*1 155, 157 think We correctly plaintiffs trial court overruled agree for trial.

motion new justice.

verdict effectuates substantial Disposition.

V. Petrone did not file an

application review, for further and we do

not decide whether Petrone can liable when,

plaintiff opinion, under our Smith is

not plaintiff. liable to

The decision of the court of Smith; applies

vacated as it the district judgment Smith; is affirmed as to

and the remainder of (plaintiffs the case Petrone) against

suit is remanded to the provided by

district court as the court of

appeals decision. appeal

Costs on plaintiff. are taxed to

DECISION OF COURT OF APPEALS PART;

VACATED IN JUDGMENT OF PART;

DISTRICT COURT AFFIRMED IN

CASE REMANDED. Miller, Gen., Atty.

Thomas J. Charles J. Krogmeier, Gen., Deputy Atty. and Mark Jay FURRY, Appellee, John Hunacek, Gen., Atty. appellant. Asst. for Bitter, Joseph Dubuque, appellee. J. IOWA DEPARTMENT OF TRANSPOR- Schott, Moines, Max Des for amicus curi- TATION, MOTOR VEHICLE ae, Civil Iowa Liberties Union Foundation. DIVISION, Appellant. No. 90-94.

Supreme Court of SNELL, Iowa. Justice. appeal by This the Iowa

Jan. 1991. (DOT) Transportation arises out of an ad- ruling judicial verse in a review action. whether, here is under Iowa (1989), operation Code section 321J.9 actual prerequisite a motor vehicle is a to li- cense revocation for chemical test refusal. We conclude that it is and affirm therefore ruling reversing the district court’s DOT’s license revocation decision. essentially The facts are uncontested. Dubuque On or about June two stopped a vehicle whose oc- *2 Furry’s agency of was to revoke the occu- sion the One of on foot. cupants fled chemical test refusal. license for Jay Furry (Furry), plaintiff, John pants, by one of the officers apprehended was timely review Furry brought judicial a The officers believed pursuit. after a foot Dubuque County District Court action of the ve- the driver Furry to have been agency’s final seeking of the a reversal consistently hicle, Furry has contended but hear- revoke his license. After decision to that, not driver. he the was determined as ing, the district court law, operation of the ve- matter of actual Furry was trans- apprehension, After test prerequisite is for chemical hicle Law where Dubuque Center ported to the and, therefore, reversed the DOT’S refusal tests to chemical sought perform officers The now license revocation decision. DOT Furry content. to blood alcohol determine judicial determination. appeals that testing. The permit to refused the may the decision of This court review procedures the the then invoked pursuant to Iowa Code sec- court district Furry’s driver’s statute. implied consent (1989) (administrative proce- tion 17A.20 chemical test refus- revoked for license was act) provides that: dure al. adversely aggrieved An affected or requested received an Furry later proceeding judicial the review party to hearing to contest the revo- administrative any judg- may a review of final obtain the license. At hear- of his driver’s cation under this ment of the district court he not in fact ing, Furry that was testified appeal. appeal The chapter by shall To corroborate driver of the vehicle. the cases, although the in other civil taken as witness, Ross story, another Rob- Furry’s may regardless appeal taken (Simpson) Simpson, testified that he ert amount involved. the of the vehicle at in fact the driver was Corp. Dep’t Hearst v. Iowa also stopped by police. The it the time was Fin., 461 N.W.2d Revenue & (ALJ), judge persuaded law administrative (Iowa 1990). to sec- Pursuant Iowa Code that, testimony, al- by Simpson’s found 17A.19(8) (1989): tion though the officers had may agency affirm the ac- The court operat- was grounds Furry believe agency for or remand to the further intoxicated, Furry not in fact ing reverse, The court shall proceedings. the at the operator actual the any appropriate modify, grant other or stopped. Coupling the fact time it was action, agency equitable relief from Furry operator not the actual relief, including legal, declaratory or vehicle, language section with petitioner rights of the if substantial 321J.9, the AU determined that driver’s agency prejudiced because have been for chemical test license cannot be revoked action is: actually oper- is refusal unless licensee or of constitutional a. In violation On the revoca- ating the vehicle. this basis provisions; Furry’s tion of license was rescinded. law; by other error of e. Affected appeal, DOT re- administrative On the AU. decision of versed law, at not scope of review is Our findings accepted the factual The DOT novo, therefore, are limited to those de determined, AU as a made but in the record made before issues considered law, operation of a See, matter of actual e.g., Hope Evangelical agency. rev- prerequisite for license Reve vehicle not Church Lutheran Fin., agency determined ocation. nue & arresting limits a district officer 17A.19 requirement is that Iowa Code section of wheth grounds” to to a determination only have “reasonable believe court’s review any of law agency committed errors operating while er the that the licensee has been section. intoxicated, specified in subsection requirement satis- and that Therefore, Thus, whether district to determine final deci- fied in this case. en, properly power judi- exercised its department, but the upon receipt review, peace cial certification, officer’s sub- ject penalty perjury, that the offi- applies the standards of sec- this court 19(8) cer had reasonable agency tion 17A. action to to have *3 determine whether court’s conclu- mo- 321J.2, tor vehicle in violation sions are the same as those of the dis- of section specified trict court. If the conclusions are the conditions existed for same, in they testing pursuant affirmance is order. If are chemical to section not, 321J.6, may required. person reversal and that the refused to submit to the testing, chemical shall re- County Hosp. PERB, Jackson person’s voke the li- vehicle (Iowa 1979). N.W.2d 429-30 If we cense .... agency’s findings sup find that are evidence, ported by substantial we are A number of principles well-established by findings. bound those Board Dental statutory guide construction our resolu- Hufford, Examiners tion of this controversy. course, polestar Of legislative in- operating The crime of while intoxicated goal then, tent. Our is to ascertain that chapter is codified in Iowa Code 321J and, possible, intent if give it effect. To (1989). Relevant to the outcome of the legislative ascertain the intent we must 321J.2, 321J.6, present case are subsections legislature said, look to what the rather (1989). provide and 321J.9 Those sections than what it should or might have said. part in as follows: given Words are their ordinary meaning Operating 321J.2 while under the in- differently by legisla- unless defined drug fluence of alcohol or a or while possessed ture or particular of a having an alcohol concentration of .10 appropriate However, meaning in law. (OWI). or more. legislating must avoid in our own right placing person upon statutory 1. A commits the offense of lan- strained, operating person guage impractical while intoxicated if a or absurd operates a motor Weight given vehicle this state in construction. should be following either of the department’s interpretation conditions: of the statutes, particularly they when are of a. While under the influence of an long standing, but court is not beverage bound drug alcoholic or other or a by interpretation. combination such substances. having

b. While an alcohol (cita- concentra- Corp., Hearst 461 N.W.2d at 299-300 tion as defined section 321J.1 of omitted). .10 or tions more. The DOT arguments advances several Implied 321J.6 consent to test. support theory interpretation. of its It person operates

1. A who a motor points statutory language to the itself as this state under circumstances requirement evidence that the only give to believe the officer had reasonable cause to believe person has been to have been motor vehicle in violation of section vehicle in violation of section 321J.2. No given 321J.2 is deemed to have consent specific requirement is set out in the stat- specimens withdrawal actually ute that the licensee be blood, breath, person’s or urine and to a support, motor vehicle. In further chemical specimens test or tests of the 321J.13(2) DOT refers to section which lim- purpose determining for the the alco- scope hearing its the of the revocation presence drugs, hol concentration or the reasonable cause to believe element. subject to this section.... Reading chapter 321J as a whole shows 321J.9 Refusal to submit —revocation. legislature vitally interested

If promoting public safety, refuses to submit to the which the DOT testing, giv- by test shall not be contends is advanced their in- long A construction appel- that of maxim and hobbled terpretation express mention of interpretation approved re- is that DOT Furry. The lee in cur- exclusion of others. by every thing implies licensee one cooperation quires prevent Transp., 395 drivers and would Casteel v. Iowa tailing drunk 1986). evading punishment (Iowa The refer- from guilty driver Finally, the DOT operates” would denying being the driver. ence to “a who should be shown operate deference does not argues -that thus exclude one who of the law. interpretation position agency’s motor vehicle. think the DOT We ignores premise legisla- from which questions of various have addressed We proceeds. not this 321J chapter but interpretation of however, note, that our specific one. distinguishing prosecution a criminal *4 assuming a licen- language used cases have there is for OMVUI we said that the issue Mary In v. the driver. charged see charged was in fact person whether 382 Transportation, Department Iowa of under the operating a motor vehicle while 1986), (Iowa said: 128, we 131 N.W.2d beverage. In of an alcoholic influence motor vehicle operates a person A who the issue is whether proceeding revocation are in which there circumstances under grounds had reasonable to be- the officer to lieve under the has the influence of an vehicle while under alcohol, deemed to have influence of beverage. v. Commis- alcoholic Saunders of certain to the withdrawal consented 19, 22 Safety, Pub. sioner of him or her for body from substances Dep’t Benning v. Iowa of Cf. concentration. testing of alcohol 372, (Iowa 1989) Transp., 441 373 N.W.2d (Snell, J., operates concurring specially.) a motor ve Even “Any person who in though agree stated section with this distinction we do hicle under the conditions we given implied to have issue of who was the 321B.3 is deemed not find that testing.” McCrea v. thereby consent to chemical foreclosed in the adminis- driver is 427, Transp., 336 N.W.2d Dep’t hearing. Iowa trative (Iowa 1983). Similarly, in Veach McCrea, In we considered Transportation, 374 Iowa proof lies in a of where the burden (Iowa 1985), 248, we said: hearing. We noted that section revocation premise “that Chapter 321B is based on 17A.18(3) license provides a licensee whose agrees to a impliedly to submit a driver “given oppor- an subject to revocation using the privilege in test return for show, evidentiary hearing tunity in an to chapter Iowa Code public highways.” requirements all lawful compliance with predecessor chapter 321J. 321B is the license.” We held that the retention of the also McDowell proof is on the licensee to the burden of (Iowa App. Transp., 356 N.W.2d implied con- compliance with show 1984). to retain his sent law order defini- significance also is the Of some showing privilege. Included should “operator” chapter contained in tion of compliance by proving right to show be the of our chapter that sets out bulk nondriving of the vehicle. and the statutory law on motor vehicles states: law of the road. That definition approach While the the DOT “ every person, other than ‘operator’ means public protection of the effect maximum chauffeur, physical con- who is in actual commendable, we drunk drivers is from upon highway.” trol of a vehicle of the statutes is its reach find 321.1(42) (1989). Iowa Code § legislative believe the too far. We do not approve blinding was intended to scheme requires 321J.6 that a consent Section who was the actual to the truth as to by every licensee commences its state- test Otherwise, passen an innocent “a offender. ment of the law with the words operator’s her license ger would lose his or operates who a motor vehicle in this state.” officer, refusing the test an cense revocation for could good faith error of through the proof not later rescinded based on in fact or law. uncorrectable mistaken. the officer had been findings of fact are that agency’s appeals re- Benning not the actual driver The court of Furry was Although general agency ground. case. as on another versed On issue, give disagreed deference to an administrative rule we we with the court of that it interpretation of a statute agency’s appeals ultimately affirmed the district administers, responsibility it is our as well ruling refusing court’s to allow the revoca- Bishop correct an error law. See doing, nec- tion to be so rescinded. Instruction, 395 Bd. Iowa State legal conclusion of essarily approved (Iowa 1986); and the court of the district court 17A.19(8)(b), (e). This was Iowa Code controlling question § on the agency at the administrative made interpretation. the decision of appeal level which reversed present The claim made case is judge. hold

the administrative law that a license cannot be revoked under apply do not that sections 321J.6 and 321J.9 if the licensee section 321J.9 was not in proves he or she was to a licensee who driving the automobile. This is no fact vehicle involved not the driver of motor persuasive argument more than the in Ben- *5 inquiry relevant therein. The dis- in the should not al- ning that a revocation correct; its decision is af- trict court was if lowed to stand the licensee was not firmed. or under the influence fact intoxicated AFFIRMED. vehicle. This operating while court observed in v. Saunders Commis- CARTER, except All Justices concur 226 19 Safety, sioner Public SCHULTZ, JJ., who and LARSON (Iowa 1975), that: dissent. plaintiff of whether The CARTER, (dissenting). Justice vehicle while operating a motor fact under the influence of an alcoholic bever- I dissent. age, major prose- issue a criminal approve procedure for tempting It is ... is not an issue cution for O.M.V.U.I. rescinding consequences of chemical proceeding.... The issue in this civil an test refusal where officer’s is whether presented here [the officer] driving has been while belief that grounds” to believe had “reasonable influence of an intoxicant later under the operating motor vehicle plaintiff was However, proves to have been mistaken. the influence of an alcoholic while under statutory not authorize scheme does beverage. relief. such Id. at 22. present in the case is similar to The issue case, majority present con- De- presented Benning the one the officer had reasonable cedes that Transportation, 441 N.W.2d partment of Furry that Mr. had been grounds to believe ease, In that a motor vehicle while intoxicated had revoked under sec- whose license been request- time the chemical test was at the refusing to a for to submit tion 321J.9 requires that the statute ed. That is all privately ad- test had obtained a license revocation under order to sustain a permissible ministered blood test within majority The seeks to avoid section 321J.9. testing. test re- time for chemical That plain language of this statute bor- concentration of vealed a blood alcohol rowing language from section 321J.6. fact, Notwithstanding only this .043. implied suggests none of the opinion and the court of con- district court applied un- provisions can consent law that, if the officer had reasonable cluded operat- in fact affected was less subject had grounds to believe that particular in- in that ing a motor vehicle operating while intoxicated at is flawed. test, li- This conclusion stance. requesting time of the chemical of section interpretation A more realistic on notice puts it licensees

321J.6 is license in obtaining operator’s

that, by an to chemi state, they impliedly consent rea they give an officer testing when

cal they were

sonable interpreta This intoxicated. with section harmonizes section 321J.6 manner in is consistent with the

321J.9 and jurisdictions have courts from other

interpreted language. similar See State

Neitzel, 95 Wis.2d (A (1980) applies for driver who operator’s license submits receives an

and legislatively imposed conditions testing in accord consenting to chemical Defender, Raymond Rogers, Appellate E. Lang requirements.); ance with Gonlubol, Appellate Ahmet S. Asst. and Safety, Defender, appellant. field (it privi (Minn.App.1990) is the Miller, Gen., Atty. Ann E. Thomas J. vehicle which lege of Smith, Brenden, Atty. Gen., Asst. James implied consent triggers regulations under County Atty., Voogt, County and Dan Asst. theory). appellee. Atty., for stated, the reasons I would reverse For CARTER, P.J., and Considered uphold court’s the district decision LAVORATO, NEUMAN, SNELL agency. decision *6 ANDREASEN, JJ. SCHULTZ, JJ., join this LARSON and CARTER, Justice. dissent. Defendant, Steens, appeals Fredrick burglary in the second

from conviction degree. He contends that the district failing jury, as a erred submit to offense, trespass criminal lesser-included 716.7(2)(a) in Iowa Code section as defined (1989). appeals The court of determined favorably this issue to the defendant and granted fur- reversed his conviction. We Iowa, Appellee, STATE For dis- ther review. reasons which are herein, we the decision of the cussed vacate judgment court of and affirm the STEENS, Appellant. Fredrick court. of the district No. 89-1642. dwelling in a Defendant arrested Supreme Iowa. Court of had companion to which he and a house entry by De- gained breaking a window. Jan. 1991. hiding found fendant was equipment stall in a shower with stereo dwelling belonging owners proper- player, A cassette also the house. house, dwelling ty owners person. concealed on found instructing the jury at defendant’s trial, criminal the district court submitted