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State v. Newton

Court of Appeals of Iowa

February 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
TIMOTHY ALVIN NEWTON, Defendant-Appellant.

         Appeal from the Iowa District Court for Ringgold County, Dustria A. Relph, Judge.

         A defendant appeals his convictions for operating while intoxicated, second offense, and child endangerment.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          VOGEL, Presiding Judge.

         Timothy Newton appeals his convictions for operating while intoxicated (OWI), second offense, and child endangerment. He claims his OWI conviction must be reversed because the jury was instructed on the "any amount of a controlled substance" alternative in Iowa Code section 321J.2(1)(c) (2014), and this alternative is unconstitutionally vague and violates his due process rights.[1] He also claims his stipulation to his prior OWI offense was invalid because it was not knowingly and voluntarily entered. Finally, he claims his sentence must be vacated and this case remanded for a new sentencing hearing because the court considered unproven offenses when determining his sentence. We affirm Newton's OWI conviction as we conclude section 321J.2(1)(c) is not unconstitutionally vague and is rationally related to the purpose of the OWI statute. However, because Newton was not afforded a proper colloquy when stipulating to his prior conviction, we reverse his conviction and sentence for OWI, second offense, and remand this case for proceedings consistent with this opinion. Because of this reversal, we need not address the claims he makes regarding his sentencing hearing.

         I. Background Facts and Proceedings.

         Eric Fell arrived at his rural home on the night of September 3, 2014, to find a vehicle and a detached trailer in the ditch in front of his home and a young boy walking up to the road. Fell contacted the sheriff's office to report the accident. He then drove his tractor to the location of the vehicle to assist with pulling the vehicle and trailer from the ditch. Deputy Sheriff Samuel Pitt arrived on scene and instructed Fell not to move either the trailer or the vehicle. Deputy Pitt contacted the boy and the adult in the vehicle, identifying them as Newton and his eleven-year-old son. The vehicle was running, and Newton was seated in a reclined position behind the steering wheel with the driver's side door open and with his son standing next to the driver's side. Newton told the deputy he was waiting for the property owner's tractor to arrive and was surprised when the deputy pointed out the tractor was already present. Deputy Pitt noted this was odd because the tractor was very loud with bright running lights and was so close to the disabled vehicle "that it would have been almost impossible to be unaware of its presence."

         Deputy Pitt suspected Newton was impaired almost immediately because Newton was agitated and disoriented, slurred his speech, and had difficulty maintaining his balance as he exited the vehicle. Newton explained to the deputy that he became stuck in the ditch when he attempted to turn around on the highway after missing his turn. Deputy Pitt asked Newton for his driver's license, and Newton initially responded he did not have it with him. After Deputy Pitt pointed out to Newton his wallet was located directly under Newton's legs on the floor of the vehicle, Newton then proceeded to search through his wallet looking for his license, thumbing past it twice before finding it. Deputy Pitt asked Newton whether he was "all right, " and Newton replied it was "one of those Sunday night things" and then corrected himself to say it was Tuesday night. However, the accident occurred on a Wednesday night.[2] When Deputy Pitt corrected Newton on the day of the week, Newton seemed surprised. Newton denied consuming any alcohol or taking any medication, but he did say he did not "feel well."

         A second deputy, Deputy Landon White, arrived at the scene, and Deputy Pitt relayed to him that he believed Newton was impaired. Upon his arrival, Deputy White attempted to obtain the assistance of an officer who had a highly specialized certification in impaired driving investigations, but no officers with that certification were available. Therefore, after questioning Newton and observing his demeanor and disorientation, Deputy White conducted the standard field sobriety test he was certified to administer. Deputy White knew Newton had a prior leg injury, so he did not administer the one-leg stand test or the walk-and-turn test. Newton did not pass the horizontal gaze nystagmus test or the lack of convergence test, but no nystagmus was present during the vertical gaze nystagmus test, and Newton did not have difficulty performing the modified Romberg balance test. Deputy White then decided to invoke implied consent, and Newton agreed to accompany the deputy to the station to provide a urine sample.

         As the deputy proceeded to drive to the station, Newton again indicated he was confused as to where he was located in relation to town, and when they arrived at the station, Deputy White thought it was strange Newton laid down on the wooden bench in the holding area. After reading the implied-consent advisory, Deputy White requested Newton provide a urine sample. Newton responded that he would prefer to provide a blood sample. Deputy White informed Newton of his right to have an independent test done with a blood sample if he would like but insisted he was requesting a urine sample. Newton then provided the sample, which was sent to the department of criminal investigations lab. Newton's urine sample came back positive for benzodiazepines, opiates, cocaine metabolites, marijuana metabolites, and tricyclics. Deputy White testified that the impairment he observed during his field testing would have been consistent with the use of benzodiazepines, opiates, marijuana, and tricyclics.[3]

         Newton offered expert testimony at trial. The expert reviewed the video evidence of the incident and testified he did not see any signs of impairment in Newton. He further testified, "There is no evidence to conclude that he was impaired due to any of the drugs cited or the metabolites cited within the testing. The field testing is absolutely not conclusive." He further asserted "urine testing cannot determine impairment." Instead, it was his position that blood testing "is going to give us better information as to [the] relationship to impairment."[4]

         Newton also offered the testimony of his wife, who stated he was lethargic and ill the day of the accident and had been ill for several days. Newton's son also testified that his father was sick that day and that his grandfather, Newton's father, drove the vehicle and trailer into the ditch when he was attempting to turn around because the GPS told them they had missed their turn. The son further testified Newton's father got a ride from the scene to retrieve a garbage truck to assist in pulling the vehicle and trailer from the ditch, and after Newton's father left, Newton drove the vehicle to attempt to get both the vehicle and trailer out of the ditch but was ultimately unable to do so. Newton also offered the testimony of his father, who confirmed he was the one driving when the vehicle and trailer initially became stuck in the ditch. Newton's father testified he was able to get a ride to town to get the garbage truck but the truck had a flat tire. By the time he repaired the tire and got back to the scene, everyone was gone.

         After four days of testimony, the jury found Newton guilty as charged of OWI and child endangerment. Following the verdict, the defense informed the court that Newton was willing to stipulate that it was his second OWI offense. The court engaged Newton in the following colloquy:

First I want to ask, is what you're about to do and statements you're about to make concerning that previous conviction, are those being given freely and without any duress, threats, or coercion?
THE COURT: All right. And are you at this time under the influence of any alcoholic ...

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