Welch v. Iowa Dep't of Transp.

Decision Date12 August 2011
Docket NumberNo. 10–2029.,10–2029.
Citation801 N.W.2d 590
CourtIowa Supreme Court

801 N.W.2d 590

Toby Joseph WELCH, Appellant,

No. 10–2029.

Supreme Court of Iowa.

Aug. 12, 2011.

[801 N.W.2d 592]

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.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:

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?


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.


TOBY WELCH: My name is not Toby.

[801 N.W.2d 593]

OFFICER KING: Your name is not Toby?


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?

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?


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 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

[801 N.W.2d 594]

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.

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”).

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

[801 N.W.2d 595]

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...

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