IN THE SUPREME COURT OF IOWA
No. 16–0894
Filed April 6, 2018
STATE OF IOWA,
Appellee,
vs.
DESHAUN MARVIN LAMAR WILLIAMS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Boone County, Paul G.
Crawford, District Associate Judge.
The defendant seeks further review of a court of appeals decision
affirming his conviction for driving while barred as a habitual offender,
contending that proof of mailing of the notice of bar was an essential
element of the offense. DECISION OF COURT OF APPEALS AND
JUDGMENT OF DISTRICT COURT AFFIRMED.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, Dan Kolacia, County Attorney, and Matthew Speers,
Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
This case requires us to decide what the State must prove as the
essential elements of the offense of driving while barred as a habitual
offender. See Iowa Code § 321.561 (2015). Based on our reading of the
statute, we conclude the State must prove the defendant (1) operated a
motor vehicle (2) during the time period his or her license was revoked as
a habitual offender under section 321.560. See id. While the question
whether the Iowa Department of Transportation (IDOT) mailed a notice of
revocation to the defendant may be relevant to whether the defendant’s
license was in fact revoked, it is not an actual element of the offense.
Therefore, in a particular case, such as this one, the State may be able to
prove the defendant operated a vehicle during the time period he or she
was barred from driving without offering proof of mailing. For these
reasons, on further review, we affirm the judgment of the district court,
including the defendant’s conviction for violating Iowa Code section
321.561, and affirm the decision of the court of appeals.
I. Background Facts and Proceedings.
On December 12, 2015, at around 2:00 a.m., a motorist driving on
Highway 30 between Ames and Boone observed a vehicle that was “all
over the road.” As she passed the vehicle, it swerved and almost hit her
car. The vehicle continued to weave back and forth between the
shoulder and the median. The motorist called 911 to report the erratic
driving and, while on the phone with the dispatcher, followed the vehicle.
She saw the vehicle almost go into the ditch beside the highway. The
speed of the vehicle varied, as it traveled very slowly at times and well
above the speed limit at others. The motorist relayed to the dispatcher
the license plate number she was able to make out in the dark.
3
Eventually, the driver of the vehicle turned onto a gravel road,
stopped, and shut the vehicle’s lights off. The motorist remained on the
scene within eyesight of the vehicle until law enforcement arrived about
three or four minutes later. The motorist did not see anybody get in or
out of the vehicle.
Sergeant Dallas Wingate of the Boone County Sheriff’s Office
responded to the call. He found a stopped vehicle with its lights turned
off that matched the description the dispatcher had given him. The
vehicle’s engine was on. Defendant Deshaun Williams was the vehicle’s
driver.
Upon approaching the vehicle, Sergeant Wingate noticed a very
strong odor of alcoholic beverage emanating from the vehicle. The driver
slurred his speech, seemed confused in answering questions, appeared
to lack coordination, and had glassy, watery eyes. After Sergeant
Wingate asked for Williams’s driver’s license several times, Williams
provided a nondriver identification card, which Sergeant Wingate ran
through dispatch. Sergeant Wingate subsequently learned the State had
barred Williams from driving.
Continuing his investigation, Sergeant Wingate had Williams step
out of the vehicle so Sergeant Wingate could conduct field sobriety tests.
When Williams exited the vehicle, Sergeant Wingate could tell Williams
had vomited on himself at some point. Williams refused to participate in
any of the tests. Based on Williams’s revoked license and his refusal to
perform the field sobriety tests, Sergeant Wingate placed him under
arrest. Sergeant Wingate indicated to Williams that he was under arrest
for driving while barred, to which Williams responded he knew he should
not be driving.
4
Deputy Doug Twigg also arrived on the scene. According to Deputy
Twigg, Williams’s speech was “very slow” and “very slurred.” Williams
stumbled when getting out of the vehicle and appeared confused and
irritated. Williams told Deputy Twigg he had dropped off nine people,
although Deputy Twigg testified the vehicle was a sedan that would not
hold nine passengers.
Both Sergeant Wingate and Deputy Twigg had functioning body
cameras on their persons during their interactions with Williams.
Williams is the only person seen on the body camera footage.
Deputy Twigg placed Williams in his squad car because Sergeant
Wingate’s car was a K-9 vehicle. At this point, Deputy Twigg could also
smell the strong odor of alcoholic beverage coming from Williams and
noticed Williams’s bloodshot, watery eyes. Deputy Twigg transported
Williams to the Boone County jail. During the ride, Williams told Deputy
Twigg he knew he should not be driving.
At the jailhouse, Williams refused to provide a breath sample for
chemical testing. Sergeant Wingate noticed that Williams’s mood was
capricious, switching between cooperative and boisterous or
argumentative. Sergeant Wingate later testified mood swings are
common in operating-while-intoxicated (OWI) cases because people
impaired by alcohol have difficulty managing their emotions.
The State filed a trial information charging Williams with driving
while barred, an aggravated misdemeanor, and OWI third offense as a
habitual offender, a class “D” felony. See Iowa Code § 321.560; id.
§ 321J.2(2)(c); id. § 902.8. The case went to trial on March 29 and 30,
2016.
At the close of evidence, Williams moved for judgment of acquittal
on the OWI charge, arguing the State did not present sufficient evidence
5
for a fact finder to conclude he was under the influence of alcohol.
Williams also moved for judgment of acquittal on the driving-while-
barred charge, contending the State failed to prove the IDOT mailed him
notice of his license bar. The district court overruled Williams’s motions.
The jury returned verdicts finding Williams guilty of both OWI and
driving while barred. In the second stage of the bifurcated proceeding,
the jury then found that Williams had incurred the prior convictions
alleged by the State. The court sentenced Williams to fifteen years in
prison, subject to a three-year minimum, on the OWI third conviction as
a habitual offender, and to two years in prison on the driving-while-
barred-as-a-habitual-offender conviction, the two sentences to run
concurrently. See Iowa Code §§ 902.8, .9(1)(c); id. § 903.1(2). Williams
appealed. We transferred the case to our court of appeals.
The court of appeals, sitting en banc, affirmed Williams’s
convictions and sentence. As to both charges, it rejected Williams’s
arguments that there was insufficient evidence he was operating the
vehicle. Regarding the OWI conviction, it found sufficient evidence from
which a jury could conclude Williams was under the influence of alcohol.
Finally, as to the driving-while-barred charge, a majority of that court
rejected Williams’s argument that the proof of mailing of the notice of
barment was a required element of the offense. Four judges of that court
dissented in part, finding that the State was required to prove mailing as
part of the driving-while-barred crime and had failed to do so.
We granted Williams’s application for further review.
II. Issue We Will Consider on Appeal.
Because this case is before us on further review, “we have the
discretion to review all or some of the issues raised on appeal or in the
application for further review.” State v. Clay, 824 N.W.2d 488, 494 (Iowa
6
2012). In exercising our discretion, we choose only to review Williams’s
claim that the State is required to prove the IDOT mailed notice of the
bar to him as an element of driving while barred. Accordingly, the court
of appeals decision will stand as the final decision on the remaining
issues.
III. Scope of Review.
Williams’s notice argument raises a question of statutory
interpretation; thus, our review is for correction of errors at law. See
State v. Nall, 894 N.W.2d 514, 517 (Iowa 2017).
IV. Analysis.
Williams contends his conviction for driving while barred must be
set aside because the State did not prove it mailed notice of revocation to
him. 1 We begin with the language of the statute:
It shall be unlawful for any person found to be a
habitual offender to operate any motor vehicle in this state
during the period of time specified in section 321.560 except
for a habitual offender who has been granted a temporary
restricted license pursuant to section 321.215, subsection 2.
Iowa Code § 321.561.
The legislature gets to define the elements of the crime. State v.
James, 393 N.W.2d 465, 468 (Iowa 1986) (“Elements . . . are
promulgated by the legislature because all Iowa crimes are statutory.”).
1The State urges Williams did not preserve error because the marshaling
instruction did not state mailing of notice was a required element and Williams did not
object to that instruction in its final form. We disagree. Williams timely moved for
judgment of acquittal based on the absence of proof of giving notice. When the motion
was denied, Williams did not have to further object to the marshaling instruction. See
In re Estate of Workman, 903 N.W.2d 170, 176 (Iowa 2017).
The State also urges Williams invited any error because his attorney started to
object to the State’s introduction into evidence of the affidavit of mailing before
obtaining the State’s agreement not to introduce it. This does not amount to invited
error in our view. Proof of mailing can be made in other ways than through an affidavit
of mailing. It is the State’s job to prove up its case.
7
Reading Iowa Code section 321.561, it requires a person found to be a
habitual offender to be operating a motor vehicle in Iowa during a
specified period of time. Iowa Code § 321.561. It does not refer to notice
as part of the offense. See id.
Even Iowa Code section 321.560, which is referenced in section
321.561, does not mention notice. It is entitled “Period of revocation—
temporary restricted licenses,” and states in part,
1. A license to operate a motor vehicle in this state
shall not be issued to any person declared to be a habitual
offender under section 321.555, subsection 1, for a period of
not less than two years nor more than six years from the
date of the final decision of the department under section
17A.19 or the date on which the district court upholds the
final decision of the department, whichever occurs later.
....
2. A license to operate a motor vehicle in this state
shall not be issued to any person declared to be a habitual
offender under section 321.555, subsection 2, for a period of
one year from the date of the final decision of the department
under section 17A.19 or the date on which the district court
upholds the final decision of the department, whichever
occurs later.
3. The department shall adopt rules under chapter
17A that establish a point system which shall be used to
determine the period for which a person who is declared to
be a habitual offender under section 321.555, subsection 1,
shall not be issued a license.
4. A person who is determined to be a habitual
offender while the person’s license is already revoked for
being a habitual offender under section 321.555 shall not be
issued a license to operate a motor vehicle in this state for a
period of not less than two years nor more than six years.
The revocation period may commence either on the date of
the final decision of the department under section 17A.19 or
the date on which the district court upholds the final
decision of the department, whichever occurs later, or on the
date the previous revocation expires.
Iowa Code § 321.561. Again, the statute refers only to periods of time.
See id.
8
Here, the State offered ample proof that Williams was operating a
motor vehicle during the relevant period of time. Exhibit 7, the certified
abstract of driving record, was admitted at trial without objection. On
page 2, this abstract states that Williams was barred from driving for the
time period 10/2/12 to 10/2/16. Further evidence showed that
Williams’s driving on Highway 30 and his subsequent arrest occurred on
December 12, 2015.
In addition, the officers who interacted with Williams testified as
follows:
Sergeant Wingate:
Q. Did you tell the defendant that he was being
arrested for driving while barred? A. I believe I did, yeah.
Q. And do you remember his response? A. I think he
indicated that he knew he shouldn’t be driving at that point.
Deputy Twigg:
Q. Do you recall hearing if the defendant was barred
from driving? A. Yes. Yes, he was barred from driving.
Q. Did the defendant acknowledge that? A. He did.
Based on this evidence, the district court properly denied
Williams’s motion for judgment of acquittal on his conviction for driving
while barred.
Prior caselaw supports the conclusion that proof of mailing is not
an essential element of the offense of driving while barred as a habitual
offender. State v. Boleyn defined the offense as follows: “The offense of
driving while barred is committed when a person convicted as a habitual
offender operates a motor vehicle during the period their license is
barred.” 547 N.W.2d 202, 206 (Iowa 1996). In State v. Cook, we affirmed
the giving of the following jury instruction: “[T]he State must prove that
(1) Cook operated a motor vehicle on August 15, 1995, and (2) on that
9
date, his privilege to operate a motor vehicle was barred as an habitual
offender.” 565 N.W.2d 611, 613 (Iowa 1997) (per curiam). In State v.
Snyder, we upheld the defendant’s conviction because “there was
substantial evidence that Snyder was operating . . . a motor vehicle . . .
during a time period he was prohibited from doing so as a result of being
convicted as a habitual offender.” 634 N.W.2d 613, 618 (Iowa 2001).
Notably, in Snyder, as in the case at hand, the defendant’s driving record
was admitted into evidence and reflected the revocation. Id. at 614. We
also made note of the defendant’s verbal admission to the officer
regarding the status of his license. Id.
Further, in State v. Wise, the court of appeals upheld a conviction
under Iowa Code section 321.561 over a claim of ineffective assistance of
counsel. 697 N.W.2d 489, 492 (Iowa Ct. App. 2005). In doing so, the
court observed, “The crime Mr. Wise was charged with has only two
elements: he (1) was operating a motor vehicle (2) while his license was
barred.” Id.
It is true that none of these cases specifically addressed the
question whether the giving of notice was an element of the crime. But
each time the court recited the elements of the Iowa Code section
321.561 offense, it did so without mentioning notice as an element.
Our recent holding in State v. Kennedy also applies here. 846
N.W.2d 517 (Iowa 2014). In Kennedy, the defendant’s license was
revoked after his conviction for OWI. Id. at 522. We said,
To prove Kennedy violated this statute, the State must prove
Kennedy drove a motor vehicle while his license was revoked
due to a violation of chapter 321J. There is no question
Kennedy was driving a motor vehicle at the time of his
arrest. The questions in this appeal are when was Kennedy’s
license revoked under chapter 321J and does any admissible
evidence in the record support the fact his license was
revoked.
10
Id. at 521 (citation omitted). We noted that the crime of driving while
license revoked under section 321J.21 has only two elements: that the
defendant drove a vehicle and that the defendant’s license was revoked at
the time. Id.
We then concluded that given these elements, affidavits of mailing
were not necessary to prove Kennedy violated the statute:
The certified abstract contained the effective date of the
revocation for the OWI chemical testing refusal, the effective
date of the revocation for the OWI chemical testing failure,
and the effective date of the revocation for the OWI
conviction. The certified abstract also indicated these
revocations were in effect at the time Kennedy was arrested.
The information contained in the admissible certified
abstract of driving record was sufficient to convict Kennedy
of driving under revocation in violation of Iowa Code section
321J.21 without the need for the district court to consider the
inadmissible affidavits of mailing. Therefore, the inadmissible
affidavits of mailing did not have an effect on the verdict and
the district court’s admission of the affidavits of mailing
constituted harmless error.
Id. at 528 (emphasis added).
Although Kennedy involved a revocation for an OWI offense under
Iowa Code section 321J.21, as opposed to Williams’s habitual offender
revocation under section 321.560, Kennedy’s reasoning applies here. In
Kennedy, an abstract of the defendant’s driving record was sufficient to
prove that he was operating a vehicle during the time period after the
effective date of revocation. Id. Here, the State introduced a similar
abstract plus Williams’s own admissions. Because we found in Kennedy
that an affidavit of mailing was unnecessary, it follows that it was not
needed here.
Williams makes a plausible argument that the IDOT had to mail
notice of bar to him as one of the steps in the barment process. The IDOT
conducts habitual offender proceedings pursuant to section 321.556.
11
See Iowa Code § 321.556. Once the IDOT determines a person is a
habitual offender after initial notice and hearing, “the department shall
issue an order prohibiting the person from operating a motor vehicle on
the highways of this state for the period specified in section 321.560.”
Id. § 321.556(4). The statute itself says nothing about mailing this order.
Still, IDOT administrative rules—but not the Iowa Code—require
the IDOT to “send a notice of denial, cancellation, suspension,
revocation, disqualification or bar by first-class mail to the person’s
mailing address as shown on departmental records.” Iowa Admin. Code
r. 761—615.37(1). In addition, the rules—but not the Code—provide,
“Unless otherwise specified by statute or rule, a suspension, revocation,
disqualification or bar shall begin 30 days after the department’s notice
of suspension, revocation, disqualification or bar is served.” Id. r. 761—
615.36.
Iowa Code section 321.560 does not have a thirty-day waiting
period for the bar to take effect. It refers to “the date of the final decision
of the [IDOT] under section 17A.19”—not to thirty days after the final
decision—as being the commencement of the revocation period. See Iowa
Code § 321.560. Thus, one might conclude that IDOT rule 761—615.36
is inconsistent with section 321.560 and therefore inapplicable. See
Iowa Admin. Code r. 761—615.36 (“Unless otherwise specified by statute
. . . .”).
However, a thirty-day waiting period is equal to the time period
allowed by the Iowa Code for a person to seek judicial review of a finding
by the IDOT that a person is a habitual offender. See Iowa Code
§ 17A.19(3). Therefore, one might also argue that the rule aligns with the
statute by automatically staying the final decision of the IDOT for the
thirty days pending judicial review. Iowa Code section 321.560 provides
12
two alternative commencement dates for the bar—“the date of the final
decision of the [IDOT] under section 17A.19 or the date on which the
district court upholds the final decision of the department, whichever
occurs later.” Iowa Code § 321.560(1), (2), (4). According to this view, if
the person barred did not seek judicial review, the bar would begin on
the thirtieth day after issuance of the IDOT’s decision.
But in the end it doesn’t matter. Mailing of notice is not an
element of the crime. The crime consists of operating a vehicle during
the period of time the defendant was barred from driving as a habitual
offender. See id. § 321.561. That is what the State must prove. How the
State gets there is the State’s problem. After all, we don’t require the
State to introduce a copy of a marriage license in a domestic abuse
assault case, a birth certificate in a statutory rape case, or a property
deed in a trespass case. All the State needs is competent proof that the
defendant was married to the victim (assuming the other circumstances
of domestic abuse do not apply); that the victim was under a given age;
or that the property was owned, leased, or lawfully possessed by another.
See State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005); State v. Mitchell,
568 N.W.2d 493, 499–500 (Iowa 1997); State v. Garrett, 516 N.W.2d 892,
895 (Iowa 1994).
The legislature could have made giving notice of the bar one of the
elements of the crime. See, e.g., Minn. Stat. Ann. § 171.24(2) (West,
Westlaw through 2017 Reg. & 1st Spec. Sess.) (“A person is guilty of a
misdemeanor if: (1) the person’s driver’s license or driving privilege has
been revoked; (2) the person has been given notice of or reasonably
should know of the revocation; and (3) the person disobeys the order by
operating in this state any motor vehicle, the operation of which requires
a driver’s license, while the person’s license or privilege is revoked.”).
13
Instead, it enacted a “status crime” where the only elements are that the
defendant was a habitual offender who operated a vehicle during the
period of time his or her license was revoked. See Iowa Code § 321.561
(“It shall be unlawful for any person found to be a habitual offender to
operate any motor vehicle in this state during the period of time specified
in section 321.560 . . . .”).
Williams relies on State v. Green, where we held that the state had
to show that it had mailed a notice of suspension in order to prove that a
suspension had occurred for purposes of a driving-under-suspension
violation. 722 N.W.2d 650, 652 (Iowa 2006). Green, however, is
distinguishable. There we could not “presume, based solely on the DOT’s
furnishing of a copy of notice found in its files that the notice was
actually mailed.” Id. Because the state failed to provide any other
evidence that it had mailed notice, we found that the conviction for
driving under suspension could not stand. Id. However, the opinion
does not mention any independent proof that the driver’s license had
been suspended, such as an abstract of driving record or admissions
made by the defendant. See id. The state therefore had to establish that
it had mailed a notice of suspension in order to prove that a suspension
had occurred, and the state failed to do so. Id.
We therefore hold, based on the manner in which the legislature
has framed Iowa Code section 321.561 and our own precedent, that
proof of mailing is not an essential element of the State’s proof.
Numerous other jurisdictions have reached similar conclusions. Osborne
v. District of Columbia, 169 A.3d 876, 886 (D.C. 2017) (finding that proof
of notice is required only “where a defendant claims that he or she did
not receive notice of revocation and the evidence fairly raises the issue”);
Griffin v. State, 692 S.E.2d 7, 8 (Ga. Ct. App. 2010) (finding the
14
defendant’s “statement to the officer that his license was suspended” to
be sufficient evidence that it was in fact suspended); People v. Gonzalez,
No. 1–14–0907, 2016 WL 1274017, at *4 (Ill. App. Ct. Mar. 30, 2016)
(“[T]he evidence was sufficient to sustain defendant’s conviction for
[driving while his license was suspended (DWLS)]. Officer Silva and
defendant both testified that defendant was driving on April 10, 2013,
and the certified driving abstract indicated that his license was subject to
two suspensions on that date. The State established each element of
DWLS, irrespective of whether defendant had notice that either
suspension was in effect.” (Citation omitted.)); State v. Keihn, 542 N.E.2d
963, 968–69 (Ind. 1989) (finding that even though Indiana requires proof
of the defendant’s knowledge that his or her license was suspended, the
defendant’s admission can be sufficient and evidence is not insufficient
simply because of “the absence of proof that a notice of suspension was
sent in due course by the Bureau of Motor Vehicles”); State v. Soto, 162
P.3d 187, 198 (N.M. Ct. App. 2007) (“Defendant’s admission that his
driver’s license was revoked provided evidence, apart from the challenged
record, sufficient to prove this element of the crime charged.”), overruled
on other grounds by State v. Tollardo, 275 P.3d 110, 121 (N.M. 2012), as
recognized by State v. Hale, No. 34,125, 2016 WL 6561264 (N.M. Ct. App.
Sept. 15, 2016); State v. Mecham, 331 P.3d 80, 89 (Wash. Ct. App. 2014)
(“The elements of first degree DWLS are: (1) the defendant was driving in
Washington; (2) his privilege to drive was revoked at the time; and (3) the
revocation was based on his status as a habitual traffic offender. . . .
[T]he fact of mailing is not an element of the crime to be proved at trial.
Rather, mailing goes to whether the license revocation complied with due
process.”).
15
V. Conclusion.
For the foregoing reasons, we affirm the judgment of the district
court and the decision of the court of appeals.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Wiggins and Appel, JJ., who dissent, and
Hecht, J., who takes no part.
16
#16–0894, State v. Williams
WIGGINS, Justice (dissenting).
The majority holds the State is not required to prove it mailed
notice to Deshaun Williams as an element of the offense of driving while
barred. I dissent based upon my analysis of the statutory scheme and
due process considerations.
I begin my analysis with State v. Green, 722 N.W.2d 650 (Iowa
2006). There we addressed the issue of whether the Iowa Department of
Transportation (IDOT) established it had sent notice—“the condition
precedent to agency action”—to the licensee prior to suspending her
license. Id. at 651. We first examined the general notice requirement
codified in Iowa Code section 321.16 (2003), which focuses on the
sending of notices. Id. at 651–52. This section provides,
When the department is authorized or required to give notice
under this chapter or any other law regulating the operation
of vehicles, unless a different method of giving notice is
expressly prescribed, notice shall be given either by personal
delivery to the person to be so notified or by personal service
in the manner of original notice . . . or by first class mail
addressed to the person at the address shown in the records
of the department . . . .
Id. (quoting Iowa Code § 321.16).
We then examined the suspension provision codified in section
321.210(1), which focuses on the receipt of notices. Id. at 652. This
section authorizes the IDOT to suspend a driver’s license after “the
licensee . . . received thirty days’ advance notice of the effective date of
the suspension.” Id. (quoting Iowa Code § 321.210(1)).
Additionally, we reasoned the saving language of section 321.16
“clearly contemplates that the notice had been ‘mailed by first class
mail.’ ” Id. at 652. The saving language states,
17
A person’s . . . claim of failure to receive a notice of
revocation, suspension, or bar mailed by first class mail to
the person’s last known address shall not be a defense to a
charge of driving while suspended, revoked, denied, or
barred.
Id. (quoting Iowa Code § 321.16).
We held proof of mailing notice of the suspension is an element of
the offense of driving while suspended. See id. Because the IDOT failed
to show either by affidavit or a certified mail receipt that it had sent
notice to the defendant, although it had furnished to the district court a
copy of a notice letter found in its internal files, we concluded “there was
no proof that the notice was in fact mailed.” Id.
To determine if the majority is correct, the majority must interpret
Iowa Code sections 321.555 (2015), 321.556, and 321.560 in tandem
with the administrative rules enacted by the IDOT. In interpreting a
statute, we have stated,
The goal of statutory construction is to determine legislative
intent. We determine legislative intent from the words
chosen by the legislature, not what it should or might have
said. Absent a statutory definition or an established
meaning in the law, words in the statute are given their
ordinary and common meaning by considering the context
within which they are used. Under the guise of
construction, an interpreting body may not extend, enlarge[,]
or otherwise change the meaning of a statute.
Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)
(citations omitted). Additionally, we construe statutes so they are
consistent with each other. Sanon v. City of Pella, 865 N.W.2d 506, 514
(Iowa 2015). Finally, “we should not construe a statute to make any part
of it superfluous.” Petition of Chapman, 890 N.W.2d 853, 857 (Iowa
2017).
My review of the habitual offender statutory provisions and
accompanying administrative rules, taken together, does not support the
18
majority’s premise that the effective date of the bar order begins from the
actual date the IDOT enters its decision.
I begin with the Iowa Code. The IDOT conducts a habitual offender
proceeding pursuant to section 321.556. See Iowa Code § 321.556. If
the IDOT reviews a person’s record and determines the person is a
habitual offender as defined in section 321.555, “the department shall
immediately notify the person in writing and afford the licensee an
opportunity for a hearing.” Id. § 321.556(1). Once it determines the
person is a habitual offender, “the department shall issue an order
prohibiting the person from operating a motor vehicle on the highways of
this state for the period specified in section 321.560.” Id. § 321.556(4).
For a person barred as a habitual offender under section
321.555(1) or (2), the period of the bar begins “from the date of the final
decision of the department under section 17A.19 or the date on which
the district court upholds the final decision of the department, whichever
occurs later.” Id. § 321.560(1)–(2) (emphasis added). For a person
determined to be a habitual offender while his or her license is already
revoked for being a habitual offender, the period of the revocation begins
“on the date of the final decision of the department under section 17A.19
or the date on which the district court upholds the final decision of the
department, whichever occurs later.” Id. § 321.560(4) (emphasis added).
The administrative rules require the IDOT to “send a notice of . . .
bar by first-class mail to the person’s mailing address as shown on
departmental records.” Iowa Admin. Code r. 761—615.37(1). This rule
is consistent with section 321.16. The rules also provide, “Unless
otherwise specified by statute or rule, a suspension, revocation,
disqualification or bar shall begin 30 days after the department’s notice
19
of suspension, revocation, disqualification or bar is served.” Id. r. 761—
615.36.
The thirty-day waiting period is important under the statutory
scheme. This thirty-day waiting period is equal to the same time period
allowed by the Iowa Code for a person to seek judicial review of a finding
by the IDOT that a person is a habitual offender. See Iowa Code
§ 17A.19(3).
If a person seeks judicial review of the IDOT’s final decision, the
effective date of the person’s bar begins “from . . . the date on which the
district court upholds the final decision of the department, whichever
occurs later.” Id. § 321.560(1), (2), (4). The majority ignores the
language “whichever occurs later” in reaching its conclusion, thereby
rendering the habitual offender provisions containing this language
superfluous. See Rojas v. Pine Ridge Farms, L.L.C., 779 N.W.2d 223, 231
(Iowa 2010) (“[T]he legislature included all parts of the statute for a
purpose, so we will avoid reading the statute in a way that would make
any portion of it redundant or irrelevant.”). Section 321.560
automatically stays the final decision of the IDOT pending judicial
review.
The only way the statutory scheme makes sense is if we give full
effect to the habitual offender provisions as a whole and the
administrative rules the IDOT relies on to implement the habitual
offender provisions. See Iowa Nat. Res. Council v. Van Zee, 261 Iowa
1287, 1290, 158 N.W.2d 111, 114 (1968) (“It is a cardinal principle of
statutory construction that the intent of the legislature is to be gleaned
from the statute read as a whole[] and not from any section or portion
thereof taken piecemeal.”); see also State v. Connor, 292 N.W.2d 682, 686
(Iowa 1980) (applying the canon of statutory construction that “a
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construction resulting in unreasonableness as well as absurd
consequences will be avoided” (quoting Janson v. Fulton, 162 N.W.2d
438, 442 (Iowa 1968))).
To give effect to the words “whichever occurs later” in section
321.560, the thirty-day delay described in rule 761—615.36 is necessary
to carry out the statutory scheme. If we ignore the thirty-day delay,
under the reasoning of the majority, every bar of a habitual offender
would begin literally on the actual date the IDOT enters its decision,
regardless of when the IDOT mails its decision and regardless of due
process concerns. The majority renders the phrase “from . . . the date on
which the district court upholds the final decision of the department,
whichever occurs later” superfluous and unnecessary because the actual
date of the IDOT’s final decision, without the thirty-day delay, would
always occur before “the date on which the district court upholds the
final decision.”
If the person barred does not seek judicial review, the bar would
begin on the thirtieth day from the date of the final decision. The thirty-
day delay built into the start date of the bar gives a person an
opportunity to ask for judicial review. It does not matter if the person
actually avails him or herself of the opportunity. Thus, similar to a
suspension under Green, the bar will not begin until a person has had
the opportunity to exhaust all of his or her legal remedies, short of
appeal to this court.
The majority finds section 321.560 of the Iowa Code supersedes
rule 761—615.36 of the Iowa Administrative Code. This is wrong. I
acknowledge section 321.560 also provides “from the date of the final
decision of the department under section 17A.19.” Iowa Code
§ 321.560(1), (2), (4). However, the majority fails to flesh out what “the
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date of the final decision” means. I examine an instructive case that
employed a due-process analysis to conclude the Iowa State Board of Tax
Review “issues” a decision when the board mails it, and the date of
mailing starts the thirty-day appeals period. Purethane, Inc. v. Iowa State
Bd. of Tax Review, 498 N.W.2d 706, 710 (Iowa 1993).
In Purethane, Inc., we stated the Iowa Code provided for a thirty-
day appeals period to file a protest from a sales and use tax assessment.
Id. at 707–08. The board did not mail its November 28 decision until
December 11 by certified mail. Id. at 708.
In resolving the question of when the board issued its final order to
determine the appeal period, we stated,
In the absence of a file or entry system by which the
public and parties to a controversy before the board of tax
review can learn of the board’s decision, due process
requires the statutory appeal period begins to run when the
board decision is officially made available as a public record.
....
. . . [T]he correct date which the board’s order “issued”
for purposes of determining the statutory appeal period is
the date in which the order is put forth to the public and
parties. Absent board rules [that] make decisions public by
filing and entry, this date means the date the order is mailed
by certified mail. Beginning the appeal period on the date of
certified mailing does not violate due process.
Id. at 710 (emphasis added).
I agree with this analysis and apply it to Williams’s case because
the relevant habitual offender statutory provisions involve the date of the
IDOT’s final decision. Accordingly, the date of the IDOT’s final decision is
when the IDOT issues it by mailing notice of a licensee’s barred status to
the licensee. The date of mailing therefore commences the thirty-day
period to file a petition for judicial review. My conclusion, which honors
22
the principles of due process, shows that rule 761—615.36 is consistent
with section 321.560.
Based on the foregoing, under the statutory scheme created by the
habitual offender provisions and supplemented by the administrative
rules, the IDOT must mail notice of the bar to the licensee. This
construction makes procedures under the habitual offender provisions
similar to those under the suspension provisions in Green. Therefore,
the State must prove it sent notice to Williams as an element of the
offense of driving while barred. 2
Additionally, I find State v. Cook, 565 N.W.2d 611 (Iowa 1997) (per
curiam), inapplicable to the analysis. The majority reasoned Cook
precludes a contrary conclusion because Cook did not identify proof of
mailing notice as an element to the offense of driving while barred. In
Cook, we held the district court did not err in giving the following jury
instruction: “(1) [The defendant] operated a motor vehicle on August 15,
1995, and (2) on that date, his privilege to operate a motor vehicle was
barred as an habitual offender.” 565 N.W.2d at 613. However, Cook
involved an ineffective-assistance-of-counsel claim in which the
defendant argued his counsel should have objected to the trial
information concerning his habitual offender status because it was
prejudicial. Id. We held habitual offender status was an essential
element of the crime and therefore the state was required to offer proof of
such status. Id. at 615. In other words, Cook is not applicable to
Williams’s insufficiency-of-the-evidence claim because it simply does not
2Under our prior decision, if the IDOT prepares a certificate of mailing
contemporaneously with mailing and keeps the certificate in the regular course of
business, it is nontestimonial, and its admissibility would not violate the Confrontation
Clause. See State v. Kennedy, 846 N.W.2d 517, 526 (Iowa 2014). However, if the IDOT
prepares a certificate of mailing for the purpose of trial, it is testimonial. See id.
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address the necessary and required elements of proving the offense of
driving while barred.
Finally, I would find State v. Kennedy, 846 N.W.2d 517 (Iowa
2014), also inapplicable to the analysis. Kennedy involved a license
revocation, not a license bar as a habitual offender. In that case, the
defendant raised a Confrontation Clause issue, claiming the state
improperly introduced a certified abstract of his driving record.
846 N.W.2d at 521. The state had revoked the defendant’s license three
different times, once for OWI test refusal, once for OWI test failure, and
once for OWI. Id. at 521–22. The necessity of mailing the revocation
notice was not at issue in Kennedy. The only issue raised and decided
by us was whether there was competent proof in the record that the
defendant drove his vehicle after the effective date of the revocation and
before the reinstatement of his license. Id. at 522. The defendant never
raised the issue that proof of mailing was required.
The difference between Kennedy and the present case is that when
the State revokes a license for OWI, the revocation takes effect
immediately upon conviction. Id. On the other hand, when the State
bars a habitual offender’s license, mailing is an essential element of the
offense because mailing triggers the appeal process and the effective date
of the bar. Additionally, in Kennedy, the criminal conviction satisfies any
due process concerns regarding the revocation. A proceeding to bar a
person’s license for being a habitual offender is consistent with our
analysis in Green.
Based on the foregoing, I would hold the proper marshaling
instruction consists of two elements: (1) operating a vehicle and
(2) operating with a barred license. The second element has two
subparts. First, the State must prove the defendant’s license was barred
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on the date in question. Second, the State must present proof the IDOT
properly mailed notice to the defendant. However, the State is not
required to prove knowledge on the part of the defendant. State v.
Carmer, 465 N.W.2d 303, 304 (Iowa Ct. App. 1990) (holding section
321.561 does not require knowledge as an element of the offense of
driving while barred). Moreover, “[a] person’s refusal to accept or a claim
of failure to receive a notice of . . . bar mailed by first class mail to the
person’s last known address shall not be a defense to a charge of driving
while . . . barred.” Iowa Code § 321.16.
It is undisputed the State did not introduce into evidence—either
an affidavit of mailing or certified mail receipt—showing the IDOT
properly mailed notice to Williams of the bar to his last known address.
Thus, the State failed to prove beyond a reasonable doubt Williams was
driving while barred. Based on the State’s failure to prove the mailing of
notice, I would not uphold the jury’s verdict on the driving-while-barred
conviction.
Appel, J., joins this dissent.