State of Iowa v. Pamela Mildred Middlekauff

IN THE SUPREME COURT OF IOWA
No. 21–0664
Submitted March 24, 2022—Filed May 27, 2022
STATE OF IOWA,
Appellee,
vs.
PAMELA MILDRED MIDDLEKAUFF,
Appellant.
Appeal from the Iowa District Court for Warren County, Kevin A. Parker,
District Associate Judge.
The defendant appeals a conviction for possession of marijuana, arguing
she had a valid prescription or order of a practitioner to possess marijuana.
AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which Waterman,
McDonald, and Oxley, JJ., joined. Mansfield, J., filed a dissenting opinion, in
which Appel and McDermott, JJ., joined.
Katherine Sears (argued) of Clark and Sears Law, PLLC, Des Moines, for
appellant.
2
Thomas J. Miller, Attorney General, and Timothy M. Hau (argued),
Assistant Attorney General, for appellee.
3
CHRISTENSEN, Chief Justice.
In this case, we visit whether an out-of-state registry card allowing its
cardholder to legally purchase and possess medical marijuana in that state and
the written certification necessary to get the card are a valid prescription or order
of a practitioner to constitute an affirmative defense under Iowa Code section
124.401(5) (2019). An out-of-state defendant was driving through Iowa when an
Iowa trooper stopped her for speeding. During the stop, the trooper smelled
marijuana coming from the defendant’s vehicle and asked if she had been
smoking. She denied smoking marijuana but admitted possessing marijuana
flowers. The defendant voluntarily gave the trooper her marijuana. She also
provided the trooper with a current Patient Medical Marijuana Registry
Identification Card issued by the Arizona Department of Health Services. This
card allows her to legally purchase a limited amount of marijuana from an
Arizona dispensary and possess that marijuana for medical use in Arizona. In
obtaining this registry card, she filed an application with the Arizona Department
of Health Services, which required a written certification completed by a licensed
Arizona physician and other personal information. The written certification was
not provided to the trooper at the time of the stop.
The defendant was subsequently charged with possession of marijuana
under Iowa Code section 124.401(5). During pretrial motions, she argued that
her registry card or the written certification completed by a physician was “a
valid prescription or order of a practitioner” to satisfy an affirmative defense in
section 124.401(5). The district court determined that the registry card and
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written certification were not a valid prescription or order and barred their
admissions during the trial. A jury convicted the defendant of possession of
marijuana.
On our review, we affirm the defendant’s conviction because the registry
card and written certification are not a valid prescription or order.
I. Background Facts and Proceedings.
The defendant, Pamela Middlekauff, lives in Arizona. She suffers from
osteoarthritis in her right hand and degenerative joint disease in her left thumb
that cause chronic pain. In July of 2018, Middlekauff applied for and was issued
a Patient Medical Marijuana Registry Identification Card (registry card) from the
Arizona Department of Health Services. Middlekauff’s registry card allows her to
purchase and possess marijuana products from Arizona dispensaries.
While driving through Iowa from Arizona on December 23, 2019,
Middlekauff was stopped by Trooper Luke Valenta for speeding. Trooper Valenta
approached the passenger side to obtain Middlekauff’s driver information and
smelled marijuana coming from her vehicle. He asked Middlekauff if she had
smoked marijuana in the vehicle. She denied that she had smoked any
marijuana but candidly admitted possessing “quite a bit of marijuana.”
Trooper Valenta asked Middlekauff for the marijuana. Middlekauff
voluntarily handed him a large open pouch, from underneath a blanket on the
passenger seat, containing ten individual one-gram pouches of marijuana
flowers. She told him again that the individual pouches contained marijuana
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and referred to the marijuana as her medicine. Middlekauff also provided
Trooper Valenta with her registry card.
Trooper Valenta took the marijuana back to his car. Upon returning to
Middlekauff’s car, he issued citations for speeding and marijuana possession.
He retained the marijuana flowers as evidence and allowed Middlekauff to leave,
as she showed no signs of impairment. The State subsequently charged
Middlekauff by trial information with possession of a controlled substance under
Iowa Code section 124.401(5). Middlekauff pleaded not guilty.
Middlekauff filed several pretrial motions. The first two motions claimed
dismissal was required because the marijuana “was obtained directly from, or
pursuant to, a valid prescription or order of a practitioner” under
section 124.401(5) or that the registry card was entitled to reciprocity under
section 124E.18 of Iowa’s Medical Cannabidiol Act. Middlekauff also filed a
motion to suppress the marijuana, arguing Trooper Valenta lacked probable
cause to seize the marijuana after she presented her registry card to him. The
State resisted. The district court denied each of these motions, and we denied
interlocutory appeal.
Middlekauff then filed a third motion to dismiss, reiterating claims
previously made as well as adding new claims, including: defects in the trial
information, the prosecution lacked probable cause, section 124.401(5) was
impermissibly vague, and equal protection challenges. The State resisted. The
district court denied her third motion to dismiss and we again denied
interlocutory appeal.
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Before the jury trial, the State filed a motion in limine to exclude any
reference to the registry card as well as related Arizona statutes. Middlekauff
also filed a motion in limine to exclude testimony from the state’s Department of
Criminal Investigations (DCI) analyst and any lab report written by the analyst.
The district court ruled that there would be no mention of either the registry card
or Arizona statutes. Furthermore, the district court declined to exclude the DCI
analyst’s testimony or the lab report.
Before the trial began, Middlekauff’s counsel presented an offer of proof
with testimony by Middlekauff and Trooper Valenta to explain how the exclusion
of the registry card and relevant Arizona statutes violated her constitutional
rights and ability to conduct a defense. At trial, the jury heard testimony from
DCI analyst Megan Reedy, Trooper Valenta, and Middlekauff. The jury returned
with a guilty verdict and the district court sentenced Middlekauff later that same
day upon her request for immediate sentencing. Middlekauff filed a timely
appeal, which we retained.
II. Standard of Review.
We review statutory interpretation issues and motions to dismiss trial
information for correction of errors at law. State v. Wilson, 941 N.W.2d 579, 584
(Iowa 2020); State v. Wells, 629 N.W.2d 346, 351 (Iowa 2001) (en banc). We
review decisions regarding the admission of testimony beyond the scope of the
minutes of testimony and chain of custody issues for an abuse of discretion.
State v. Braun, 495 N.W.2d 735, 741 (Iowa 1993); State v. Bakker, 262 N.W.2d
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538, 543 (Iowa 1978). Finally, we review constitutional issues de novo. Wilson,
941 N.W.2d at 585.
III. Analysis.
Middlekauff presents various challenges on appeal. First, she claims that
her registry card or written certification satisfies the “valid prescription or order”
affirmative defense under section 124.401(5). Alternatively, Middlekauff raises
constitutional issues if the registry card or written certification does not meet
the affirmative defense. Second, she raises two evidentiary issues related to
whether the DCI analyst should have testified when the analyst’s name was not
provided in the minutes of testimony and whether chain of custody issues should
have prevented the admission of the DCI lab report and marijuana.
A. Valid Prescription or Order Affirmative Defense and Related
Challenges. Chapter 124 of the Iowa Code (Iowa CSA) mirrors 21 U.S.C. ch. 13,
the Federal Controlled Substances Act (Federal CSA) to regulate the “control of
certain drugs and other substances affecting the public health.” State v. Gibbs,
239 N.W.2d 866, 867 (Iowa 1976) (quoting S.F. 1, 64th G.A., 1st Sess. ch. 148
(Iowa 1971)); see State v. Rasmussen, 213 N.W.2d 661, 665 (Iowa 1973). To
regulate and control certain drugs, the Iowa Code and federal law classify drugs
into separate schedules, I through V, based on the drug’s potential for abuse and
acceptable use for medical treatment or accepted safety in medical treatment.
Iowa Code §§ 124.201–212; see 21 U.S.C. § 812; see also State v. Bonjour, 694
N.W.2d 511, 512–13 (Iowa 2005). Drugs included in these schedules are called
“controlled substances.” Iowa Code § 124.101(5). Under both Iowa and federal
8
law, marijuana was listed as a schedule I controlled substance at the time of
Middlekauff’s traffic stop and remains listed as such today. Compare Iowa Code
§ 124.204(4)(m) (2019),1 and 21 U.S.C. § 812(c)(c)(10) (2019), with Iowa Code
§ 124.204(4)(m) (2022), and 21 U.S.C. § 812(c)(c)(10) (2022).
“It is unlawful for any person knowingly or intentionally to possess a
controlled substance . . . .” Iowa Code § 124.401(5) (2019); see 21 U.S.C. § 844(a)
(2014). However, possession of a controlled substance is legal if it “was obtained
directly from, or pursuant to, a valid prescription or order of a practitioner while
acting in the course of the practitioner’s professional practice, or except as
otherwise authorized by this chapter.” Iowa Code § 124.401(5); see 21 U.S.C.
§ 844(a). A valid prescription or order of a practitioner is an affirmative defense
to possession of a controlled substance. Gibbs, 239 N.W.2d at 868. An
out-of-state practitioner does not need to be registered with the Iowa Board of
Pharmacy for ultimate users to possess a valid prescription or order for
controlled substances. Cf. Rasmussen, 213 N.W.2d at 665–66.2
1In 2019, marijuana was listed as a schedule I controlled substance “except as otherwise
provided by rules of the board [of pharmacy] for medicinal purposes.” Iowa Code § 124.204(4)(m).
Thus, marijuana was a schedule II controlled substance “when used for medicinal purposes
pursuant to rules of the board [of pharmacy].” Id. § 124.206(7)(a). The exception relating to the
rules of the board of pharmacy was eliminated on June 1, 2020. 2020 Iowa Acts, ch. 1023, §§ 3,
8 (codified at Iowa Code §§ 124.204(4)(m), .206(7) (2020)). Neither of the parties argued or
identified any board rules in the district court or on appeal that would make the marijuana
possessed in this case a schedule II controlled substance. We move forward with the
understanding that the marijuana in this case was a schedule I controlled substance.
2We assume without deciding that the physician who completed Middlekauff’s written
certification is a practitioner. However, we note that an out-of-state practitioner must be
registered in compliance with the Federal CSA to validly prescribe or order a controlled
substance. Rasmussen, 213 N.W.2d at 668; see 21 U.S.C. §§ 802(21) (defining practitioner),
822(a)(2) (requiring all practitioners who dispense a controlled substance to be registered with
the Attorney General through the Drug Enforcement Agency), 823(f) (requiring separate
registration to handle a schedule I controlled substance).
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1. The valid prescription or order of a practitioner defense does not apply
here. Neither the Iowa CSA nor the Federal CSA explicitly define “prescription”
or “order.” Iowa Code § 124.101; 21 U.S.C. § 802; but see 21 C.F.R. § 1300.01(2019) (“Prescription means an order for medication which is dispensed to or for
an ultimate user but does not include an order for medication which is dispensed
for immediate administration to the ultimate user (e.g., an order to dispense a
drug to a bed patient for immediate administration in a hospital is not a
prescription).”). We also have no Iowa caselaw that explains the contours of the
valid prescription or order affirmative defense for section 124.401(5).
Middlekauff urges us to hold that her registry card, or the written certification
necessary to get the registry card, constitutes a valid prescription or order.
To acquire a registry card in Arizona, a qualifying patient with a
“debilitating medical condition” must obtain a written certification from a
physician. Ariz. Rev. Stat. § 36-2801(20) (2019); see also id. § 36-2801(3)
(defining debilitating medical condition), (14) (defining physician), (15) (defining
qualifying patient). The “written certification” is “a document dated and signed
by a physician, stating that in the physician’s professional opinion the patient is
likely to receive therapeutic or palliative benefit from the medical use of
marijuana.” Id. § 36-2801(20). The physician must also specify the patient’s
debilitating medical condition for which medical marijuana will be used and
ensure that the written certification is only obtained in the course of the
physician–patient relationship after reviewing the patient’s medical history. Id.
§ 36-2801(20)(a–b).
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The written certification is part of a qualifying patient’s broader application
to the Arizona Department of Health Services. Id. § 36-2804.02(A) (requiring an
application fee and personal information). If approved, the qualifying patient is
issued a registry identification card or an Arizona registry card. Id.
§§ 36-2804.03(A) (describing the card issuance process), .04(A) (describing the
card). This registry card contains the name, address, and date of birth of the
cardholder, a statement of whether they are a qualifying patient, issuance and
expiration date, a unique identification number, a photograph of the cardholder,
an indication if they are permitted to cultivate marijuana, and a pregnancy
warning. Id. § 36-2804.04(A). Middlekauff’s registry card also contains several
other warnings, including a warning that “[p]ossessing marijuana may violate
local, state, and federal laws, and this card may not provide legal protection.”
The cardholder is allowed to purchase up to 2.5 ounces of medical marijuana
every two weeks from Arizona dispensaries. Id. § 36-2806.02(A)(3).
Middlekauff primarily argues that her registry card or the written
certification is “an instruction written by a medical practitioner that authorizes
a patient to be provided a medicine or treatment” or “a recommendation that is
authoritatively put forward” based on dictionary definitions of “prescription.” The
State uses the Iowa sales tax statutes to define “prescription” as “an order,
formula, or recipe issued in any form of oral, written, electronic, or other means
of transmission by a practitioner.” Iowa Code § 423.3(60)(f). Alternatively, the
State points to chapter 155A, which regulates pharmacies, to define a
prescription. Id. §§ 155A.3(41) (defining prescription drug order), .27 (providing
11
the requirements for a prescription). Middlekauff also claims that the registry
card or written certification qualifies as an order from a practitioner.3
“The first step in our statutory interpretation analysis is to determine
whether the statute is ambiguous.” State v. Zacarias, 958 N.W.2d 573, 581 (Iowa
2021) (quoting State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020)). “Our inquiry
ends with the plain language if the statute is unambiguous.” Id. A statute is
ambiguous “ ‘if reasonable minds could differ or be uncertain as to the meaning
of the statute’ based on the context of the statute.” Id. (quoting Ross, 941 N.W.2d
at 346). If a statute is ambiguous, we “rely on principles of statutory construction
to resolve the ambiguity.” Id. (quoting Ross, 941 N.W.2d at 346). Reasonable
minds could differ as to whether the registry card or the written certification is
a valid prescription or order. Therefore, we proceed with our tools of statutory
construction.
If the legislature has not provided a definition, we may refer “to prior
decisions of this court and others, similar statutes, dictionary definitions, and
common usage.” Good v. Iowa Dep’t of Hum. Servs., 924 N.W.2d 853, 860 (Iowa
2019) (quoting State v. Romer, 832 N.W.2d 169, 179 (Iowa 2013)). However, “[t]he
legislature is, of course, entitled to act as its own lexicographer.” Ross, 941
N.W.2d at 347 (quoting Porter v. Harden, 891 N.W.2d 420, 427 (Iowa 2017)). We
3There are concerns as to whether Middlekauff adequately preserved error or waived this
issue. She did not suggest any definition of “order” or provide supporting caselaw in the
proceedings below. The only case explaining order as synonymous with a doctor’s authorization
was first raised in oral argument to this court through the notice of additional authorities.
Despite the thinly developed record, we will proceed with whether the registry card or written
certification can be considered an order under section 124.401(5).
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also interpret section 124.401(5) “by considering its terms in pari materia with
the other provisions of chapter [124] and all other pertinent statutes.” State v.
Byers, 456 N.W.2d 917, 919 (Iowa 1990). Our interpretations should also be
consistent with the Federal CSA. Rasmussen, 213 N.W.2d at 665.
“We apply the rule of lenity in criminal cases, but we only do so as a last
resort.” Zacarias, 958 N.W.2d at 581; see State v. Welton, 300 N.W.2d 157, 160
(Iowa 1981). We still must interpret criminal statutes “reasonably and in such a
way as to not defeat their plain purpose.” Zacarias, 958 N.W.2d at 581–82
(quoting State v. Coleman, 907 N.W.2d 124, 136 (Iowa 2018)). “It is not our role
to ‘change the meaning of a statute.’ ” Id. at 582 (quoting Ross, 941 N.W.2d at
347).
a. Neither the registry card nor the written certification is a prescription. We
first analyze whether the Arizona registry card or written certification is a
prescription. Iowa Code chapter 124, subchapter III regulates the manufacture,
distribution, and dispensing of controlled substances. Iowa Code §§ 124.301–
308; see also 21 U.S.C. §§ 821–832. Specifically, Iowa Code section 124.308 is
entitled, “Prescriptions.” It states:
Except when dispensed directly by a practitioner to an ultimate
user, a prescription drug as defined in section 155A.3 that is a
controlled substance shall not be dispensed without a prescription.
The prescription must be [1] authorized by a practitioner and [2]
must comply with this section, section 155A.27, applicable federal
law and regulation, and rules of the [board of pharmacy].
Id. § 124.308(1). Under section 155A.27, entitled, “Requirements for
prescription,” a prescription must have the date of issue, name and address of
the patient for whom the drug is dispensed, the name, strength, and quantity of
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the drug prescribed, directions for use of the prescribed drug, and identification
of the prescriber. Id. § 155A.27(4)(a)(1)–(5). The Arizona Revised Statutes and the
Code of Federal Regulations contain similar requirements for a prescription. See
Ariz. Rev. Stat. § 32-1968(C); 21 C.F.R. § 1306.05.
Nevertheless, there are clear differences between what is included on a
registry card and what is required for a prescription under Iowa and Arizona law
and federal regulations. The registry card provides neither the specific name,
strength, and quantity of the marijuana nor directions for use of the marijuana.
Compare Iowa Code § 155A.27(4)(a)(1)–(5), Ariz. Rev. Stat. § 32-1968(C), and 21
C.F.R. § 1306.05, with Ariz. Rev. Stat. § 36-2804.04(A). Similar issues exist with
the written certification. Compare Iowa Code § 155A.27(4)(a)(1)–(5), Ariz. Rev.
Stat. § 32-1968(C), and 21 C.F.R. § 1306.05, with Ariz. Rev. Stat. § 36-2801(20).
The Arizona Supreme Court itself has explained that an Arizona registry
card is not a “prescription,” rejecting a defendant’s request to dismiss his driving
under the influence charge based on his claim that his registry card was a
prescription. Dobson v. McClennen, 361 P.3d 374, 377–78 (Ariz. 2015); see Ariz.
Rev. Stat. § 28-1381(D) (“A person using a drug as prescribed by a medical
practitioner . . . is not guilty of [OWI].”). The court explained that “[m]edical
marijuana [is] used pursuant to ‘written certifications’ under the [Arizona
Medical Marijuana Act] [and] is not ‘prescribed.’ ” Dobson, 361 P.3d at 377 (citing
Ariz. Rev. Stat. §§ 36-2801(18), 2804.02(A)(1)). Relatedly, the written certification
in Iowa necessary to get an Iowa medical cannabidiol card specifically states, in
bold and capitalized letters, “THIS DOES NOT CONSTITUTE A PRESCRIPTION
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FOR CANNABIDIOL or MEDICAL MARIJUANA.” Iowa Dep’t of Pub. Health,
Medical Cannabidiol – Health Care Practitioner Certification Form 2 (2021),
https://idph.iowa.gov/Portals/1/userfiles/234/Files/v7_QR%20Healthcare%2
0Practitioner%20Certification%20Form.pdf; see Iowa Code § 124E.3. We
conclude that neither the registry card nor the written certification is a
prescription.
b. Neither the registry card nor the written certification is an order. Under
the affirmative defense language of section 124.401(5), prescription and order
are separated by the word “or,” which means they each have separate meaning.
Bates v. United Sec. Ins., 163 N.W.2d 390, 398 (Iowa 1968) (“As used in its
ordinary sense the word ‘or’ marks an alternative indicating the various members
of the sentence which it connects are to be taken separately.”). We believe an
order, in the context of the controlled substances, refers to either a controlled
substance being directly dispensed by a practitioner to a patient or a medication
order for the administration of controlled substances in the inpatient or
institutional health setting. Middlekauff fails to show that either of these
definitions would apply.
As an initial matter, we think how Middlekauff received her marijuana
would require a prescription rather than just an order of a practitioner under
the Iowa CSA. Iowa Code 124.308(1) states, “Except when dispensed directly by
a practitioner to an ultimate user, a prescription drug as defined in section
155A.3 that is a controlled substance shall not be dispensed without a
prescription.” To “dispense” is to “deliver a controlled substance to an ultimate
15
user or research subject by or pursuant to the lawful order of a practitioner.” Id.
124.101(9). Deliver “means the actual, constructive, or attempted transfer from
one person to another of a controlled substance.” Id. 124.101(7). A transfer of a
controlled substance from one person to another occurred when Middlekauff, as
the ultimate user, presented her registry card to an employee at the Giving Tree
Dispensary in Arizona to purchase the marijuana. So, even assuming that she
had a lawful order from a practitioner, she still needed a prescription under
section 124.308(1) because controlled substances were transferred from one
person to an ultimate user or dispensed. As we established in part III.A.1.a,
Middlekauff has not shown that the registry card or the written certification is a
prescription.
But we also do not think Middlekauff could possess marijuana pursuant
to a lawful order of a practitioner under the Iowa CSA. An order could act as an
affirmative defense to a possession charge if the controlled substance was
“dispensed directly by a practitioner to an ultimate user” under 124.308(1). That
was not the case here, as no practitioner directly transferred marijuana to
Middlekauff. Any direct transfer of marijuana came from a dispensary employee
to Middlekauff. Middlekauff has not shown that this exception would apply.
Alternatively, an individual can possess controlled substances pursuant
to a “medication order,” which is used for the administration of controlled
substances in the inpatient or institutional setting. Jane F. Bowen, Prescription
and Medication Orders, in Pharmaceutical Calculations 17, 17 (2016)
(“Prescriptions are used in the outpatient, or ambulatory setting, whereas
16
medication orders are used in the inpatient or institutional health system
setting.”). This distinction tracks with the Code of Federal Regulations, which
defines a “prescription” as an order for a medication being dispensed but not as
an order for immediate administration, such as a bed patient in a hospital. 21
C.F.R. § 1300.01. In the Iowa Code, “ ‘[a]dminister’ means the direct application
of a controlled substance . . . to the body of a patient or research subject.” Iowa
Code § 124.101(1) (emphasis added); see 21 U.S.C. § 802(2) (defining
administer); see also 21 C.F.R. § 1306.11(b) (“An individual practitioner may
administer or dispense directly a controlled substance listed in Schedule II in the
course of his professional practice without a prescription . . . .” (emphasis
added)), id. § 1306.21(b) (same for schedule III, IV, and V).
This subtle difference is also recognized in the Iowa Pharmacy Practice Act
(Pharmacy Act), which separately describes prescription drug orders and
medication orders. Compare Iowa Code § 155A.3(42) (“ ‘Prescription drug order’
means a written, electronic, or facsimile order from a practitioner or an oral order
from a practitioner or the practitioner’s authorized agent who communicates the
practitioner’s instructions for a prescription drug or device to be dispensed.”),
with Iowa Code § 155A.3(29) (“ ‘Medication order’ means a written order from a
practitioner or an oral order from a practitioner or the practitioner’s authorized
agent for administration of a drug or device.” (emphasis added)). “Dispense” in
the Pharmacy Act is defined as the “means to deliver a prescription drug, device,
or controlled substance to an ultimate user or research subject by or pursuant
to the lawful prescription drug order or medication order of a practitioner.” Id.
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§ 155A.3(12) (emphasis added). It is clear that in this case, Middlekauff was not
in any inpatient or institutionalized setting waiting for the direct application of a
controlled substance. Rather, her medical marijuana was dispensed by a
dispensary in an outpatient setting.
Another hurdle to a claim that the registry card or written certification is
a medication order is that medication orders have similar labeling requirements
to a prescription (drug name, strength, and dosage, as well as directions for use).
See Iowa Code § 155A.27(4)(a)(3)–(4); Iowa Admin. Code r. 657—7.13(1)(b)–(c)
(2019). As described above, the registry card and written certification both fail to
meet these requirements.
The board of pharmacy, given rulemaking authority under Iowa Code
section 124.301, has created rules that “establish[] the minimum standards for
any activity that involves controlled substances.” Iowa Admin. Code r. 657—10.1
(emphasis added). In this particular administrative chapter, rules for medication
orders of controlled substances exist and are separate from prescriptions for
controlled substances. Compare Iowa Admin. Code r. 657—10.28 (describing
medication orders for schedule II controlled substance), with Iowa Admin. Code
r. 657—10.29 (describing refilling prescriptions for schedule II controlled
substances). If the board of pharmacy is separately describing the two in an
administrative chapter that sets the minimum standards for any activity relating
to controlled substances, then its distinction must be taken into consideration.
Additionally, there is a strong connection between the Pharmacy Act and the
Iowa CSA. The requirements for a prescription under the Iowa CSA are directly
18
derived from the Pharmacy Act. See Iowa Code § 124.308(1); id. §§ 155A.3, .27.
The Pharmacy Act’s definition of “medication order” is certainly relevant to our
determination of what an “order” is.
Meanwhile, the dissent looks elsewhere in the Iowa Code for support that
an “order” is “in reference to a physician in other contexts without tying it to an
inpatient or institutional setting,” focusing instead on chapters 135C and 152D.
The problem is that those sections deal with what an order is “in other contexts.”
They are irrelevant to the highly regulated nature of dispensing controlled
substances because they do not take section 124.308(1)’s prescription
requirement or its direct dispensing exception into account.
The dissent also claims an order “is certainly a broad enough term to
encompass a certification form that enables the purchase of something.” This
definition of order is unsupported by Iowa, sister states, or federal statutory
analysis, relevant regulations, or caselaw in the context of controlled substances,
and the dissent fails to reconcile its definition with the prescription requirement
in Iowa Code section 124.308(1). But even if the dissent’s definition was correct,
its conclusory logic is unconvincing. A completed certification form, standing on
its own, would not enable Middlekauff to purchase medical marijuana at any
Arizona medical marijuana dispensary. The registry card authorized by the State
of Arizona, not a practitioner, is what enables the purchase of medical
marijuana. The dissent’s argument is comparable to providing a completed credit
card application to a store clerk, rather than an actual credit card, when trying
to purchase something. It is the credit card that enables the purchasing of
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something—not the completed application. While the written certification is
necessary for the registry card, it is the registry card that enables the purchase
of medical marijuana.
The dissent’s claim that the written certification is comparable to a
“purchase order” is misplaced. If “order” in section 124.401(5) goes beyond the
medical treatment with a controlled substance to be considered a purchase
order, the dissent ignores the fact that purchase orders under the Federal CSA
already exist. The Federal CSA has a specific purchase order form for controlled
substances that practitioners use called, “DEA Form 222,” as well as a
comparable electronic ordering service called, “DEA Controlled Substances
Ordering System” (CSOS). 21 U.S.C. § 828(a); see generally 21 C.F.R.
§§ 1305.01–20 (providing regulations related to DEA Form 222); id. §§ 1305.21–
.29; id. § 1311 (providing regulations related to the CSOS). The DEA Form 222
and CSOS are relevant to both Iowa and Arizona CSA law because both states
use that order form as the exclusive means to distribute controlled substances.
See Iowa Code § 124.307 (“Controlled substances in schedules I and II shall be
distributed by a registrant to another registrant only pursuant to an order form.
Compliance with the provisions of federal law respecting order forms shall be
deemed compliance with this section.”); Ariz. Rev. Stat. § 36-2524 (same). Both
Iowa and Arizona administrative rules require compliance with the DEA Form
222 or CSOS. Iowa Admin. Code r. 657—10.17 (“A registrant authorized to order
or distribute Schedule I or II controlled substances shall do so only pursuant to
and in compliance with DEA regulations via a DEA Form 222 or via the DEA
20
Controlled Substances Ordering System (CSOS).”); Ariz. Admin. Code
§ R4-23-1003(B) (2019) (“For purposes of [Ariz. Rev. Stat.] § 36-2524, ‘Order
Form’ means DEA Form 222c.”).
Practitioners can only “order” a schedule I controlled substance through
these forms if they are registered to do research on a schedule I controlled
substance. 21 U.S.C. § 823(f); see 21 C.F.R. § 1305.04(a) (“Only persons who are
registered with DEA under [21 U.S.C. § 823] to handle schedule I or II controlled
substances . . . may obtain and use DEA Form 222 (order forms) or issue
electronic orders for these substances.”). That research registration is distinct
from dispensing a controlled substance, which is the context in this case. 21
U.S.C. § 823(f); see Bourgoin v. Twin Rivers Paper Co., LLC, 187 A.3d 10, 16 n.5
(Me. 2018) (“These prohibitions are subject to one exception, namely, the use of
marijuana in research projects approved by the government—a circumstance not
present here.”). Practitioners can only be registered to dispense controlled
substances between schedules II through V—not schedule I. 21 U.S.C. § 823(f).
Iowa has a similar provision that differentiates registration regarding dispensing
controlled substances between schedules II through V and researching
controlled substances in schedule I. Iowa Code § 124.303(3) (requiring federal
registration to research schedule I substances); see also Ariz. Rev. Stat.
§ 36-2522(A)(2) (requiring registration under the Federal CSA). Middlekauff has
not shown that a practitioner could dispense a schedule I substance pursuant
to an “order form” or that Middlekauff’s physician ordered the controlled
21
substance through the proper DEA channels required under Iowa and Arizona
law.
After an extensive review of state and Federal CSA caselaw, the Iowa,
Arizona, and Federal CSA statutory schemes, and their relevant regulations to
ascertain what “order” could mean, no existing concept of “order” that directly
supports Middlekauff’s thinly developed claim could be located. E.g. United
States v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011) (“Whatever else ‘order’
might mean under § 844(a) of the Controlled Substances Act, it does not include
a mere recommendation from a physician . . . .”). Middlekauff has not shown
that a practitioner directly dispensed marijuana to her pursuant to a lawful order
to bypass the prescription requirement in Iowa Code section 124.308(1), that she
possessed marijuana pursuant to a medication order, or that her physician
ordered it through the appropriate DEA channels. Therefore, neither the Arizona
registry card nor written certification is an order.
c. Marijuana cannot be validly prescribed or ordered. Even if we held that
the registry card or written certification is a prescription or order, we are faced
with the fact that marijuana, as a schedule I drug, cannot be validly prescribed
or ordered for medical treatment. While “valid” is also not defined in the Iowa
Code, the Code of Federal Regulations defines a “valid prescription” as “issued
for a legitimate medical purpose by an individual practitioner licensed by law to
administer and prescribe the drugs concerned.” 21 C.F.R. § 1300.03. The
problem is neither Iowa, Arizona, nor federal law allow prescriptions for schedule
I drugs because schedule I drugs, for purposes of the CSA’s, have no legitimate
22
medical use by statutory classification. Iowa Code § 124.308(5)–(7); see Ariz. Rev.
Stat. § 36-2525;4 see also 21 U.S.C. § 829. Nor does our administrative code
provide for rules relating to the prescription of schedule I controlled substances.
See Iowa Admin. Code r. 657—10.24. The same is true for medication orders.
See id. r. 657—7.13(1).
“Whereas some other drugs can be dispensed and prescribed for medical
use the same is not true for marijuana. Indeed, for purposes of the Controlled
Substances Act, marijuana has ‘no currently accepted medical use’ at all.” United
States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (citation
omitted); see Gonzales v. Oregon, 546 U.S. 243, 269 (2006) (“Congress’ express
determination that marijuana had no accepted medical use foreclosed any
argument about statutory coverage of drugs available by a doctor’s
prescription.”); see also Bonjour, 694 N.W.2d at 514.
As applied to an order from a practitioner, Middlekauff has “not cited any
cases that support [her] position that the CSA allows doctors to order the use of
Schedule I drugs while, at the same time, preventing doctors from prescribing
them. Nothing in the CSA or any case supports the notion that Congress [or the
Iowa legislature] intended ‘prescription’ and ‘order’ to have fundamentally
contradictory meanings within the same sentence . . . .” United States v. Harvey,
794 F. Supp. 2d 1103, 1106 (S.D. Cal. 2011) (emphasis added), aff’d 659 F.3d
4Arizona now allows for recreational marijuana use. See Ariz. Rev. Stat. ch. 36-28.2
(2021). However, Arizona still lists marijuana as a schedule I controlled substance through its
adoption of the schedule provided in the Code of Federal Regulations. Ariz. Rev. Stat. § 36-2512;
Ariz. Admin. Code R4-23-1004 (2022); 21 C.F.R. § 1308.11(d)(23) (2022).
23
1272 (9th Cir. 2011). Several state courts,5 not just Wyoming as cited in the
dissent, and federal courts6 have applied a similar analysis to conclude
marijuana cannot be validly prescribed or ordered for medical treatment under
their CSA’s.
5Beinor v. Indus. Claim Appeals Off., 262 P.3d 970, 974 (Colo. App. 2011) (“Marijuana, in
contrast, remains a Schedule I controlled substance under the applicable federal statute and
consequently cannot be prescribed.”); Bourgoin, 187 A.3d at 15 (“[F]ederal law bars the
prescribed use of marijuana—and of any other Schedule I drug—even in a state with local laws
allowing the medical use of marijuana.”); Wright’s Case, 156 N.E.3d 161, 166 (Mass. 2020)
(“Accordingly, as a schedule I drug, marijuana may not be prescribed.”); State v. Thiel, 846
N.W.2d 605, 612–13 (Minn. Ct. App. 2014) (“Marijuana is classified as a Schedule I substance
under Minnesota law . . . . But Schedule II substances can be prescribed in Minnesota, which
differentiates Schedule II substances from Schedule I substances.” (citation omitted)); Mont.
Cannabis Indus. Ass’n v. State, 368 P.3d 1131, 1152 (Mont. 2016) (“Because marijuana cannot
be prescribed within that regulatory framework, the Legislature imposed instead a series of
restrictions to curb widespread distribution and to limit possession of the substance to
individuals with debilitating medical conditions for whom there is little or no other effective
treatment.”); Hager v. M&K Constr., 247 A.3d 864, 882 (N.J. 2021) (“The ‘valid prescription’
language . . . cannot, however, apply to marijuana because the CSA prevents marijuana from
being validly prescribed.”); State v. Kuruc, 846 N.W.2d 314, 324 (N.D. 2014) (“[I]t does not
logically follow that there could be a valid prescription for a substance [(marijuana)] that has no
medical use or lacks accepted safety.”); Emerald Steel Fabricators, Inc. v. Bureau of Lab. & Indus.,
230 P.3d 518, 535 (Or. 2010) (en banc) (“[T]he Controlled Substances Act did not authorize
employee’s physician to administer (or authorize employee to use) marijuana for medical
purposes.”); Dowden v. State, 455 S.W.3d 252, 256 (Tex. App. 2015) (“THC is a Schedule I
controlled substance. . . . Texas law does not authorize prescriptions for Schedule I controlled
substances.”); Seeley v. State, 940 P.2d 604, 607 (Wash. 1997) (en banc) (“Marijuana cannot be
legally prescribed, nor can a prescription for marijuana be filled by a pharmacist in Washington
unless a federal registration is granted [for research purposes].”); Green Collar Club v. State Dep’t
of Revenue, 413 P.3d 1083, 1090–91 (Wash. Ct. App. 2018) (determining registry card is not a
prescription or order under the Washington’s tax code); Burns v. State, 246 P.3d 283, 286 (Wyo.
2011) (“[I]t would be illegal for a physician to prescribe or order, in any sense, the possession of
marijuana.”).
6United States v. Schostag, 895 F.3d 1025, 1028 (8th Cir. 2018) (“Under federal law,
marijuana is ‘contraband for any purpose,’ including for medical purposes.”(emphasis omitted)
(citations omitted) (quoting Gonzales v. Raich, 545 U.S. 1, 27 (2005))); Harvey, 794 F. Supp. 2d
at 1106 (“The language and provisions of the [Federal] CSA suggest the CSA does not permit
practitioners to prescribe Schedule I drugs such as marijuana.”);United States v. Blanding, No.
3:21–CR–00156 (KAD), 2022 WL 92593, at *2 (D. Conn. Jan. 6, 2022) (“The federal possession
statute exempts certain prescribed medicines; see 21 U.S.C. § 844(a); but this exemption does
not apply to marijuana.”); United States v. Arizaga, No. 16–CR–89–LTS, 2016 WL 7974826, at *2
(S.D.N.Y. Dec. 22, 2016) (“There is no federal exception for medical marijuana because the
statutory prescription exception does not cover Schedule I drugs such as marijuana.”); United
States v. Bey, 341 F. Supp. 3d 528, 528–29 (E.D. Pa. 2018) (“We strongly reminded him the
possession, use and distribution of marijuana—even medical marijuana prescribed by a medical
provider under Pennsylvania Law—is illegal under federal law.”).
24
We have good reason for holding that marijuana cannot be validly
prescribed or ordered. A practitioner cannot dispense controlled substances in
schedules II through V without obtaining a registration from the DEA. 21 U.S.C.
§ 823(f). No similar provision exists for schedule I drugs beyond for research
purposes. Id. By prescribing or ordering a schedule I substance for medical
treatment, practitioners risk having their registration to dispense drugs revoked
by the DEA and exposing themselves to an aiding and abetting charge in violation
of federal law. See Conant v. Walters, 309 F.3d 629, 632–33, 635 (9th Cir. 2002).
Some states have passed legislation to insulate physicians from negative
licensing or criminal consequences by having the state authorize medical
marijuana outside of their respective CSA statutory schemes. Mont. Cannabis
Indus. Ass’n v. State, 368 P.3d 1131, 1152 (Mont. 2016). This is similar to how
chapter 124E works in Iowa and title 36, chapter 28.1 works in Arizona. See
Iowa Code ch. 124E; Ariz Rev. Stat. ch. 36-28.1. Under this system, a physician,
who may or may not be registered to dispense controlled substances under state
or federal law, typically completes a document that states the patient may benefit
from medical marijuana use. See, e.g., Ariz. Rev. Stat. § 36-2801(20). This
document, the written certification in this case, is essentially a physical
manifestation of the physician’s and patient’s First Amendment right to openly
and candidly discuss appropriate medical treatments, including medical
marijuana. Conant, 309 F.3d at 637–38; see, e.g., Bourgoin, 187 A.3d at 16 n.5
(“Thus, a ‘written certification’ for medical marijuana authorized by the [Maine
Medical Use of Marijuana Act], even when issued by a medical ‘practitioner’ . . . ,
25
is not a ‘valid prescription or order’ that would exempt the resulting marijuana
possession from the purview of the CSA.” (citations omitted)); Musta v. Mendota
Heights Dental Ctr., 965 N.W.2d 312, 316 n.2 (Minn. 2021) (“Under Minnesota’s
THC Act, a physician does not prescribe medical cannabis for a patient’s medical
condition; rather, the physician determines whether the patient ‘suffers from a
qualifying medical condition,’ which if found allows the patient to apply for
enrollment in the medical cannabis program.” (citations omitted)). Physicians
who complete this document are thereby insulated from revocation of their DEA
registration, if they have one, or from being subjected to a federal aiding and
abetting charge under the protections of the First Amendment.
Although some states have passed legislation to avoid certain provisions
of the Federal CSA and their own CSA’s, the legal consequences for prescribing
or ordering a schedule I drug, such as marijuana, continue to exist. We conclude
that marijuana cannot be validly prescribed or ordered for medical treatment
under Iowa Code section 124.401(5).
d. Middlekauff’s interpretation would render chapter 124E’s specific
medical cannabidiol patient possession defense superfluous. In 2014, the Iowa
Legislature enacted its first Medical Cannabidiol Act before passing a more
comprehensive Medical Cannabidiol Act in 2017. 2014 Iowa Acts ch. 1125
(codified at Iowa Code ch. 124D (2015)); 2017 Iowa Acts ch. 162 (codified at Iowa
Code ch. 124E (2017)). Cannabidiol is found in the marijuana plant. Iowa Code
§ 124E.2(9)–(10) (defining medical cannabidiol). Specific forms of medical
cannabidiol are “recommended by the medical cannabidiol board, approved by
26
the board of medicine, and adopted by the department pursuant to rule.” Id.
§ 124E.2(10); see Iowa Admin. Code r. 641—154.1 (listing the approved forms of
medical cannabidiol).
Similar to the process of obtaining a registry card in Arizona, Iowans can
apply for an Iowa medical cannabidiol card with the Iowa Department of Public
Health after obtaining a written certification from a healthcare practitioner. See
Iowa Code §§ 124E.3 (describing the duties of a healthcare practitioner in
providing a written certification), .4 (describing the application process and
contents of the Iowa medical cannabidiol card).
The parties agree that because Middlekauff was found with marijuana that
did not comport with the approved forms of medical cannabidiol under Iowa law,
chapter 124E does not provide a defense. However, a brief discussion of Iowa’s
Medical Cannabidiol Act is warranted in our analysis.
Two paragraphs below the “valid prescription or order” affirmative defense
found in 124.401(5), the legislature included reference to a separate affirmative
defense that allows a person to knowingly or intentionally possess medical
cannabidiol if the possession “is in accordance with the provisions of chapter
124E.” Id. § 124.401(5).
In a prosecution for the unlawful possession of marijuana under the
laws of this state for the possession of medical cannabidiol, including
. . . chapter[] 124 . . . it is an affirmative and complete defense to the
prosecution that the patient [has a debilitating medical condition
and a certification by a heathcare practitioner and] is in possession
of a valid medical cannabidiol registration card issued pursuant to
this chapter.
27
Id. § 124E.12(4)(a) (emphasis added). The 124E patient possession defense also
applies to out-of-state registry cardholders if the registry card is a medical
cannabidiol card, or its equivalent, and the cardholder is in the possession of
medical cannabidiol. Id. § 124E.18.
If we were to hold that a registry card or written certification is an
affirmative defense to possession of marijuana and its derivatives because it is a
valid prescription or order, as urged by Middlekauff, then why did the legislature
create a specific 124E medical cannabidiol patient possession affirmative
defense? Middlekauff’s proposed interpretation of the valid prescription or order
defense under 124.401(5) would render it superfluous. Iowa Ins. Inst. v. Core
Grp. of the Iowa Ass’n for Just., 867 N.W.2d 58, 75 (2015) (explaining the
surplusage canon). The legislature drafted two separate affirmative defenses, one
under 124.401(5) (valid prescription or order) and one under 124E (medical
cannabidiol), and the legislature does not do that for no reason. Bennett v. Iowa
Dep’t of Nat. Res., 573 N.W.2d 25, 28 (Iowa 1997) (“[T]he . . . expression of one
thing is considered the exclusion of another.”). Middlekauff’s interpretation of
the 124.401(5) valid prescription or order defense is irreconcilable with the 124E
medical cannabidiol patient possession defense and the Iowa Legislature’s
attempt to limit that defense for out-of-state cardholders to possessing medical
cannabidiol.
Based on the foregoing reasons, we hold that neither the Arizona registry
card nor written certification for medical marijuana is a valid prescription or
28
order under section 124.401(5). The district court did not err in refusing to admit
the Arizona registry card or written certification.
2. The valid prescription or order defense is not unconstitutionally vague.
Middlekauff argues that the valid prescription or order defense is
unconstitutionally vague as applied to her. While Middlekauff cited the Iowa
Constitution’s due process clause in her third motion to dismiss, she does not
offer any reason why we should interpret the due process clause in the Iowa
Constitution differently than the United States Constitution. Therefore, we treat
the provisions as identical. State v. Nail, 743 N.W.2d 535, 539 (Iowa 2007).
“The [due process] clause is broad and captures the common concept that
all laws are required to give people of ordinary intelligence fair warning of the
prohibited conduct . . . .” State v. Newton, 929 N.W.2d 250, 255 (Iowa 2019). “[I]n
determining whether a statute is unconstitutionally vague, this court presumes
the statute is constitutional and gives ‘any reasonable construction’ to uphold
it.” Nail, 743 N.W.2d at 539 (emphasis omitted) (quoting State v. Millsap, 704
N.W.2d 426, 436 (Iowa 2005)). “The United States Supreme Court has repeatedly
made clear that vagueness challenges are determined on the basis of statutes
and pertinent caselaw rather than the subjective expectations of particular
defendants based on incomplete legal knowledge.” Id. at 540. “A statute may be
saved from constitutional deficiency, moreover, if its meaning is fairly
ascertainable by reference to other similar statutes or other statutes related to
the same subject matter.” Id.29
Middlekauff has failed to show the valid prescription or order defense is
impermissibly vague as applied to her. We think a reasonably intelligent person
could understand what a valid prescription or order constituted by reading Iowa
and federal requirements of a prescription or order, understanding that
marijuana—as a schedule I drug—could not be validly prescribed or ordered
under either Iowa or federal law, and observing Iowa’s Medical Cannabidiol Act
in chapter 124E as described above.
3. Section 124.401(5) does not violate equal protection. Middlekauff also
argues section 124.401(5) violates equal protection under the Federal and State
Constitution. Similar to her vagueness challenge, Middlekauff does not claim
that we need to interpret the state and federal equal protection protections
differently. We treat those provisions as identical.
First, Middlekauff argues that this statute inappropriately discriminates
between out-of-state individuals who are authorized to use medical marijuana
for a medical condition and out-of-state individuals who are prescribed other
controlled substances, particularly opioids, for the same medical condition.
Secondly, she argues that this statute improperly discriminates between out-of-
state individuals authorized to use medical marijuana flower and Iowans
authorized to use medical cannabidiol.
To begin analyzing these equal protection challenges, we must determine
whether the state is “treating similarly situated persons differently.” State v. Doe,
927 N.W.2d 656, 662 (Iowa 2019) (quoting King v. State, 818 N.W.2d 1, 24 (Iowa
2012)). “If the two groups are not similarly situated, we need not scrutinize the
30
legislature’s differing treatment of them.” In re Det. of Hennings, 744 N.W.2d 333,
339 (Iowa 2008). “The purposes of the law must be referenced in order to
meaningfully evaluate whether the law equally protects all people similarly
situated with respect to those purposes.” Tyler v. Iowa Dep’t of Revenue, 904
N.W.2d 162, 167 (Iowa 2017) (quoting Varnum v. Brien, 763 N.W.2d 862, 883
(Iowa 2009)).
As a threshold matter, we agree with the State that Middlekauff has not
shown that her first classification between out-of-state individuals who are
authorized to use medical marijuana for a medical condition as compared to
out-of-state individuals who are prescribed other controlled substances for the
same medical condition are similarly situated. Middlekauff’s first classification
can be easily distinguished for two reasons. First, as discussed above, the
registry card or written certification is not a valid prescription or order. Second,
as also discussed above, marijuana, as a schedule I controlled substance, cannot
be validly prescribed or ordered, unlike certain opioids under schedule II.
Compare Iowa Code § 124.204 (schedule I controlled substances), with id.§ 124.206 (schedule II controlled substances). The legislature may treat these
two classes differently, and we do not proceed further on this classification. See,
e.g., Houck v. Iowa Bd. of Pharmacy Exam’rs, 752 N.W.2d 14, 21 (Iowa 2008)
(determining a licensed pharmacist is not similarly situated as a nonpharmacist).
Middlekauff’s second classification, Iowans authorized to use medical
cannabidiol as compared to out-of-state individuals authorized to use marijuana
flower for medical treatment, shows that the two groups are similarly situated.
31
Marijuana is still a schedule I controlled substance under the Federal CSA and
Iowa CSA. However, both individuals are authorized to use certain forms of
marijuana for medical treatment. We proceed with this equal protection
challenge.
We now must determine what level of scrutiny is involved. “Unless a
suspect class or a fundamental right is at issue, equal protection claims are
reviewed under the rational basis test.” Doe, 927 N.W.2d at 662 (quoting King,
818 N.W.2d at 25). No suspect class is involved. Middlekauff generally states
that fundamental rights are implicated but does not explain what the
fundamental right is. The State argues rational basis is appropriate because
there is no fundamental right to the possession of marijuana. See Raich v.
Gonzales, 500 F.3d 850, 866 (9th Cir. 2007). We agree with the State and apply
rational basis.
A statute survives rational basis if “the statute serves a legitimate
governmental interest, but also that the interest itself is ‘realistically conceivable’
and has a ‘basis in fact.’ ” Tyler, 904 N.W.2d at 166 (quoting Racing Ass’n of
Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 7–8 (Iowa 2004)). “[T]he relationship
between the classification and the purpose must not be ‘so weak that the
classification must be viewed as arbitrary.’ ” Id. (quoting McQuistion v. City of
Clinton, 872 N.W.2d 817, 831 (Iowa 2015)). “The burden is not on the government
to justify its action, but for the [defendant] to rebut a presumption of
constitutionality.” Id. (quoting McQuistion, 872 N.W.2d at 831). Middlekauff
32
“must ‘negate every reasonable basis upon which the classification may be
sustained.’ ” Id. at 166–67 (quoting Varnum, 763 N.W.2d at 879).
Marijuana “exudes a resin containing a mix of cannabinoids with principal
components, . . . tetrahydrocannbinol (THC) and cannabidiol (CBD).” Christian
Larsen & Jorida Shahinas, Dosage, Efficacy and Safety of Cannabidiol
Administration in Adults: A Systematic Review of Human Trials, 12 J. Clinical
Med. Rsch. 129, 129 (2020). Cannabidiol is distinctly different from THC
“[b]ecause of its excellent tolerability in humans, the lack of psychoactive action
and the low abuse potential.” Id. The legislature could have plausibly thought
the use of cannabidiol had acceptable medical application as compared to
marijuana generally. Even though Iowa law now allows for THC in cannabidiol
products, THC is capped at a certain amount. See Iowa Code § 124E.9(14)–(15)
(2021). Iowa’s current statutory scheme is rationally related to preventing the
proliferation of medical marijuana that has a high or unregulated amount of THC
and keeping 124E out of the controlled substances context. Cf. State v. Biddle,
652 N.W.2d 191, 203 (Iowa 2002). “Use of marijuana is a public-policy issue best
suited for the legislature because it is driven by legal, moral, philosophical, and
medical concerns that are ill-suited for resolution by this court.” Bonjour, 694
N.W.2d at 514. Accordingly, Middlekauff’s second classification survives rational
basis review.
4. Remaining arguments related to the valid prescription or order defense
do not have merit. Middlekauff also makes the following arguments on appeal:
the trial information contained “uncontested evidence” of the registry card which
33
meant no probable cause existed for the possession charge so dismissal was
required, continued prosecution without probable cause was a seizure in
violation of the Fourth Amendment to the United States Constitution, and that
the exclusion of the registry card and related Arizona statutes violated her right
to present a defense. Each of these arguments assumes that the registry card or
written certification is a valid prescription or order under section 124.401(5),
which is contrary to our holding today.
The trial information established probable cause for marijuana possession
through the minutes of testimony and the attached report describing the stop.
State v. Petersen, 678 N.W.2d 611, 614 (Iowa 2004). Dismissal of the possession
charge was not required and further prosecution was not in violation of the
Fourth Amendment. Furthermore, the registry card and written certification
were not relevant to the trial and their inclusion would have been prejudicial.
The court did not violate Middlekauff’s right to present a defense by excluding
the registry card and related jury instructions. See State v. Walton, 311 N.W.2d
113, 115 (Iowa 1981) (“If all the requirements of the defense are not addressed
in the defendant’s evidence, trial court is not obligated to submit the issue to the
jury.”).
B. Evidentiary Issues.
1. Testimony from the DCI analyst was admissible. Middlekauff claims that
the district court should have barred DCI analyst Reedy’s testimony because the
State did not include her name in the minutes of testimony. In the minutes,
“Unknown Criminalist or Designee, Iowa Division of Criminal Investigation,
34
Criminalistics Laboratory, 2240 South Ankeny Blvd, Ankeny, IA 50023” was
included as an expected witness. The minutes explained that this unknown DCI
individual would testify to the results of an analysis from the evidence taken by
Trooper Valenta.
On May 3, 2021, ten days before the trial, Middlekauff requested that the
unknown DCI analyst testify in person pursuant to Iowa Code section 691.2(2)
(2019). The prosecutor soon realized that the marijuana had not been sent to the
lab for testing, so Trooper Valenta sent the drugs to the DCI lab for analysis. The
marijuana flowers were tested and a report was created confirming that the
drugs were marijuana. This report and the identity of the DCI analyst were
provided to Middlekauff’s attorney at the pretrial conference on May 12 at which
time the State offered a continuance of the trial. Middlekauff countered with a
request to exclude the DCI analyst’s testimony. The district court denied
Middlekauff’s request to exclude the DCI analyst’s testimony but agreed to grant
a continuance. However, Middlekauff declined the opportunity to continue the
trial.
According to the rules of criminal procedure, a prosecuting attorney must
provide the names of witnesses who may be called to testify at trial in the minutes
of testimony. Iowa Rs. Crim. P. 2.5(3), 2.19(2). However, witnesses not listed in
the minutes may testify at trial if the prosecutor gives the defendant’s attorney
a minute of such witness’s testimony at least ten days before trial. Id. r. 2.19(2).
“The purpose of this requirement is to inform the defendant of the identity of
State witnesses and what evidence they will give.” State v. Swallom, 244 N.W.2d
35321, 323 (Iowa 1976). If the prosecutor has not given proper notice for
prosecution witnesses, “the court may order the state to permit the discovery of
such witnesses, grant a continuance, or enter such other order as it deems just
under the circumstances.” Iowa R. Crim. P. 2.19(3).
DCI reports have a special relationship to the witness naming requirement
for minutes of testimony. “Any report . . . of the criminalistics laboratory shall
be received in evidence, if determined to be relevant, in any court . . . in the same
manner and with the same force and effect as if the employee or technician of
the criminalistics laboratory who accomplished the requested analysis . . . had
testified in person.” Iowa Code § 691.2(1). As such, the State is not required to
name a witness for the admission of a DCI report. State v. Givens, 248 N.W.2d
86, 87 (Iowa 1976).
State v. Thomas is instructive on Middlekauff’s claim. 222 N.W.2d 488(Iowa 1974) (en banc). In Thomas, the defendant, also charged with marijuana
possession, contended the trial court erred in permitting a DCI analyst to testify
when the DCI analyst’s name was not listed on the minutes of testimony. Id. at
493. We held that “[w]hile the name of the witness Eck did not appear in the
minutes of the testimony, the substance of his testimony did appear, and the
defendant therefore had an indication of what the testimony of the chemist would
be.” Id. Similar to Thomas, the minutes of testimony here provided a detailed
explanation of what the DCI analyst’s testimony would entail.
We also held in Thomas that “[i]t is obviously inconsistent for the
defendant to request the technician to appear, and then object to his
36
appearance.” Id. Again, similar to Thomas, Middlekauff asked for the DCI analyst
to appear. It would have been inconsistent for the district court to then
subsequently bar DCI analyst Reedy from testifying. A continuance was
reasonable under the circumstances and an appropriate remedy. See Iowa R.
Crim. P. 2.19(3).
We conclude the district court did not abuse its discretion in overruling
Middlekauff’s request to bar DCI analyst Reedy’s testimony and instead offering
a continuance, which Middlekauff declined. Regardless, any error was harmless
because Middlekauff conceded during cross-examination that she possessed
marijuana.
2. Chain of custody was sufficiently established. Last, Middlekauff argues
that the DCI lab report and marijuana should not have been admitted because
there were two chain of custody issues. First, Trooper Valenta testified that he
did not take pictures of the marijuana while the marijuana was in his custody,
yet pictures of marijuana were presented at trial. Second, Trooper Valenta’s
report stated that he collected ten one-gram pouches of “Blueberry Jack” strain
marijuana while DCI analyst Reedy testified that she tested various strains
including “a Sour Plum, a GC, a Uride Train Haze, and a Platinum Purple Kush.”
“The district court has considerable discretion in determining whether the
State has shown the chain of custody necessary for admission of physical
evidence.” Biddle, 652 N.W.2d at 196. “It is sufficient to state that in introducing
an exhibit of marijuana, which by its nature is susceptible to tampering, the
State is required to prove a chain of custody sufficiently elaborate to make it
37
reasonably probable no tampering or substitution occurred.” State v. Mattingly,
220 N.W.2d 865, 870 (Iowa 1974). “Absolute certainty is not required.” Bakker,
262 N.W.2d at 543. The trial court can presume “[s]tate agents would not tamper
with the evidence.” State v. Gibb, 303 N.W.2d 673, 681 (Iowa 1981). “When [the]
trial court has determined that the identification of the exhibit is sufficient,
contrary speculation affects the weight of the evidence but not its admissibility.”
Id.The testimony of Trooper Valenta provides a clear chain of custody of the
marijuana, starting at his police car at the time of the stop, then being stored in
a locked and secure police evidence locker, then hand-delivering the marijuana
pouches to the DCI laboratory, and then recollecting the marijuana pouches for
the trial. DCI analyst Reedy testified about the process of receiving the marijuana
at the lab for analysis and then returning it to Trooper Valenta. The marijuana
was accompanied by documentation (evidence receipt, laboratory submission
slip, and lab report), which each had clear identification information connecting
the marijuana to Middlekauff and Trooper Valenta. Trooper Valenta identified
that a “Blueberry Jack” strain was one of the marijuana pouches taken from
Middlekauff and testified that he assumed all of them were “Blueberry Jack” at
the time he wrote his report. The fact that pictures were taken shows an intent
to preserve the evidence rather than an intent to tamper with the evidence.
The testimony from Trooper Valenta and DCI analyst Reedy was sufficient
to show a reasonable probability that evidence tampering did not occur.
Concerns regarding when pictures of the marijuana were taken and whether all
38
of Middlekauff’s marijuana pouches were “Blueberry Jack” properly went to the
weight of the evidence. The district court did not abuse its discretion in admitting
the DCI report or the marijuana based on the chain of custody objection
Regardless, any error was harmless because Middlekauff conceded during
cross-examination that she possessed marijuana.
IV. Conclusion.
For the foregoing reasons, the conviction is affirmed.
AFFIRMED.
Waterman, McDonald, and Oxley, JJ., join this opinion. Mansfield, J., files
a dissenting opinion, in which Appel and McDermott, JJ., join.
39
#21–0664, State v. Middlekauff
MANSFIELD, Justice (dissenting).
Here is the text of the criminal law under which Pamela Middlekauff was
prosecuted:
It is unlawful for any person knowingly or intentionally to possess a
controlled substance unless such substance was obtained directly
from, or pursuant to, a valid prescription or order of a practitioner
while acting in the course of the practitioner’s professional practice,
or except as otherwise authorized by this chapter.
Iowa Code § 124.401(5) (2019).
Reading the statute, it appears to me that Middlekauff obtained her
marijuana “pursuant to[] a valid . . . order of a practitioner while acting in the
course of the practitioner’s professional practice.” Id. Therefore, she was entitled
to dismissal of the criminal charge.
In Arizona, to obtain medical marijuana, one has to present a registration
card from the Arizona Department of Health Services. Ariz. Admin. Code § R9-
17-314(A)(5) (2019). To obtain the registration card, one has to provide to the
department a physician certification certifying that the physician has diagnosed
a qualifying medical condition for the patient, has established a medical record
for the patient, has conducted an in-person physical examination of the patient,
and has reviewed the patient’s medical records. Ariz. Rev. Stat. § 36-2804.02(2019); Ariz. Admin. Code § R9-17-202(F)(5). The specific medical condition has
to be identified, and the physician must attest that “the qualifying patient is
likely to receive therapeutic or palliative benefit from the qualifying patient’s
medical use of marijuana.” Ariz. Admin. Code § R9-17-202(F)(5)(d), (k).
40
Middlekauff went through that process in July 2019 and had a current
registration card at the time she was stopped on Interstate 35. Thus, she had,
in the view of Arizona, “a valid . . . order of a practitioner while acting in the
course of the practitioner’s professional practice” in satisfaction of Iowa Code
section 124.401(5).
In fact, no one disputes that Middlekauff obtained the marijuana validly
under Arizona law based on the certification of a practitioner that the marijuana
would provide medical benefit to her. And no one argues that an otherwise valid
out-of-state prescription cannot meet the requirements of the statutory
affirmative defense. Similarly, there is no basis for arguing that an otherwise
valid out-of-state order cannot meet those requirements as well. Valid means
“valid where it was issued.”
Unfortunately, Middlekauff has burdened us with a somewhat convoluted
argument that she actually had a “prescription” for marijuana. I’m not persuaded
by that argument. But she had an “order,” which is enough under the statute.
The legislature defined many terms in Iowa Code chapter 124, but it did
not define “order.” See Iowa Code § 124.101 (defining thirty-one different terms
other than “order”). When the legislature does not provide a definition, we look
first to “the ordinary and common meaning of the words.” State v. Shorter, 945
N.W.2d 1, 7 (Iowa 2020). A healthcare practitioner’s certification (1) that an
individual has a medical condition that would be alleviated by marijuana and
(2) that authorizes the individual to obtain a card to purchase marijuana for that
41
medical condition meets this ordinary and common understanding of a
healthcare practitioner’s order.
Instead of following this straightforward approach, the majority weaves an
elaborate web of reasoning borrowed from other laws. According to the majority,
that web leads to the ultimate conclusion that order “refers to either a controlled
substance being directly dispensed by a practitioner to a patient or a medication
order for the administration of controlled substances in the inpatient or
institutional health setting.” But none of that extra verbiage appears in the
statute. It just says “order.”
Again, the term “order” is certainly a broad enough term to encompass a
certification form that enables the purchase of something. In fact, we commonly
refer to such forms as “purchase orders.”
The majority relies on a definition of the term “medication order” from
another chapter of the Iowa Code. See Iowa Code § 155A.3(29). I question the
value of that approach; the definitions in chapter 155A are limited to that
chapter. See id. § 155A.3 (“As used in this chapter . . . .”). But even that definition
seems broad enough to encompass the paperwork that Middlekauff had. See id.
§ 155A.3(29) (“ ‘Medication order’ means a written order from a practitioner or an
oral order from a practitioner or the practitioner’s authorized agent for
administration of a drug or device.”).
It’s also worth noting that the Iowa Legislature has used the term “order”
in reference to a physician in other contexts without tying it to an inpatient or
42
institutional setting. For example, Iowa Code chapter 152D deals with the
licensing of athletic trainers. Section 152D.7(3) states,
The practice of physical reconditioning shall be carried out under
the oral or written orders of a physician or physician assistant. A
physician or physician assistant who issues an oral order must
reduce the order to writing and provide a copy of the order to the
athletic trainer within thirty days of the oral order.
Id. § 152D.7(3). As this section suggests, the “order of a physician” can refer to
an order addressing (for instance) stretches for athletes to help them recover
from athletic injuries. There’s no inpatient or institutional setting.7
The majority devotes considerable time and effort to demonstrating that
Middlekauff’s conduct was not permitted under federal law or under other Iowa
laws. That frolic and detour are beside the point. Middlekauff is being prosecuted
for violating Iowa Code section 124.401(5), and it is the State’s responsibility to
demonstrate that her conduct falls within the prohibition of that statute. See
State v. Hall, 969 N.W.2d 299, 310–11 (Iowa 2022) (“We are not at liberty to read
the statute to prohibit conduct not plainly encompassed by its terms.”).
The majority says that adopting Middlekauff’s position would render the
specific affirmative defenses for possessors of cannabidiol under Iowa’s medical
cannabidiol law superfluous. See Iowa Code §§ 124E.12(4)(a), .18. True, avoiding
7The Code contains other examples. For instance, Iowa Code section 135C.3(2) states,
An admission to the intermediate care facility for persons with mental illness must
be based on a physician’s written order certifying that the individual being
admitted requires no greater degree of nursing care than the facility to which the
admission is made is licensed to provide and is capable of providing.
This reference to the “order of a physician” has nothing to do with the
inpatient/outpatient distinction that the majority draws. Rather it shows a link between a
certification and an order of a physician.
43
superfluous language is one rule of construction. See id. § 4.4. Still, it is not, as
Macbeth might say, “the be-all and end-all.” William Shakespeare, Macbeth act
I, sc. 7. “[W]e have never said this rule cannot be overcome by other
considerations.” State v. Wilson, 941 N.W.2d 579, 590 (Iowa 2020). The
legislature enacts overlapping criminal laws all the time. We can give it credit for
enacting overlapping affirmative defenses.
I’m also not persuaded by the decision of the Wyoming Supreme Court in
Burns v. State, 246 P.3d 283 (Wyo. 2011). Interpreting a criminal law that is
similar to Iowa Code section 124.401(5), that court noted,
[T]he Colorado law simply allows for a physician to certify that a
patient might benefit from the use of marijuana as a medical
treatment. Colo. Const. art. XVIII, § 14(c). It is then left entirely up
to the patient whether to apply for a medical marijuana registry card
from the State of Colorado. It is the State of Colorado that makes the
final determination whether the patient qualifies for the registry
card, thereby exempting the patient from criminal liability for
possessing amounts of marijuana necessary for medicinal purposes.
Id. Importantly, it is not the action of the physician that determines
any potential possession of marijuana by the patient. Clearly,
therefore, the physician is not prescribing or ordering the possession
of marijuana as contemplated by the language of § 35–7–1031(c).
The exception found in § 35–7–1031(c) simply does not apply in this
case.
Id. at 286 (footnote omitted).
The forgoing reasoning cuts too fine a line for me. The State of Arizona
issues the registry card as long as the practitioner’s certification is correct and
the patient pays the application fee and completes the application. See Ariz. Rev.
Stat. § 36-2804.02; Ariz. Admin. Code § R9-17-205. So, I think it is fair to say
that the marijuana was obtained “pursuant to[] a valid . . . order of a practitioner
44
while acting in the course of the practitioner’s professional practice.” Iowa Code
§ 124.401(5).
Finally, to the extent there remains any reasonable doubt about the correct
interpretation of Iowa Code section 124.401(5) after the traditional canons of
interpretation have been considered, we should apply the rule of lenity in favor
of Middlekauff. See, e.g., In re Prop. Seized from Bo Li, 911 N.W.2d 423, 429 (Iowa
2018) (“The State’s statutory interpretation . . . would violate ‘the rule of lenity,
which guides us to resolve ambiguous criminal statutes in favor of the accused.’ ”
(quoting State v. Hagen, 840 N.W.2d 140, 146 (Iowa 2013))); State v. Nall, 894
N.W.2d 514, 519 (Iowa 2017) (“[U]nder the rule of lenity, we take a narrow
approach to construing ambiguous criminal laws.”); State v. Hoyman, 863
N.W.2d 1, 18 (Iowa 2015) (“[T]he principle that we construe criminal statutes
narrowly, otherwise known as the rule of lenity, should be taken into account.”).
For the foregoing reasons, I respectfully dissent and would reverse
Middlekauff’s conviction and sentence.
Appel and McDermott, JJ., join this dissent.