review from the Iowa Court of Appeals. Appeal from the Iowa
District Court for Floyd County, Thomas A. Bitter, Judge.
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.
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Thomas Bakke, Jean C.
Pettinger, and Tyler J. Buller, Assistant Attorneys General,
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.
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
Background Facts and Proceedings.
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.
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,
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
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
. . . .
[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.
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
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
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.
Standard of Review.
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.
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).
Preservation of Error.
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.
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
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
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.
Statutory Interpretation-Comried Reaffirmed.
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
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). 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
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
(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
(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. 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
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
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 ...