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State v. Childs

Supreme Court of Iowa

June 30, 2017

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Floyd County, Thomas A. Bitter, Judge.

         Defendant seeks further review of court of appeals decision that affirmed his conviction for operating a motor vehicle while intoxicated (OWI) based on the presence of a nonimpairing metabolite of marijuana in his urine. DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.

          Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

          Thomas J. Miller, Attorney General, and Thomas Bakke, Jean C. Pettinger, and Tyler J. Buller, Assistant Attorneys General, for appellee.

          WATERMAN, Justice.

         In this appeal, the defendant asks us to overturn State v. Comried, which interpreted Iowa Code section 321J.2(1)(c) (2001) (operating while intoxicated (OWI) statute) to ban driving a motor vehicle with any detectible amount of a prohibited drug in one's body, regardless of whether the ability to drive was impaired. 693 N.W.2d 773, 778 (Iowa 2005). This defendant was stopped for driving over the centerline and admitted to smoking half of a joint and being under the influence of marijuana. A drug screen detected a nonimpairing metabolite of marijuana in his urine. He filed a motion to dismiss the OWI charge, arguing Comried is no longer good law because it relied on an Arizona decision and that state's supreme court later held an OWI conviction cannot be based solely on the presence of a nonimpairing metabolite. The district court disagreed, denied his motion to dismiss, and convicted him of violating section 321J.2. The court of appeals affirmed his conviction based on Comried, noting it "will not diverge from supreme court precedent." We granted the defendant's application for further review.

         For the reasons explained below, we reaffirm Comried based on the plain meaning of the statutory text. The traffic stop and request for a urinalysis were lawful based on the defendant's erratic driving and his admitted recent drug use and impairment. The defendant raises no constitutional challenge to the statute's breadth, which permits a conviction based solely on the presence of a nonimpairing metabolite of marijuana in the driver's urine. Policy arguments that the statute is too harsh should be directed to the legislature.

         I. Background Facts and Proceedings.

         At 9:41 p.m. on June 20, 2014, Floyd County Deputy Sheriff Chad Weber was dispatched to Rockford City Park to respond to a report of narcotics activity involving a silver Hyundai Sonata. Upon arriving, he was approached by a man who reported smelling marijuana coming from a silver car and someone with dreadlocks driving off in that vehicle. Deputy Weber spotted a man with dreadlocks on foot and a silver Sonata backing out of a parking spot. Deputy Weber followed the silver Sonata. A check of the license plate number revealed the car's registration was expired. He observed both left-side tires of the car crossing the centerline. Deputy Weber pulled the car over and identified the driver as Erik Childs. Deputy Weber's report describes their encounter:

I approached the vehicle and told the driver he was being stopped for crossing the center line and expired registration. I asked the driver where he had been tonight and he stated he was at the park playing basketball with his son. I then told him that I had received a complaint of persons smoking marijuana in that area in a vehicle matching the description of this vehicle. I then asked the driver if he was under the influence of drugs or alcohol. He said yes, in which I asked what substance and he said marijuana. I asked how much and he said half a joint. I asked how big the joint was and he held up his fingers showing me how big.

         Deputy Weber also observed that when Childs "began to walk towards the back of the car [he] had his left hand on the vehicle to keep his balance." Childs performed poorly on several field tests for sobriety, missing heel-to-toe steps and counting the number thirteen twice. At the police station, Childs consented to a urine test, which revealed the presence of sixty-two nanograms per milliliter of a nonimpairing metabolite of marijuana, 11-nor-9-carboxy-delta-tetrahydrocannabinol (Carboxy-THC).[1]

         Childs was charged with operating while intoxicated, first offense, in violation of Iowa Code section 321J.2(1)(a) (2014) (operating while under the influence of drugs) and (c) (operating a motor vehicle while "any amount of a controlled substance is present in the . . . person's blood or urine"). Childs filed a motion to dismiss, arguing he could not be convicted under section 321J.2 based solely on the presence of a nonimpairing metabolite of marijuana in his urine. Childs urged the court to overrule Comried, which interpreted section 321J.2(1)(c) (2001) to prohibit driving with "any amount" of a prohibited drug, that is, "any amount greater than zero." 693 N.W.2d at 778. Comried was a statutory-interpretation case that relied on an Arizona decision addressing the same issue under the Arizona DUI statute. See id. at 775-76; see also State v. Phillips, 873 P.2d 706, 708 (Ariz.Ct.App. 1994). However, a later Arizona decision held "drivers cannot be convicted of [DUI] based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana." State ex rel. Montgomery v. Harris, 322 P.3d 160, 164 (Ariz. 2014). Childs argued that Phillips was no longer good law in Arizona, and accordingly, Comried should be overruled. Childs's written motion asked for the statute to be reinterpreted to omit nonimpairing metabolites. At the hearing on the motion to dismiss, Childs echoed this argument:

We are asking for the case to be dismissed. When the Defendant was tested after he was pulled over and sobriety testing, he was found positive for a non-impairing metabolite of marijuana. Many states have already ruled this non- impairing metabolite is not a DUI; that only the impairing metabolite is.
. . . .
[Phillips] is the case that we actually based our OWI or marijuana law on, we used that case, and it's cited throughout the case that decided that any amount of a controlled substance is an OWI in Iowa. They actually have distinguished that case, stating that now it is the only-Only the impairing metabolite that is a DUI in [Harris]. And based on the changes of law and based upon the fact that my client was not positive for the impairing metabolite, we are asking for the case to be dismissed.

         The district court rejected this argument, stating,

Mr. Childs, again, your attorney is asking the Court to find that the law itself is unconstitutional; that there is no rational basis for the law here in Iowa.
I think that that's a very, very high standard. I mean, to say that something is unconstitutional means that there is no-no reason at all to have this law in place, basically. And again, I think it's an argument that I'm not going to agree with, but it's something that could be appealed and maybe the Supreme Court or the Court of Appeals may find that they want to overturn this law and say that it's not constitutional, but I'm not willing to do that.
I think that there is a rational basis to just say any marijuana in your system, whether it impairs you or not, that's enough to say people shouldn't be driving with that in their system.
Again, I understand the rationale of what your attorney is saying is that there should be some test as to whether or not it made you a bad driver, but Iowa hasn't decided that that's necessary. So, until someone tells me- someone else above me tells me it's not constitutional, I'm going to find that it is.
So, I'm going to deny the Defendant's Motion to Dismiss.

         The district court filed a written order denying the motion to dismiss. Childs filed a motion to suppress, contending Deputy Weber lacked probable cause or reasonable suspicion for the traffic stop. The district court denied his motion, concluding the expired registration and driving over the centerline provided sufficient grounds. Childs ultimately was convicted on the minutes of testimony of operating while intoxicated, first offense, in violation of Iowa Code section 321J.2.[2]

         Childs appealed, and we transferred the case to the court of appeals. Childs's appellate briefs raise no constitutional challenge to section 321J.2. Rather, Childs makes the same statutory-interpretation argument on appeal as he did in district court-Comried should be overruled and the statute reinterpreted to omit nonimpairing metabolites. The court of appeals rejected his arguments and affirmed his conviction. We granted Childs's application for further review.

         II. Standard of Review.

         "On further review, we can review any or all of the issues raised on appeal or limit our review to just those issues brought to our attention by the application for further review." Papillon v. Jones, 892 N.W.2d 763, 769 (Iowa 2017) (quoting Woods v. Young, 732 N.W.2d 39, 40 (Iowa 2007)). We elect to confine our review to Childs's statutory-interpretation claim. The court of appeals decision affirming the denial of his motion to suppress shall stand as the final decision on that claim.

         "We review rulings on questions of statutory interpretation for correction of errors at law." State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017) (quoting State v. Olutunde, 878 N.W.2d 264, 266 (Iowa 2016)). "Similarly, we review a ruling on a motion to dismiss for correction of errors at law." Ney v. Ney, 891 N.W.2d 446, 450 (Iowa 2017).

         III. Analysis.

         A. Preservation of Error.

         In district court and on appeal, Childs makes the same statutory-interpretation argument: that we should overrule Comried and hold section 321J.2 is not violated by the presence of nonimpairing metabolites of marijuana in a driver's urine. The district court described Childs's argument as a constitutional challenge in the colloquy at the hearing on the motion to dismiss and rejected it. Childs makes no constitutional claim on appeal. The State's appellate briefing acknowledges that Childs preserved error on his statutory challenge. We agree.

         We do not construe the district court's discussion of the constitutionality of the statute to mean the court overlooked Childs's statutory-interpretation argument that the statute did not apply to driving with a nonimpairing metabolite. To the contrary, the district court necessarily rejected Childs's statutory-interpretation argument when it orally ruled the statute constitutionally applied to him, denied his motion to dismiss, and later found him guilty of violating section 321J.2. The court of appeals reached the same conclusion, stating "the district court did not err in interpreting section 321J.2 to include marijuana metabolites and in denying the motion to dismiss." See EnviroGas, L.P. v. Cedar Rapids/Linn Cty. Solid Waste Agency, 641 N.W.2d 776, 782 (Iowa 2002) (holding error was preserved on both prongs of challenge to applicability of statute, presuming district court resolved both, even though it only discussed one); Meier v. Senecaut, 641 N.W.2d 532, 539-40 (Iowa 2002) (discussing appellate principle that "we assume the district court rejected each defense to a claim on its merits, even though the district court did not address each defense in its ruling"); see also City of Riverdale v. Dierks, 806 N.W.2d 643, 655 (Iowa 2011) (concluding district court, by awarding attorney fees, must have rejected city's good-faith defense to the fee award); cf. State v. Hellstern, 856 N.W.2d 355, 360 (Iowa 2014) ("We are to decide the statutory issue first in order to avoid unnecessary adjudication of constitutional claims.").

         State v. Mitchell does not support the conclusion that Childs waived his statutory argument. 757 N.W.2d 431, 435 (Iowa 2008). Holly Mitchell was charged with child endangerment because she and her children lived with a registered sex offender. Id. at 434. Mitchell filed a motion to dismiss, raising two constitutional challenges (due process and equal protection) to the child endangerment statute. Id. at 435. The district court denied her motion by addressing only the equal protection claim. Id. We held Mitchell failed to preserve the due process claim for appellate review because she did not seek a ruling on that claim in district court before filing her appeal. Id. Mitchell is distinguishable. The district court in Mitchell could decide one constitutional claim without deciding the other. See id. The district court's ruling rejecting the equal protection challenge was not implicitly dispositive of the due process claim. No statutory claim had been made. See id. at 434. By contrast, here, the district court could not uphold the constitutionality of the OWI statute as applied to Childs without necessarily interpreting the statute to apply to Childs.

         The fact the State agrees Childs preserved error is another reason to conclude his statutory-interpretation claim is preserved for appellate review. See State v. Coleman, 890 N.W.2d 284, 286-87 (Iowa 2017) (relying on State's concession that defendant preserved error). In its appellate briefing, the State recognized that Childs challenged the district court's interpretation of Iowa Code section 321J.2 and that his "motion to dismiss and the district court's ruling thereon preserved this issue for appellate review." To hold otherwise would conflict with the lenient approach to error preservation in Coleman, which held the defendant preserved an argument under the Iowa Constitution for appellate review without mentioning the Iowa Constitution in district court. See id. at 286. Unlike the defendant in Coleman, Childs in fact made the same argument in district court in his motion to dismiss that he makes on appeal-an argument the district court ruled on by denying his motion and convicting him.

         B. Statutory Interpretation-Comried Reaffirmed.

         We must decide whether to overrule Comried, which we decided twelve years ago. The district court and court of appeals correctly applied Comried, and Childs concedes that his conviction must be upheld if that case remains good law. We reaffirm Comried based on its reasoning, which applies the plain meaning of the operative statutory language.

         The legislature recently amended the narcotics laws to allow limited medical use of cannabis oil derived from marijuana, but chose to leave intact Iowa Code section 321J.2(1)(c).[3] Childs does not claim he had a valid prescription for medicinal marijuana. See Bearinger v. Iowa Dep't of Transp., 844 N.W.2d 104, 107-08 (Iowa 2014) (discussing prescription drug defense). Nor does Childs claim he only had the metabolite in his urine from prior drug use days earlier, such that he was not driving under the influence. To the contrary, he exhibited signs of current impairment and admitted to smoking marijuana and driving under its influence. He does not argue on appeal that the statute as interpreted in Comried is unconstitutional.

         Iowa Code section 321J.2 provides that a person commits the offense of operating while intoxicated if the person "operates a motor vehicle in this state in any of the following conditions:"

(a) While under the influence of an alcoholic beverage or other drug or a combination of such substances.
(b) While having an alcohol concentration of .08 or more.
(c) While any amount of a controlled substance is present in the person, as measured in the person's blood or urine.

Id. § 321J.2(1)(a)-(c) (emphasis added). "Controlled substance, " in turn, is defined to include "any metabolite or derivative of the drug, substance, or compound" listed in section 124.204. Id. § 321J.1(4) (emphasis added). Section 124.204 lists "[t]etrahydrocannabinols . . . meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis" as a schedule I substance. Id. § 124.204(4)(u). Carboxy-THC is a metabolite of the tetrahydrocannabinol (THC) found in marijuana, a controlled substance.[4] Carboxy-THC is found in the urine of a person who has smoked or ingested marijuana. See Darron J. Hubbard, Comment, Narcotics on Illinois's Roadways: Drugged Driving's Ill. Effects After Martin, 62 DePaul L. Rev. 591, 605-07 (2013) (reviewing the process by which body converts THC into Carboxy-THC). Therefore, Carboxy-THC falls within the definition of a prohibited "controlled substance" under Iowa Code section 321J.1.

         In Comried, we interpreted the text of section 321J.2(1)(c) to prohibit driving with "any amount" of a controlled substance detectable in one's body. 693 N.W.2d at 778. We observed that the legislature amended section 321J.2 in 1998 to create a per se ban on driving with any amount of a controlled substance in the body, "whether or not they are under the influence." Id. at 776; see also Bearinger, 844 N.W.2d at 107 (interpreting Comried and noting section 321J.2 creates a per se ban "regardless of whether a person is 'under the influence' of that controlled substance" (quoting Comried, 693 N.W.2d at 776)). We noted the purpose of chapter 321J is "to reduce the holocaust on our highways." Comried, 693 N.W.2d at 775 (quoting State v. Kelly, 430 N.W.2d 427, 429 (Iowa 1988)). Relying on Arizona and Indiana precedent, we stated,

The legislature could reasonably have imposed such a ban because the effects of drugs, as contrasted to the effects of alcohol, can vary greatly among those who use them. One court has observed that,
since the manufacture and distribution of illicit drugs are unregulated and because the drugs' potency varies, the effects are unpredictable. Therefore, . . . there is no level of use above which people can be presumed impaired or below which they can be presumed unimpaired.

Id. at 776 (alteration in original) (quoting Phillips, 873 P.2d at 708). We also relied on Iowa precedent:

Our court of appeals has reached a similar conclusion in a license-revocation case based on driving with controlled substances in the body. The court, noting the difficulty in relating the amount of ...

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