly after the bars in the city had

closed for the night. The experienced arresting officer testified it was not

uncommon for vehicles during this time period to pull off the road and

stop to allow intoxicated occupants to urinate outside the vehicle. Here,

the vehicle was stopped in the parking lot of a business that was closed.

While these circumstances alone would be insufficient to support

reasonable suspicion, they were relevant considerations.       See State v.

Haviland, 

532 N.W.2d 767

, 768–69 (Iowa 1995) (per curiam) (holding a

vehicle stopped near a closed business only creates an inchoate

suspicion). The manner in which the vehicle was operated when it left

the parking lot was an additional circumstance to consider. Instead of

leaving the parking lot through the exit to the street, the vehicle was

driven by McIver over the grassy area surrounding the parking lot, down

the sidewalk, and over the curb. This aberrant driving raised suspicion

of impairment. See Shellady v. Sellers, 

208 N.W.2d 12, 14

 (Iowa 1973)

(finding erratic driving supports an investigative stop).   Finally, McIver
                                      7

weaved within her lane of travel while she was followed by the officer.

This circumstance alone does not necessarily support a reasonable

suspicion to stop a vehicle, but adds to the totality of the circumstances.

See Tague, 676 N.W.2d at 204–05; see also State v. Otto, 

566 N.W.2d 509, 511

 (Iowa 1997).

      Considering all the circumstances together, the police officer had a

reasonable suspicion that McIver might be operating a motor vehicle

while intoxicated. Therefore, the investigatory stop of the vehicle did not

violate the Fourth Amendment to the United States Constitution and did

not violate article I, section 8 of the Iowa Constitution.

      IV. Interpretation of the Implied Consent Law.

      We apply statutes to resolve legal disputes by first considering the

plain meaning of the statute under consideration. State v. Albrecht, 

657 N.W.2d 474, 479

 (Iowa 2003). Under this approach, we only engage in

statutory interpretation if the terms or meaning of the statute are

ambiguous.     

Id.

   The statute is ambiguous if reasonable minds can

disagree on the meaning of particular words or the statute as a whole.

State v. Hutton, 

796 N.W.2d 898, 904

 (Iowa 2011).

      The statute at issue in this case is Iowa Code section 321J.6,

commonly referred to as the “implied consent law.” Every person who

operates a motor vehicle in Iowa under circumstances that give

reasonable grounds to believe such operation was in violation of the

operating while intoxicated law is deemed to have consented to chemical

testing to determine the presence of intoxicating substances such as

alcohol or other controlled substances. Iowa Code § 321J.6(1); see also

State v. Rains, 

574 N.W.2d 904, 912

 (Iowa 1998) (stating the implied

consent statute is premised on “ ‘the basic principle that a driver

impliedly agrees to submit to [chemical testing] in return for the privilege
                                     8

of using the public highways’ ” (quoting State v. Hitchens, 

294 N.W.2d 686, 687

 (Iowa 1980))). A person who refuses to submit to the requested

test loses the privilege to drive. Iowa Code § 321J.9.

      The implied consent law establishes the process and procedure to

obtain a chemical test. Iowa Code section 321J.6(2) provides:

      The peace officer shall determine which of the three
      substances, breath, blood, or urine, shall be tested. Refusal
      to submit to a chemical test of urine or breath is deemed a
      refusal to submit, and section 321J.9 applies. A refusal to
      submit to a chemical test of blood is not deemed a refusal to
      submit, but in that case, the peace officer shall then
      determine which one of the other two substances shall be
      tested and shall offer the test. If the peace officer fails to
      offer a test within two hours after the preliminary screening
      test is administered or refused or the arrest is made,
      whichever occurs first, a test is not required, and there shall
      be no revocation under section 321J.9.

The implied consent procedure further provides in Iowa Code section

321J.6(3):

      Notwithstanding subsection 2, if the peace officer has
      reasonable grounds to believe that the person was under the
      influence of a controlled substance, a drug other than
      alcohol, or a combination of alcohol and another drug, a
      blood or urine test shall be required even after another type
      of test has been administered. Section 321J.9 applies to a
      refusal to submit to a chemical test of urine or blood
      requested under this subsection.

      McIver acknowledges that a peace officer is authorized to decide

the type of substance to be used for testing, but she asserts section

321J.6(3) requires a peace officer to affirmatively request a blood or urine

test in the event the officer has reasonable grounds to believe the

motorist is under the influence of a controlled substance, a drug other

than alcohol, or a combination of alcohol and other drugs.       The State

argues the section requires the motorist to submit to a request for a
                                      9

blood or urine test made by a peace officer or face a revocation of driving

privileges.

      The arguments of the parties reveal an ambiguity in the statute.

The resolution of this case ultimately hinges on the meaning of the

phrase “a blood or urine test shall be required” found in Iowa Code

section 321J.6(3). This phrase is the main clause of the first sentence in

the   subsection,    preceded    by   a   prepositional   phrase   and   the

subordinating clause of the main clause.

      The ambiguity is largely created by the absence of an object in the

main clause to show who is affected by the phrase “shall be required.” In

other words, the main clause of the sentence does not contain a noun or

pronoun to complete the action of the clause by identifying whether the

blood or urine test is required to be requested by the peace officer or is

required to be taken by the motorist in the event the subordinating

clause is satisfied. The absence of greater specificity in the prepositional

phrase also contributes to the ambiguity. It fails to identify which part of

subsection 2 is modified by subsection 3.

      As is often the case, ambiguities in statutes can be clarified by

looking at the background and history of the statute.         2A Norman J.

Singer & Shambie Singer, Statutes and Statutory Construction § 45:2, at

16–17 (7th ed. rev. 2014) (“Usually, in cases of genuine uncertainty

about a statute’s meaning and application, courts must consider the

particular problem the legislature was addressing, prior legislative

consideration of the problem, the act’s legislative history, operation, and

administration,     and   even   preexisting   common     law.”    (Footnotes

omitted.)). This approach works to resolve the ambiguity in this case.

      The implied consent law was enacted by our legislature in 1963.

1963 Iowa Acts ch. 114, § 39 (codified at Iowa Code § 321B.3 (1966)).
                                           10

The overarching legislative purpose of the implied consent law is to

protect public safety and eliminate intoxicated driving from Iowa roads.

State v. Overbay, 

810 N.W.2d 871, 875

 (Iowa 2012). The law utilized the

legal doctrine of implied consent to make it possible for a peace officer to

obtain a bodily substance for chemical testing from a driver suspected of

operating while intoxicated, without the necessity of obtaining a search

warrant.      

Id.

   The law does not physically force drivers to submit to

testing, but operates to revoke their licenses to drive in Iowa if the

requirement to submit to testing predicated on consent is refused

following a request made by a peace officer in conformance with the law.

Iowa Code §§ 321J.6, .9.              Thus, the implied consent law creates an

incentive for drivers to submit to testing. 2

       Section 321J.6 establishes the process for testing under the

implied consent law.            It accomplishes this by using three related

subsections. Under the first subsection, “a peace officer” is authorized to

“request” a “test or tests” when the officer has “reasonable grounds to

believe” the person was operating a vehicle in violation of the law defining

the crime of operating while intoxicated and any one of seven conditions

are present. Id. § 321J.6(1). 3

       2The implied consent law has, since its inception, protected the driver’s interests

by providing that independent chemical testing may done at the driver’s cost in addition
and subsequent to the testing done at the direction of the peace officer. 1963 Iowa Acts
ch. 114, § 40 (codified at Iowa Code § 321B.4(1966)); see also Iowa Code § 321J.11.

       3The   seven conditions are:

               a. A peace officer has lawfully placed the person under arrest for
       violation of section 321J.2.
               b. The person has been involved in a motor vehicle accident or
       collision resulting in personal injury or death.
               c. The person has refused to take a preliminary breath screening
       test provided by this chapter.
                                         11

       Under the second subsection, “the peace officer” then determines

which of the three substances—breath, blood, or urine—shall be tested.

Id. § 321J.6(2); see State v. Bloomer, 

618 N.W.2d 550, 553

 (Iowa 2000)

(holding the peace officer determines the type of test). The subsection

then establishes two exceptions or qualifications to the general implied

consent rule that drivers who refuse to submit to testing lose their

driver’s license.        See Iowa Code § 321J.6(2); see also id. § 321J.9

(describing the revocation process). While a driver who refuses to submit

to a urine or breath test is subject to license revocation, subsection 2

declares that a refusal to submit to a blood test does not result in a

license revocation.       Id. § 321J.6(2).    Instead, if a motorist refuses to

submit to a blood test, “the peace officer” shall offer either a urine or

breath test. Id. Thus, a driver has the right to refuse a request for a

blood test without suffering the penalty of revocation.                 The other

exception identified in subsection 2 is “a test is not required,” and no

revocation occurs, if “the peace officer fails to offer a test” within a two-

hour window of time described in the subsection. Id.


              d. The preliminary breath screening test was administered and it
       indicated an alcohol concentration equal to or in excess of the level
       prohibited by section 321J.2.
               e. The preliminary breath screening test was administered to a
       person operating a commercial motor vehicle as defined in section 321.1
       and it indicated an alcohol concentration of 0.04 or more.
              f. The preliminary breath screening test was administered and it
       indicated an alcohol concentration less than the level prohibited by
       section 321J.2, and the peace officer has reasonable grounds to believe
       that the person was under the influence of a controlled substance, a
       drug other than alcohol, or a combination of alcohol and another drug.
              g. The preliminary breath screening test was administered and it
       indicated an alcohol concentration of .02 or more but less than .08 and
       the person is under the age of twenty-one.
Iowa Code § 321J.6(1).
                                     12

      The third and final subsection contains the disputed language

indicating that “[n]otwithstanding subsection 2,” “a blood or urine test

shall be required” when a peace officer suspects drugs other than alcohol

are involved. It is followed by a declaration that the license revocation

provisions apply to the “refusal to submit to a chemical test of urine or

blood requested under this subsection.” Id. § 321J.6(3).

      While the general approach to testing based on implied consent

has remained the same since the law was enacted in 1963, section

321J.6 governing testing has changed over time.        These changes shed

light on the legislative intent behind section 321J.6(3) to help resolve the

ambiguity at issue.

      Overall, the consent testing law is set up today as it was when

originally enacted, except for the addition of the third subsection.      As

now, the first part of the testing statute authorized “a peace officer” to

“request” a “test or tests.” Iowa Code § 321B.3 (1966). Yet, at the time

the law was enacted, only one condition needed to occur for the officer to

request a test in addition to reasonable grounds to suspect the driver

was violating the operating while intoxicated law.           This condition

required the officer to place the driver under arrest for that violation. Id.

Additionally, no drug testing was available.       Although the crime of

operating while intoxicated prohibited driving “while in an intoxicated

condition or under influence of narcotic and/or hypnotic drugs or a

combination of such drugs and alcohol” at the time the implied consent

law was enacted, id. § 321.281, implied consent could only be utilized

“for the purpose of determining the alcoholic content of [the driver’s]

blood,” id. § 321B.3.

      The second part of the testing law was also generally the same as

today. The original law authorized the peace officer to determine the type
                                    13

of substance for testing and described the two current exceptions to

consent pertaining to blood tests and the two-hour window of time in

which the test needed to be given.         Id. § 321B.3.     With respect to a

request for a blood test, a driver could refuse to submit, but was then

required to submit to the withdrawal of another specimen requested by

“such peace officer.” Id.

      Subsection 3, dealing with testing for drugs other than alcohol,

was not added to the implied consent law until 1986. 1986 Iowa Acts ch.

1220, § 6 (codified at Iowa Code § 321J.6 (1987)). Thus, for over twenty

years, the implied consent law operated only with the provisions now

codified in the first two subsections. This initial approach under the law

was understandable for two basic reasons.          First, the implied consent

law only applied to alcohol tests during most of this period of time. This

limitation meant the provisions provided all the needed steps to invoke

testing. Second, when the implied consent law was amended in 1984 to

authorize the testing for drugs other than alcohol, the legislature

necessarily   contemplated   that   this    drug   testing    would   be   fully

accomplished under the existing testing procedures set out in the first

two subsections.   See 1984 Iowa Acts ch. 1292, § 10 (codified at Iowa

Code § 321B.4 (1985) (amending the implied consent law to authorize

drug testing).   This conclusion is true because subsection 2 already

authorized the peace officer to determine the type of substance for

testing, and if the officer suspected drugs other than alcohol were

involved, subsection 2 authorized the officer to select a specimen for

testing that would detect the presence of such drugs. Thus, the original

approach under the law operated to permit the testing of drugs other

than alcohol when the officer suspected such drugs, just as subsection 2

continues to do today.
                                     14

      The fighting question in this case turns on the intent of the

legislature to amend the testing statute by adding subsection 3 in 1986.

Insight into the legislature’s intent for this subsection is illuminated by

examining the companion amendment to the addition of section

321J.6(3) in 1986. The legislature added another condition to subsection

(1) to authorize a peace officer to request testing when the results of a

“preliminary breath screening test” indicates the presence of alcohol at a

level less than the legal limit and “the peace officer has reasonable

grounds to believe that the person was under the influence of a drug

other than alcohol or a combination of alcohol and another drug.”

Compare Iowa Code § 321B.4 (1985), with 1986 Iowa Acts ch. 1220, § 6

(codified at Iowa Code § 321J.6 (1987)).     This amendment reveals the

legislature was mindful that the administration of a test designed to

detect alcohol may need to be followed by a test designed to detect drugs

other than alcohol, and so provided statutory discretion for the peace

officer to seek the additional test. It also reveals the reality that a peace

officer may only begin to suspect drugs other than alcohol may be

involved to explain impaired driver conduct after a test geared to detect

the presence of alcohol fails to detect any alcohol or enough alcohol to

explain the impaired conduct. In other words, multiple testing may be

needed so that the purpose of the law can be accomplished. See Iowa

Code § 321J.6(3) (1987) (“[A] urine test may be required even after a

blood or breath test has been administered.” (Emphasis added.)); see also

Bankson v. Iowa Dep’t of Transp., 

444 N.W.2d 515, 518

 (Iowa Ct. App.

1989) (permitting a urine test following a breath test that resulted below

the legal limit when officer had found marijuana seeds in driver’s

vehicle).
                                    15

      Yet, prior to 1986, the implied consent law did not specifically

require a driver to submit to multiple testing.     Once a peace officer

initially administered a breath, blood, or urine test, the law did not also

require the driver to submit to a second test when the results of the

initial test did not support alcohol intoxication, even in the event the

peace officer maintained reasonable grounds to suspect a drug other

than alcohol or a combination of alcohol and other drugs could be the

cause of the intoxication. Of course, subsection 3 specifically addressed

this circumstance to permit multiple testing when drugs are suspected.

      This background offers the best view into the intent of the

legislature in enacting section 321J.6(3).     It reveals the legislature

intended to supplement the existing implied consent procedure in 1986

to fill a gap in the law by requiring a driver to submit to additional

testing when the officer suspected the person was under the influence of

a drug other than alcohol, even after another test has been administered.

      There is nothing to suggest the legislature would have been

concerned about imposing a legal requirement for the peace officer to

offer a test that could detect drugs other than alcohol when such drugs

were suspected, as an alternative to the existing procedures described in

subsection 2. Instead, the background and history of the law shows the

legislature was concerned about supplementing the law in 1986 to

require drivers to submit to additional testing when drugs other than

alcohol are suspected.

      It is also important to recognize that the entire implied consent law

is built on the legal premise that the consent deemed given by drivers

under the law imposes a requirement for drivers to submit to chemical

testing under penalty of license revocation when testing is properly

requested by a peace officer.    The concept of required testing at the
                                          16

request of the officer is imbedded into the statute as a requirement for

drivers.    Thus, when the statute refers to “required” testing, it is

reasonable that our legislature intended the object of the intransitive

verb phrase “shall be required” to also be a requirement for drivers.

       Further, there is no support for the notion that section 321J.6(3)

was added to the implied consent statute in 1986 to help make evidence

available to drivers and the State to aid in litigating the prescription-drug

defense to the crime of operating while intoxicated. 4 Legislative intent

needs to be based on tangible grounds, and the timing of legislative

enactments and amendments is often one such ground. The timing of

the amendments to the implied consent law could not be more important

in this case because they show no connection between the prescription-

drug defense and section 321J.6(3) implied consent procedures.

       First, the prescription-drug defense applicable to controlled

substances was not enacted by the legislature until 1998.                  1998 Iowa

Acts ch. 1138, § 12 (codified at Iowa Code § 321J.2(7)(b) (1999)). This

twelve-year gap in time between the enactment of section 321J.6(3) and

the 1998 amendment to the prescription-drug defense makes it unlikely,

without some supporting evidence, that the defense had any connection

to section 321J.6(3).       Second, the legislature first enacted the statute

        4Iowa Code section 321.281(7) (1985) and Iowa Code section 321J.2(6) (1987)

identically provided:
       This section does not apply to a person operating a motor vehicle while
       under the influence of a drug if the substance was prescribed for the
       person and was taken under the prescription and in accordance with the
       directions of a medical practitioner as defined in section 155.3,
       subsection 11, if there is no evidence of the consumption of alcohol and
       the medical practitioner had not directed the person to refrain from
       operating a motor vehicle.
The legislature could have amended this section or otherwise connected it to the implied
consent statute when recodifying it in 1986 under the new section number if they had
so intended.
                                          17

that excludes prescription drugs from the crime of operating while

intoxicated in 1951, after it amended the crime to add driving under the

influence of narcotic, hypnotic, or a combination of such drugs and

alcohol, 5 as an additional definition.           1951 Iowa Acts ch. 119, § 3

(codified at 

Iowa Code § 321.281

 (1954)). Thus, from the beginning, our

legislature has not wanted the criminal laws prohibiting driving while

drugged to apply to the valid use of prescription drugs.                 This history

reveals this same intent was at work in 1998 when our legislature

amended the prescription-drug defense to accommodate the parallel

amendment that added operating “[w]hile any amount of a controlled

substance is present in the person, as measured in the person’s blood or

urine” as an additional definition of the crime of operating while

intoxicated.      1998 Iowa Acts ch. 1138, § 11–12 (codified at Iowa Code

§ 321J.2(1)(c), (7)(b) (1999)). The timing of these two amendments gives

clear meaning to the intent of the legislature. There is nothing to suggest

the 1998 amendments on controlled substances were tied to the 1986

amendment adding the supplementary test for the presence of drugs to

the implied consent law. 6        Obviously, since the substantive crime was

enlarged in 1998 to add the controlled-substance element to the crime,
the existing prescription-drug defense needed to be enlarged to include

prescription controlled substances.




       5Narcotics  were added to the crime in 1937 Iowa Acts ch. 134, § 312 (codified at

Iowa Code § 5022.02

 (1939)). Hypnotics and a combination of drugs and alcohol were
added to the crime of operating while intoxicated in 1951 Iowa Acts ch. 119, §§ 1–2
(codified at 

Iowa Code § 321.281

 (1954)).
       6Rather, if the legislature had intended to link the amended subsection 3 to the
prescription-drug defense, there presumably would have been some provision providing
what substances the subsection 3 test should detect and in what amounts.
                                    18

      The other substantive change in 1998 was the addition of the

option for the peace officer to seek a blood test under subsection 3. This

change served to strengthen the peace officer’s position, not to impose an

entirely new requirement on the officer. First, this change meant there

would always be an alternative test for the officer to request in an

attempt to find the source of intoxication if initial testing showed lower

than expected levels of intoxication, no matter which test was performed

initially. Second, it provided a bodily substance for testing that was not

dependent on the occurrence of specific bodily functions not in the

control of the peace officer. Third, it created a limitation in subsection 3

to the previously absolute right of a driver to refuse a request for a blood

test in subsection 2 by attaching the same legal consequences to the

refusal of a blood test as would incur upon the refusal of the urine test.

Under the amended subsection 3, the officer may require either blood or

urine tests from drivers when drugs other than alcohol are suspected.

      Accordingly, the history and background of the implied consent

law reveals the legislature intended subsection 3 to supplement the

testing protocol in subsection 2 to require drivers to submit to multiple

testing   requests   when   drugs   other   than   alcohol   are   suspected.

Additionally, the prepositional phrase was necessary to subsection 3

because the legislature was authorizing additional testing even after the

driver’s compliance with subsection 2.      Thus, the object of the main

clause in subsection 3 is drivers, not peace officers.             Any other

interpretation is contrary to the history of the statute, purpose of the

statute, context of the statute, and grammatical structure of the statute.

      Our interpretation of Iowa Code section 321J.6 (2013) conforms to

our rules of statutory construction and is most closely aligned to the

purpose of the implied consent procedures as well as the overall purpose
                                      19

of the implied consent law. We conclude the peace officer in this case

was not required to offer a blood or urine test to McIver under section

321J.6(3). The district court properly denied the motion to suppress.

      V. Conclusion.

      The district court properly overruled the pretrial motions to

suppress filed by McIver. We affirm the judgment and sentence of the

district court.

      AFFIRMED.

      All justices concur except Wiggins, Hecht, and Zager, JJ., who

concur in part and dissent in part.
                                    20
                                                #13–1106, State v. McIver
WIGGINS, Justice (concurring in part and dissenting in part).

      I agree with the court’s opinion that the stop was valid under the

Iowa and United States Constitutions.     I also agree that an ambiguity

exists in Iowa Code section 321J.6 (2013). However, I cannot agree with

the way the majority resolves this ambiguity.

      When interpreting a statute our goal is to determine legislative

intent.   Auen v. Alcoholic Beverages Div., 

679 N.W.2d 586, 590

 (Iowa

2004). The legislative history of a statute is instructive in ascertaining

legislative intent. State v. Dohlman, 

725 N.W.2d 428, 431

 (Iowa 2006).

      Prior to 1998, the statute read:

      Notwithstanding subsection 2, if the peace officer has
      reasonable grounds to believe that the person was under the
      influence of a drug other than alcohol or a combination of
      alcohol and another drug, a urine test may be required even
      after a blood or breath test has been administered. Section
      321J.9 applies to a refusal to submit to a chemical test of
      urine requested under this subsection.

Iowa Code § 321J.6(3) (1997).

      In 1998, the legislature amended chapter 321J. 1998 Iowa Acts

ch. 1138, §§ 10–23. These amendments made two significant changes to

chapter 321J that are relevant to this case.    The first was to add the

prescription-drug defense.      Id. § 12 (now codified at Iowa Code

§ 321J.2(11)(b) (2013)). The prescription-drug defense is a defense to a

charge of driving while under the influence of a controlled substance.

State v. Schories, 

827 N.W.2d 659, 665

 (Iowa 2013). It is available to a

defendant who is taking a controlled substance “prescribed or dispensed

for the person and . . . taken in accordance with the directions of a

practitioner and the labeling directions of the pharmacy.”     Iowa Code

§ 321J.2(11)(b). Prior to this amendment, the defense was unavailable.
                                    21

      At the same time the legislature added the prescription-drug

defense, the legislature amended section 321J.6(3). 1998 Iowa Acts ch.

1138, § 16 (codified at Iowa Code § 321J.6(3)). The amendment provides:

      Notwithstanding subsection 2, if the peace officer has
      reasonable grounds to believe that the person was under the
      influence of a controlled substance, a drug other than
      alcohol, or a combination of alcohol and another drug, a
      blood or urine test shall be required even after another type
      of test has been administered. Section 321J.9 applies to a
      refusal to submit to a chemical test of urine or blood
      requested under this subsection.

Id. (emphasis added).

      The key changes were to add “controlled substance” as a separate

class of drugs, add a blood test, and change the word “may” to “shall.”

These changes clearly evidence a legislative intent to give meaning and

support to the prescription-drug defense. This change recognized that

many prescription drugs are controlled substances.       See Bearinger v.

Iowa Dep’t of Transp., 

844 N.W.2d 104, 107

 (Iowa 2014). By adding a

blood test to this section, the legislature was adding another means of

detecting the presence of a controlled substance in a person’s body.

Finally, by changing the word “may” to “shall,” the legislature was

making sure that if the officer suspected the defendant was driving under

the influence of drugs, the officer must arrange to administer a blood or

urine test to ensure the state and the defendant would have the

necessary evidence to litigate the prescription-drug defense, if raised. In

other words, the purpose of the amendment, as evidenced by the

legislative history, requires the peace officer to do exactly what the

statute says he or she should do—offer the defendant a blood or urine

test if the peace officer has reasonable grounds to believe the person was

under the influence of a controlled substance.
                                     22

      The next question is how would this work in the real world? The

answer is simple.    If the officer has reasonable grounds to believe the

person was under the influence of alcohol only, section 321J.6(2) gives

the officer the discretion to determine whether the person’s breath,

blood, or urine should be tested.      See Iowa Code § 321J.6(2).       If the

officer chooses a blood test and the person refuses, the officer shall then

offer either a breath or urine test as set forth in section 321J.6(2). Id.

      If the officer does not have reasonable grounds to believe the

person is under the influence of alcohol, but has reasonable grounds to

believe the person is under the influence of a controlled substance or

drug, section 326J.6(3) applies and the officer must offer the person a

blood or urine test. See id. § 321J.6(3).

      Finally, if an officer has reasonable grounds to believe a person is

under the influence of a combination of alcohol and another drug,

sections 326J.6(2) and (3) work in tandem.         In this scenario, section

326J.6(2) gives the officer the discretion to determine whether the

person’s breath, blood, or urine should be tested, because the officer has

reasonable grounds to believe the person is under the influence of

alcohol.   See id. § 321J.6(2).   If the person refuses the tests required

under section 326J.6(2), the consequences of the refusal apply and the

state could prosecute the person for operating while under the influence

of alcohol. Id. If the person submits to a breath test and it shows the

person is over the legal limit for blood alcohol concentration, the officer

can then decline to request the blood or urine test under section

326J.6(3), and the state could prosecute the person for operating while

under the influence of alcohol.
      If the state wants to prosecute the person for operating while
under the influence of a controlled substance or a drug other than
                                      23

alcohol, or for operating under the influence of a combination of alcohol
and another drug, the officer must comply with section 321J.6(3) to
proceed. See id. § 321J.6(3). This is why the legislature included the
words “Notwithstanding subsection 2” in section 326J.6(3). The key to
harmonizing the language of the statute to the legislative intent is to
recognize that when the legislature codified the prescription-drug defense
it also required the peace officer to offer the person a blood or urine test
“if the peace officer has reasonable grounds to believe that the person
was under the influence of a controlled substance, a drug other than
alcohol, or a combination of alcohol and another drug.” Id.
        Applying this interpretation to the facts of this case, the officer did
have a reasonable belief that McIver was under the influence of alcohol
or a combination of alcohol and another drug. Officer Lumley testified he
detected some smell of alcohol on McIver at the station. This coupled
with the erratic driving gave the officer a reasonable belief that McIver
was under the influence of alcohol or a combination of alcohol and
another drug to permit an initial request for a breath test. Therefore, he
properly followed the procedure under section 321J.6(2).
        Accordingly, her refusal to take the breath test is admissible and
the court should not have suppressed her refusal to take the test.
However, the State charged McIver with operating a motor vehicle under
the influence of alcohol or a drug.        The court found her guilty of this
charge. Because the officer did not offer McIver a blood or urine test, the
court could only find her guilty of operating a motor vehicle under the
influence of alcohol.    Thus, I would remand the case for the court to
determine on this record whether she was guilty of operating a motor
vehicle under the influence of alcohol.
        Hecht and Zager, JJ., join this concurrence in part and dissent in
part.