*1 technology to According to Chief ble obtain warrant with to some extent. rule justice Cady, dispatch. opinion to meet of the chief the defendant failed Justice of evidence the to introduce sufficient facts to does indicate what its burden kind Although produce, apparently must but exception. the automobile defendant defeat stated, employs must a better opinion effect the defendant make not so developed more than exigent circumstances in detailed record presumption when law en- this favor of law enforcement case. to search an automobile

forcement seeks to the burden the defendant

and shifts J., Wiggins, joins this dissent. opinion of Under the

prove otherwise. raises justice, once law enforcement

chief exception the burden

the automobile shifts what was

to the defendant establish

found the Iowa federal district 1981, namely, that law enforce-

Baker obtaining capable

ment authorities are in short warrant order. See

search Iowa, Appellee, STATE at 1084. F.Supp. agree proof that the burden

I do not capable doing the state is what CHILDS, Appellant. Erik Milton from should rest with the defendant. Aside No. 15-1578 considerations, the burden constitutional party ordinarily rests proof Supreme Court Iowa. But position produce evidence. best case, justice’s approach chief June Filed a fact-based defendant make allows a exigency that the

showing presumption exception cannot be automobile

under the support to- search.

invoked construed, narrowly

If fact-based run risk of results

approach could county pro-

vary county and could for law enforce- a distinct disincentive

vide technology. adopt current feasible

ment however, sure, justice

I am the chief does such to embrace rule with intend Indeed,

perverse incentives. read adop- justice’s opinion promoting

chief technology all

tion of feasible deliber- in- perverse to avoid speed.

ate order the framework established

centives under justice, a must be

by the chief defendant newly to meet his or her established

able presumption overcome

burden case of an automobile

exigency showing availability of feasi-

search *2 Office, C. Abbott of

Andrew Abbott Law Waterloo, P.C., for appellant. Miller, General, Attorney Thomas J. and Bakke, Thomas Pettinger, Jean C. and Tyler Buller, J. Attornéys Assistant Gen- eral, appellee. for WATERMAN, Justice. appeal,

In this the defendant asks us to Comried, overturn State which inter preted 321J.2(1)(e) Iowa Code section (2001) (OWI) (operating while intoxicated statute) driving ban a motor vehicle of prohibited detectible amount drug body, regardless one’s of whether ability impaired. drive was 2005). This defen stopped dant was over the cen- terline and admitted to smoking half of a joint being and under the influence of mar ijuana. drug A screen a nonim- detected pairing marijuana in his He a motion to filed urine. dismiss the charge, arguing OWI longer Comried good because it relied an Arizona decision supreme and state’s court later held an OWI conviction cannot be solely presence on the based of a nonim- pairing metabolite. The district court disa greed, dismiss, denied motion to of violating convicted him section 321J.2. The court of appeals affirmed his convic Comried, tion noting it based “will diverge from supreme precedent.” granted application defendant’s further review. explained below,

For the reasons reaffirm Comried on the plain based mean- persons in. stop smoking The traffic text. ing of the matching descrip- area urinalysis request for a were lawful vehicle in.a n tion of this I then asked the erratic vehicle. on the defendant’s if drug use im- driver he recent was under his admitted influence *3 drugs or I yes, consti- alcohol. He which raises no said pairment. The defendant breadth, asked and mari- challenge he said to the statute’s substance tutional what I solely juana. on and asked how he said permits a conviction much which based joint, big joint half- I how the nonimpairing metabolite presence the of .asked up fingers showing his Policy was he held marijuana in the driver’s urine. of. n big. is too harsh me arguments that . .. how legislature.. to the should be directed Deputy that when Weber also observed “began towards Childs the back walk Background Proceed- I. Facts and car on the left hand [he] had vehi- ings. keep performed cle his balance.” Childs 20, 2014, Floyd p.m. At 9:41. June sobriety, poorly field tests several was County Deputy Chad Weber Sheriff counting missing steps heel-to-toe City Park to re- dispatched to Rockford police sta- number thirteen twice. At in- activity spond to a narcotics report tion, test, Childs to. urine consented ar- Hyundai volving Upon a silver Sonata. sixty-two presence which revealed approached by a man who riving, he was nanograms nonimpairing of a per milliliter smelling marijuana coming from reported marijuana, ll-nor-9-carboxy- metabolite of car with dreadlocks a silver and someone (Carboxy- delta-tetrahydrocannabinol Deputy THC).1 driving off in that vehicle. Weber on foot a man with dreadlocks spotted charged with while operating of a backing parking out

a silver Sonata offense, violation of first intoxicated, followed silver spot. Deputy Weber 321J.2(1)(a) (2014) (op Iowa Code section plate A license num- Sonata. check erating drugs) the influence of while under registration ex- revealed car’s ber (c) while (operating a motor vehicle tires of pired. both left-side He observed “any substance is amount of a controlled crossing Deputy centerline. the car present person’s in the .-.. blood pulled the car over and identified Weber urine”). dismiss, a motion Childs filed Deputy as Erik Childs. Weber’s the driver arguing he not be convicted under could ‘ report their encounter: describes solely presence section based 321J.2 I and told the approached marijuana the vehicle nonimpairing being crossing he was the court urged driver his urine. Childs stopped Comried, registration. expired line and interpreted the center overrule J.2(1)(c) (2001) he had been prohibit I asked the driver where 321 drug, park “any at of a tonight prohibited and he stated he was amount” is, zero.” “any greater his son. I then than playing basketball with amount Comried was a statuto- complaint I at him that had received 778. (cid:127)told body be more than three Carboxy-THC secondary is metabolite of 1. detected impairing Tetrahydrocannabinol, primary psychoac- weeks' after the effects of produced dissipated. component Priyamvada at 152. It of cannabis. See have Id. tive Metabolism, al., 11-hy- through Chemistry, the metabolic & Toxi- breakdown Sharma et signifi Implications, droxy-THC (Hydroxy-THC), most cology Cannabis: Clinical (2012) (listing of THC. psychotropic metabolite Psychiatry cant Iran J. cannabis). Carboxy-THC can components of Childs, ^-interpretation case again, your attorney that relied an Mr. is ask- addressing ing Arizona decision the Court to the same issue find that the law itself unconstitutional; Arizona that there is ra- under the DUI id. at statute. See 775—76; tional basis for the law here in see also Ariz. Iowa. Phillips, State 1994). 873 P.2d (App. Howev- I think very, very high that that’s a er, a mean, later Arizona decision held say “drivers something standard. cannot be merely [DUI] convicted unconstitutional means that there is presence non-impairing on the of a meta- no—no reason all to have this place, prior usage basically. again, bolite reflect the I think And it’s marijuana.” argument that I’m not Montgomery going agree State ex rel. Harris, with, something 234 Ariz. but it’s 322 P.3d *4 could (2014). appealed argued maybe Supreme and the Phillips Childs no Court or Arizona, Appeals longer good Court find that according- law they want to this ly, say Comried should overturn law and be overruled. Childs’s constitutional, that it’s not I’m but motion written asked for the willing to do that. reinterpreted to omit nonimpairing meta- bolites. At the hearing on the motion think that there is a rational basis dismiss, argument: just say any marijuana Childs echoed this in your system, not, it impairs you whether that’s are asking We for the case to be enough say people shouldn’t be driv- dismissed. When the Defendant was ing with system. that in their after he pulled tested over and so- Again, I understand the rationale of

briety testing, positive he was found for your attorney what saying is that non-impairing marijuana. metabolite there be some test as to whether should Many already states have non- ruled this driver, or not it you a made bad but DUI; impairing metabolite is not a Iowa hasn’t decided that that’s neces- only impairing metabolite is. So, sary. until someone tells me—some- one else me tells above me it’s con- [Phillips actually case ] that we stitutional, going I’m to And that it is. on, our or marijuana OWI based we So, I’m going to deny the Defendant’s case, used that throughout and it’s cited Motion to Dismiss. the case that decided that amount of The district court filed a written order a controlled substance OWI denying the motion to dismiss. Childs filed They actually distinguished Iowa. have a motion to suppress, contending Deputy n case, stating that now it is the probable Weber lacked or reason- cause only—Only impairing suspicion able for stop. the traffic that is a inDUI And [Harris ]. motion, district court his concluding denied changes of law upon and based expired registration over my fact that client positive was not provided grounds. centerline sufficient impairing metabolite, asking we are Childs ultimately was convicted for the case to be dismissed. testimony of operating minutes while rejected The district court argument, intoxicated, offense, first in violation of stating, Iowa Code section 321J.2.2 Although charged specify information Childs did not whether the district court (a) (c) under both sections guilty of Iowa Code him under one or found both of the 321J.2(1), judgment of conviction subsections. hearing on the motion to and re- dismiss appealed, we transferred Childs jected it. Childs makes constitutional appel- appeals. Childs’s to the court case appeal. appellate claim on The State’s challenge no constitutional raise late briefs acknowledges Rather, briefing pre- that Childs makes B21J.2. to section his challenge. argu- served error statutory-interpretation the same agree. We as he did district appeal ment on overruled and court—Comried should be not construe the district do court’s to omit nonim- reinterpreted

the statute constitutionality of discussion of the appeals court of metabolites. The pairing statute to mean the court overlooked his arguments his and affirmed rejected statutory-interpretation argument Childs’s application granted Childs’s conviction. We apply the statute did further review. nonimpairing metabolite. To the with a necessarily contrary, the district court re Standard Review. II. jected statutory-interpretation ar Childs’s review, can review “On further orally gument ruled the statute when appeal any or of the issues raised all him, constitutionally applied denied just limit our review those issues dismiss, motion to and later found him *5 by application brought to our attention guilty violating section 321 J.2. The court Jones, 892 Papillon v. for further review.” conclusion, the same appeals reached (Iowa 2017) 763, (quoting N.W.2d 769 in stating court did err “the district (Iowa 39, 40 Young, v. 732 N.W.2d Woods to mari interpreting section 321J.2 include 2007)). our review elect confíne We denying in the mo metabolites and juana statutory-interpretation claim. Childs’s EnviroGas, L.P. v. tion to dismiss.” affirming the appeals decision The court Rapids/Linn Cty. Solid Waste Cedar stand suppress of his motion to shall denial (Iowa 2002) 776, Agency, 641 N.W.2d 782 on that claim. as the final decision on both (holding preserved error challenge applicability stat prongs of rulings on questions ‘We review ute, court resolved presuming district correction of statutory interpretation for one); both, though only discussed even Ct., v. Iowa Dist. 889 errors at law.” State Senecaut, 532, 539-40 Meier v. N.W.2d (Iowa 2017) (quoting State (Iowa 2002) (discussing appellate principle (Iowa Olutunde, v. 878 N.W.2d rejected court the district that “we assume 2016)). ruling “Similarly, we review a merits, to a claim on its even each defense of errors motion to dismiss correction though court did not address the district 446, 450 Ney, v. 891 N.W.2d Ney at law.” City ruling”); in its see also each defense (Iowa 2017). Diercks, 806 N.W.2d Riverdale 2011) court, (Iowa (concluding district Analysis. III. fees, re attorney must have by awarding In district of Error. A. Preservation to the fee good-faith defense jected city’s appeal, Childs makes court and Hellstern, award); State cf. argument: statutory-interpretation same (“We 2014) (Iowa are decide hold Comried and that we should overrule to avoid statutory issue first order pres- not violated section 321J.2 is adjudication of constitutional unnecessary of mari- nonimpairing metabolites ence claims.”). The court in a urine. district juana driver’s support does State v. Mitchell argument a constitu- Childs’s as described statutory his waived Childs colloquy conclusion challenge tional argument. Coleman, preservation error which held 2008). Holly charged- preserved Mitchell an argument un- defendant endangerment child her because slie and appellate der Constitution registered with a sex children offend- lived mentioning without review the Iowa Con- Id. at er. 434. Mitchell filed a motion to stitution court. See district id. at 286. dismiss, raising two chal- constitutional Coleman, Unlike Childs defendant (due lenges process protection) equal argument the same fact in district made endangerment to the child statute. in his court motion that he dismiss 435. The district court denied her motion appeal—an argument makes on the dis- by addressing only equal protection denying ruled court motion trict pre- claim. Id. held We Mitchell failed convicting him. process for appellate serve due claim Statutory Interpretation—Com- B. ruling review because did not she seek Reaffirmed. must ried decide whether filing claim court before district Comried, to overrule decided her distinguishable; appeal. Id. Mitchell years ago. twelve The district court and The district court in Mitchell could decide Comried, appeals correctly applied one deciding constitutional claim without and Childs that his concedes conviction the other. See id. district court’s rul- upheld good must if that case remains ing rejecting equal protection chal- law. We reaffirm Comried on its lenge implicitly dispositive was not of the reasoning, plain which applies meaning process due claim. No claim had operative statutory language. contrast, been By See id. at 434. made. here, uphold the district court could legislature recently amended the constitutionality of the OWI allqw narcotics laws limited medical use applied to necessarily without inter- *6 of marijuana, oil cannabis but derived preting to apply to Childs. to chose leave intact Iowa Code section 321J.2(1)(c).3 pre

The fact the State he agrees Childs Childs does had claim error is prescription marijua conclude valid served another reason medicinal Bearinger his statutory-interpretation pre is na. See Dep’t Iowa claim of appellate Transp., served review. State See N.W.2d 107-08 Coleman, (Iowa 2014) (discussing N.W.2d drug 286-87 de prescription 2017) fense), (relying on only Nor State’s concession Childs claim he does had error). preserved defendant In its appel the metabolite in prior drug his urine from briefing, recognized earlier, late State use days such that he was not challenged driving the district inter under the To court’s influence. the con pretation of trary, Iowa Code section 321J.2 he signs impair exhibited current “motion dismiss smoking marijuana and the district ment and admitted ruling court’s thereon preserved this issue under its He influence. does for appellate argue To appeal review.” hold on- otherwise the statute as would conflict approach interpreted with the lenient Comried unconstitutional. G.A., use) (codified §§ 3. See H.F. 87th Sess. 1st 4-21 medicinal at Iowa Code ch. (Iowa 2017) (to (2015)); be codified Code at Iowa see also Iowa 124D Code 124E.1-.17) 124.204(7) ("This (extending §§ § Medical apply Cannabi- section does not Act). earlier, years legalized marijuana, diol Three Iowa tetrahydrocannabinols or chemi- program. limited tetrahydrocannabinol medical cannabis oil cal derivatives when §§ (enacting Acts ch. 1125 2-10 purposes pursuant Iowa utilized for medicinal Act, allowing pharmacy].”), Cannabidiol Medical certain of the [of rules board provides Code section 321J.2 that a section 321J.2 in 1998 to amended create a person operating commits the offense of per se any ban amount of a person “operates if the while intoxicated body, controlled substance in the “whether motor vehicle state in they or not are under- the influence.” Id. at . following conditions:” 776; Bearinger, see also 844 N.W.2d at 107 ( n ) While under influence an (interpreting noting- Comried and beverage drug alcoholic or or a other per 321 J.2 “regardless creates se ban combination of such substances. person whether a is ‘under the influence’ ( n ) having alcohol While concen- of that controlled (quoting substance” of .08 or more. tration Comried, 776)). 693 N.W.2d at noted (c) any amount a con- While purpose chapter' 321J is “to reduce present in the per- substance trolled the holocaust on’our highways.” Comried, son, as person’s measured in the blood (quoting Kelly, State v. urine. or (Iowa 1988)). Relying added). 321J.2(1)(a)-(c) § (emphasis Id. precedent, on Arizona and Indiana we stat ,in substance,” turn, defined ed, “Controlled “any or derivative include legislature reasonably could have -substance, drug, or compound” listed imposed a ban such effects because the 321J.1(4) § (empha section 124.204. Id. drugs, as contrasted to the effects of added). “[tjetrahy- sis 124.204 lists Section alcohol, vary can greatly among those meaning tetrahydro- ... drocannabinols use them. One who court has observed naturally plant cannabinol contained in. that, genus of the Cannabis” as a schedule (u). 124.204(4) § Carboxy-

substance. since the manufacture distribution tetrahydrocan- drugs unregulated THC is metabolite of illicit are (THC) in marijuana, varies, a con- nabinol found drugs’ potency because the Carboxy-THC is Therefore, trolled found unpredictable. substance.4 effects are person in the mine of a who has smoked ... there is no'level use above ingested marijuana. See Darron Hub- J. im- people presumed which be can Comment, bard, on Illinois’s Narcotics paired they can below ' Roadways: Driving’s III Drugged presumed unimpaired. Effects *7 Martin, 591, 62 DePaul L. 605- .Rev. After (alteration original) (quoting Id. at in 776 (2013) (reviewing process by the 07 708). Phillips, P.2d at 873 We also relied body Carboxy-THC). converts THC into precedent: on Iowa Therefore, Carboxy-THC falls within the prohibited sub- definition a “controlled appeals Our court of reached a simi- has stance” under Code section 321J.l. lar a license-revocation conclusion driving case with controlled Comried, interpreted text of the court, body. not- 321J.2(1)(c) substances driving prohibit with relating ing difficulty in the. amount “any amount” a controlled substance drugs body driving impair- body. detectable in one’s 693 N.W.2d ment, legislature that said: 778. We observed "every "marijuana" compound, broadly includes manufac

4. Section also a 124.204 lists ture, salt, derivative, 124.204(4)(m) preparation prohibited drug. § mixture or Iowa Code resin, substance). including (listing plant, or marijuana its seeds tetra as a schedule 124.101(19). Marijuana, legislature, hydrocannabinols.” § Id. as defined (Iowa 2007) 677, (altera Unlike the blood alcohol concentration 730 N.W.2d Miller, impair- original) (quoting test used measure alcohol tion in State v. (Iowa 1999)). ment is no similar to meas- there test “When is, marijuana impairment. ure There proposed interpretation of a statute would here, though, as was a test used require something the court to ‘read into drug of marijuana, measure the use apparent that from the Iowa, illegal per- the State of in a legislature,’ words chosen the court body. being son’s There no reliable reject (quoting will it.” Id. State v. Guz of impairment, legisla- indicator (Iowa 1999)). man-Juarez, rationally ture could decide that the premise legislative for that choice public protected by prohibiting is best testing the absence reliable to de- who has a one measura- particular termine whether a level marijuana ble amount of metabolites. driving. impairs premise narcotic That re- (quoting Dep’t Loder v. Iowa today. mains true Transp., 622 Ct. Unfortunately, procedure there is no 2000)). App. comparable to the Standard Field So- argues we should overrule Com- briety police Test that a officer can ad- ried one because several decisions on a if minister roadside determine on, Phillips, subsequently we relied drugs. driver is the influence of under by the Supreme narrowed Arizona Court example, marijuana For diminishes Harris, in Harris. at 164. Harris P.3d person’s temporal spatial judgment, interpreted a subsection of state’s but Field Sobriety the Standard Test only to prohibit OWI law substances that those does not measure effects. Police impair driving. Id. Ari- year, The next rely nystagmus officers also to de- Supreme zona Court Ari- clarified person if a termine under the influ- zona “casts a net that embraces alcohol, drugs ence of but or dilate proscribed drivers who have drugs or their pupils constrict do not also cause impairing metabolites their but bodies nystagmus. also There is no device may may impaired,” who not be while comparable breathalyzer to a to identi- allowing patients a limited defense to certi- fy marijuana pres- intoxication or the fied for medicinal use who can THC, psychoac- ence and amount prove they not impaired. were Dobson ingredient marijuana, tive in a McClennen, 238 Ariz. 361 P.3d worse, driver’s blood. even What if (2015). done, could be measurement there is no medical consensus scientific legislature The Iowa chose regarding the amount THC that net, criminalizing cast wider impair average would driver. That prohibited amount of substances reasons, is true for a host of most of *8 body, including nonimpairing one’s me which stem from the fact that the rele- commonly tabolite issue found in urine pharmaceutics vant are far more com- marijuana reasoning after use. The plicated for for drugs than alcohol. persuasive, opera Comried remains as the Jr., tive text of changed. the statute has not Paul J. Larkin Medical or Recreation- 321J.2(c) (2014). § See Iowa al Marijuana Drugged Driving, Code Our 52 453, (2015) court “may enlarge (empha- not ... or otherwise Am. Crim. L. Rev. 483 added) (footnotes omitted). change legis of a statute as the sis terms As the dis- Ct., adopted recognized, lature it.” State v. Iowa Dist. sent in Harris difficulty “[T]he

185 detecting drug justifies a impairment Establishing absurdity unambigu- in an (Timmer, J., P.3d at 165 flat ban.” 322 ous statute is for good difficult reason. “Hydroxy-THC dissenting). [impairing] explained We have will “we not quickly Carboxy-THC ignore legislative converts language merely [nonim- clear pairing] Carboxy-THC .... driver with [A] because it leads to a result that seems testing may at the the blood time contrary to the expectations.” court’s may Hydroxy-THC had have express language produce must driving.” Id. A “flat blood while ban en result is “demonstrably at odds impairing sures that a driver who had an with the intention” legislature. body driving substance while is J.C., 495, In re 503 prosecuted though even that substance 2014) (citations omitted) (quoting Sherwin- quickly have into a non- metabolized Co., 427, 429). Williams 789 N.W.2d at It impairing substance.” Id. is not for legislature absurd to enact a flat The harshness Iowa’s ban is ame- se, per zero-tolerance, driving ban on liorated the fact that the motorist would marijuana with this in one’s testing only be asked submit chemical body, given the of an absence available performed a after the officer lawful traffic scientific what test determine level stop grounds and had reasonable to believe marijuana impairs driving. impaired.

the driver was See Iowa Code Comried states outlier. Other 321J.6(1) § (setting forth grounds for interpreted equivalent have OWI statutes case, testing). In this chemical exam- driving any criminalize with detectible centerline, ple, over prohibited regardless amount of drug, upon exiting had trouble his balance with State, 398, Love impairment. See 271 Ga. car, performed poorly on field tests for 53, 56, (1999) (concluding 517 S.E.2d sobriety, and admitted he was under the that “a statute which it unlawful to makes marijuana smoking influence of after half circulating drive while residue joint. body a rational driver’s bears fluids argue rely pub ... relationship protection Childs does should disagree declaring the absurd-results doctrine. lic” but law unconstitutional on We interpreta grounds with claim that Comried’s equal protection prohibiting use); Fate, People tion of the Iowa produces OWI law an medicinal 159 Ill.2d 549, 550, result. have absurd cautioned that “the Ill.Dec. 636 N.E.2d (1994) (concluding prohibit- absurd results doctrine should be used a flat ban it sparingly ing “any because entails the risk that amount of a controlled substance” judiciary displace legislative policy given will was constitutional that there was no speculation legisla State, on the basis of impairment); Bennett v. standard (Ind. 2003) App. ture could not have meant what unmis 801 N.E.2d Ct. (“[A] takably any pro- said.” Sherwin-Williams Co. v. flat ban Revenue, Dep’t body, scribed controlled substance in the (Iowa 2010) (quoting capable causing impair- 2A or not Norman J. whether ment, Singer Singer, permissible.”); & Shambie Statutes and Commonwealth v. 45:12, (Pa. Hutchins, § Statutory Super. Construction at 105-07 42 A.3d Ct. (7th 2012) 2007)); (“[A] Bearinger, ed. see also conviction under OWI stat- [the (“The require at 110 n.3 that a ute] absurd-results does not driver *9 rather, it cautiously.”). impaired; prohibits operation should be used doctrine reiterated, recently by any of a who has motor vehicle driver 186

any specifically amount of “any con- motor vehicle with amount of enumerated a con (quoting trolled substance blood.” schedule 1 trolled substance listed under Etchison, 1169, Commonwealth v. 916 A.2d health public 7212 code.” (Pa. 2007))); Super. Smet, 257.625(8) § Ct. State v. Comp. 1174 Mich. Laws Ann. 525, 474, (App. (West, 288 2017, Wis.2d 479 through current Westlaw P.A. 2005) (concluding “proof impairment Reg. No. 50 of Leg.). 2017 Sess. 99th statute).5 necessary” OWI under Marijuana is a controlled substance. Id. 333.7212(1)(c). § Derror, People Only bans, Ari- per three states with se Michigan Supreme Court examined wheth (as above), Delaware, zona discussed legislature er the Carboxy-THC, intended Michigan, distinguish between active nonimpairing of marijuana, metabolite inactive metabolites. Delaware does so be- be considered a in controlled substance expressly cause its OWI statute states statute, 316, in the cluded OWI 475 Mich. illegal “any it is drive with amount (2006), 822, 825 N.W.2d overruled compound substance that is the result Feezel, 184, People v. 486 Mich. consumption the unlawful use or of an The,-court 67, (2010). N.W.2d held that and, turn, illicit or drug” recreational Carboxy-THC because is “a any as “not inelud[ing] defines term THC in that it is produced body when the compound substance or solely that' is' THC,” metabolizes properly was consid ingredient or inactive inactive metabolite marijuana.6 ered a “derivative” at Id. 21, drug.” of such Del. Code Ann. tit. However, later, Feezel, years 828. four 4177(a)(6), (c)(9) (West, § Westlaw current the court overruled Derror and concluded 2017, 1-20). through 81 Laws chs. Iowa’s Carboxy-THC a derivative. 783 statute lacks such OWI an-exclusion 81, 86. The Feezel N.W.2d noted court nonimpairing See Iowa metabolites. Dist. definition based on fed Ct., 730 (“Statutory text eral law did not “contain the term ‘11- may express legislative by omission intent carboxy-THC’ ... [n]or do statutes inclusion.”). as well 83; contain the term ‘metabolite.’” Id. at Michigan struggled 802(16) (2012). § courts have with see U.S.C. also Three interpretation of that justices state's part, noting OWI law. dissented that the Michigan majority’s interpretation criminalizes against went According study sponsored to a the Na- 6. The court examined the term "derivative” Administration, Highway Safety tional Traffic under various medical dictionaries and con seventeen states have of zero-toler- variations cluded the term meant "a chemical substance legislation. Highway Safety ance Nat’l Traffic structurally related to another substance and Admin., Dep’t Transp,, State-by-State U.S. A Derror, theoretically derivable from it.” Analysis Dealing Driving Laws With Under Derivative, (quoting at 828 Merriam-Webster’s Drugs https://www.ems.gov/ the Influence of (Mar. Dictionary Online Medical pdf/811236.pdf. simi- Twelve have laws states 2006)). pointed The court out that THC and Iowa’s, criminalizing driving lar to with Carboxy-THC “are except identical prohibited drug body. amount of a in the [Carboxy]-THC, oxygen two atoms are added (Ohio, Nevada, Virginia) id. Three states hydrogen to and three atoms are removed specified criminalize amounts of the eleventh Carbon more to make it prohibited drugs body. enumerated Id. water soluble and easier to excrete.” Id. Courts in two upheld of those states have bans, per regardless impairment. Carboxy-THC se qualified of actual concluded be State, See Williams v. 118 Nev. compound produced P.3d "is a cause it chemical (2002); Topolosky, State v. 1120-22 THC, No. body when the metabolizes which is a 15AP-211, (Ohio WL at *6 Ct. compound of similar structure.” 1, 2015). App. Dec. *10 Michigan’s marijuana, statute. Id. at of THC plain language ingestion indicate J., part (Young, concurring and dis did not defendant contest at trial and senting part). which metabolite or ap- metabolites system. peared in her decisions, justice a noted subsequent caused Feezel trouble “[t]he at 442. worthy of this Court’s serious decision statute, Unlike Michigan the Iowa Soares, People attention.” v. 488 Mich. words, legislature expressly “in- added (2010) J., (Corrigan, 789 N.W.2d cluding tetrahydrocannabinols,” psy- dissenting); People 488 Mich. Barkley, component choactive marijuana (2010) (Corrigan, controlled-substances statute. Iowa Code J., left dissenting). The decision law en- 124.101(19).Moreover, § our OWI statute they legal forcement “in a limbo” because expressly criminalizes metabolites marijuana you, if could “arrest we find component way in a Michigan if find but it’s different we 321J.1(4), Compare not. § did Iowa Code Soares, you.” (quoting § Comp. Mich. Laws Ann. 257.625. Greenwood, Pot Ruling Tom Clouds Accordingly, Michigan cases do Law, News, Smoking, Driving The Detroit support apply revisiting' Comried. We 2010). July Barkley illustrated the it to the Iowa statute as written and leave problem: legislature revisit the zero-tol- whether potential This case well illustrates the erance nonim- ban with even wrought confusion the Feezel deci- marijuana. pairing metabolites Defendant, sion. who was -with stop sign system,

THC in her ran. a Disposition. IV. pick-up truck had collided with way Two right the intersection. reasons, For affirm the deci- these passengers defendant’s car—her six- of appeals sion of the court and affirm the year-old son and her adult friend—were conviction, judgment, district court’s result, killed. As convicted de- jury sentence. negligent homi- of two counts of fendant AP- OF OF COURT DECISION motor operating and one count of cide PEALS AND DISTRICT COURT JUDG- having causing death vehicle while MENT AFFIRMED. (marijua- controlled chemical substance 257.625(4) (8). na) body, in her MCL and. C.J., justices Cady, All except concur Derror, of this guilt Under defendant’s Hecht, J., who specially, who concurs But sir last offense was clear. Feezel. dissents, J., Appel, separately who tempts distinguish one metabolite dissents. marijuana, prohib- 11-earboxy-THC, and being

it it from dubbed a controlled justice CADY, (concurring spe- Chief Accordingly, nature of substance. cially).' An offense now unclear. defendant’s only hold I concur in the result. would expert urine testified' defendant’s Comried, that State N.W.2d 773 of THC— contained sufficient amount (Iowa 2005), pre- issue has decided the nanograms per milliliter—to at least 50 has appeal, sented rationale and its positive test for the But substance. au- merely provided been undermined because case

unclear the record par- thority jurisdiction-we from another Court which metabolites , tially upon All has overruled. of THC were measured. metabolites relied been *11 188

Furthermore, granted a statute that criminalizes ther review should not have been having pres- a vehicle while in I operating Finally, my this case. will con- detail nonimpairing of a of mar- ence majority’s reading cerns with the of Com- ijuana system may in the blood seem ried. wrong, judgment

be based that is misplaced, hardly but it

even absurd I. The Motion to Dismiss. prevailing legal under the standard. While Following stop, sample roadside interpret ambiguous must not stat- courts positive pres- urine Childs’s tested way utes in a that will lead to an absurd sixty-two nanograms per ence milliliter result, Grp. see Iowa Ins. Inst. v. Core of an secondary inactive metabolite of tet- Justice, 58, Ass’n Iowa 867 75 (THC)—ll-nor-9-car- rahydrocannabinol 2015), (Iowa unambiguous statute is boxy-delta-THC (Carboxy-THC). Childs only if its language produces absurd “a charged operating was while intoxi- ‘demonstrably result that is at odds with cated, offense, first in violation Iowa legislature,” the intention’ of the In re 321J.2(l)(c) (2014) (prohibit- Code section J.C., (Iowa 2014) 857 N.W.2d 503 ing operation of a motor vehicle (quoting Sherwin-Williams Co. v. any amount of a “[w]hile controlled sub- Revenue, Dep’t 429 789 N.W.2d present in person’s stance the ... blood 2010)). Comried, As we said in urine”). legislature prohibit people intended “to operating motor with con vehicles a motion to Childs filed dismiss which bodies, trolled substances their whether Comried, he took aim at our decision in they or not are under the influence.” 693 693 N.W.2d which he read as “creat- of the statute result ing [per] se ban controlled substances legislature’s here is not at odds with the operating while a motor mo- vehicle.” The Furthermore, intent. no constitutional tion “[per]-se asserted Comried!a ban on claim been presented appeal has operating a motor vehicle while under requires us to address even discuss influence a controlled substance” is rationally whether the statute is related “questionable” it heavily because “relied legitimate to a government interest. On upon” opinion of the Arizona Court of I grounds, these limited concur. Appeals Phillips, State Ariz. (Ct. 1994), App. P.2d was HECHT, (dissenting). Justice subsequently distinguished by the Arizona join I my colleagues cannot ma- Supreme Montgom- Court in State ex rel. jority I pre- because believe error ery Harris, Ariz. P.3d question today. served on the I decided (2014). The motion further asserted majority’s expansive also dissent from the to the fact that only [d]ue the Defendant Comried, reading of State v. metabolite, nonimpairing had the Car- (Iowa 2005), I it because believe boxy-THC, system in his at the time particulars. detailing flawed several arrest, the case should be dismissed dissent, my the reasons for I will first operate he did not motor vehicle under examine the substance of Erik Childs’s the influence at the time he was arrest- Next, position in the district court. will ed. why explain errs in conclud- dismiss, ing preserved At the question hearing error was on the the motion to statutory interpretation today, em- defense counsel position decided reiterated the phasizing prudential why fur- our longer reasons decision in Comried no as to on the Arizona there should some test whether because relied good law driver, you Phillips. Noting or not it made decision bad but court’s Court had subse- Supreme Arizona Iowa hasn’t decided that that’s neces- Phillips vitality So, quently sary. limited the someone tells until me—some- *12 Harris, argued in defense holding counsel me it’s con- one else above tells me not as au- stitutional, be viewed going that Comried should I’m to it find that is. of thority position. in favor the State’s So, going deny I’m to the Defendant’s the counsel neither Defense addressed to Motion Dismiss. statutory nor meaning of the text plain added.) (Emphases Defense counsel did any of our argued that well-established during hearing not inform the court statutory interpretation should be rules of argu- that the court misunderstood of sec- interpreting the text applied when challenge; as a nor ment constitutional did 321J.2(l)(c). tion request ruling any statutory- counsel district During hearing colloquy, the interpretation issue. misunderstanding that its court revealed subsequently issued The district court a constitu- presented motion to dismiss summarily denying an the motion to order challenge explained its decision tional posthearing dismiss. Childs did file motion on rational-basis deny to ruling any requesting motion issue grounds: statutory interpretation. He was convicted Childs, is again, your attorney ask- Mr. testimony of operating on the minutes the law ing the Court find that itself offense, intoxicated, in first violation while unconstitutional; that there is no ra- is section J.2.7 Iowa Code in Iowa. basis for the law here tional very, very high I think that that’s II. Error Preservation. mean, something say standard. I that means that is is unconstitutional there majority generously the de reads in no—no all have this law reason at .motion to dismiss as re fendant’s written think basically. again, I it’s place, And reinterpretation of section questing a agree going I’m not argument an that 321J.2(1)(c) of in presence to exclude with, something that could be but it’s in one’s urine blood active metabolites maybe Supreme Court appealed and for a conviction under stat as a basis find that Appeals or the Court narrowly that The motion averred ute. say to overturn this they want law and controlling authority longer no Comried is constitutional, I’m not but that it’s Supreme Arizona Iowa because willing to do that. in 2014. Phillips Court disavowed Harris, (interpreting

I think that there is rational basis 322 P.3d your any marijuana sys- drug just say driving “any with prohibiting statute not, tem, impairs you body” it person’s whether ... or metabolite its enough say people proof shouldn’t “with requiring that’s system. impairing their THC or an amount of body” (quoting Ariz. Rev. Stat. in the[] rationale of Again, understand the 28—1381(A)(3))). fact that § from the Aside saying your attorney what guilt one or both of the subsec- charged under Although found the information (c) only challenges the appeal, Childs On subsection tions. under both subsection (a) 321J.2(1), Iowa Code section under judgment convic- conviction 321J.2(l)(c). specify tion did not whether the district interpreted part). part dissenting Comried not consider section and We do 321J.2(l)(c), there is no appeal indication for the issues first time to dismiss that Childs was advanc preserved therefore only motion resolve issues ing any specific statutory-interpretation Coleman, appeal. State v. 890 N.W.2d argument. motion no 2017) made reference (Waterman, J., dissent plain meaning text; ing). it argument no advanced Ordinarily, preserved is not issue ambiguous; it cited rule statuto has criminal case been both unless ry interpretation supporting a determina raised in the district and decided court. tion presence of an inactive meta Manna, State bolite in the defendant’s *13 (Iowa 1995); Reilly, v. 104 accord State can blood urine a conviction sustain 13, 14, 356, (1897). Iowa 73 N.W. 356 Simi under the statute. larly, an not issue that asserted on majority nonetheless concludes er generally Short, appeal is State v. waived.8 preserved ror proper interpre 474, (Iowa 2014). 851 If N.W.2d 479 an 321J.2(1)(c) though tation of section even issue is not in the dis raised but decided only court the district ruled on the consti court, trict not preserved the issue is un tutionality in statute. The party requests less ruling on the correctly by rely reaches conclusion issue time at a when the court can take ing proposition may our court that Krogmann, corrective action. 804 State v. assume, review, purposes appellate of (Iowa 2011); 518, 524 accord N.W.2d State implicitly that the district reached- a Bricker, 343, 345, v. 135 112 Iowa N.W. legal ruling. necessary conclusion to its 645, (1907). 645 to party request If the fails expressly rejected proposition as a ruling, the' not preserved. error See rule'of preservation error Meier v. Sen Schiernbeck, 546, State v. 203 N.W.2d 547 ecaut, I again and do so here. would See (Iowa 1973). 532, (Iowa 2002). 641 539-40 N.W.2d Be majority’s wrong cause the conclusion is rules of preservation pro error These law, prudential a matter of and for reasons judicial mote by pro sound administration record, arising from state of the moting prompt orderly and resolution majority’s dissent from the conclusion of issues giving case and district error presérved. an fix prior courts to opportunity mistakes Ambrose, appeal. to an See State v. 861 A. Rules of Error Preservation. “Er- 550, (Iowa 2015); 555 ror see preservation is N.W.2d also Cole principle a fundamental man, 890 at 304. The with roots rules also that extend the basic N.W.2d protect parties being from surprised of appellate by constitutional function courts.” State, Harrington, 36, Segura on appeal, State v. 893 42 issues see v. 889 N.W.2d (Iowa 2017). (Iowa “Judges 2017), are 219-20 N.W.2d advocates ” overreach, questions..,. judicial see Feld, who reach out to decide unprincipled Borkowski, Feld v. 83 (discussing 790 at 83-84 tension N.W.2d (Iowa 2010) J., concurring in (Appel, part judicial between duties decide concrete is, however, preservation). 8. We have on our occasion characterized There a difference preservation. rules of rules of waiver as error party preserve between the rules. does not A See, e.g., Equip. Corp. Johnston error on issues not decided asserted Indem., Indus. N.W.2d argument district an court but waives 1992) (distinguishing successful between appeal. asserted on parties purposes of error unsuccessful development dant an as-applied ensure coherent but did resolve con- cases law); Coleman, see challenge also N.W.2d stitutional statute as was (discussing judicial overreach on urged 304-05 appeal. in the district court doctrine, appeal). expressed in The waiver Moines, City Des Adams procedure, similarly our of appellate rules (Iowa 2001) (citing Ritz v. judicial economy interests advances Wapello Supervisors, Board County limiting actually our to issues ar review (Iowa 1999), to emphasize gued appeal. App. See Iowa R. P. expand ruling that a motion to is “crucial 6.903(2)(g)(3) (stating, that the failure preservation legal on a error” issue appellant authority support “to cite of urged not decided in the but district of that issue deemed waiver court). issue”). Application B. of Error Preservation

Nonetheless, recognize we several ex- argued Rules to This Case. Childs ceptions preservation. our rules error district court that our conclusion in Com- instance, recognized For have an ex- ried “questionable” because cited an requirement ception issues Appeals Arizona Court case has *14 must be the district court for decided distinguished by since been the Arizona in evidentiary rulings certain instances. Supreme ques- Court. Comried involved a See, 95, e.g., Reyes, State v. 744 N.W.2d statutory tion of interpretation. The dis- (Iowa 2008) (considering statutory 99-100 court, however, trict expressly denied by issue not court but decided district argument Childs’s on constitutional fully supplemental briefing). in developed grounds not and did address defen see, State, But v. 648 e.g., DeVoss N.W.2d statutory' claim cite Comried in dant’s 2002) (Iowa 56, (holding general 62-63 that ruling its on motion to dismiss. On requirements error not preservation do appeal, reasserts that Childs Comried was prevent considering us alternative wrongly not decided. Because did grounds for admission that evidence request ruling statutory on claim at a decided, in developed, but fully was time court could still take when district Howard, court); v. 509 State district corrective and because constitu action (Iowa 1993) (“We con N.W.2d 769 tional claim was even asserted dis preserve clude failed [the defendant] court, trict conclude error would was claim.”). Further, hearsay on his error preserved on claim. parallel are constitutional “[w]hen there 524; Krogmann, at see 804 N.W.2d also provisions in the Consti Federal State Bricker, 135 at 112 at Iowa N.W. party tutions and a does indicate the presented The factual scenario specific basis, regard constitutional we recognized fit any case does not both and state claims federal constitutional exceptions preserva- to our rules error preserved,” if the even district court did legal principles tion discussed above. The Gaskins, not rule on both. State 866 guiding interpretation our Code 2015) (quoting King N.W.2d 321J.2(l)(c) developed were State, (Iowa 2011)); never N.W.2d (mar or- Coleman, applied record the district e.g. at 286-87 Rather, court. the parties limited their ar- jority opinion). recognize declined guments in exception an where the con the district court to the effect district court changing on con- applied that a defen- Arizona caselaw cluded appeal, though on even tinuing vitality our decision Comried.9 district court and assuming argument for the sake applied Even district court determined statute concerning interpretation State, that an issue defendant); King v. 818 N.W.2d cf. 321J.2(l)(c) presented of section (Iowa 2012) (Waterman, J., concur- court, ruling that district the court’s on ring court specially) (arguing a should not reasonably issue could not be understood by referring resolve textual issue to source evidentiary ruling. as an bearing meaning with no text issue). analogue to The factual the error closest preservation presented issue in this case majority The concludes the district Mitchell, occurred State v. as-applied ruling court’s constitutional nec- (Iowa 2008). defendant unspecified essarily decided and unde- ap- pressed case two theories of error veloped statutory interpretation issue of theory first peal. See id. at 434. The purposes preservation. of error This endangerment that a child statute violated faulty on the premise conclusion process rights. Id. The defendant’s due purposes of appel- assume theory posited that the second child endan- late court implicitly review that the district germent statute violated the defendant’s legal necessary reached a conclusion to its equal rights. district protection Id. The Meier, ruling. cites only analyzed one theo- and decided 539-40, support propo- of this ry, equal protection Id. at 435. claim. fact, expressly sition. In Meier stands ruling did not seek a on the The defendant against (rejecting argument it. Id. process claim in the court be- due district preserved legal error is issue neces- filing appeal.

fore her Id. We concluded sary legal to district court’s conclusion but preserve failed to error defendant court). not addressed the district process *15 her claim because district due the Meier, In court did not rule on it. Id. error we concluded was not preserved on an issue of law in a raised Mitchell, As in in we should conclude to by motion dismiss but not decided preserve to case that Childs failed rejected district court. at 540-41. We on claim statutory-interpretation error a argument implicit- that district court ruling because he did not seek on it. ly rejects legal necessary claims to sustain majority, statutory- Unlike the view judgment for of our purposes its rules of interpretation analysis analytically dis preservation. error See id. at 539-40 analysis tinct from the actu constitutional assumption C‘[T]his that district court ally undertaken the district court.10See rejected specifically claims not addressed Harris, (rejecting argu at 161 P.3d preservation.... is not a It is rule error that in preliminary reading ment of statute long-standing presumption tied to our that analysis constitutional on merits of bears a district facts to claim); court found essential statutory-interpretation see also Adams, judgment, ... is not sustain and uti- (concluding at 369 N.W.2d ” preserve error lized as a to preserved as-applied on con means error.... (Citations omitted.)). challenge urged stitutional to emphasized below, explained Significantly, majority 9.' As did not ad- fails Comried to cite a substance,” single any jurisdiction concluding case meaning dress the of “controlled resolution of a district court’s an unas- operative statutory language ap- in this question implicitly serted re- constitutional peal. preserves question solves thus statu- tory interpretation appellate review. rule that we assume a district court found nec- long-standing our assumed the facts necessary to essary support attorney-fee court decided an district award facts its “is not a rule of error support decision our of Information under state Freedom our governing a rule preservation, but (Iowa 2011). Act. 806 The N.W.2d when an issue is raised scope review to con- majority uses the rule in this case decided the district court and the court clude the district resolved issue ruling appeal on contains incom- record interpretation of law—the a statute—not a findings or conclusions.” Id. at 539 plete question fact. added). only the rule (emphasis Because addition, majority’s reliance on applies an issue been “raised and when has of constitutional avoidance—in the doctrine court,” id., by the district we held decided argument case no in which constitutional replacement that it “is not a for the re- actually widely off preserve error and cannot be was raised—is quirement base. satisfy preserva- used this casé The of constitutional avoidance is doctrine requirement that an tion of error issue preservation gener not a of error rule by the district review be first decided ally only statutory when both applies added). court,” (emphasis id. at 540 questions raised. See constitutional are Hellstern, State majority misplaces reliance oth (Iowa 2014). isNor it a rule of support of its conclusion er cases uniformly applied every case— must be EnviroGas L.P. v. Ce preservation. error judicial prudential it is a County consideration Rapids/Linn dar Solid Waste (Iowa 2002), cases, Agency, applied many 641 N.W.2d restraint but not Storm, long-standing See, an iteration just e.g., all. State rule that Meier deter scope-of-review 2017) (declining to con 145 n.1 “cannot be used” subvert mined statutory question sider that could obviate requirement that an issue law is question). need reach constitutional the district court rules preserved unless proposi majority authority for the cites Meier, Although at 540. it. See of constitutional principle tion that support- EnviroGas as cites bearing has case avoidance ing proposition assume misunder clearly district court which the legal implicitly the district reached a constitu claim be stood *16 necessary ruling, to its the case conclusion by reject unsupported I tional claim. only proposition for the that we stands of or fact the notion that the doctrine may “presume matter was re- [a] factual provides support constitutional avoidance ultimate support so as to the court’s solved court conclusion that the district (empha- ruling.”11 See 641 N.W.2d implicitly statutory-interpretá resolved added); v. accord Bankers Trust Co. sis it a constitutional tion claim when resolved Co., 452 Fidata Trust N.W.2d nor raised briefed claim that was neither (Iowa 1990) (“We, therefore, presume the in the district court. necessary support court decided facts concluding added.)). Finally, majority errs (Emphasis Simi- its decision....” Diercks, anal- court’s constitutional City the district larly, Riverdale of argument by asserting appeal. See party it on 11. We also determined that victorious EnviroGas, exception does not need to file a rule 1.904 motion to This 641 N.W.2d at 781. findings enlarge or amend district court’s was not apply here does not because upon does not rule an issue if a district court party. the victorious party does not waive an because victorious of of ysis necessarily disposed. inadequacy evidentiary the defen- rec- heightens importance my of pru- ord statutory-interpretation claim dant’s majority’s concerns about the reso- dential as-applied merits. An constitutional statutory-interpretation lution issue analysis does of statuto- not resolve issues seriously in the presented was neither ry interpretation. Harris, at 161 322 P.3d district nor court decided the district (rejecting argument reading of majority adopt court. The chooses to a new in as-applied analysis constitutional bears to our rules of exception error preserva- of question statutory interpre- merits though the tion even record is devoid tation). marijuana, basic its con- information abo.ut metabolites, compounds stituent and and C. I Prudential Considerations. further ability drug reliably tests to test conclude prudential consider several drug. presence majority ations should adopting us deter to fill in gaping left holes eviden- applying preservation a new rule of error tiary its understanding record with own to reach and statutory-interpre decide facts, key concepts posing scientific First, tation issue- on this neither record. reasoning the risk the court’s un- may be parties by the district nor im- assumptions, court cited a dermined mistaken pressions, regarding and conclusions mari- single statutory interpretation canon of record, juana. On such a weak court any exception plain-language to the rule. important question should resolve the Storm, 163, 165 (Hecht, See 898 N.W.2d at language of whether the “controlled sub- J., dissenting) (outlining list nonexhaustive 321J.2(l)(c) stance” in encompasses rule). of exceptions to plain-language Sec inactive metabolites a controlled sub- ond, raise, parties brief, did not > stance. theories, argue any constitutional and the circumstances, I Under these would specify district court failed what consti .to further improvi also conclude review was question tutional it was decid believed dently granted. Consistent principles Third, ing. merits, in reaching the of an restraint, judicial would disre issue law not decided the district gard jurisprudential considerations court, the our violates rules forging discretionary ahead with further preservation doing, error so risks and in Short, review. at 519 “rewarding] silence (Waterman, trial counsel’s J., dissenting) (noting judicial all, wide-open judicial restraint counters ac gives perverse defense counsel a incen- “decisionmaking goals tivism and furthers tive to lay weeds district efficiency, .., clarity, principled rea deprives the district court of [and] omitted) soning”. (emphasis (quoting State Coleman, opportunity to rule.” See Schwartz, (S.D. (Waterman, J., dissenting). 2004) J., (Konenkamp, concurring re Finally, preservation the new rule of error *17 sult))); King, also at cf. applied by majority the implications raises (Waterman, J., (“I concurring specially) prepared that I not sure the court is am separately emphasize write impor the preserved If on Childs error countenance. restraint....”), judicial tance of Without statutory-interpretation the issue this record, reliable information the courts case, the rule the will of be that a case making risk decisions unsound based party preserves question error of on a' their inadequately own informed under interpretation any statutory by raising as- standing questions of the scientific in volved, applied challenge? only by constitutional they aided sources uncov of operative statutory language.” But it er and their own assessments of credibility those sources. We should must be noted that the operative by dismissing this that risk here avoid language interpreted in that case not the is improvi for review application further statutory language In at issue in this case. dently granted. Comried, “any interpreted phrase 321J.2(1)(c) caution amount” in considerations Iowa section prudential

These Code that majority’s conclusion error against the “any greater amount than zero.”12 mean statutory-interpretation on a preserved is majority The focuses recog- court claim that the district failed case, deciding language in this different if court nize and the district decides decide secondary an whether inactive metabolite question. constitutional After unraised of marijuana is a substance” “controlled explained its denial of district 321J.2(1)(c). for of purposes section constitutionality of motion on the based majority The cites the Harris dissent j.2(l)(c), section 321 Childs Code did Iowa imp proposition for the the flat ban ruling that object request nor he not did any Comried on with statutory interpretation of the issue he osed justi I con- amount appeal. advances on would thus controlled substance now Al- preserved. not difficulty detecting drug that error was fied clude “the dispute not error though the State did impairment,” im given rate at argued preservation on the statuto- poorly Harris, pairing substances metabolize. See ry-interpretation question, we should not (Timmer, J., dissenting). at 165 P.3d our posture allow the override State’s also there concludes preservation pruden- customary error no for the roadside measure test can tial considerations. in a presence driv substances of controlled body. con pre- Importantly, I conclude failed er’s

Because these factual statutory-interpretation evidentiary, serve error clusions basis have issue, I the merits of not address would record are subject case and 321J.2(l)(e) question of how section change on the record future leave interpreted. would should cases, marijua evolving about information metabol- day an inactive another whether na, or development new methods controlled ite of controlled substance testing any presence for the amount 321J.2(l)(c) section substance under a controlled substance. 321J.1(4) (defining “controlled sub- concurrence, Chief Justice special substance, or com- drug, “any stance” as Cady- proposition cites Comried for the or pound that is in section 124.204 listed purpose of Iowa Code section 124.206, or derivative 321J.2(1)(c) op prohibit people is “to substance, or drug, compound”). erating controlled sub motor vehicles III. Comried. bodies, stances whether their Comried, they are the influence.” Com- under majority broadly reaffirms provides, 321J plain meaning Chapter interpretation s “the 776. ried’ alcohol, phrase concerning plain-meaning interpretation, per se rule Unlike J.2(l)(&), per "any Childs does se amount" in Comried. see Code section 321 raise, in this majority does decide concerning lacks a and the rule substances controlled case, constitutionally be can concluding dangerous person whether scientific basis *18 operating while intoxicated impairment specified convicted of occurs at a concentra- reason, impairment. approved of no evidence For tion of THC. this with however, that legislative purpose preserved its is “to clude error was not and further drivers, protect society, including granted, from improvidently review was I and long-term respectfully injury.” death serious Iowa dissent. 321J.23(2). § A

Code conviction under sec- APPEL, 321J.2(l)(e) (dissenting). Justice tion “identifies [the defendant] others, safety as a risk to the and health I petition would dismiss further as well as to the intoxicated driver.” Id. review as I improvidently granted. agree 321J.23(3). § statutory We “consider text with only question Justice Hecht that the legislative to be the best evidence intent preserved in the district was its con- or will” “to and construe statutes effect the holding, only stitutional issue raised expressed legislature.” intent of the 2ASee claim, result, appeal is a statutory aas Singer Singer, Norman J. & Shambie Stat- appropriate neither is Fur- our review. 46:3, § Statutory utes and Construction ther, briefing statutory on the claim on (7th 2014). ed. Consistent with this appeal the district court was mini- judicial principle fidelity expressed Erik simply mal. argues that our intent, legislative I am not convinced that Comried, existing precedent, State v. purpose Iowa Code section (Iowa 2005), wrongly N.W.2d 773 de- 321J.2(l)(c) operating-while- is to create an case, cided because it relied an Arizona entirely intoxicated offense divorced Phillips, State v. Ariz. 873 P.2d question of impairment, actual 1994), (App. subsequently which was thereby roadway safety. distinguished in Montgomery State ex rel. Harris, 234 Ariz. 322 P.3d did not Comried address what consti- (2014). argument That is the extent of tutes controlled thus substance and does actually presented. This case is thus not a question not control the of whether the good deciding vehicle for very some of the phrase “controlled used in sec- substance” important 321J.2(l)(e) questions posed by Iowa Code tion Carboxy-THC, includes (2014). section 321J.2 But marijuana. inactive metabolite of To the proceed sweep- determined to make its extent that the majority ques- reaches the ing declarations about the I tion of statute. find Carboxy-THC whether is a con- troubling the case far more than does trolled substance under section majority. 321J.2(l)(c), I dissent. Iowa provision enacted relevant Conclusion.

IV. present 1998.1998 Iowa Acts record, briefs, (codified considering § After ch. at Iowa Code case, 321J.2(1) (1999)). arguments Comried, § oral in this In conclude we consid problems several undermine ered vehicular homicide conviction under 707.6A(1) majority’s (2001). soundness of the decision. Code section Com ried, particular, the district court never ruled N.W.2d at 774. That conviction 321J.2, the issue of interpretation, the was based on a violation parties plain meaning provided person did not address 321J.2(l)(c) of Iowa Code section or assert amount of a controlled substance in the any recognized exceptions plain- body guilty our driving. intoxicated rule, meaning “any” and the record is devoid We held that means Id. at “any.” basic scientific informing evidence constitutional issues were raised in No interpretation court’s of the relevant statu- Comried. See id. at invites 775-78. Childs tory provisions. reasons, For these I con- us to reconsider the result in He Comried.

197 in large developments The statute raises serious constitu- part in thus relies I law, problems. tional doubt that is consis- appellate in Arizona where an subject to process person tent with due recently held that a similar statute Harris potential to 'a incarceration under criminal narrowly avoid should be construed to ab- prevent dangerous designed to behav- 322 P.3d at 164. surd results. ior itself is danger- when behavior is question—what start with the basic outrageous, at my ous all. It would be in one is purpose of the statute? That view, to harsh impose sanctions a driver easy. of the purpose have said We exposed marijuana to who was or weeks safety by “promote public statute is to no ago poses danger months and on the dangerous high- from the removing drivers road, of highway safety. all in the name As ways.” Bearinger Dep’t Transp., v. Cavanagh in People noted Justice v. of (Iowa 2014) 104, (quoting 107 844 N.W.2d Derror, “There is rational reason to (Iowa 584, Vogel, State v. 587 N.W.2d charge person marijuana who inhaled. 1996)). pur- have found that never ago two weeks who now decides mari- stigmatize pose up gallon of the statute pick was to the store drive 316, 822, marijua- juana impose penalties Mich. 715 N.W.2d use milk.” 475 (2006) J., (Cavanagh, dissenting), over of their users status. na because Feezel, 184, by People ruled 486 Mich. question is stat- whether the next (2010); see also Commonwealth N.W.2d ute, literally, legisla- if fits the interpreted Etchison, 916 A.2d v . addressing danger tive purpose 2007) (Pa. (Bender, J., Ct. 1174-78 Super. Here, hit impaired drivers the road. we dissenting part). in concurring part and tougher per approach, terrain. The se emphasize one cannot These dissents presence that the declares impair any reasonable conclusion draw metabolite, inactive, is active sufficient for canna- solely positive from a test ment poten- criminal conviction support 846; Derror, Etchi N.W.2d binoids. clearly overbroad imprisonment, tial 1175; Feezel, son, 916 A.2d at see also purpose' light statute. (overruling the Derror science is clear that the inactive metabol- holding that a metabolite marijuana may body ites of remain is not substance under THC a controlled law). true, course, consumption. after See Nat’l it is Michigan weeks While Admin., Drugs were raised Highway Safety Traffic & that no constitutional issues Sheets, ordinarily interpret stat appeal, we Human Fact Performance problems. constitutional Sim utes to avoid Cannabis/Marijuana, https://one.nhtsa. Def., 791 mons v. State Pub. gov/people/injury/research/jobl85drugs/ (Iowa 2010). 73-74 (last 22, 2017) eannabis.htm visited June

(stating metabol- detection time THC Notably, impor- decided an recently we past the window ites urine well required that a defendant’s tant case which Thus, many impairment). intoxication and in a must be tied state intoxication persons subject are the statute even resulting in injuries to the way causal impaired though their of homicide vehicle. See State case 2012). Adams, their use not re- least and rationally, Adams, merely Assuming argued cent. behave we state arising intoxicated sufficient impose penalties criminal while do not when, the statute. danger an offense under from behavior due its establish fact, that criminal statutes dangérous. at 368-69. We noted the behavior is not *20 Mazo, Comment, strictly against

are the Daniel P. construed state and Yellow Rows of produce re that we an absurd Test Tubes: Due Constraints would Process Discharges the Employees sult. Id. 369. We concluded that Public Based of causally Drug Urinalysis Testing, of Pa. intoxication the must be U. L. driver 372; (“Research (1987) underlying the Rev. linked to death. indi Johnson, Wrongful-Aspect urinalysis see Eric Ov cates that also cannot A. discern of Scope-of-the-Risk smoking marijuana erdetermination: active and hashish Homicide, Requirement passive ”); in Drunk-Driving Kaye inhalation.... Mc 601, 605-06 Rathbone, 46 Conn. L. Rev. & nn. 17-18 & Coni Donald Sunderland S. (2013) (describing split Workplace, courts on Jar Drug Testing Wars: (1987) question of scope-of-risk doc 23 Willamette L. whether Rev. (“[Pjassive trine from tort law in criminal applies inhalation' must be considered setting driving). possible of Applying interpreting as a sou'rce intoxicated when low here, results.”). Actoms-type logic presence a test level Under in the State’s marijuana terpretation, use of metabolite and must be a a trace of driver who had a metabolite, cause of harm or a of harm upon passive cause a risk transmis sion, argu subject to support a conviction. This to criminal criminal serious offenses. ment, course, charge there “no raised-in this But rational reason to appeal. person marijuana a passively who inhaled smoke at a rock ago concert month problem Another constitutional with the Derror, to who now decides to drive work.” it provide person statute is that does not at 846. ordinary intelligence with notice. fair can., marijuana be Metabolites from In problems, re- order avoid all these person’s system in a for days might tained be does statute asserted A person weeks. has consumed dangerous driving, who mari- criminalize crimi- but juana thus has fair notice as when he of being nalizes status recent user the. may legally marijuana. or she be legislature drive car. It doubt would weeks, months, day, years. bury even Consis- crime in status its statutes. event, tent any with the observation justify penal- made Justice effort to Derror, Cavanagh in majority’s marijuana ties on. use status as a offense .the interpretation “now criminalizes a also into broad would run serious constitutional range of problems. sought conduct and makes criminals If pun- out legislature of people knowledge marijuana who have no of the for ish users their status they conduct must marijuana users, now seek avoid.” the classification in the instance, Suppose, at 844. distinguishing marijuana users who one are, travels to Colorado on vacation happen to be from those who lawfully instance, marijuana. May per- smokes passengers, subject would be lawfully son to Iowa back when re- as an drive to attack irrational classification long home? turning How must the equal protection violation of person principles. lawfully driving? wait before Can anybody The status drivers and who nondrivers A opinion know? driver of.marijuana with have metabolites would be same, glove their compartment yet they will not differently find are treated useful this issue. advice under the statute. Further, it is already well established absurdity meta have invoked the bolites of can doctrine in the area of obtained drunk driving id.; through inhalation. passive avoid convictions not unintended related cf. purpose dealing dangerousness drug’s impairing the statute effects..'...”); Snow, danger impaired drivers. In Bear- Joshua Uncon C. inger, whether prescrip- we considered stitutional Prosecution Controlled Sub 41-6A-517, tion-drug § applied defense administrative stance Metabolites Utah Under Code *21 involving revocation of L. actions drivers’ Utah Rev. OnLaw 203 the. (2013) (“[T]he Interestingly, presence licenses. 844 at 105. of a metabolite in underlying body the criminal the not necessarily equate statute for OWI does with defense, expressly present contained such but intoxication does not [and] to relating equate the statute revocations did even ingestion.”). not with recent " language. contain similar Id. at 107-08. is There another policy-based rationale Ordinarily, legislative we would honor the giving for gloss. the a narrow As statute however, Bearinger, empha- In we text. observed, Professor Bender has Steven purpose sized that the of the statute history marijuana legislation is safety highway persons-who and that were racial stereotyping, and enforcement using drugs prescription while as open-ended marijuana leads to laws dis- by a not a prescribed physician were dan- proportionate against enforcement racial ger subject and thus should be to Bender, minorities. The Colors Steven W. license revocation. Id. at 110. Marijuana, Cannabis: Race and of. Bearinger, (2016). rely legisla- did not L. we U.C. Davis Rev. Bender Instead, day. tive call it origin marijuana legis- text and a" we traces the of strict imported language legislative into text lation users of perceptions “raeialized purpose threatening public safety ensure of the statute— as color and wel- namely, protecting public against “disproportion- dan- fare.” Bender notes the gerous marijuana ate advanced.-Why drivers—was don’t burden enforcement apply reasoning the same here racial minorities.” Id. at 693. minor Racial interpret subject “Driving to mean an ities are Black” active While 701-02; for or “Driving Hispanic.” metabolite? Id. at What accounts active While Harris, energetic Bearinger see approach “Driving also David A. While public safety focus on actual the stead- Black” and All Other Traffic Offenses:.The Supreme fast refusal to do so here? Court and Pretextual Is a desire Traffic express strong disapproval Stops, Criminology cultural of mar- L. J. Crim. & so, (1997). not, ijuana? Thus, rationally wittingly If how is this or related inactive designed impaired contributing to a statute to combat metabolite laws be a fac leading prison drivers? tor to disproportionate pop experienced such in Iowa. ulations as support There is in-the litera- academic Alexander, See The Michelle generallyt ture for a Bearinger/Ho/ms-type interpre- New Jim Crow: Mass Incarceration points tation. The literature out that the (rev. Age ed. Colorblindness 59-96 presence of of a minute metabol- amounts 2012). simply relationship ite has no with recent ingestion, impaired driving. let alone The nonetheless concludes that Roth, Uneasy legislature proceed Andrea The Case Mari- intended to its with for juana Impairment regulation sweeping notwithstanding Chemical Under Danger- Jurisprudence problems majority’s Science-Based cited above. The stat- ousness, (2015) utory requires approach persons Cal. L. Rev. (“[A] metabolites, prohibitionist approach trace who pose awk- but threat if for- justification public safety, personal ward fit sacrifice free- Further, community thorough as has opinions. be- been dom the benefit Hecht, precise pointed measurement tools out Justice cause more language has been amended since Com- are developed. persons Such have been ried. majority’s the statute’s roadkill under the up interpretation. people picking broadly notion framed statutes mari- smoking milk weeks after gallon of narrowly interpreted can is not a new passively exposed to being

juana after concept. In Iowa Insurance Institute v. stat- culpable under the are Association Group Core Jus- ute, convictions under the statute but their statute, tice, that a its we held damage collateral amount to unfortunate of “all required face information disclosure for a looking imposed because State employee’s physical ... concerning the *22 way to convictions with- obtain convenient claim,” mental condition relative to the did im- proving methods of out the traditional protected by not information include the case-by-case through basis pairment on a 58, 69, work-product doctrine. 867 N.W.2d ordinary evidentiary techniques. (Iowa 2015) (quoting Iowa Code 85.27(2) (2011)). § held that the statute recognize I I am not so sure. the difficul- solely should be evaluated based light in of interpreting in the statute ties Instead, at in- isolated words. Id. 72. statutory text. But did specific the looking larger at the statute’s sisted legislature in 1998 for this absurd intend noted, many there are context. Id. As we I of recognize result? absurd- standard ap- occasions when we have narrowed the ity high Dep’t is a bar. Brakke v. Iowa parently unqualified terms of a isolated Res., Nat. statute. Id. at 73-74. 2017). legis- But one wonders whether fully evolving sci- lature was aware of the reasoning type That is the would implications statutory of the ence and the totality In apply looking here. at the Certainly appli- text. some of the statute’s statute, structure, purposes, its and its one in full cations are absurd. Does the statute begins question legislature whether the enough ambiguity context introduce intended include inactive metabolites avoid untoward results? notwithstanding unqualified but isolat- language in the statute. I be ed used would made, perhaps, up- A case can for be in up inclined to cinch the statute some holding upon legislative Comried ac- fashion to avoid the untoward results quiescence or stare decisis. The case intended, legislature by I doubt the either legislative acquiescence decisis and stare requiring presence an active meta- Williams, stronger in was much State v. Harris, in at bolite as P.3d (Iowa 2017), 895 N.W.2d 856 where an Adams, requiring a link causal interpretation meaning of the term repeatedly “arrest” had been endorsed event, multiple opinions any jeers thirty-seven-year over the cheers and which, period, today’s no from most recent of State v. will doubt arise decision (Iowa 2010), Wing, may premature. approach over- 791 N.W.2d 243 The taken Williams, 867-73, today may ruled eliminate less intrusive statu- thoroughly tory-interpretation solution to the obvious reasoned. The Comried de- cision, however, cryptic, explore problems weighty of the statute. But con- does per problems the troublesome contours of a se inter- stitutional remain. Can criminal pretation, recognize from application does the constitu- sanctions arise who, issues, repeated drugged-driving tional and has not to someone been fact, danger arising juana from from equal protec- no at all be defended an poses marijuana, maybe poppy consumption of challenge? tion rolls, consumption past, seed The dropped. shoe has been demonstrably relationship no has drop constitutional shoe will in future driving? Where the me- impaired inactive practical today’s effect of cases. deci- to im- relationship tabolite has causal sion well be to kick the can down the any paired driving, would conviction be an disputes road and escalate to a con- future Does impermissible status offense? stitutional dimension.

presence any of a metabolite amount present under the statute an irrebuttable doubts, course, ability No one contrary process? presumption due legislature pro- to enact statutes of such persons Does conviction under public tect drivers who are actu- dangerousness jurisprudence serve ally impaired. The question for the future penal purpose Eighth under legitimate legislature is whether the can establish a I, Amendment or article section 18 that, regime to dangerous control drivers Iowa Constitution? Would enhanced many applications, sweeping relies on a penalty criminal under Iowa’s statute generality that is unsupported by science subject Bruegger- repeat offenders be and does not utilize the Ameri- traditional *23 challenge, very broad law type where way requiring guilt can individualized involving a wide variation conduct culpability based moral before criminal criminal sanc- escalating combined with sanctions are enforced. Bruegger, tion? See State 2009). process Do due cruel-and-unusual-punishment concepts re- prove impaired driving

quire the State basis, case-by-case many

on a like so other crime, interpreted If

crimes? as a status

can between the distinction drivers ingested mari- recently

others who have