Toby Joseph Welch v. Iowa Department of Transportation, Motor Vehicle Division

IN THE SUPREME COURT OF IOWA
No. 10–2029
Filed August 12, 2011
TOBY JOSEPH WELCH,
Appellant,
vs.
IOWA DEPARTMENT OF TRANSPORTATION,
MOTOR VEHICLE DIVISION,
Appellee.
Appeal from the Iowa District Court for Polk County, Joseph E.
Smith, Senior Judge.
Toby Welch appeals the revocation of his driver’s license under
Iowa Code section 321J.9 (2009) for refusing to submit to chemical
testing. AFFIRMED.
Billy J. Mallory of Brick Gentry, P.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Noel C. Hindt, Assistant
Attorney General, for appellee.
2
MANSFIELD, Justice.
This case presents the question whether a motorist who initially
refuses chemical testing for intoxication may change his or her mind,
provided the motorist does so within a short and reasonable time and
certain other conditions are met. We conclude that a rule treating the
motorist’s initial refusal as determinative is supported by our precedents,
consistent with the general assembly’s intent, and easier for police and
courts to administer. Accordingly, we reject the motorist’s appeal and
uphold the revocation of his license.
I. Background Facts and Proceedings.
The essential facts of this case are not disputed. 1 Early on the
morning of August 1, 2009, Toby Welch was pulled over by Officer Ryan
King of the Des Moines Police Department for driving the wrong way
down a one-way street. At 1:54 a.m., Welch consented to and Officer
King administered a preliminary breath screening test (PBT). See Iowa
Code § 321J.5 (2009). The PBT indicated that Welch’s alcohol
concentration equaled or exceeded the statutory limit of 0.08. Welch was
arrested for the offense of operating while intoxicated (OWI) in violation of
Iowa Code section 321J.2 and transported to the police station.
At 2:14 a.m., after invoking the implied consent procedures and
reading Welch an implied consent advisory, Officer King requested a
breath specimen to be used for chemical testing. Officer King provided
Welch the opportunity to make phone calls “to seek advice about this test
that I’m asking you to take.” Welch left a message for his attorney at
2:15 a.m., spoke with his wife at 2:17 a.m., and left a message for his
mother at 2:19 a.m. At 2:20 a.m., the following conversation took place:
1A DVD recording was made of the events at the police station and is part of the
record.
3
OFFICER KING: Anybody else you’d like to call sir?
TOBY WELCH: Nope, I’m going to refuse though.
OFFICER KING: You’re going to refuse?
TOBY WELCH: Yep.
Officer King asked Welch to check the “refuse to submit” box and sign
the electronic tablet to confirm his refusal. See State v. Fischer, 785
N.W.2d 697, 706 (Iowa 2010) (determining that the use of a computer
screen satisfies the “written request” requirement of section 321J.6(1)).
Welch declined both requests. Welch then received a phone call which
he was permitted to answer.
At 2:23 a.m., Officer King and Welch continued their discussion of
King’s request for a breath specimen:
OFFICER KING: You do want to refuse, is that correct?
Toby?
TOBY WELCH: I plead the fifth.
OFFICER KING: Ok.
TOBY WELCH: My name is not Toby.
OFFICER KING: Your name is not Toby?
TOBY WELCH: No sir.
OFFICER KING: What’s your name then?
TOBY WELCH: Can’t tell you.
OFFICER KING: Ok. Just so you know, I’ve written in
refused to sign and checked the refused box since you don’t
want to take the test. You will lose your license for a period
of one year.
Welch was placed in a temporary holding area and at some point
within the next eight minutes received a return phone call from his
attorney. At 2:31 a.m., speaking from the holding area, Welch engaged
another officer in the following dialogue:
TOBY WELCH: Can I talk to anybody?
OFFICER: About what?
TOBY WELCH: I’d like to go ahead and blow.
OFFICER: Excuse me?
4
TOBY WELCH: I refused to blow earlier but I’d like to go
ahead and blow.
OFFICER: Who was doing the testing?
TOBY WELCH: What’s that?
OFFICER: The officer in there did your testing? Hey Ryan?
OFFICER KING: Yeah?
TOBY WELCH: I didn’t want to and I refused it.
OFFICER: He refused to test right?
OFFICER KING: Yeah, he refused to even sign the box.
Informed of Welch’s newfound desire to consent, Officer King
responded that Welch had already refused to submit to the breath test,
and it was now “too late.” At 2:35 a.m., Welch again requested the test.
He stated, “My lawyer told me I need to blow tonight.” He then asked
Officer King to “throw the paperwork away.” Officer King declined
Welch’s request, commenting, “You made your choice not to take the
test.”
Based on his refusal to submit to chemical testing, the Iowa
Department of Transportation (IDOT) revoked Welch’s driver’s license for
one year. Iowa Code § 321J.9(1)(a).
Welch requested an administrative hearing to contest the
revocation. See id. § 321J.13(1); Iowa Admin. Code r. 761—620.4(1)(a)–
(e). Welch argued revocation was improper because he cured his initial
refusal by subsequently consenting to take the requested test within a
short period of time. Citing to our decision in Krueger v. Fulton, 169
N.W.2d 875, 878–79 (Iowa 1969), the IDOT’s administrative law judge
sustained the revocation. Welch appealed to the director of the
department of transportation. See Iowa Code § 321J.13(3); Iowa Admin.
Code r. 761—620.4(2)(a)–(f). The reviewing officer affirmed, noting:
While [Welch’s] refusal in words and reluctance to submit in
writing could not be clearer, [Welch] claims a subsequent
consent rule is more logical and best furthers the purpose of
5
the implied consent statutes. The Iowa Supreme Court
disagreed forty years ago and has not waivered [sic] from
that conclusion.
Having exhausted his administrative remedies, Welch filed a
petition for judicial review with the district court. See Iowa Code
§ 321J.14; Iowa Admin. Code r. 761—620.4(3) (“The decision of the
director of transportation shall be the final decision of the department
and shall constitute final agency action for purposes of judicial review.
No further steps are necessary to exhaust administrative remedies.”).
The district court affirmed the revocation.
Welch appeals. We now must determine whether the “one refusal
is determinative” rule set forth in Krueger should be abrogated in favor of
a more flexible standard permitting a motorist’s subsequent consent to
cure a prior initial refusal to submit to chemical testing.
II. Standard of Review.
Judicial review of an IDOT driver’s license revocation for refusal to
submit to chemical testing is governed by the Iowa Administrative
Procedure Act (Iowa Code chapter 17A). See Iowa Code § 321J.14. The
district court reviews for correction of errors at law. Ludtke v. Iowa Dep’t
of Transp., 646 N.W.2d 62, 64 (Iowa 2002). On appeal, we apply the
standards of chapter 17A to determine whether the conclusions we reach
are the same as those of the district court. Id. at 65. If they are the
same, we affirm; otherwise we may reverse. Lee v. Iowa Dep’t of Transp.,
693 N.W.2d 342, 344 (Iowa 2005). Because this is not an area where
interpretation of the law has been clearly vested in the discretion of the
agency, we need not give deference to the IDOT’s interpretation of section
321J.9 and are free to substitute our judgment de novo for the agency’s
interpretation. Id.
6
In interpreting a statute, our goal “is to give effect to the legislative
intent of [the] statute.” State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999).
In addition to the words chosen by the legislature, we will also consider
“ ‘the objects sought to be accomplished and the evils and mischiefs
sought to be remedied, seeking a result that will advance, rather than
defeat, the statute’s purpose.’ ” Id. (quoting Danker v. Wilimek, 577
N.W.2d 634, 636 (Iowa 1998)).
III. Analysis.
A. Iowa’s Implied Consent Law. Enacted in 1963, Iowa’s implied
consent law was intended to “control alcoholic beverages and aid the
enforcement of laws prohibiting operation of a motor vehicle while in an
intoxicated condition.” 1963 Iowa Acts ch. 114, § 37 (codified at Iowa
Code § 321B.1 (1966)); 2 see also Fischer, 785 N.W.2d at 699–701
(providing a detailed historical overview of Iowa’s implied consent
statute). In construing various provisions of chapter 321J, we have
continuously affirmed that the primary objective of the implied consent
statute is the removal of dangerous and intoxicated drivers from Iowa’s
roadways in order to safeguard the traveling public. See, e.g., Severson
v. Sueppel, 260 Iowa 1169, 1174, 152 N.W.2d 281, 284 (Iowa 1967) (“It is
obvious the purpose of the Implied Consent Law is to reduce the
holocaust on our highways part of which is due to the driver who
imbibes too freely of intoxicating liquor.”); Shriver v. Iowa Dep’t of
Transp., 430 N.W.2d 921, 924 (Iowa 1988) (reiterating that the primary
purpose behind chapter 321J is to “promote the public safety by
removing dangerous drivers from the highways”).
2Prior to 1986, the implied consent provisions now contained in chapter 321J
were codified in chapter 321B.
7
In order to achieve this goal, the implied consent procedures
authorize the withdrawal and chemical testing of blood, breath, or urine
when a peace officer has reasonable grounds to believe that a person has
been operating a motor vehicle while under the influence of alcohol, a
controlled substance, or other drug, and at least one of a series of
additional conditions is met. 3 See Iowa Code § 321J.6(1) (2009).
Because section 321J.6 further provides that the intoxicated driver “is
deemed to have given consent” to withdrawal and testing, we have
recognized that implied consent “establishes the basic principle that a
driver impliedly agrees to submit to a test in return for the privilege of
using the public highways.” State v. Hitchens, 294 N.W.2d 686, 687
(Iowa 1980).
However, recognizing the potential invasiveness of collecting bodily
substances, the legislature did not endow the State with the unfettered
ability to invoke implied consent in order to obtain specimens for
chemical testing. See, e.g., State v. Hutton, 796 N.W.2d 898, 902 (Iowa
2011) (“Despite the statutory presumption of consent, a person may
refuse to submit to chemical testing.”); State v. Garcia, 756 N.W.2d 216,
220 (Iowa 2008) (indicating a driver’s decision to consent to testing must
be voluntary—i.e., “freely made, uncoerced, reasoned and informed”).
Thus, from a practical standpoint, and subject to certain exceptions, 4 the
driver must actually consent to chemical testing.
3For example, if “[a] peace officer has lawfully placed the person under arrest for
violation of section 321J.2” or “[t]he preliminary breath screening test was administered
and it indicated an alcohol concentration equal to or in excess of the level prohibited by
section 321J.2.” Iowa Code § 321J.6(1)(a), (d).
4For example, Iowa Code section 321J.7 provides that “[a] person who is dead,
unconscious, or otherwise in a condition rendering the person incapable of consent or
refusal is deemed not to have withdrawn the consent provided by section 321J.6.”
8
Section 321J.6(2) goes on to provide: “The peace officer shall
determine which of the three substances, breath, blood, or urine, shall
be tested. Refusal to submit to a chemical test of urine or breath is
deemed a refusal to submit, and section 321J.9 applies.”
The request for chemical testing must be made within two hours of
the PBT or arrest; otherwise, “a test is not required, and there shall be no
revocation.” Iowa Code § 321J.6(2). “If a person refuses to submit to the
chemical testing, a test shall not be given, but the department [of
transportation] . . . shall revoke the person’s driver’s license” for one year
if the driver has no previous revocation under chapter 321J. Id.
§ 321J.9(1)(a).
B. Previous Interpretation of “Refusal” as Used in Sections
321J.6 and 321J.9. Our previous decisions establish that a broad
definition of the term “refusal” is more closely aligned with the legislative
intent underlying the implied consent statute. In addition to explicit,
unqualified refusals, we have found that failures to cooperate,
conditional refusals, conditional assents, consents followed by a failure
to provide the requested specimen, and consents followed by combative
behavior all constitute refusals within the meaning of sections 321J.6(2)
and 321J.9(1). See State v. Bloomer, 618 N.W.2d 550, 553 (Iowa 2000)
(although driver stated he was not refusing breath test when he
requested urine test instead, his ultimate failure to take breath test
amounted to refusal); State v. Dulaney, 493 N.W.2d 787, 789 (Iowa 1992)
(motorist’s lack of response to request for chemical test and subsequent
statement to “[g]et your search warrant” was a failure to cooperate
amounting to implied refusal); Hoppe v. Iowa Dep’t of Transp., 402
N.W.2d 392, 393 (Iowa 1987) (consent followed by abusive and
belligerent behavior preventing the administration of the test deemed
9
refusal); McCrea v. Iowa Dep’t of Transp., 336 N.W.2d 427, 430 (Iowa
1983) (motorist’s consent to test but failure to provide urine specimen in
absence of valid medical reason considered refusal); Taylor v. Dep’t of
Transp., 260 N.W.2d 521, 524 (Iowa 1977) (driver’s conduct amounted to
refusal when, after asking to contact attorney, driver declined to
cooperate despite officer’s assistance in providing phone directory);
Morgan v. Iowa Dep’t of Pub. Safety, 227 N.W.2d 155, 157 (Iowa 1975)
(consent to blood test conditioned on having test administered at hospital
of motorist’s choosing was refusal); Buda v. Fulton, 261 Iowa 981, 991,
157 N.W.2d 336, 342 (Iowa 1968) (plaintiff’s statements reflecting a total
failure to cooperate were “tantamount to a declination”).
We have also previously addressed the circumstance where the
motorist initially declines chemical testing and then changes his or her
mind. In Krueger, a request for chemical testing was made thirty-five
minutes after the plaintiff’s arrest for OWI. 169 N.W.2d at 876. Krueger
originally refused to submit to blood and urine tests both orally and in
writing. Id. However, one hour and twenty-three minutes later (or one
hour and fifty-eight minutes after the arrest was made), Krueger, through
his attorney, consented to a blood test. Id. We rejected Krueger’s
contention that he had a right to withdraw his refusal at any time before
the expiration of the two-hour period, noting that the two-hour window
qualifies the results of the test for admission into evidence and does not
confer additional privileges or rights on the arrestee. Id. at 878 (citing
Neet v. Hults, 274 N.Y.S.2d 913, 915 (App. Div. 1966)). As we explained,
once a licensee has refused chemical testing, he is not entitled “to defeat
revocation of his driving privilege by showing he thereafter changed his
mind.” Id. at 879.
10
Four years later, in Swenumson v. Iowa Department of Public
Safety, 210 N.W.2d 660 (Iowa 1973), we considered whether a refusal to
consent accompanied by a request to consult with counsel constituted a
refusal within the meaning of the implied consent statute. We found that
such a “conditional refusal” was the equivalent of a conclusive refusal for
purposes of implied consent to chemical testing. Swenumson, 210
N.W.2d at 663. Reiterating Krueger’s holding that “one refusal is
determinative,” we also stated that the two-hour statutory requirement
“does not define a period during which at any time the arrested person
may decide he is willing to take [the test].” Id. at 662. Additionally, we
quoted with approval language from a similar case decided by the
Superior Court of New Jersey Appellate Division:
“Having in mind the remedial purpose of the statute,
and the rapidity with which the passage of time and the
physiological processes tend to eliminate evidence of
ingested alcohol in the system, it is sensible to construe the
statute to mean that anything substantially short of an
unqualified, unequivocal assent to an officer’s request that
the arrested motorist take the test constitutes a refusal to do
so. (citation omitted). The occasion is not one for debate,
maneuver or negotiation, but rather for a simple ‘yes’ or ‘no’
to the officer’s request.”
Id. (quoting State v. Pandoli, 262 A.2d 41, 42 (N.J. Super. Ct. App. Div.
1970)).
A few years after that, in Hoffman v. Iowa Department of
Transportation, 257 N.W.2d 22 (Iowa 1977), we addressed the situation of
a motorist who had stated he would not take any test or make any
statement until he consulted his attorney. Upon speaking with his
attorney only six minutes later, the motorist requested a blood test.
Hoffman, 257 N.W.2d at 24. We deemed Hoffman’s initial response to be
a “qualified refusal,” and on that basis affirmed the revocation of
Hoffman’s driver’s license, citing to our decisions in Krueger and
11
Swenumson. Id. at 26. Even though Hoffman’s subsequent consent
occurred “within minutes,” we said the officer “was on sound legal
ground in refusing to give the test after the refusal.” Id.; see also
Morgan, 227 N.W.2d at 157 (holding that the statute contains no
requirement that an officer make a second request after driver
conditioned his consent on having test performed at a different hospital).
Swenumson and Hoffman preceded our decisions in State v. Vietor,
261 N.W.2d 828, 831 (Iowa 1978), and Fuller v. State, 275 N.W.2d 410,
411 (Iowa 1979), where we made clear that an arrested motorist who
asks to call his or her attorney shall be afforded a right to do so before
being required to elect whether to submit to the chemical test. See Iowa
Code § 804.20 (formerly Iowa Code § 755.17). A motorist is not deemed
to have refused the test for purposes of the implied consent law merely
by making such a request. Fuller, 275 N.W.2d at 411. Nevertheless,
Vietor and Fuller did not call into question the validity of the “one
refusal” rule, and Welch concedes that his section 804.20 statutory right
to attorney consultation is not at issue here.
C. Application of this Interpretation to the Present Case.
Welch does not contest that he initially refused to submit to a breath
test. After speaking with his wife and leaving messages for his attorney
and his mother, Welch declined to make any additional phone calls and
said he would not provide a breath specimen. Welch’s statement, “I’m
going to refuse,” constituted an explicit refusal. Further, and as the
district court noted, Welch’s subsequent statements and conduct
amounted to a failure to cooperate. See, e.g., Taylor, 260 N.W.2d at 524
(failure to cooperate is refusal to consent to chemical testing). Welch
declined to electronically check the appropriate box or sign the IDOT’s
“Request and Notice Under Iowa Code Chapter 321J/Section 321.208”
12
form in order to indicate his consent or refusal. At 2:23 a.m., when
Officer King once again sought confirmation of Welch’s refusal, Welch
became unresponsive stating, “I plead the fifth” and “My name is not
Toby.” Thus, the record contains substantial evidence supporting the
agency’s determination that Welch initially refused chemical testing. See
Iowa Code § 17A.19(10)(f).
Instead, Welch argues that he did not refuse chemical testing
within the meaning of the implied consent statute because his
subsequent consent to the breath test at 2:31 a.m. essentially negated
his 2:20 and 2:23 a.m. refusals. In support of this argument, Welch
asks us to limit Krueger and Swenumson to their facts. He urges that
the rule denying effect to a subsequent consent only applies when a
significant amount of time has passed from the earlier refusal.
Welch’s attempt to distinguish his case from Krueger and
Swenumson is not persuasive. True, the gap here is significantly shorter
than it was in Krueger (eleven minutes as opposed to one hour and
twenty-three minutes). But in Krueger, the time lapse between initial
refusal and subsequent consent was not determinative. Rather, without
referencing any specific period of time, we rejected outright the notion
that a motorist should be given more than one opportunity to make an
informed decision. Krueger, 169 N.W.2d at 879. Similarly, in
Swenumson, although that case did not involve an actual attempt to
withdraw a prior refusal, we reaffirmed Krueger’s holding that “one
refusal is determinative.” Swenumson, 210 N.W.2d at 662.
Welch’s argument also fails to account for our decision in Hoffman,
where the time separation between the original “qualified refusal” and the
later attempt to consent was even briefer than it was here. There, only
six minutes elapsed between Hoffman’s initial response and his
13
subsequent request to take the test. Hoffman, 257 N.W.2d at 24–25. We
nonetheless reiterated that “[o]ne refusal is determinative.” Id. at 26.
In short, under our prior case law, Welch’s words and actions
constituted a refusal within the meaning of sections 321J.6(2) and
321J.9(1), and his request for a breath test eleven minutes later would
have no legal effect.
D. Should We Overrule Our Prior Interpretation of “Refusal”?
Thus, in order for Welch to prevail, we must abandon our existing bright-
line rule in favor of an approach that enables subsequent consent to
chemical testing to cure an initial refusal in certain circumstances.
Welch urges us to adopt the five-factor test espoused by the Supreme
Court of Kansas in Standish v. Department of Revenue, 683 P.2d 1276,
1280 (Kan. 1984), which entailed a slight modification of a test
announced by the North Dakota Supreme Court in Lund v. Hjelle, 224
N.W.2d 552, 557 (N.D. 1974). Under Standish, a previous refusal is
effectively rescinded when subsequent consent is made:
(1) within a very short and reasonable time after the prior
first refusal; (2) when a test administered upon the
subsequent consent would still be accurate; (3) when testing
equipment is still readily available; (4) when honoring the
request will result in no substantial inconvenience or
expense to the police; and (5) when the individual requesting
the test has been in the custody of the arresting officer and
under observation for the whole time since arrest.
Id. at 1280. Welch contends this “flexible” approach is more logical and
fair and best furthers the purpose of the implied consent statute.
Although all fifty states have adopted implied consent procedures,
jurisdictions are divided in their treatment of an attempt to retract an
initial refusal. See generally Jonathan M. Purver, Annotation, Driving
While Intoxicated: Subsequent Consent to Sobriety Test as Affecting Initial
Refusal, 28 A.L.R. 5th 459 (1995). A minority of state appellate courts
14
have adopted some form of the so-called flexible rule. Id. 5 Under this
approach, a previous refusal may generally be cured by a subsequent
request for a chemical test so long as the request is made within a
reasonable time and the delayed administration of the test will neither
materially affect the test results nor substantially inconvenience the
police. Minnesota, New Hampshire and Ohio have adopted a narrower,
but still somewhat forgiving, standard by which a refusal may only be
withdrawn “almost immediately.” 6 The majority of jurisdictions,
however, have endorsed a stricter approach, finding an initial declination
to be binding and conclusive and refusing to recognize a driver’s
5Pruitt v. State, 825 P.2d 887, 892–94 (Alaska 1992) (adopting Lund test); Gaunt
v. Motor Vehicle Div., 666 P.2d 524, 527–28 (Ariz. Ct. App. 1983) (adopting four of the
Lund factors); Gallion v. Colo. Dep’t of Revenue, 155 P.3d 539, 541–42 (Colo. App. 2006)
(allowing recantation if made in sufficient time to obtain a blood or breath sample
within two hours of the person’s driving), aff’d, 171 P.3d 217 (Colo. 2007); Larmer v.
State, 522 So. 2d 941, 943–44 (Fla. Dist. Ct. App. 1988) (employing three of the Lund
factors); Dep’t of Pub. Safety v. Seay, 424 S.E.2d 301, 302 (Ga. Ct. App. 1992) (adopting
Standish test); State v. Moore, 614 P.2d 931, 935 (Haw. 1980) (adopting Lund test); In re
Pangburn, 857 P.2d 618, 620 (Idaho 1993) (adopting three factors in the flexible rule);
Standish, 683 P.2d at 1280 (changing the first Lund factor to “within a very short and
reasonable time after the prior first refusal”); Pickard v. State, 572 So. 2d 1098, 1101
(La. Ct. App. 1990) (adopting Lund test); In re Suazo, 877 P.2d 1088, 1096 (N.M. 1994)
(adopting Lund with a “stricter standard regarding the temporal criterion”); Lund, 224
N.W.2d at 557 (outlining five-factor subsequent consent test); Baldwin v. State ex rel.
Dep’t of Pub. Safety, 849 P.2d 400, 406 (Okla. 1993) (adopting Standish test); State v.
Bonvie, 936 A.2d 1291, 1301 (Vt. 2007) (modifying the first and fifth factors of the
Standish test); see also Md. Code Ann., Transp. § 16–205.1(g) (West, Westlaw through
2011 Reg. Sess.); State v. Lynch, 274 A.2d 443, 444 (Del. Super. Ct. 1971) (indicating,
in dicta, the implied consent statute “obviously was not intended to preclude an
accused from changing his mind and consenting to the test”).
6Lewis v. Comm’r of Pub. Safety, 737 N.W.2d 591, 593 (Minn. Ct. App. 2007)
(“[A] subsequent change of heart does not revoke an intial refusal, even when a
relatively short period of time has elapsed between the intial refusal and the
reconsideration except for an ‘almost immediate’ change of mind.”); Harlan v. State,
308 A.2d 856, 858–59 (N.H. 1973) (suggesting an “almost immediately” standard); In re
Brooks, 271 N.E.2d 810, 812 (Ohio 1971) (setting forth the “almost immediately”
standard).
15
subsequent change of heart. 7 Nine states do not appear to have
addressed the issue. 8
After taking into account the duration of our existing interpretation
of sections 321J.6(2) and 321J.9(1), the text and history of chapter 321J,
and the various rationales underlying both the bright-line and flexible
approaches, we adhere to our previous view that an initial refusal to
consent to chemical testing is binding.
“Stare decisis is a valuable legal doctrine which lends stability to
the law . . . .” Kersten Co., Inc. v. Dep’t of Soc. Servs., 207 N.W.2d 117,
121 (Iowa 1973). Concomitant to this preference for upholding our prior
decisions is the notion that sustained legislative silence raises an
inference of the legislature’s assent to our jurisprudence. See, e.g.,
Lockray v. State, 495 N.W.2d 754, 755 (Iowa 1993) (highlighting that
“issues of statutory interpretation settled by the courts and not disturbed
7Zidell v. Bright, 71 Cal. Rptr. 111, 113 (Ct. App. 1968); Marshall v. District of
Columbia, 498 A.2d 190, 192 (D.C. 1985); People v. Shorkey, 321 N.E.2d 46, 48 (Ill.
App. Ct. 1974); Parker v. State, 530 N.E.2d 128, 130–31 (Ind. Ct. App. 1988);
Humphries v. Commonwealth, 807 S.W.2d 669, 670 (Ky. Ct. App. 1991); State v. Landry,
428 A.2d 1204, 1206 (Me. 1981); Dudenhoeffer v. Dir. of Revenue, 780 S.W.2d 701, 703
(Mo. Ct. App. 1989); Johnson v. Div. of Motor Vehicles, 711 P.2d 815, 817 (Mont. 1985);
Hoyle v. Peterson, 343 N.W.2d 730, 734 (Neb. 1984); Schroeder v. State, 772 P.2d 1278,
1280 (Nev. 1989); State v. Corrado, 446 A.2d 1229, 1232 (N.J. Super. Ct. App. Div.
1982); Donahue v. Tofany, 304 N.Y.S.2d 484, 485 (App. Div. 1969); Mathis v. N.C. Div. of
Motor Vehicles, 322 S.E.2d 436, 438 (N.C. Ct. App. 1984); Bergstrom v. Motor Vehicles
Div., 799 P.2d 673, 674 (Or. Ct. App. 1990); Commonwealth v. Schaefer, 300 A.2d 907,
908 (Pa. Commw. Ct. 1973); Leviner v. S.C. Dep’t of Highways & Pub. Transp., 438
S.E.2d 246, 248 (S.C. 1993); Peterson v. State, 261 N.W.2d 405, 410–11 (S.D. 1977);
Conrad v. Schwendiman, 680 P.2d 736, 738 (Utah 1984); Dep’t of Licensing v. Lax, 888
P.2d 1190, 1192–93 (Wash. 1995); State v. Rydeski, 571 N.W.2d 417, 420 (Wis. Ct. App.
1997); Farmer v. State, 986 P.2d 165, 167–68 (Wyo. 1999); see also W. Va. Code Ann.
§ 17C–5–7(a) (West, Westlaw through 2011 Reg. Sess.) (providing fifteen minutes after
the warnings before the refusal is considered final and the officer has no further duty to
provide person with an opportunity to take the test); Chipman v. Delponte, No. CV90 03
27 35S 1990 WL 275841, at *3 (Conn. Super. Ct. Oct. 24, 1990) (unpublished opinion)
(suggesting a bright-line approach).
8Alabama, Arkansas, Massachusetts, Mississippi, Rhode Island, Tennessee,
Texas and Virginia.
16
by the legislature over a period of time have become tacitly accepted by
the legislative branch”); Cover v. Craemer, 258 Iowa 29, 34, 137 N.W.2d
595, 599 (Iowa 1965) (declining to change the meaning of a statute
decided almost sixty years previously because the construction “has
evidently met the approval of each successive legislature”).
These guiding principles are especially salient when the general
assembly has reenacted or repeatedly amended the statutory provision in
question without disturbing our previous interpretation. See State v.
Jones, 298 N.W.2d 296, 298 (Iowa 1980) (“The legislature is presumed to
know the state of the law, including case law, at the time it enacts a
statute.”).
Krueger was decided in 1969; Swenumson in 1973; Hoffman in
1977. The general assembly repealed the entire OWI chapter (321B) of
the Iowa Code in 1986 and reenacted the revised provisions in chapter
321J. See 1986 Iowa Acts ch. 1220 (codified at Iowa Code ch. 321J).
The “refusal to submit” provision has itself been amended numerous
times. See, e.g., 2010 Iowa Acts ch. 1097, § 8 (codified at Iowa Code
§ 321J.9(2) (2011)); 2001 Iowa Acts ch. 32, § 47 (codified at Iowa Code
§ 321J.4(4) (2003)); 1997 Iowa Acts ch. 177, § 14 (codified at Iowa Code
§ 321J.9(1)–(2) (1999)); 1995 Iowa Acts ch. 48, § 16 (codified at Iowa
Code § 321J.9 (1997)); 1984 Iowa Acts ch. 1292, § 13 (codified at Iowa
Code § 321B.13 (1985)); 1982 Iowa Acts ch. 1167, § 20 (codified at Iowa
Code § 321B.13 (1983)). We assume the legislature “is familiar with the
holdings of this court relative to legislative enactments and that if we
have improperly decided what their intention was they will by additional
legislation state the real intention.” Mallory v. Paradise, 173 N.W.2d 264,
266 (Iowa 1969). Despite ample opportunities, the general assembly has
declined to overturn our decisions in this area. Thus, it is appropriate
17
for us to conclude that after more than four decades of legislative
quiescence, the legislature is satisfied with a bright-line interpretation of
its statute.
According to Iowa’s refusal-revocation provision, if a person
“refuses” to submit to chemical testing, “a test shall not be given” and the
department of transportation “shall revoke the person’s driver’s license.”
Iowa Code § 321J.9(1) (2009). Because some jurisdictions that follow a
flexible standard have statutory language which closely resembles our
own, it would be difficult to say that the language of section 321J.9(1) is
totally unambiguous. See, e.g., N.D. Cent. Code Ann. § 39–20–04 (West,
Westlaw through 2009 Reg. Sess.) (containing similar language to Iowa’s
implied consent law but interpreted by the North Dakota Supreme Court
as authorizing a flexible approach). Still, when the language chosen by
the legislature is such that reasonable minds could disagree as to its
meaning, we strive for an interpretation that “best achieves the statute’s
purpose, and avoids absurd results.” State v. Bower, 725 N.W.2d 435,
442 (Iowa 2006). Even if we were writing on a blank slate, which we are
not, we would not be inclined to adopt Welch’s multifactor approach.
To begin with, Welch’s complicated standard appears to be at odds
with the simplicity of the statute’s wording. The law provides that a test
shall not be given if the person “refuses to submit to the chemical
testing,” Iowa Code § 321J.9(1), not if the person “continues to refuse” or
“fails to consent within a reasonable time period.” See, e.g., Hoyle v.
Peterson, 343 N.W.2d 730, 734 (Neb. 1984) (“There is nothing in [the
implied consent statute] which implies additional time for reflection or
reconsideration after a driver’s refusal to take the test.”); State v.
Bernhardt, 584 A.2d 854, 859 (N.J. Super. App. Div. 1991) (“[N]otions of
curing defects . . . have no application [to the failure to give a breath
18
sample] absent a clear expression to the contrary by the Legislature.”);
see also Fischer, 785 N.W.2d at 705–06 (“We do not read a requirement
into a statutory scheme when none exists because ‘[i]t is not our province
to write such a requirement into the [implied consent] statute.’ ” (quoting
Gottschalk v. Sueppel, 258 Iowa 1173, 1183, 140 N.W.2d 866, 872 (Iowa
1966))).
Furthermore, we have characterized an administrative license
revocation under section 321J.9 as remedial, promoting the overarching
remedial purpose of chapter 321J itself. State v. Vogel, 548 N.W.2d 584,
586–87 (Iowa 1996); see also State v. Murray, 539 N.W.2d 368, 369 (Iowa
1995) (OWI statutes are remedial in nature). In order to best effectuate
their corrective design, OWI statutes are liberally construed in favor of
the public interest the legislature sought to protect and against the
private interests of the drivers involved. Murray, 539 N.W.2d at 369–70.
Allowing a motorist under some circumstances to retract a prior decision
not to consent to chemical testing appears inconsistent with this overall
principle.
Additionally, a bright-line rule has the advantage of providing clear
guidance to law enforcement personnel. Clarity as to what the law
requires is generally a good thing. It is especially beneficial when the law
governs interactions between the police and citizens. Law enforcement
officials have to make many quick decisions as to what the law requires
where the stakes are high, involving public safety on one side of the
ledger and individual rights on the other. A clear, teachable rule is a
high priority. Welch’s flexible approach, by contrast, is likely to lead to
uncertainty in particular cases. See, e.g., Stone v. McCullion, 500 N.E.2d
19326, 328 (Ohio Ct. App. 1985) (“No specific period of time . . . can be laid
down as reasonable or unreasonable in any and all events.”). 9
Also, Iowa’s existing, clearcut “one refusal” rule reduces the time
and cost burdens on law enforcement. As we noted in Krueger, if a
motorist can change his or her mind, this means the officer must remain
with or near the arrested motorist, effectively removing him or her from
other duties, until the “reasonable” time has expired. 169 N.W.2d at
879; see also, e.g., Zidell, 71 Cal. Rptr. at 113 (“It would be inconsistent
with the purpose of the statute to hold that either [the arresting officer],
or the officers on duty at the police station, were required to turn aside
from their other responsibilities and arrange for administration of a
belated test when once appellant had refused to submit after fair warning
of the consequences.”). Welch may argue that the last two of the five
Standish factors alleviate this burden, because the initial refusal may be
withdrawn only if there will be no substantial inconvenience or expense
to the police and the individual requesting the test has been in the
custody of the arresting officer. But “inconvenience” is in the eye of the
beholder, and debates could arise as to whether the motorist remained in
the officer’s custody and, if not, whether the officer deliberately placed
9Compare In re Smith, 770 P.2d 817, 822 (Idaho Ct. App. 1989) (ten to twenty
minute delay is permissible), Lund, 224 N.W.2d at 556–57 (reversing license revocation
where driver subsequently requested test one hour after initial refusal), and Baldwin,
849 P.2d at 401–02 (consent provided between five and ten minutes after prior refusal
was timely recantation) with Zahtila v. Motor Vehicle Div., 560 P.2d 847, 849 (Colo. App.
1977) (case remanded to determine whether twenty-five minute delay would materially
affect result), Moore, 614 P.2d at 935 (case remanded to determine whether thirteen
minute delay was fatal to subsequent consent), Standfish, 683 P.2d at 1280 (request
made fifteen to thirty minutes after the driver had been placed in jail “was too late”),
and Suazo, 877 P.2d at 1097 (declining to prescribe a specific time limit but finding
“[t]he temporal standard . . . will always be a very short time, never more than a matter
of minutes”).
20
the motorist in another person’s custody in order to avoid a possible
retraction.
IV. Conclusion.
For the foregoing reasons, we hold that a motorist’s request to take
the chemical test need not be honored after he or she has previously
refused that test following a valid implied consent advisory. In this case,
Welch’s words and actions amounted to a “refusal” within the meaning of
sections 321J.6 and 321J.9. His subsequent request for a breath test
did not alter the legal effect of that refusal. The district court’s ruling
upholding the revocation of Welch’s driver’s license is affirmed.
AFFIRMED.