Amended September 15, 2017 State of Iowa v. Erik Milton Childs

• Court: Supreme Court of Iowa
• Decided: June 30, 2017
• Docket: 15–1578
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 15–1578

Filed June 30, 2017

Amended September 15, 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

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. Diercks, 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, 797 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

County 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, 898 N.W.2d 140, 145 n.1 (Iowa 2017) (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, 898 N.W.2d at 163, 165

(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

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 (last 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, 916 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., 897 N.W.2d 522,

534 (Iowa 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,

895 N.W.2d 856 (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, 895 N.W.2d at 867–73,

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.