IN THE SUPREME COURT OF IOWA
No. 15–1578
Filed June 30, 2017
STATE OF IOWA,
Appellee,
vs.
ERIK MILTON CHILDS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Floyd County, Thomas A.
Bitter, Judge.
Defendant 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.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for
appellant.
Thomas J. Miller, Attorney General, and Thomas Bakke, Jean C.
Pettinger, and Tyler J. Buller, Assistant Attorneys General, for appellee.
2
WATERMAN, Justice.
In this 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.
For the 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 the legislature.
3
I. Background Facts and Proceedings.
At 9:41 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.
Deputy 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, 11-nor-9-carboxy-delta-tetrahydrocannabinol
(Carboxy-THC). 1
1Carboxy-THC is a secondary metabolite of Tetrahydrocannabinol, the primary
psychoactive component of cannabis. See Priyamvada Sharma et al., Chemistry,
4
Childs 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 argument:
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-
________________________
Metabolism, & Toxicology of Cannabis: Clinical Implications, 7 Iran J. Psychiatry 149,
151 (2012) (listing the components of cannabis). Carboxy-THC can be detected in the
body more than three weeks after the impairing effects of marijuana have dissipated.
Id. at 152. It is produced through the metabolic breakdown of
11-hydroxy-THC (Hydroxy-THC), the most significant psychotropic metabolite of THC.
Id. at 151.
5
impairing metabolite is not a DUI; that only the impairing
metabolite is.
....
[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.
The 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
Dismiss.
The 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
6
was convicted on the minutes of testimony of operating while intoxicated,
first offense, in violation of Iowa Code section 321J.2. 2
Childs 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.
II. Standard of Review.
“On 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.
“We 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).
III. Analysis.
A. Preservation of Error. In district court and on appeal, Childs
makes the same statutory-interpretation argument: that we should
2Although the information charged Childs under both sections (a) and (c) of Iowa
Code section 321J.2(1), the judgment of conviction did not specify whether the district
court found him guilty under one or both of the subsections.
7
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.
We do 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
8
first in order to avoid unnecessary adjudication of constitutional
claims.”).
State 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 Childs.
The 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
9
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.
B. Statutory Interpretation—Comried Reaffirmed. We must
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 language.
The 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). 3 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 is unconstitutional.
3See H.F. 524, 87th G.A., 1st Sess. §§ 4–21 (Iowa 2017) (to be codified at Iowa
Code §§ 124E.1–.17) (extending Medical Cannabidiol Act). Three years earlier, Iowa
legalized a limited medical cannabis oil program. See 2014 Iowa Acts ch. 1125 §§ 2–10
(enacting Medical Cannabidiol Act, allowing certain medicinal use) (codified at Iowa
Code ch. 124D (2015)); see also Iowa Code § 124.204(7) (“This section does not apply to
marijuana, tetrahydrocannabinols or chemical derivatives of tetrahydrocannabinol
when utilized for medicinal purposes pursuant to rules of the board [of pharmacy].”).
10
Iowa 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 following conditions:”
(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
more.
(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. 4 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 section 321J.1.
In 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
4Section 124.204 also lists “marijuana” as a prohibited drug. Iowa Code
§ 124.204(4)(m) (listing marijuana as a schedule I substance). Marijuana, as defined by
the legislature, broadly includes “every compound, manufacture, salt, derivative,
mixture or preparation of the plant, its seeds or resin, including
tetrahydrocannabinols.” Id. § 124.101(19).
11
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 precedent:
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 drugs in the body to driving
impairment, said:
Unlike the blood alcohol concentration test used
to measure alcohol impairment there is no
similar test to measure marijuana impairment.
There is, though, as was used here, a test to
measure the use of marijuana, a drug illegal in
the State of Iowa, in a person’s body. There
being no reliable indicator of impairment, the
legislature could rationally decide that the
public is best protected by prohibiting one from
driving who has a measurable amount of
marijuana metabolites.
12
Id. (quoting Loder v. Iowa Dep’t of Transp., 622 N.W.2d 513, 516 (Iowa
Ct. App. 2000)).
Childs argues we should overrule Comried because one of the
several decisions we relied on, Phillips, was subsequently narrowed by
the Arizona Supreme Court in Harris. Harris, 322 P.3d at 164. Harris
interpreted a subsection of that state’s OWI law to prohibit only
substances that impair driving. Id. The next year, the Arizona Supreme
Court clarified that the Arizona statute “casts a net that embraces drivers
who have proscribed drugs or their impairing metabolites in their bodies
but who may or may not be impaired,” while allowing a limited defense to
patients certified for medicinal marijuana use who can prove they were
not impaired. Dobson v. McClennen, 361 P.3d 374, 377 (Ariz. 2015).
The Iowa legislature chose to cast a wider net, criminalizing driving
with any amount of prohibited substances in one’s body, including the
nonimpairing metabolite at issue commonly found in urine after
marijuana use. The reasoning of Comried remains persuasive, as the
operative text of the statute has not changed. See Iowa Code § 321J.2(c)
(2014). Our court “may not . . . enlarge or otherwise change the terms of
a statute as the legislature adopted it.” State v. Iowa Dist. Ct., 730
N.W.2d 677, 679 (Iowa 2007) (alteration in original) (quoting State v.
Miller, 590 N.W.2d 45, 47 (Iowa 1999)). “When a proposed interpretation
of a statute would require the court to ‘read something into the law that
is not apparent from the words chosen by the legislature,’ the court will
reject it.” Id. (quoting State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa
1999)).
The premise for that legislative choice was the absence of reliable
testing to determine whether a particular level of a narcotic impairs
driving. That premise remains true today.
13
Unfortunately, there is no procedure comparable to the
Standard Field Sobriety Test that a police officer can
administer on a roadside to determine if a driver is under the
influence of drugs. For example, marijuana diminishes a
person’s temporal and spatial judgment, but the Standard
Field Sobriety Test does not measure those effects. Police
officers also rely on nystagmus to determine if a person is
under the influence of alcohol, but drugs that dilate or
constrict the pupils do not also cause nystagmus. There also
is no device comparable to a breathalyzer to identify
marijuana intoxication or the presence and amount of THC,
the psychoactive ingredient in marijuana, in a driver’s blood.
What is worse, even if that measurement could be done, there
is no medical or scientific consensus regarding the amount of
THC that would impair the average driver. That is true for a
host of reasons, most of which stem from the fact that the
relevant pharmaceutics are far more complicated for drugs
than for alcohol.
Paul J. Larkin Jr., Medical or Recreational Marijuana and Drugged
Driving, 52 Am. Crim. L. Rev. 453, 483 (2015) (emphasis added)
(footnotes omitted). As the dissent in Harris recognized, “[T]he difficulty
of detecting drug impairment justifies a flat ban.” 322 P.3d at 165
(Timmer, J., dissenting). “Hydroxy-THC [impairing] converts quickly to
Carboxy-THC [nonimpairing] . . . . [A] driver with Carboxy-THC in the
blood at the time of testing may or may not have had Hydroxy-THC in the
blood while driving.” Id. A “flat ban ensures that a driver who had an
impairing substance in the body while driving is prosecuted even though
that substance may have quickly metabolized into a non-impairing
substance.” Id.
The harshness of Iowa’s flat ban is ameliorated by the fact that the
motorist would be asked to submit to chemical testing only after the
officer performed a lawful traffic stop and had reasonable grounds to
believe the driver was impaired. See Iowa Code § 321J.6(1) (setting forth
grounds for chemical testing). In this case, for example, Childs was
driving over the centerline, had trouble with his balance upon exiting his
14
car, performed poorly on field tests for sobriety, and admitted he was
under the influence of marijuana after smoking half of a joint.
Childs does not argue we should rely on the absurd-results
doctrine. We disagree with any claim that Comried’s interpretation of the
Iowa OWI law produces an absurd result. We have cautioned that “the
absurd results doctrine should be used sparingly because it entails the
risk that the judiciary will displace legislative policy on the basis of
speculation that the legislature could not have meant what it
unmistakably said.” Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789
N.W.2d 417, 427 (Iowa 2010) (quoting 2A Norman J. Singer & Shambie
Singer, Statutes and Statutory Construction § 45:12, at 105–07 (7th ed.
2007)); see also Bearinger, 844 N.W.2d at 110 n.3 (“The absurd-results
doctrine should be used cautiously.”). We recently reiterated,
Establishing absurdity in an unambiguous statute is difficult
for good reason. We have explained that “we will not ignore
clear legislative language merely because it leads to a result
that seems contrary to the court’s expectations.” The
express language must produce a result that is
“demonstrably at odds with the intention” of the legislature.
In re J.C., 857 N.W.2d 495, 503 (Iowa 2014) (citations omitted) (quoting
Sherwin-Williams Co., 789 N.W.2d at 427, 429). It is not absurd for the
legislature to enact a per se, or zero-tolerance, ban on driving with this
marijuana metabolite in one’s body, given the absence of an available
scientific test to determine what level of marijuana impairs driving.
Comried is not an outlier. Other states have interpreted equivalent
OWI statutes to criminalize driving with any detectible amount of a
prohibited drug, regardless of impairment. See Love v. State, 517 S.E.2d
53, 56, 57 (Ga. 1999) (concluding that “a statute which makes it
unlawful to drive while marijuana residue is circulating in the driver’s
body fluids bears a rational relationship to . . . protection of the public”
15
but declaring law unconstitutional on equal protection grounds as
prohibiting medicinal use); People v. Fate, 636 N.E.2d 549, 550, 551 (Ill.
1994) (concluding a flat ban prohibiting “any amount of a controlled
substance” was constitutional given that there was no standard for
impairment); Bennett v. State, 801 N.E.2d 170, 176 (Ind. Ct. App. 2003)
(“[A] flat ban on driving with any proscribed controlled substance in the
body, whether or not capable of causing impairment, is permissible.”);
Commonwealth v. Hutchins, 42 A.3d 302, 310 (Pa. Super. Ct. 2012) (“[A]
conviction under [the OWI statute] does not require that a driver be
impaired; rather, it prohibits the operation of a motor vehicle by any
driver who has any amount of specifically enumerated controlled
substance in his blood.” (quoting Commonwealth v. Etchison, 916 A.2d
1169, 1174 (Pa. Super. Ct. 2007)); State v. Smet, 709 N.W.2d 474, 479
(Wis. Ct. App. 2005) (concluding “proof of impairment is not necessary”
under OWI statute). 5
Only three states with per se bans, Arizona (as discussed above),
Delaware, and Michigan, distinguish between active and inactive
metabolites. Delaware does so because its OWI statute expressly states
that it is illegal to drive with “any amount of a substance or compound
that is the result of the unlawful use or consumption of an illicit or
recreational drug” and, in turn, defines that term as “not includ[ing] any
substance or compound that is solely an inactive ingredient or inactive
5According to a study sponsored by the National Highway Traffic Safety
Administration, seventeen states have variations of zero-tolerance legislation. Nat’l
Highway Traffic Safety Admin., U.S. Dep’t of Transp., A State-by-State Analysis of Laws
Dealing With Driving Under the Influence of Drugs 4, https://www.ems.gov/
pdf/811236.pdf. Twelve states have laws similar to Iowa’s, criminalizing driving with
any amount of a prohibited drug in the body. See id. Three states (Ohio, Nevada, and
Virginia) criminalize driving with specified amounts of enumerated prohibited drugs in
the body. Id. Courts in two of those states have upheld the per se bans, regardless of
actual impairment. See Williams v. State, 50 P.3d 1116, 1120–22 (Nev. 2002); State v.
Topolosky, No. 15AP–211, 2015 WL 7737686, at *6 (Ohio Ct. App. Dec. 1, 2015).
16
metabolite of such drug.” Del. Code Ann. tit. 21, § 4177(a)(6), (c)(9)
(West, Westlaw current through 81 Laws 2017, chs. 1–20). Iowa’s OWI
statute lacks such an exclusion for nonimpairing metabolites. See Iowa
Dist. Ct., 730 N.W.2d at 679 (“Statutory text may express legislative
intent by omission as well as inclusion.”).
Michigan courts have struggled with the interpretation of that
state’s OWI law. The Michigan statute criminalizes driving a motor
vehicle with “any amount of a controlled substance listed in schedule 1
under section 7212 of the public health code.” Mich. Comp. Laws Ann.
§ 257.625(8) (West, Westlaw current through P.A. 2017, No. 50 of 2017
Reg. Sess. of 99th Leg.). Marijuana is a controlled substance.
Id. § 333.7212(1)(c). In People v. Derror, the Michigan Supreme Court
examined whether the legislature intended Carboxy-THC, a nonimpairing
metabolite of marijuana, to be considered a controlled substance
included in the OWI statute. 715 N.W.2d 822, 825 (Mich. 2006),
overruled by People v. Feezel, 783 N.W.2d 67, 86 (2010). The court held
that because Carboxy-THC is “a metabolite of THC in that it is produced
when the body metabolizes THC,” it was properly considered a
“derivative” of marijuana. 6 Id. at 828. However, four years later, in
Feezel, the court overruled Derror and concluded Carboxy-THC was not a
derivative. 783 N.W.2d at 81, 86. The Feezel court noted the statutory
definition was based on federal law and did not “contain the term ‘11-
6The court examined the term “derivative” under various medical dictionaries
and concluded the term meant “a chemical substance related structurally to another
substance and theoretically derivable from it.” Derror, 715 N.W.2d at 828 (quoting
Derivative, Merriam-Webster’s Online Medical Dictionary (Mar. 8, 2006)). The court
pointed out that THC and Carboxy-THC “are identical except that in [Carboxy]-THC, two
oxygen atoms are added to and three hydrogen atoms are removed from the eleventh
carbon to make it more water soluble and easier to excrete.” Id. The court concluded
Carboxy-THC qualified because it “is a chemical compound produced when the body
metabolizes THC, which is a compound of similar structure.” Id.
17
carboxy-THC’ . . . [n]or do the statutes contain the term ‘metabolite.’ ”
Id. at 83; see also 21 U.S.C. § 802(16) (2012). Three justices dissented in
part, noting that the majority’s interpretation went against the plain
language of Michigan’s statute. Id. at 87 (Young, J., concurring in part
and dissenting in part).
In subsequent decisions, a justice noted that “[t]he trouble caused
by the Feezel decision is worthy of this Court’s serious attention.” People
v. Soares, 789 N.W.2d 854, 855 (Mich. 2010) (Corrigan, J., dissenting);
People v. Barkley, 789 N.W.2d 441, 442 (Mich. 2010) (Corrigan, J.,
dissenting). The decision left law enforcement “in a legal limbo” because
they could “arrest if we find marijuana on you, but it’s different if we find
marijuana in you.” Soares, 789 N.W.2d at 855 (quoting Tom Greenwood,
Ruling Clouds Pot Smoking, Driving Law, The Detroit News, July 29,
2010). Barkley illustrated the problem:
This case well illustrates the potential confusion
wrought by the Feezel decision. Defendant, who was driving
with THC in her system, ran a stop sign and collided with a
pick-up truck that had the right of way at the intersection.
Two passengers in defendant’s car—her six-year-old son and
her adult friend—were killed. As a result, a jury convicted
defendant of two counts of negligent homicide and one count
of operating a motor vehicle and causing death while having
a controlled chemical substance (marijuana) in her body,
MCL 257.625(4) and (8). Under Derror, defendant’s guilt of
this last offense was clear. But Feezel attempts to
distinguish one metabolite of marijuana, 11-carboxy-THC,
and prohibit it from being dubbed a controlled substance.
Accordingly, the nature of defendant’s offense is now
unclear. An expert testified that defendant’s urine contained
a sufficient amount of THC—at least 50 nanograms per
milliliter—to test positive for the substance. But it is unclear
from the record provided to this Court which metabolite or
metabolites of THC were measured. All metabolites of THC
indicate ingestion of marijuana, and defendant did not
contest at trial which metabolite or metabolites appeared in
her system.
789 N.W.2d at 442.
18
Unlike the Michigan statute, the Iowa legislature expressly added
the words, “including tetrahydrocannabinols,” the psychoactive
component of marijuana to the controlled-substances statute. Iowa Code
§ 124.101(19). Moreover, our OWI statute expressly criminalizes
metabolites of that component in a way the Michigan statute did not.
Compare Iowa Code § 321J.1(4), with Mich. Comp. Laws Ann. § 257.625.
Accordingly, the Michigan cases do not support revisiting Comried. 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.
IV. Disposition.
For these reasons, we affirm the decision of the court of appeals
and affirm the district court’s judgment, conviction, and sentence.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Cady, C.J., who concurs specially,
Hecht, J., who dissents, and Appel, J., who separately dissents.
19
#15–1578, State v. Childs
CADY, Chief Justice (concurring specially).
I concur in the result. I would hold only that State v. Comried, 693
N.W.2d 773 (Iowa 2005), has decided the issue presented on appeal, and
its rationale has not been undermined merely because case authority
from another jurisdiction we partially relied upon has been overruled.
Furthermore, a statute that criminalizes operating a vehicle while having
the presence of a nonimpairing metabolite of marijuana in the blood
system may seem to be based on a judgment that is wrong, even
misplaced, but it is hardly absurd under the prevailing legal standard.
While courts must not interpret ambiguous statutes in a way that will
lead to an absurd result, see Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for
Justice, 867 N.W.2d 58, 75 (Iowa 2015), an unambiguous statute is
absurd only if its language produces “a result that is ‘demonstrably at
odds with the intention’ of the legislature,” In re J.C., 857 N.W.2d 495,
503 (Iowa 2014) (quoting Sherwin-Williams Co. v. Iowa Dep’t of Revenue,
789 N.W.2d 417, 429 (Iowa 2010)). As we said in Comried, the legislature
intended “to prohibit people from operating motor vehicles with
controlled substances in their bodies, whether or not they are under the
influence.” 693 N.W.2d at 776. The result of the statute here is not at
odds with the legislature’s intent. Furthermore, no constitutional claim
has been presented on appeal that requires us to address or even
discuss whether the statute is rationally related to a legitimate
government interest. On these limited grounds, I concur.
20
#15–1578, State v. Childs
HECHT, Justice (dissenting).
I cannot join my colleagues in the majority because I believe error
was not preserved on the question decided today. I also dissent from the
majority’s expansive reading of State v. Comried, 693 N.W.2d 773 (Iowa
2005), because I believe it is flawed in several particulars. In detailing
the reasons for my dissent, I will first examine the substance of Erik
Childs’s position in the district court. Next, I will explain why the
majority errs in concluding error was preserved on the question of
statutory interpretation decided today, emphasizing the prudential
reasons why further review should not have been granted in this case.
Finally, I will detail my concerns with the majority’s reading of Comried.
I. The Motion to Dismiss.
Following a roadside stop, a sample of Childs’s urine tested
positive for the presence of sixty-two nanograms per milliliter of an
inactive secondary metabolite of tetrahydrocannabinol (THC)—11-nor-9-
carboxy-delta-THC (Carboxy-THC). Childs was charged with operating
while intoxicated, first offense, in violation of Iowa Code section
321J.2(1)(c) (2014) (prohibiting the operation of a motor vehicle “[w]hile
any amount of a controlled substance is present in the . . . person’s
blood or urine”).
Childs filed a motion to dismiss in which he took aim at our
decision in Comried, 693 N.W.2d 773, which he read as “creating a
[per] se ban on controlled substances while operating a motor vehicle.”
The motion asserted Comried’s “[per]-se ban on operating a motor vehicle
while under the influence of a controlled substance” is “questionable”
because it “relied heavily upon” the opinion of the Arizona Court of
Appeals in State v. Phillips, 873 P.2d 706 (Ariz. Ct. App. 1994), which
21
was subsequently distinguished by the Arizona Supreme Court in State
ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014). The motion
further asserted that
[d]ue to the fact that the Defendant only had the non-
impairing metabolite, Carboxy-THC, in his system at the
time of arrest, the case should be dismissed as he did not
operate a motor vehicle under the influence at the time he
was arrested.
At the hearing on the motion to dismiss, defense counsel reiterated
the position that our decision in Comried was no longer good law because
it relied on the Arizona court’s decision in Phillips. Noting that the
Arizona Supreme Court had subsequently limited the vitality of the
Phillips holding in Harris, defense counsel argued that Comried should
not be viewed as authority in favor of the State’s position. Defense
counsel neither addressed the plain meaning of the statutory text nor
argued that any of our well-established rules of statutory interpretation
should be applied when interpreting the text of section 321J.2(1)(c).
During the hearing colloquy, the district court revealed its
misunderstanding that the motion to dismiss presented a constitutional
challenge and explained its decision to deny the motion on rational-basis
grounds:
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.
22
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
Dismiss.
(Emphases added.) Defense counsel did not inform the court during the
hearing that the court misunderstood the argument as a constitutional
challenge; nor did counsel request a ruling on any statutory-
interpretation issue.
The district court subsequently issued an order summarily denying
the motion to dismiss. Childs did not file a posthearing motion
requesting a ruling on any issue of statutory interpretation. He was
convicted on the minutes of testimony of operating while intoxicated, first
offense, in violation of Iowa Code section 321J.2. 7
II. Error Preservation.
The majority generously reads the defendant’s written motion to
dismiss as requesting a reinterpretation of section 321J.2(1)(c) to exclude
the presence of inactive metabolites in one’s urine or blood as a basis for
a conviction under the statute. The motion averred narrowly that
Comried is no longer controlling authority in Iowa because the Arizona
Supreme Court disavowed Phillips in 2014. See Harris, 322 P.3d at 160,
164 (interpreting statute prohibiting driving with “any drug . . . or its
metabolite in the person’s body” as requiring proof of driving “with any
amount of THC or an impairing metabolite in the[ ] body” (quoting Ariz.
Rev. Stat. § 28–1381(A)(3))). Aside from the fact that Comried interpreted
part of section 321J.2(1)(c), there is no indication in the motion to
7Although the information charged Childs under both subsection (a) and
subsection (c) of section 321J.2(1), the judgment of conviction did not specify whether
the district court found guilt under one or both of the subsections. On appeal, Childs
only challenges the conviction under Iowa Code section 321J.2(1)(c).
23
dismiss that Childs was advancing any specific statutory-interpretation
argument. The motion made no reference to the plain meaning of the
statutory text; it advanced no argument that the statute is ambiguous;
and it cited no rule of statutory interpretation supporting a
determination that the presence of an inactive metabolite of marijuana in
the defendant’s blood or urine can sustain a conviction under the
statute.
The majority nonetheless concludes error was preserved on the
proper interpretation of section 321J.2(1)(c) even though the district
court ruled only on the constitutionality of the statute. The majority
incorrectly reaches this conclusion by relying on the proposition that our
court may assume, for purposes of appellate review, that the district
court implicitly reached a legal conclusion necessary to its ruling. We
expressly rejected that proposition as a rule of error preservation in Meier
v. Senecaut, and I would do so again here. See 641 N.W.2d 532, 539–40
(Iowa 2002). Because the majority’s conclusion is wrong as a matter of
law, and for prudential reasons arising from the state of the record, I
dissent from the majority’s conclusion that error was preserved.
A. Rules of Error Preservation. “Error preservation is a
fundamental principle of law with roots that extend to the basic
constitutional function of appellate courts.” State v. Harrington, 893
N.W.2d 36, 42 (Iowa 2017). “Judges are not advocates who reach out to
decide questions . . . .” Feld v. Borkowski, 790 N.W.2d 72, 83 (Iowa
2010) (Appel, J., concurring in part and dissenting in part). We do not
consider issues for the first time on appeal and therefore only resolve
issues preserved for appeal. State v. Coleman, 890 N.W.2d 284, 304
(Iowa 2017) (Waterman, J., dissenting).
24
Ordinarily, an issue is not preserved in a criminal case unless it
has been both raised in and decided by the district court. State v.
Manna, 534 N.W.2d 642, 644 (Iowa 1995); accord State v. Reilly, 104
Iowa 13, 14, 73 N.W. 356, 356 (1897). Similarly, an issue that is not
asserted on appeal is generally waived. 8 State v. Short, 851 N.W.2d 474,
479 (Iowa 2014). If an issue is raised but not decided in the district
court, the issue is not preserved unless the party requests a ruling on
the issue at a time when the court can take corrective action. State v.
Krogmann, 804 N.W.2d 518, 524 (Iowa 2011); accord State v. Bricker, 135
Iowa 343, 345, 112 N.W. 645, 645 (1907). If the party fails to request the
ruling, error is not preserved. See State v. Schiernbeck, 203 N.W.2d 546,
547 (Iowa 1973).
These rules of error preservation promote sound judicial
administration by promoting the prompt and orderly resolution of issues
in a case and giving district courts an opportunity to fix mistakes prior to
an appeal. See State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015); see
also Coleman, 890 N.W.2d at 304. The rules also protect parties from
being surprised by issues on appeal, see Segura v. State, 889 N.W.2d
215, 219–20 (Iowa 2017), and from unprincipled judicial overreach, see
Feld, 790 N.W.2d at 83–84 (discussing tension between judicial duties to
decide concrete cases and to ensure coherent development of law); see
also Coleman, 890 N.W.2d at 304–05 (discussing judicial overreach on
appeal). The waiver doctrine, expressed in our rules of appellate
procedure, similarly advances interests of judicial economy by limiting
8We have on occasion characterized our rules of waiver as rules of error
preservation. See, e.g., Johnston Equip. Corp. of Iowa v. Indus. Indem., 489 N.W.2d 13,
16 (Iowa 1992) (distinguishing between successful and unsuccessful parties for
purposes of error preservation). There is, however, a difference between the rules. A
party does not preserve error on issues not asserted or decided in the district court but
waives an argument not asserted on appeal.
25
our review to issues actually argued on appeal. See Iowa R. App. P.
6.903(2)(g)(3) (stating that the failure of appellant “to cite authority in
support of an issue may be deemed waiver of that issue”).
Nonetheless, we recognize several exceptions to our rules of error
preservation. For instance, we have recognized an exception to the
requirement that issues must be decided by the district court for
evidentiary rulings in certain instances. See, e.g., State v. Reyes, 744
N.W.2d 95, 99–100 (Iowa 2008) (considering statutory issue not decided
by the district court but fully developed in supplemental briefing). But
see, e.g., DeVoss v. State, 648 N.W.2d 56, 62–63 (Iowa 2002) (holding
that general error preservation requirements do not prevent us from
considering alternative grounds for the admission of evidence that was
fully developed, but not decided, in the district court); State v. Howard,
509 N.W.2d 764, 769 (Iowa 1993) (“We conclude [the defendant] failed to
preserve error on his hearsay claim.”). Further, “[w]hen there are parallel
constitutional provisions in the Federal and State Constitutions and a
party does not indicate the specific constitutional basis, we regard both
federal and state constitutional claims as preserved,” even if the district
court did not rule on both. State v. Gaskins, 866 N.W.2d 1, 6 (Iowa
2015) (quoting King v. State, 866 N.W.2d 565, 571 (Iowa 2011)); e.g.
Coleman, 890 N.W.2d at 286–87 (majority opinion). We declined to
recognize an exception where the district court concluded that a statute
applied to a defendant but did not resolve an as-applied constitutional
challenge to the statute as was urged in the district court and on appeal.
See Adams v. City of Des Moines, 629 N.W.2d 367, 369 (Iowa 2001)
(citing Ritz v. Wapello County Board of Supervisors, 595 N.W.2d 786, 789
(Iowa 1999), to emphasize that a motion to expand a ruling is “crucial to
26
preservation of error” on a legal issue urged but not decided in the
district court).
B. Application of Error Preservation Rules to This Case.
Childs argued in the district court that our conclusion in Comried is
“questionable” because it cited an Arizona Court of Appeals case that has
since been distinguished by the Arizona Supreme Court. Comried
involved a question of statutory interpretation. The district court,
however, expressly denied Childs’s argument on constitutional grounds
and did not address the defendant’s statutory claim or cite Comried in its
ruling on the motion to dismiss. On appeal, Childs reasserts that
Comried was wrongly decided. Because Childs did not request a ruling
on his statutory claim at a time when the district court could still take
corrective action and because no constitutional claim was even asserted
in the district court, I would conclude error was not preserved on the
statutory claim. See Krogmann, 804 N.W.2d at 524; see also Bricker, 135
Iowa at 345, 112 N.W. at 645.
The factual scenario presented in this case does not fit any of the
recognized exceptions to our rules of error preservation discussed above.
The legal principles guiding our interpretation of Iowa Code section
321J.2(1)(c) were never developed in the record or applied by the district
court. Rather, the parties limited their arguments in the district court to
the effect of changing Arizona caselaw on the continuing vitality of our
decision in Comried. 9 Even assuming for the sake of argument that an
issue concerning the interpretation of section 321J.2(1)(c) was presented
to the district court, the court’s ruling on that issue could not be
reasonably understood as an evidentiary ruling.
9As explained below, Comried did not address the meaning of “controlled
substance,” the operative statutory language in this appeal.
27
The closest factual analogue to the error preservation issue
presented in this case occurred in State v. Mitchell, 757 N.W.2d 431 (Iowa
2008). The defendant in that case pressed two theories of error on
appeal. See id. at 434. The first theory was that a child endangerment
statute violated the defendant’s due process rights. Id. The second
theory posited that the child endangerment statute violated the
defendant’s equal protection rights. Id. The district court only analyzed
and decided one theory, the equal protection claim. Id. at 435. The
defendant did not seek a ruling on the due process claim in the district
court before filing her appeal. Id. We concluded the defendant failed to
preserve error on her due process claim because the district court did
not rule on it. Id.
As in Mitchell, we should conclude in this case that Childs failed to
preserve error on his statutory-interpretation claim because he did not
seek a ruling on it. Unlike the majority, I view the statutory-
interpretation analysis as analytically distinct from the constitutional
analysis actually undertaken by the district court. 10 See Harris, 322
P.3d at 161 (rejecting argument that preliminary reading of statute in
constitutional analysis bears on merits of statutory-interpretation claim);
see also Adams, 629 N.W.2d at 369 (concluding error was not preserved
on as-applied constitutional challenge to statute urged in district court
and on appeal, even though district court determined statute applied to
defendant); cf. King v. State, 818 N.W.2d 1, 42 (Iowa 2012) (Waterman,
J., concurring specially) (arguing a court should not resolve textual issue
by referring to source with no bearing on meaning of text at issue).
10Significantly, the majority fails to cite a single case from any jurisdiction
concluding that a district court’s resolution of an unasserted constitutional question
implicitly resolves and thus preserves a question of statutory interpretation for
appellate review.
28
The majority concludes that the district court’s as-applied
constitutional ruling necessarily decided an unspecified and undeveloped
issue of statutory interpretation for purposes of error preservation. This
conclusion is based on the faulty premise that we may assume for
purposes of appellate review that the district court implicitly reached a
legal conclusion necessary to its ruling. The majority cites Meier, 641
N.W.2d at 539–40, in support of this proposition. In fact, Meier expressly
stands against it. Id. (rejecting argument that error is preserved on a
legal issue necessary to district court’s legal conclusion but not
addressed by the district court).
In Meier, we concluded error was not preserved on an issue of law
raised in a motion to dismiss but not decided by the district court. Id. at
540–41. We rejected the argument that a district court implicitly rejects
legal claims necessary to sustain its judgment for purposes of our rules
of error preservation. See id. at 539–40 (“[T]his assumption that the
district court rejected claims not specifically addressed is not a rule of
error preservation . . . . It is tied to our long-standing presumption that
a district court found facts essential to sustain the judgment, and . . . is
not utilized as a means to preserve error . . . .” (Citations omitted.)). We
emphasized that our long-standing rule that we assume a district court
decided facts necessary to support its decision “is not a rule of error
preservation, but a rule governing our scope of review when an issue is
raised and decided by the district court and the record or ruling on
appeal contains incomplete findings or conclusions.” Id. at 539
(emphasis added). Because the rule only applies when an issue has been
“raised and decided by the district court,” id., we held that it “is not a
replacement for the requirement to preserve error and cannot be used in
29
this case to satisfy the preservation of error requirement that an issue on
review be first decided by the district court,” id. at 540 (emphasis added).
The majority misplaces reliance on other cases in support of its
conclusion on error preservation. EnviroGas L.P. v. Cedar Rapids/Linn
Cty. Solid Waste Agency, 641 N.W.2d 776, 782 (Iowa 2002), is just an
iteration of the long-standing scope-of-review rule that Meier determined
“cannot be used” to subvert the requirement that an issue of law is not
preserved unless the district court rules on it. See Meier, 641 N.W.2d at
540. Although the majority cites EnviroGas as supporting the
proposition that we may assume the district court implicitly reached a
legal conclusion necessary to its ruling, the case stands only for the
proposition that we may “presume [a] factual matter was resolved so as
to support the court’s ultimate ruling.” 11 See 641 N.W.2d at 782
(emphasis added); accord Bankers Trust Co. v. Fidata Trust Co., 452
N.W.2d 411, 413 (Iowa 1990) (“We, therefore, presume the court decided
facts necessary to support its decision . . . .” (Emphasis added.)).
Similarly, in City of Riverdale v. Diercks, we assumed the district court
found facts necessary to support an attorney-fee award under our state
Freedom of Information Act. 806 N.W.2d 643, 655 (Iowa 2011). The
majority uses the rule in this case to conclude the district court resolved
an issue of law—the interpretation of a statute—not a question of fact.
In addition, the majority’s reliance on the doctrine of constitutional
avoidance—in a case in which no constitutional argument was actually
raised—is widely off base. The doctrine of constitutional avoidance is not
a rule of error preservation and generally only applies when both
11We also determined that a victorious party does not need to file a rule 1.904
motion to enlarge or amend the district court’s findings if a district court does not rule
upon an issue because a victorious party does not waive an argument by not asserting
it on appeal. See EnviroGas, 641 N.W.2d at 781. This exception does not apply here
because Childs was not the victorious party.
30
statutory and constitutional questions are raised. See State v. Hellstern,
856 N.W.2d 355, 360 (Iowa 2014). Nor is it a rule of law that must be
uniformly applied to every case—it is a prudential consideration of
judicial restraint applied in many cases, but not all. See, e.g., State v.
Storm, ___ N.W.2d ___, ___ n.1 (Iowa 2017) (Waterman, J.) (declining to
consider statutory question that could obviate need to reach
constitutional question). The majority cites no authority for the
proposition that the principle of constitutional avoidance has any bearing
in a case in which the district court clearly misunderstood a statutory
claim to be a constitutional claim. I reject as unsupported by law or fact
the notion that the doctrine of constitutional avoidance provides support
for the conclusion that the district court implicitly resolved a statutory-
interpretation claim when it resolved a constitutional claim that was
neither raised nor briefed in the district court.
Finally, the majority errs in concluding that the district court’s
constitutional analysis necessarily disposed of the defendant’s statutory-
interpretation claim on the merits. An as-applied constitutional analysis
does not resolve issues of statutory interpretation. Harris, 322 P.3d at
161 (rejecting argument that reading of statute in as-applied
constitutional analysis bears on merits of question of statutory
interpretation).
C. Prudential Considerations. I further conclude that several
prudential considerations should deter us from adopting and applying a
new rule of error preservation to reach and decide the statutory-
interpretation issue on this record. First, neither the district court nor
the parties cited a single canon of statutory interpretation or any
exception to the plain-language rule. See Storm, ___ N.W.2d at ___, ___
(Hecht, J., dissenting) (outlining nonexhaustive list of exceptions to
31
plain-language rule). Second, the parties did not raise, brief, or argue
any constitutional theories, and the district court failed to specify what
constitutional question it believed it was deciding. Third, in reaching the
merits of an issue of law not decided by the district court, the majority
violates our rules of error preservation and in so doing, risks “reward[ing]
trial counsel’s silence and gives all defense counsel a perverse incentive
to lay in the weeds in district court . . . [and] deprives the district court of
the opportunity to rule.” See Coleman, 890 N.W.2d at 304 (Waterman,
J., dissenting). Finally, the new rule of error preservation applied by the
majority raises implications that I am not sure the court is prepared to
countenance. If Childs preserved error on the statutory-interpretation
issue in this case, will the rule of the case be that a party preserves error
on a question of statutory interpretation by raising any as-applied
constitutional challenge?
The inadequacy of the evidentiary record heightens the importance
of my prudential concerns about the majority’s resolution of a statutory-
interpretation issue that was neither seriously presented in the district
court nor decided in the district court. The majority chooses to adopt a
new exception to our rules of error preservation even though the record
is devoid of basic information about marijuana, its constituent
compounds and metabolites, and the ability of drug tests to reliably test
for the presence of the drug. The majority is left to fill in the gaping
holes in the evidentiary record with its own understanding of key
scientific concepts and facts, posing the risk the court’s reasoning may
be undermined by mistaken assumptions, impressions, and conclusions
regarding marijuana. On such a weak record, this court should not
resolve the important question of whether the language “controlled
32
substance” in section 321J.2(1)(c) encompasses inactive metabolites of a
controlled substance.
Under these circumstances, I would also conclude further review
was improvidently granted. Consistent with principles of judicial
restraint, I would not disregard jurisprudential considerations by forging
ahead with discretionary further review. See Short, 851 N.W.2d at 519
(Waterman, J., dissenting) (noting judicial restraint counters wide-open
judicial activism and furthers “decisionmaking goals of clarity, efficiency,
and principled reasoning” (emphasis omitted) (quoting State v. Schwartz,
689 N.W.2d 430, 445 (S.D. 2004) (Konenkamp, J., concurring in result)));
cf. also King, 818 N.W.2d at 39 (Waterman, J., concurring specially) (“I
write separately to emphasize the importance of judicial restraint . . . .”).
Without reliable information in the record, courts risk making unsound
decisions based on their own inadequately informed understanding of
the scientific questions involved, aided only by sources they uncover and
their own assessments of the credibility of those sources. We should
avoid that risk here by dismissing this application for further review as
improvidently granted.
These prudential considerations caution against the majority’s
conclusion that error is preserved on a statutory-interpretation claim
that the district court failed to recognize and decide if the district court
decides an unraised constitutional question. After the district court
explained its denial of the motion based on the constitutionality of Iowa
Code section 321J.2(1)(c), Childs did not object nor did he request a
ruling on the issue of statutory interpretation he now advances on
appeal. I would thus conclude that error was not preserved. Although
the State did not dispute error preservation on the poorly argued
statutory-interpretation question, we should not allow the State’s posture
33
to override our customary error preservation and prudential
considerations.
Because I conclude Childs failed to preserve error on the statutory-
interpretation issue, I would not address the merits of the question of
how section 321J.2(1)(c) should be interpreted. I would leave for another
day whether an inactive metabolite of a controlled substance is a
controlled substance under section 321J.2(1)(c) and section 321J.1(4)
(defining “controlled substance” as “any drug, substance, or compound
that is listed in section 124.204 or 124.206, or any metabolite or
derivative of the drug, substance, or compound”).
III. Comried.
The majority broadly reaffirms Comried’s interpretation of “the
plain meaning of the operative statutory language.” But it must be noted
that the operative statutory language interpreted in that case is not the
statutory language at issue in this case. In Comried, we interpreted the
phrase “any amount” in Iowa Code section 321J.2(1)(c) to mean “any
amount greater than zero.” 12 693 N.W.2d at 778. The majority focuses
on different language in this case, deciding whether an inactive
secondary metabolite of marijuana is a “controlled substance” for
purposes of section 321J.2(1)(c).
The majority cites the Harris dissent for the proposition that the
flat ban imposed by Comried on driving with any amount of a controlled
substance is justified by “the difficulty of detecting drug impairment,”
given the rate at which impairing substances metabolize. See Harris,
12Unlike the per se rule concerning alcohol, see Iowa Code section 321J.2(1)(b),
the per se rule concerning controlled substances lacks a scientific basis for concluding
that dangerous impairment occurs at a specified concentration of THC. For this reason,
we approved of a plain-meaning interpretation of the phrase “any amount” in Comried.
Childs does not raise, and the majority does not decide in this case, whether a person
can constitutionally be convicted of operating while intoxicated by marijuana with no
evidence of impairment.
34
322 P.3d at 165 (Timmer, J., dissenting). The majority also concludes
that there is no roadside test that can measure for the presence of
controlled substances in a driver’s body. Importantly, these factual
conclusions have no evidentiary basis in the record of this case and are
subject to change based on the record in future cases, evolving
information about marijuana, or the development of new methods of
testing for the presence of any amount of a controlled substance.
In his special concurrence, Chief Justice Cady cites Comried for
the proposition that the purpose of Iowa Code section 321J.2(1)(c) is “to
prohibit people from operating motor vehicles with controlled substances
in their bodies, whether or not they are under the influence.” Comried,
693 N.W.2d at 776. Chapter 321J provides, however, that its legislative
purpose is “to protect society, including drivers, from death or serious
long-term injury.” Iowa Code § 321J.23(2). A conviction under section
321J.2(1)(c) “identifies [the defendant] as a risk to the health and safety
of others, as well as to the intoxicated driver.” Id. § 321J.23(3). We
“consider statutory text to be the best evidence of legislative intent or
will” and construe statutes “to effect the expressed intent of the
legislature.” See 2A Norman J. Singer & Shambie Singer, Statutes and
Statutory Construction § 46:3, at 178 (7th ed. 2014). Consistent with this
principle of judicial fidelity to expressed legislative intent, I am not
convinced that the purpose of Iowa Code section 321J.2(1)(c) is to create
an operating-while-intoxicated offense divorced entirely from the
question of actual impairment, and thereby roadway safety.
Comried did not address what constitutes a controlled substance
and thus does not control the question of whether the phrase “controlled
substance” used in section 321J.2(1)(c) includes Carboxy-THC, an
inactive metabolite of marijuana. To the extent that the majority reaches
35
the question of whether Carboxy-THC is a controlled substance under
section 321J.2(1)(c), I dissent.
IV. Conclusion.
After considering the briefs, record, and oral arguments in this
case, I conclude that several problems undermine the soundness of the
majority’s decision. In particular, the district court never ruled on the
issue of statutory interpretation, the parties did not address the plain
meaning of Iowa Code section 321J.(2)(1)(c) or assert any recognized
exceptions to our plain-meaning rule, and the record is devoid of basic
scientific evidence informing the court’s interpretation of the relevant
statutory provisions. For these reasons, I conclude error was not
preserved and further review was improvidently granted, and I
respectfully dissent.
36
#15–1578, State v. Childs
APPEL, Justice (dissenting).
I would dismiss this petition for further review as improvidently
granted. I agree with Justice Hecht that the only question preserved in
the district court was its constitutional holding, the only issue raised on
appeal is a statutory claim, and as a result, neither is appropriate for our
review. Further, the briefing on the statutory claim on appeal and in the
district court was minimal. Erik Childs simply argues that our existing
precedent, State v. Comried, 693 N.W.2d 773 (Iowa 2005), was wrongly
decided because it relied on an Arizona case, State v. Phillips, 873 P.2d
706 (Ariz. Ct. App. 1994), which was subsequently distinguished in State
ex rel. Montgomery v. Harris, 322 P.3d 160, 164 (Ariz. 2014). That is the
extent of the argument actually presented. This case is thus not a good
vehicle for deciding some of the very important questions posed by Iowa
Code section 321J.2 (2014). But the majority is determined to proceed to
make its sweeping declarations about the statute. I find the case far
more troubling than does the majority.
Iowa enacted the relevant provision of the present statute in 1998.
1998 Iowa Acts ch. 1138, § 11 (codified at Iowa Code § 321J.2(1) (1999)).
In Comried, we considered a vehicular homicide conviction under Iowa
Code section 707.6A(1) (2001). Comried, 693 N.W.2d at 774. That
conviction was based on a violation of section 321J.2, which provided
that a person with any amount of a controlled substance in the body was
guilty of intoxicated driving. Id. We held that “any” means “any.” Id. at
778. No constitutional issues were raised in Comried. See id. at 775–78.
Childs invites us to reconsider the result in Comried. He relies in large
part on developments in Arizona law, where an appellate court in Harris
37
recently held that a similar statute should be narrowly construed to
avoid absurd results. 322 P.3d at 164.
I start with the basic question—what is the purpose of the statute?
That one is easy. We have said the purpose of the statute is to “promote
public safety by removing dangerous drivers from the highways.”
Bearinger v. Iowa Dep’t of Transp., 844 N.W.2d 104, 107 (Iowa 2014)
(quoting State v. Vogel, 548 N.W.2d 584, 587 (Iowa 1996)). We have
never found that a purpose of the statute was to stigmatize marijuana
use or impose penalties on marijuana users because of their status.
The next question is whether the statute, if interpreted literally, fits
the legislative purpose of addressing the danger of impaired drivers on
the road. Here, we hit tougher terrain. The per se approach, which
declares that the presence of any metabolite, active or inactive, is
sufficient to support a criminal conviction and potential imprisonment, is
clearly overbroad in light of the purpose of the statute. The science is
clear that the inactive metabolites of marijuana may remain in the body
for weeks after consumption. See Nat’l Highway Traffic & Safety Admin.,
Drugs and Human Performance Fact Sheets, Cannabis/Marijuana,
https://one.nhtsa.gov/people/injury/research/job185drugs/cannabis.h
tm (lasted visited June 22, 2017) (stating detection time for THC
metabolites in urine is well past the window of intoxication and
impairment). Thus, many persons are subject to the statute even though
their driving is not impaired in the least and their marijuana use was not
recent. Assuming we behave rationally, we do not impose criminal
penalties arising from behavior due to its danger when, in fact, the
behavior is not dangerous.
The statute thus raises serious constitutional problems. I doubt
that it is consistent with due process to subject a person to potential
38
incarceration under a criminal law designed to prevent dangerous
behavior when the behavior itself is not dangerous at all. It would be
outrageous, in my view, to impose harsh sanctions on a driver who was
exposed to marijuana weeks or months ago and poses no danger on the
road, all in the name of highway safety. As noted by Justice Cavanagh in
People v. Derror, “There is no rational reason to charge a person who
inhaled marijuana two weeks ago and who now decides to drive to the
store to pick up a gallon of milk.” 715 N.W.2d 822, 846 (Mich. 2006)
(Cavanagh, J., dissenting), overruled by People v. Feezel, 783 N.W.2d 67,
86 (Mich. 2010); see also Commonwealth v. Etchison, 916 A.2d 1169,
1174–78 (Pa. Super. Ct. 2007) (Bender, J., concurring in part and
dissenting in part). These dissents emphasize that one cannot draw any
reasonable conclusion of impairment solely from a positive test for
cannabinoids. Derror, 715 N.W.2d at 846; Etchison, 919 A.2d at 1175;
see also Feezel, 783 N.W.2d at 83, 86 (overruling the Derror majority and
holding that a metabolite of THC is not a controlled substance under
Michigan law). While it is true, of course, that no constitutional issues
were raised in this appeal, we ordinarily interpret statutes to avoid
constitutional problems. Simmons v. State Pub. Def., 791 N.W.2d 69, 73–
74 (Iowa 2010).
Notably, we recently decided an important case which required
that a defendant’s state of intoxication must be tied in a causal way to
the injuries resulting in a case of homicide by vehicle. See State v.
Adams, 810 N.W.2d 365, 371 (Iowa 2012). In Adams, the state argued
that merely driving while intoxicated was sufficient to establish an
offense under the statute. Id. at 368–69. We noted that criminal
statutes are strictly construed against the state and that we would not
produce an absurd result. Id. at 369. We concluded that the
39
intoxication of the driver must be causally linked to the underlying
death. Id. at 372; see Eric A. Johnson, Wrongful-Aspect
Overdetermination: The Scope-of-the-Risk Requirement in Drunk-Driving
Homicide, 46 Conn. L. Rev. 601, 605–06 & nn. 17–18 (2013) (describing
the split in the courts on the question of whether scope-of-risk doctrine
from tort law applies in criminal law setting of intoxicated driving).
Applying Adams-type logic here, the presence of a metabolite and use of
marijuana must be a cause of harm or a cause of a risk of harm to
support a criminal conviction. This argument, of course, was not raised
in this appeal.
Another constitutional problem with the statute is that it does not
provide a person of ordinary intelligence with fair notice. Metabolites
from marijuana can be retained in a person’s system for days or weeks.
A person who has consumed marijuana thus has no fair notice as to
when he or she may legally drive a car. It may be a day, weeks, months,
or even years. Consistent with the observation made by Justice
Cavanagh in Derror, the Childs majority’s interpretation “now
criminalizes a broad range of conduct and makes criminals out of people
who have no knowledge of the conduct that they must now seek to
avoid.” 715 N.W.2d at 844. Suppose, for instance, one travels to
Colorado on vacation and lawfully smokes marijuana. May that person
lawfully drive back to Iowa when returning home? How long must the
person wait before lawfully driving? Can anybody know? A driver with
the majority opinion in their glove compartment will not find any useful
advice on this issue.
Further, it is well established that metabolites of marijuana can be
obtained through passive inhalation. See id.; cf. Daniel P. Mazo,
Comment, Yellow Rows of Test Tubes: Due Process Constraints on
40
Discharges of Public Employees Based on Drug Urinalysis Testing, 135 U.
Pa. L. Rev. 1623, 1647 (1987) (“Research indicates that urinalysis also
cannot discern active smoking of marijuana and hashish from passive
inhalation . . . .”); Kaye McDonald Sunderland & Coni S. Rathbone, Jar
Wars: Drug Testing in the Workplace, 23 Willamette L. Rev. 529, 548
(1987) (“[P]assive inhalation must be considered as a possible source
when interpreting low level test results.”). Under the State’s
interpretation, a driver who had a trace of metabolite, based upon
passive transmission, is subject to serious criminal offenses. But there
is “no rational reason to charge a person who passively inhaled
marijuana smoke at a rock concert a month ago and who now decides to
drive to work.” Derror, 715 N.W.2d at 846.
In order to avoid all these problems, it might be asserted that the
statute does not criminalize dangerous driving, but criminalizes the
status of being a recent user of marijuana. I doubt the legislature would
bury a status crime in its driving statutes. In any event, an effort to
justify the penalties on marijuana use as a status offense would also run
into serious constitutional problems. If the legislature sought to punish
marijuana users for their status as marijuana users, the classification in
the statute distinguishing marijuana users who happen to be driving
from those who are, for instance, passengers, would be subject to attack
as an irrational classification in violation of equal protection principles.
The status of drivers and nondrivers who have metabolites of marijuana
would be the same, yet they are treated differently under the statute.
We have already invoked the absurdity doctrine in the area of
drunk driving to avoid unintended convictions not related to the purpose
of the statute of dealing with the danger of impaired drivers. In
Bearinger, we considered whether the prescription-drug defense applied
41
to administrative actions involving the revocation of drivers’ licenses.
844 N.W.2d at 105. Interestingly, the underlying criminal statute for
OWI expressly contained such a defense, but the statute relating to
revocations did not contain similar language. Id. at 107–08. Ordinarily,
we would honor the legislative text. In Bearinger, however, we
emphasized that the purpose of the statute was highway safety and that
persons who were driving while using prescription drugs as prescribed by
a physician were not a danger and thus should not be subject to license
revocation. Id. at 110.
In Bearinger, we did not rely on legislative text and call it a day.
Instead, we imported language into the legislative text to ensure that the
purpose of the statute—namely, protecting the public against dangerous
drivers—was advanced. Why don’t we apply the same reasoning here
and interpret the statute to mean an active metabolite? What accounts
for the active and energetic approach in Bearinger to focus on actual
public safety and the steadfast refusal to do so here? Is it a desire to
express strong cultural disapproval of marijuana? If so, how is this
rationally related to a statute designed to combat impaired drivers?
There is support in the academic literature for a Bearinger/Harris-
type interpretation. The literature points out that the presence of minute
amounts of a metabolite simply has no relationship with recent
ingestion, let alone impaired driving. See Andrea Roth, The Uneasy Case
for Marijuana as Chemical Impairment Under a Science-Based
Jurisprudence of Dangerousness, 103 Cal. L. Rev. 841, 890 (2015) (“[A]
prohibitionist approach is an awkward fit if the justification for the law is
the dangerousness of the drug’s impairing effects . . . .”); Joshua C.
Snow, The Unconstitutional Prosecution of Controlled Substance
Metabolites Under Utah Code § 41-6A-517, 2013 Utah L. Rev. OnLaw
42
195, 203 (2013) (“[T]he presence of a metabolite in the body does not
necessarily equate with present intoxication . . . [and] does not even
equate with recent ingestion.”).
There is another policy-based rationale for giving the statute a
narrow gloss. As Professor Steven Bender has observed, the history of
marijuana legislation is based on racial stereotyping, and enforcement of
open-ended marijuana laws leads to disproportionate enforcement
against racial minorities. Steven W. Bender, The Colors of Cannabis:
Race and Marijuana, 50 U.C. Davis L. Rev. 689, 690 (2016). Bender
traces the origin of strict marijuana legislation to “racialized perceptions
of users of color as threatening public safety and welfare.” Id. Bender
notes the “disproportionate burden of marijuana enforcement on racial
minorities.” Id. at 693. Racial minorities are subject to “Driving While
Black” or “Driving While Hispanic.” Id. at 701–02; see also David A.
Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme
Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 546
(1997). Thus, wittingly or not, inactive metabolite laws may be a
contributing factor leading to disproportionate prison populations such
as that experienced in Iowa. See generally Michelle Alexander, The New
Jim Crow: Mass Incarceration in the Age of Colorblindness 59–96 (rev. ed.
2012).
The majority nonetheless concludes that the legislature intended to
proceed with its sweeping regulation notwithstanding the problems cited
above. The majority’s statutory approach requires persons with trace
metabolites, but who pose no threat to public safety, to sacrifice personal
freedom for the benefit of the community because more precise
measurement tools have not been developed. Such persons are the
statute’s roadkill under the majority’s interpretation. The people picking
43
up the gallon of milk weeks after smoking marijuana or after being
passively exposed to marijuana are not culpable under the statute, but
their convictions under the statute amount to unfortunate collateral
damage imposed because the State is looking for a convenient way to
obtain convictions without the traditional methods of proving impairment
on a case-by-case basis through ordinary evidentiary techniques.
I am not so sure. I recognize the difficulties in interpreting the
statute in light of the specific statutory text. But did the legislature in
1998 intend for this absurd result? I recognize the standard of absurdity
is a high bar. See Brakke v. Iowa Dep’t of Nat. Res., ___ N.W.2d ___, ___
(2017). But one wonders whether the legislature was fully aware of the
evolving science and the implications of the statutory text. Certainly
some of the statute’s applications are absurd. Does the statute in full
context introduce enough ambiguity to avoid untoward results?
A case can be made, perhaps, for upholding Comried based upon
legislative acquiescence or stare decisis. The case for legislative
acquiescence and stare decisis was much stronger in State v. Williams,
___ N.W.2d ___ (Iowa 2017), where an interpretation of the meaning of
the term “arrest” had been repeatedly endorsed in multiple opinions over
a thirty-seven-year period, the most recent of which, State v. Wing, 791
N.W.2d 243 (Iowa 2010), overruled by Williams, ___ N.W.2d at ___, was
thoroughly reasoned. The Comried decision, however, is cryptic, does not
explore the troublesome contours of a per se interpretation, does not
recognize the constitutional issues, and has not been repeated in
thorough opinions. Further, as has been pointed out by Justice Hecht,
the statutory language has been amended since Comried.
The notion that broadly framed statutes can be narrowly
interpreted is not a new concept. In Iowa Insurance Institute v. Core
44
Group of Iowa Association for Justice, we held that a statute, which on its
face required disclosure of “all information . . . concerning the employee’s
physical or mental condition relative to the claim,” did not include
information protected by the work-product doctrine. 867 N.W.2d 58, 69,
79 (Iowa 2015) (quoting Iowa Code § 85.27(2) (2011)). We held that the
statute should not be evaluated solely based on isolated words. Id. at 72.
Instead, we insisted on looking at the statute’s larger context. Id. As we
noted, there are many occasions when we have narrowed the apparently
unqualified isolated terms of a statute. Id. at 73–74.
That is the type of reasoning I would apply here. In looking at the
totality of the statute, its structure, and its purposes, one begins to
question whether the legislature intended to include inactive metabolites
notwithstanding the unqualified but isolated language used in the
statute. I would be inclined to cinch up the statute in some fashion to
avoid the untoward results that I doubt the legislature intended, either
by requiring the presence of an active metabolite as in Harris, 322 P.3d
at 164, or by requiring a causal link as in Adams, 810 N.W.2d at 371.
In any event, the cheers and jeers that will no doubt arise from
today’s decision may be premature. The approach taken today may
eliminate a less intrusive statutory-interpretation solution to the obvious
problems of the statute. But weighty constitutional problems remain.
Can criminal sanctions arise from application of this drugged-driving
statute to someone who, in fact, poses no danger at all arising from
consumption of marijuana, or maybe poppy seed rolls, in the past, the
consumption of which demonstrably has no relationship to impaired
driving? Where the inactive metabolite has no causal relationship to
impaired driving, would any conviction be an impermissible status
offense? Does the presence of a metabolite in any amount under the
45
statute present an irrebuttable presumption contrary to due process?
Does conviction of such persons under a jurisprudence of dangerousness
serve any legitimate penal purpose under the Eighth Amendment or
article I, section 18 of the Iowa Constitution? Would an enhanced
criminal penalty under Iowa’s statute for repeat offenders be subject to a
Bruegger-type challenge, where a very broad law involving a wide
variation of conduct is combined with an escalating criminal sanction?
See State v. Bruegger, 773 N.W.2d 862, 884 (Iowa 2009). Do due process
and cruel-and-unusual-punishment concepts require the State to prove
impaired driving on a case-by-case basis, like so many other crimes? If
interpreted as a status crime, can the distinction between drivers and
others who have recently ingested marijuana be defended from an equal
protection challenge?
The statutory shoe has been dropped. The constitutional shoe will
drop in future cases. The practical effect of today’s decision may well be
to kick the can down the road and escalate future disputes to a
constitutional dimension.
No one doubts, of course, the ability of the legislature to enact
statutes that protect the public from drivers who are actually impaired.
The question for the future is whether the legislature can establish a
regime to control dangerous drivers that, in many applications, relies on
a sweeping generality that is unsupported by science and does not utilize
the traditional American way of requiring individualized guilt based on
moral culpability before criminal sanctions are enforced.