IN THE SUPREME COURT OF IOWA
No. 16–2177
Filed March 8, 2019
STATE OF IOWA,
Appellee,
vs.
JEFFREY JOHN MYERS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Floyd County, Peter B.
Newell, District Associate Judge.
Appellant appeals from a judgment and sentence for operating a
motor vehicle with the presence of a controlled substance in his person.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, Rachel Ginbey, County Attorney, and Randall Tilton,
Assistant County Attorney, for appellee.
2
CADY, Chief Justice.
In this appeal, we must decide if a conviction for the crime of
operating a motor vehicle while having any amount of a controlled
substance in a person as measured by the person’s urine can be based on
an initial laboratory test that was positive for controlled substances. We
conclude an initial test is insufficient under the facts of this case to
establish guilt beyond a reasonable doubt. We vacate the decision of the
court of appeals, reverse the judgment and sentence of the district court,
and remand the case to the district court for dismissal of the charge.
I. Factual Background & Proceedings.
The facts of this case resulted in the prosecution and conviction of
Jeffrey Myers for the crime broadly referred to as operating while
intoxicated (OWI). On March 12, 2016, around 1 a.m., Myers was
operating a motor vehicle in Charles City. A police officer, Cory Van Horn,
observed the vehicle and noticed the taillights were not illuminated.
Officer Van Horn stopped the vehicle. After he informed Myers of the
reason for the stop, Myers flipped a switch in the car’s interior, which
illuminated the lights. Officer Van Horn also noticed Myers was sweating
profusely.
Officer Van Horn placed Myers in the passenger seat of his patrol
car. He checked Myers’s eyes and noticed that they were watery and
bloodshot and that he had difficulty keeping them open. Additionally he
noted that Myers’s eyes dilated very little upon exposure to his flashlight
and that the back of Myers’s tongue was a brownish green color. Another
officer arrived at the scene to assist Officer Van Horn with the remainder
of the stop.
Officer Van Horn administered several field sobriety tests, including
horizontal gaze nystagmus, lack of convergence, walk and turn, one leg
3
stand, and the modified Romberg test. The test results prompted Officer
Van Horn to ask Myers if he had “taken” anything that night. Myers
replied he had taken cold medicine. The officers concluded Myers was
under the influence of a drug and arrested him. Myers consented to the
submission of a urine specimen for testing. An initial test of the urine
sample by the Iowa Division of Criminal Investigation (DCI) laboratory
revealed detectable levels of amphetamines and marijuana.
On March 30, 2016, the State charged Myers by trial information
with OWI in violation of Iowa Code section 321J.2 (2016). 1 The minutes
of testimony included the official toxicology report from the DCI laboratory.
The positive screen for amphetamines was 589 ng/ml, and the positive
screen for marijuana metabolites was 62 ng/ml. 2 The report stated the
positive screens “indicate[] the possible presence” of substances at levels
equal to or more than the levels established in the Iowa Administrative
Code. The document concluded by indicating a report on the positive
1The trial information did not identify the specific subsections under section
321J.2 allegedly violated by Myers. Instead, it alleged Myers
did operate a motor vehicle by one or more of the following
means:
a. while under the influence of an alcoholic
beverage or drugs or a combination of such substances;
b. while any amount of a controlled substance is
present in the person as measured in the person’s blood or
urine.
These allegations track with section 321J.2(1)(a) and (c). Yet, the State did not use (a)
and (c) in the charging recital of the trial information to identify the subsections under
section 321J.2(1). Instead, it used (a) and (b) to format the two specific statutory
allegations that tracked with section 321J.2(1)(a) and (c). Thus, it was clear the trial
information charged Myers under section 321J.2(1)(a) (driving under the influence) and
321J.2(1)(c) (operating with any amount of a controlled substance as measured in the
person’s blood or urine).
2Measurements are given in nanograms per milliliter.
4
screens “to confirm the presence of specific drugs will follow.” The minutes
of testimony, however, did not include a follow-up report.
On June 6, Myers filed a motion to suppress. He argued his
taillights were illuminated and there was no basis to justify the stop. At
the suppression hearing, the State submitted a copy of Officer Van Horn’s
dash cam video recordings. The district court denied the motion to
suppress. It concluded the taillights were not illuminated and the stop
was justified.
The case proceeded to a bench trial on the minutes of testimony.
The district court found Myers guilty beyond a reasonable doubt. In
making this finding on the record, the court explained,
All right. Mr. Myers, basically the State has two things that
they have to prove in order to establish this offense. The first
is that you were driving or operating a motor vehicle. . . . That
element has been established. The second element is at the
time you were operating a motor vehicle, you had a detectable
level of a controlled substance in your blood stream. They
could also prove you were under the influence of something. In
this case, you did agree to provide a urine sample. The urine
sample was positive for both marijuana metabolites and for
amphetamines; and so, those are the elements that the State
has to establish, and I believe that the State has established
those elements beyond a reasonable doubt.
It then entered a written finding that the minutes of testimony established
beyond a reasonable doubt that Myers committed all the elements of OWI
in violation of Iowa Code section 321J.2. It did not designate the specific
subsection. The court imposed the mandatory minimum penalties,
including two days in jail and a fine of $1250.
Myers appealed. He claimed (1) the district court erred by denying
his motion to suppress because there was no probable cause to support
the stop and (2) the evidence was insufficient to establish the presence of
a controlled substance in his system. Specifically, he argued the initial
5
screen test only found the “possible presence” of drugs not their actual
presence. He argued a confirmatory test should have been done on his
urine to verify the presence of controlled substances. Without a
confirmatory test, he claims the evidence in the minutes of testimony was
insufficient to support a finding of guilt.
In response, the State argued the results of the laboratory test
included in the minutes of testimony were sufficient to support the
conviction. Alternatively, it asserted the lab report did measure an amount
of a controlled substance in the urine as required under the statute and,
combined with other circumstantial evidence of impairment described in
the minutes of testimony, constitutes sufficient evidence of guilt.
We transferred the case to the court of appeals. It found the district
court properly denied Myers’s suppression motion. It also found there was
no legal requirement for a confirmatory test and concluded that the
detectable amounts of controlled substances by the initial test provided
sufficient evidence to support a conviction for OWI. Myers sought, and we
granted, further review.
On further review, we only address the issue of whether or not the
minutes of testimony in this case provided sufficient evidence to support
a conviction for OWI. In re Marriage of Schenkelberg, 824 N.W.2d 481, 483
(Iowa 2012) (“[W]e have the discretion to review all or part of the issues
raised on appeal or in the application for further review.”). We do not
address the claim of error based on the denial of the motion to suppress.
II. Scope of Review.
We review a claim of insufficient evidence in a bench trial just as we
do in a jury trial. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). “If
the verdict is supported by substantial evidence, we will affirm.” Id. We
determine whether substantial evidence supports the verdict by reviewing
6
“all the evidence and the record in the light most favorable to the trial
court’s decision.” State v. Hearn, 797 N.W.2d 577, 580 (Iowa 2011).
Finally, our review of challenges to the sufficiency of evidence is for errors
at law because “the question . . . is simply whether the evidence was
sufficient to support [the] conviction.” State v. Petithory, 702 N.W.2d 854,
856 (Iowa 2005).
III. Analysis.
A. District Court Findings. We first consider the context of the
verdict and the finding of guilt by the district court. The trial information
alleged the violation of Iowa Code sections 321J.2(1)(a) and (c). The first
alternative was based on the operation of a motor vehicle while under the
influence of an alcoholic beverage or a drug. Iowa Code § 321J.2(1)(a).
The second alternative was based on the operation of a motor vehicle with
any amount of a controlled substance as measured in the person’s blood
or urine. Id. § 321J.2(1)(c). Yet, the written verdict entered by the district
court only made reference to section 321J.2. It did not specify any
particular subsection in finding Myers violated section 321J.2. The trial
transcript, however, revealed the district court only found Myers guilty of
violating section 321J.2(1)(c). The district court parenthetically mentioned
the State “could also prove” Myers was operating under the influence of a
controlled substance but made no finding that Myers was “under the
influence” to support guilt under section 321J.2(1)(a). The only finding
made was that Myers had “any amount” of a controlled substance as
measured in his urine. 3 Thus, we only consider whether substantial
evidence supported the verdict rendered.
3A finding that Myers had controlled substances in his system does not mean he
was under the influence of, or even intoxicated by, drugs or alcohol at the time of the
stop. The tendency of controlled substances, like marijuana metabolites, to “accumulate
in body fat, creat[es] higher excretion concentrations and longer detectability.” See Ctrs.
7
Additionally, even if the pronouncement by the district court is
considered a general verdict based on a crime with multiple bases for guilt,
substantial evidence must support each alternative under the statute. See
State v. Lukins, 846 N.W.2d 902, 912 (Iowa 2014); State v. Smith, 739
N.W.2d 289, 295 (Iowa 2007); State v. Heemstra, 721 N.W.2d 549, 559
(Iowa 2006). Accordingly, in this case, if substantial evidence did not
support guilt under Iowa Code section 321J.2(1)(c), the conviction must be
reversed. We therefore proceed to consider whether the minutes of
testimony supported the finding that Myers operated a motor vehicle while
any amount of a controlled substance was present in his person, as
measured by his urine.
B. Overview of the Crime of Operating While Intoxicated. The
crime of operating while intoxicated can be committed in three ways. First,
the statute criminalizes operating a motor vehicle “[w]hile under the
influence of an alcoholic beverage or other drug or a combination of such
substances.” Iowa Code § 321J.2(1)(a). Second, the statute criminalizes
operating a motor vehicle “[w]hile having an alcohol concentration of .08
or more.” Id. § 321J.2(1)(b). Third, the statute criminalizes operating a
motor vehicle “[w]hile any amount of a controlled substance is present in
the person, as measured by the person’s blood or urine.” Id. § 321J.2(1)(c).
Each prong uses a different theory and primarily relies on different
evidence. The first prong primarily utilizes evidence of a person’s conduct
for Disease Control, Urine Testing for Detection of Marijuana: An Advisory, CDC: Mortality
Weekly Report (Sept. 16, 1983), https://www.cdc.gov/mmwr/preview/
mmwrhtml/00000138.htm. For that reason, a urine test alone cannot reveal current
impairment. See Stacy A. Hickox, Drug Testing of Medical Marijuana Users in the
Workplace: An Inaccurate Test of Impairment, 29 Hofstra Lab. & Emp. L.J. 273, 299–301,
333–34 (2012) (discussing the limitations of drug testing and the negative implications it
may have on employees using marijuana legally). Accordingly, we do not find the trial
judge made an adequate factual finding to support Myers’s conviction under subsection
(a).
8
and demeanor. The second prong primarily utilizes evidence of the results
of testing that measures a person’s alcohol concentration level from a
breath, blood, or urine specimen. The third prong primarily uses evidence
of the results of testing that measures any amount of a controlled
substance from a blood or urine specimen. While the last two prongs
require evidence derived from a test, not conduct, the test under the third
prong requires no specific threshold level of a prohibited substance.
C. Substantial Evidence of a Controlled Substance as Measured
by a Urine Test. In this case, we only consider if substantial evidence
supported the conviction under the third prong. The State claims the
initial screening test conducted by the DCI laboratory constitutes
sufficient evidence to support the conviction because it revealed the
“possible presence” of a controlled substance or metabolites in Myers urine
specimen in amounts that exceeded the standards for initial laboratory
testing for controlled substances. See id. § 321J.2(12)(c) (imposing a
statutory requirement for the department of public safety to adopt
“nationally accepted standards for determining detectable levels of
controlled substances in the division of the criminal investigation’s initial
laboratory screening test for controlled substances”); Iowa Admin. Code r.
661—157.7 (adopting the federal guidelines for workplace testing in initial
screenings). These standards established detectable levels for initial
laboratory testing at fifty ng/ml for marijuana metabolites and 500 ng/ml
for amphetamines. The initial test results in this case measured Myers
marijuana metabolites at sixty-two ng/ml and measured amphetamines
at 589 ng/ml. Thus, we must first decide if an initial test alone is sufficient
to establish guilt beyond a reasonable doubt when the laboratory who
conducted the test indicates the results only reveal the “possible presence”
of drugs.
9
D. Confirmatory Testing. Testing for controlled substances in
urine specimens is generally recognized to consist of an initial test and a
confirmatory test. 1 Kevin B. Zeese, Drug Testing Legal Manual § 2:2 (2d
ed.), Westlaw (database updated June 2018) (“Drug testing, whether of
blood, urine, or other body chemicals, should be considered to be at least
a two-stage process. . . . This initial test alone is generally insufficient as
far as both the scientific and legal community are concerned.”); Wis. State
Crime Labs, Wis. Dep’t of Justice, WSCL FAQs: Toxicology,
https://www.doj.state.wi.us/section-faqs/wscl (last visited Mar. 1, 2019)
(“An immunoassay screen does not test in enough detail for a drug to be
identified or confirmed, so drugs or classes of drugs can only be indicated
from this test.”). The Iowa DCI described the process as follows:
The detection of drugs in a urine sample is determined by
initial screening or presumptive tests. These tests target
compounds in a drug group rather than specific drugs.
Following a positive screening result on a sample, a second
confirmatory test is performed. This second test uses a
different analytical technique to identify a specific drug
compound.
Div. of Criminal, Iowa Dep’t of Pub. Safety, Urine Drug Analysis,
http://www.dps.state.ia.us/DCI/lab/toxicology/Urine_Drug_Analysis
.shtml (last visited Mar. 1, 2019).
Iowa Code section 321J.2(1)(c) does not require a specific drug to be
identified. The statute only requires any measurable amount of “a
controlled substance.” However, the identification of a specific drug in the
testing process serves to eliminate any errors in relying on the
identification of known compounds of a drug group. Because most
confirmatory testing “technique[s] provide[] information about the
chemical structure of a substance, it is possible to definitively state the
specific drug that is present.” Wis. State Crime Labs, Wis. Dep’t of Justice,
10
WSCL FAQs: Toxicology, https://www.doj.state.wi.us/section-faqs/wscl
(emphasis added) (last visited Mar. 1, 2019). Thus, confirmatory tests are
seen as safeguards against the potential flaws associated with the initial
drug test. See Karen E. Moeller et al., Clinical Interpretation of Urine Drug
Tests: What Clinicians Need to Know About Urine Drug Screens, 92 Mayo
Clinic Proceedings 774, 775 (2017) (“[I]mmunoassays will detect
substances with similar characteristics [to drug metabolites or classes of
drug metabolites], resulting in cross-reactivity leading to false-positive
results.”).
For employment drug testing purposes, urine samples are divided
into two portions at the time of collection. Iowa Code § 730.5(7)(b). One
portion is used for initial drug testing; a confirmatory test of this sample
is required if the initial test reveals the presence of drugs. Id.
§ 730.5(7)(f)(1); see also Harrison v. Emp’t Appeal Bd., 659 N.W.2d 581,
582 (Iowa 2003) (explaining this procedure with citation to a prior Iowa
Code version). If the positive results are confirmed, an employee is then
entitled to another confirmatory test of the second portion. Id.
§ 730.5(7)(i)(1); see also Harrison, 659 N.W.2d at 582.
Confirmatory drug tests are also a staple in federal employment drug
testing. The Mandatory Guidelines for Federal Workplace Drug Testing
Programs meticulously detail the procedures required for federal
employment drug testing. 73 Fed. Reg. 71,858 (Nov. 25, 2008). The
regulations provide for both an initial drug test and confirmatory drug
test. 4 The regulations establish specific measurement cutoff requirements
4Under the federal framework, an initial drug test is defined as “[t]he test used to
differentiate a negative specimen from one that requires further testing for drugs or drug
metabolites.” Mandatory Guidelines for Federal Workplace Drug Testing Programs, 73
Fed. Reg. 71,858, 71,878. A confirmatory drug test is defined as “[a] second analytical
procedure performed on a different aliquot of the original specimen to identify and
quantify the presence of a specific drug or drug metabolite.” Id.
11
for both initial drug tests and confirmatory drug tests and prescribe strict
standards to reduce the risk of inaccurate test results. Id. at 71,858,
71,861–62.
We too have recognized the existence of a confirmatory test in State
v. Comried, 693 N.W.2d 773, 774 (Iowa 2005). In Comried, the defendant
was convicted of vehicular homicide while having a controlled substance
in his system in violation of sections 321J.2(1)(c) and 707.6A. Id. Comried
challenged the “any amount of a controlled substance” language in section
321J.2(1)(c). Id. at 774. He argued we should apply the department of
public safety rule that established cutoff levels for measurement of drug
concentrations. Id. at 775. The state argued, and we agreed, that “ ‘any
amount’ means what it says—if a test detects any amount of a controlled
substance the any-amount element is satisfied.” Id. at 775, 778. Yet, we
observed the distinction between initial and confirmatory tests:
[The state’s criminalistics] laboratory performs two types of
tests: an initial screening test and a confirmatory test. The
initial test is performed at certain “cutoff levels,” meaning that
only drug concentrations over the cutoff level will yield a
“positive” test result. Any concentration below the cutoff level
is reported “negative.” If the initial screening test shows
positive, a second test is performed on the sample. This
second test, the confirmatory test, is presumably more
expensive but is also more reliable and produces very accurate
results.
Id. at 774 (emphasis added) (citation omitted). 5
5It is relevant to note that our decision in Comried relied on an Arizona case, State
v. Phillips, 873 P.2d 706, 708 (Ariz. Ct. App. 1994), that interpreted an Arizona statute
similar to Iowa Code section 321J.2. However, a recent 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). This decision, in effect, makes Phillips’s application to
marijuana ineffective. Yet, despite this change in the law, we reaffirmed our Comried
holding in State v. Childs, 898 N.W.2d 177, 187 (Iowa 2017), stating, “We apply the Iowa
statute as written and leave it to the legislature whether to revisit the zero-tolerance ban
on driving with even nonimpairing metabolites of marijuana.”
12
This background provides context to the issue we confront and helps
explain the force of two important statements contained in the written
initial report by the DCI laboratory in this case. First, the report
specifically stated the positive screens only indicated the “possible
presence” of a controlled substance. Second, the report stated a second
report to confirm the presence of specific drugs would follow.
We recognize the initial test is evidence of the presence of a
controlled substance in the urine of a person. However, the lack of
confidence in the results of the initial test has given rise to the common
requirement for a confirmatory test in other areas of drug testing. If
confirmatory testing is a part of workplace drug testing, it would be just
as important, if not more important, in the criminal justice system.
Significantly, the minutes of testimony in this case did not include any
expert testimony or other evidence to explain the accuracy of the initial
test beyond its admitted possibility of the presence of controlled
substances. Thus, we are left with doubts about its accuracy, and those
doubts mean the initial test falls short of establishing guilt beyond a
reasonable doubt. See, e.g., Hearn, 797 N.W.2d at 580 (“[E]vidence which
merely raises suspicion, speculation, or conjecture is insufficient.”
(quoting State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992))). We conclude
the results of the initial testing of the urine specimen, alone, is insufficient
to satisfy the burden of proof required of our criminal justice system. To
support a conviction under the statute, the test must identify an amount
of a controlled substance in a blood or urine sample beyond a reasonable
doubt. Without other evidence, a test that only identifies the “possible
presence” of a controlled substance falls short of satisfying the reasonable
doubt standard.
13
E. Circumstantial Evidence of Impairment. Notwithstanding,
the State argued that even if the test results only show a “possible
presence” of a controlled substance, this evidence, together with the
circumstantial evidence of impairment disclosed by the minutes of
testimony in the case, is sufficient to support the conviction. It asserts
that the initial test satisfied the requirement for the evidence of guilt be
based on a test that measures a controlled substance in a person’s urine.
Additionally, it claims the observations of Myers at the scene of the stop
elevated the level of certainty in the test results to a level beyond
reasonable doubt. This evidence included observations of his conduct and
physical condition, as well as his performance on numerous field sobriety
tests. Thus, the question is whether circumstantial evidence of
impairment—bloodshot eyes, poor performance on field sobriety tests,
drowsiness—provides substantial evidence to support a conviction under
Iowa Code section 321J.2(1)(c) in the absence of a confirmatory test.
The conduct and demeanor of a person are important considerations
in determining whether a person is “under the influence” under section
321J.2(1)(a). State v. Price, 692 N.W.2d 1, 3 (Iowa 2005). Moreover, a
witness is permitted to “state whether or not another was intoxicated at a
particular time” and nonexperts may even “state how far another was
affected by intoxication.” State v. Davis, 196 N.W.2d 885, 893 (Iowa 1972)
(quoting State v. Cather, 121 Iowa 106, 108, 96 N.W. 722, 722 (1903)).
This evidence, in turn, can support a conviction. See State v. Truesdell,
679 N.W.2d 611, 616 (Iowa 2004) (finding witnesses’ and police officers’
reports regarding defendant’s erratic driving and behavior supported a
finding that he was under the influence of alcohol when he operated his
vehicle). Thus, evidence of impaired conduct and the demeanor of a person
could help support a laboratory test indicating the presence of a controlled
14
substance in that person. Yet, the only issue under section 321J.2(1)(c) is
whether a test shows the presence of a controlled substance, not conduct.
Impaired conduct can be consistent with the presence of a controlled
substance, but it can also result from a medical condition or other causes
unrelated to the consumption of a controlled substance. Unlike a
confirmatory test that validates a preliminary finding of a controlled
substance, witness testimony of impairment does not serve to validate the
presence of a controlled substance in a person, at least not without expert
testimony that could eliminate causes for the conduct and demeanor other
than the effects of a controlled substance or other evidence of drug
consumption by the person sufficient to eliminate the reasonable doubt
left by the preliminary test. Without this evidence, the reasonable doubt
that emanates from the initial test of a “possible presence” of a controlled
substance is not eliminated by the circumstantial evidence that a person
is under the influence.
The reasonable doubt standard has a deep and important meaning
within the American criminal justice system. 6 It is important this meaning
always be observed in each case. In this case, it means the plain language
of Iowa Code section 321J.2(1)(c) cannot be satisfied by relying on the
circumstantial evidence of impairment.
6The reasonable-doubt standard plays a vital role in the American
scheme of criminal procedure. It is a prime instrument for reducing the
risk of convictions resting on factual error. The standard provides concrete
substance for the presumption of innocence—that bedrock “axiomatic and
elementary” principle whose “enforcement lies at the foundation of the
administration of our criminal law.”
In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 1072 (1970) (quoting Coffin v. United
States, 156 U.S. 432, 453, 15 S. Ct. 394, 403 (1895)).
15
IV. Conclusion.
We conclude that the minutes of testimony were insufficient to
establish that Myers violated Iowa Code section 321J.2(1)(c) beyond a
reasonable doubt. We reverse the judgment and sentence of the district
court and remand the case to the district court to dismiss the charge.
REVERSED AND REMANDED.
Wiggins and Appel, JJ., join this opinion. Mansfield, Waterman, and
Christensen, JJ., concur specially. McDonald, J., takes no part.
16
#16–2177, State v. Myers
MANSFIELD, Justice (concurring specially).
I join the court’s well-reasoned opinion. I write separately to explain
why nothing precludes the State from asking the district court to consider
Jeffrey Myers’s potential guilt under Iowa Code section 321J.2(1)(a) (2016)
on remand. As the court notes, the district court made no factual finding
on that theory.
State v. Pexa is on point. See 574 N.W.2d 344 (Iowa 1998). There
the state maintained that the defendant was guilty of unauthorized
possession of an offensive weapon under two separate definitions of
“offensive weapon.” Id. at 345. Following a bench trial, the district court
found the defendant guilty under the Iowa Code section 724.1(3) (1995)
alternative but did not consider the section 724.1(4) alternative. Id. On
appeal, we found that the evidence did not support the section 724.1(3)
alternative on which the defendant was convicted by the trial court. Id. at
346. However, rather than acquitting the defendant entirely as he
requested, we remanded the case for further proceedings so the court
could consider and rule on the section 724.1(4) alternative. Id. at 346–47.
We explained, “A failure to consider an alternative definition of the offense
charged does not constitute an acquittal of that offense for double jeopardy
purposes.” Id. at 347.
The same analysis applies here. The district court clearly did not
acquit Myers of the section 321J.2(1)(a) alternative when it said, “They
could also prove you [Myers] were under the influence of something.” So
that alternative remains fair game on remand.
The New Mexico Court of Appeals recently cited to Pexa in a case
with facts quite similar to ours. See State v. Ben, 362 P.3d 180, 183 (N.M.
Ct. App. 2015). In Ben, the defendant was charged with driving while
17
intoxicated (DWI) under New Mexico law. Id. at 181. The criminal
complaint alleged violations of both the “per se” and the “under the
influence” subsections—alternatives that mirror the options available
under Iowa law. Id. After a nonjury trial, the magistrate found the
defendant guilty of per se DWI but “did not refer to the impaired DWI
provision.” Id. Following an appeal to the district court, a jury convicted
the defendant of impaired DWI but found no violation of per se DWI. Id.
The defendant appealed further, arguing that his district court conviction
on the impaired theory of DWI violated double jeopardy. Id. As the New
Mexico Court of Appeals explained,
Defendant divides the single offense of DWI into its alternative
theories, contending that his conviction in the first trial on
one theory of DWI (the per se theory) necessarily constitutes
an implied acquittal on the alternative theory on which no
conviction was entered (the impaired DWI theory).
Id. at 183.
The court disagreed with this argument and elaborated as follows:
When a defendant is convicted based on one of two
alternative means of committing a single crime, which is the
situation presented in this case, the near uniform majority of
jurisdictions that have considered the issue have refused to
imply an acquittal on the other alternative. See United States
v. Ham, 58 F.3d 78, 84–86 (4th Cir. 1995); United States v.
Wood, 958 F.2d 963, 971–72 (10th Cir. 1992); United States
ex rel. Jackson v. Follette, 462 F.2d 1041, 1047, 1049–50 (2d
Cir. 1972); Beebe v. Nelson, 37 F. Supp. 2d 1304, 1308 (D.
Kan. 1999); Schiro v. State, 533 N.E.2d 1201, 1207–08 (Ind.
1989); State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998) (“A
failure to consider an alternative definition of the offense
charged does not constitute an acquittal of that offense for
double jeopardy purposes.”); State v. Wade, 284 Kan. 527,
161 P.3d 704, 715 (2007); Commonwealth v. Carlino, 449
Mass. 71, 865 N.E.2d 767, 774–75 (2007); People v. Jackson,
20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722, 728–30
(1967); State v. Wright, 165 Wash. 2d 783, 203 P.3d 1027,
1035 (2009) (en banc); State v. Kent, 223 W. Va. 520, 678
S.E.2d 26, 30–33 (2009); cf. State v. Terwilliger, 314 Conn.
618, 104 A.3d 638, 651–52 (2014) (refusing to imply an
acquittal where a general verdict form made it impossible to
18
know which theory supported the defendant’s conviction);
Torrez, 2013–NMSC–034, ¶¶ 10–14, 305 P.3d 944 (same). But
see Terry v. Potter, 111 F.3d 454, 458 (6th Cir. 1997); State v.
Hescock, 98 Wash. App. 600, 989 P.2d 1251, 1256–57 (1999)
(applying Terry).
Id.
It is also worth noting that the official toxicology report from the Iowa
Division of Criminal Investigation (DCI) lab is part of the trial record here.
It was included in the minutes, and no one objected to its being
considered. Thus, while I agree that this lab report is not enough to prove
that Myers was guilty beyond a reasonable doubt under the Iowa Code
section 321J.2(1)(c) (2016) alternative, it is evidence that may be taken
into account in determining Myers’s guilt or innocence under section
321J.2(1)(a).
Waterman and Christensen, JJ., join this special concurrence.