from the Iowa District Court for Ringgold County, Dustria A.
defendant appeals his convictions for operating while
intoxicated, second offense, and child endangerment.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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. 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.
Background Facts and Proceedings.
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."
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. 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."
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.
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.
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
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
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 DEFENDANT: Yes.
THE COURT: All right. And are you at this time under the
influence of any alcoholic ...