              IN THE SUPREME COURT OF IOWA
                                No. 08–0861

                             Filed April 30, 2010


STATE OF IOWA,

      Appellee,

vs.

TODD ROBERT TAEGER,

      Appellant.


      Appeal from the Iowa District Court for Des Moines County, Mark

Kruse, District Associate Judge.



      Defendant    appeals    from   the   State’s voluntary   dismissal   of

operating-while-intoxicated complaint. REVERSED AND REMANDED.



      R. A. Bartolomei of Bartolomei & Lange, PLC, Des Moines, for

appellant.


      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Patrick C. Jackson, County Attorney, and Tyron

Rogers and Heidi Van Winkle, Assistant County Attorneys, for appellee.
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APPEL, Justice.

      This case involves a challenge by a defendant to the State’s

voluntary dismissal of a criminal charge for operating a motor vehicle

while intoxicated. The defendant asserts that the dismissal was not “in

the furtherance of justice” as it avoided a determination on the merits of

his pending motion to suppress.         If adjudicated successfully, the

suppression motion would have allowed the defendant to invoke a

statutory remedy and have the evidence of his intoxication excluded in

the civil proceeding to suspend or revoke his driving privileges. Without

an adjudication, the defendant had no grounds to challenge the

introduction of such evidence in the civil proceeding. The district court

granted the State’s motion to voluntarily dismiss over the defendant’s

objection. Upon our review, we reverse the dismissal and remand the

case for further proceedings.

      I. Factual and Procedural Background.

      Burlington police officer Brian Carper observed the vehicle of Todd

Taeger stopped in the travelled portion of the street. As he approached

the vehicle, Carper saw Taeger standing outside the vehicle, urinating in

the street.   Taeger showed signs of intoxication—stumbling, swaying

back and forth, and having bloodshot, watery eyes.        His speech was

slurred and a strong odor of alcohol was present.      Taeger admitted to

consuming four beers.    Carper administered field sobriety tests, all of

which indicated intoxication.   The officer then requested a preliminary

breath test, which indicated that Taeger’s blood-alcohol level was above

the legal limit. Carper arrested Taeger. A Datamaster test administered

after his arrest revealed a blood-alcohol level of .258. Thereafter, Taeger

admitted to drinking ten cans of beer throughout the course of the

afternoon and evening.
                                     3

      The State charged Taeger with operating a motor vehicle while

intoxicated (OWI), second-offense, in violation of Iowa Code section

321J.2(1)(a) and (b) (2007). Taeger filed a motion to suppress, claiming

that: (1) the State used a TraCS software system on the Datamaster that

was not approved by the commissioner of public safety, and (2) the State

could not produce a certificate that the officer was trained and certified

to utilize the TraCS computer software on the Datamaster.

      During the hearing on Taeger’s motion to suppress, the State

moved to voluntarily dismiss the OWI charge. In the written motion to

dismiss, the State declared, “While there was probable cause for the

arrest, the State does not believe it has sufficient evidence to establish a

prima facia case at trial.” The defense resisted the dismissal, asserting

that: (1) the court should address his motion to suppress first, (2) under

our rules of criminal procedure, the State has the burden of stipulating

why it was seeking to dismiss the charge, (3) cutting off the motion to

suppress improperly prevented him from excluding evidence in the

subsequent civil proceeding, and (4) because he was charged with

second-offense OWI, an aggravated misdemeanor, the State could refile

the charges.
      The State at this point conceded to a dismissal with prejudice.

Citing our recent decision in State v. Abrahamson, 746 N.W.2d 270 (Iowa

2008), the district court asked why dismissal would be in the furtherance

of justice. The State responded:
           Your Honor, there have been facts come [sic] to light to
      the State that has made the State fully aware the State
      cannot proceed forth on these charges. It just is factly [sic]
      impossible, so the State is conceding or asking to dismiss
      the charges at this time against the defendant and have
      them be with prejudice.
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The State further conceded that the officer was not properly certified, but

would make no concession in regard to the use of the TraCS system.

      At this point, the district court inquired as to the impact of the

motion to dismiss on the license revocation proceeding.         The defense

responded:
             Administratively, this is the only way I can go after
      this. If you enter a factual finding that the test result would
      not come in because the officer was not certified, then he’s
      entitled to get his license back. It’s the only way he can do it
      at this stage because it’s the only way procedurally I can
      attack it.
In light of the defense position, the district court asked the State whether

it was willing to dismiss due to the fact that the officer was not certified.

Notwithstanding its prior concession, the State stated, “No, the State is

not conceding he’s not certified for the DataMaster.”       The court then

pressed the State, asking if there was a specific fact that led to dismissal

in the furtherance of justice.    The State responded that it was only

conceding that there was a lack of documentation for the TraCS system,

so it could not go forward.

      Taeger argued that the State’s concession provided grounds to

grant its motion to suppress. The district court, however, did not grant

the motion to suppress, but instead granted the motion to dismiss,

stating:
            I’ll show it dismissed. I think there’s been at least
      compliance with the Supreme Court decision; there’s been—
      The State’s reasons are set forth here today. They are on the
      record, and I think that complies with it. I’ll take that as
      being in the interest of justice since they believe they cannot
      prove the case.
The district court entered a written order dismissing the charge with

prejudice. Taeger appealed. This court granted discretionary review.
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        II. Standard of Review.

        The parties disagree on this court’s standard of review.     Taeger

asserts that to the extent he has raised constitutional issues, review is de

novo.     Further, Taeger asserts that the question of whether the State

complied with Iowa Rule of Criminal Procedure 2.33(1) should be

reviewed for correction of errors at law. The State, on the other hand,

asserts that this court reviews whether a dismissal was “in the

furtherance of justice” under Iowa Rule of Criminal Procedure 2.33(1) for

an abuse of discretion.

        It is well-established that this court’s review of constitutional

issues is de novo. See, e.g., State v. Lyman, 776 N.W.2d 865, 873 (Iowa

2010). Upon our review of the briefing, however, we conclude any due

process challenge has not been adequately raised on appeal.           While

Taeger notes, “It requires no citation that notice and an opportunity to be

heard is the essence of the concept of both procedural and substantive

due process,” there is no discussion of how Taeger was deprived of notice

and an opportunity to be heard. A simple statement of a principle of law

in a brief, without more, is not enough to raise an issue for this court’s

review.    City of Clinton v. Loeffelholz, 448 N.W.2d 308, 311–12 (Iowa

1989).

        On the issue of the proper standard of review under Iowa Rule of

Criminal Procedure 2.33(1), there are two components.             The first

question—whether the statement of reasons for dismissal complied with

the rule—is a question of law. State v. Sanders, 623 N.W.2d 858, 859–60

(Iowa 2001); Hasselman v. Hasselman, 596 N.W.2d 541, 543 (Iowa 1999).

If the stated reasons are legally sufficient, the second question is whether

dismissal was “in the furtherance of justice.” This later determination is

reviewable for an abuse of discretion. State v. Brumage, 435 N.W.2d 337,
                                      6

341 (Iowa 1989). This court “ ‘will not find an abuse of discretion unless

the defendant shows that the trial court’s discretion was exercised on

grounds clearly untenable or clearly unreasonable.’ ” State v. Henderson,

537 N.W.2d 763, 766 (Iowa 1995) (quoting State v. Knox, 464 N.W.2d

445, 446 (Iowa 1990)).

      III. Discussion.

      Resolution of this case is contingent on the interplay between

chapter 321J and our rules of criminal procedure.         The history and

policy supporting each doctrine will be addressed in turn.

      A.   Chapter 321J.       Entitled “Operating While Intoxicated,” Iowa

Code chapter 321J is a comprehensive chapter detailing both criminal

and civil OWI proceedings. Section 321J.2, for example, sets forth the

elements and penalties for the crime of operating a motor vehicle while

intoxicated, while sections 321J.9 and .12 suspend or revoke a person’s

driver’s license based upon a blood-alcohol test in excess of the legal

limit or a refusal to submit to a blood-alcohol test. Under chapter 321J,

therefore, an individual suspected of OWI is subject to two different

proceedings—the criminal charge and the civil license revocation before

the Iowa Department of Transportation (IDOT).

      This court addressed the intersection of criminal OWI proceedings

and the civil, administrative license hearings in Severson v. Sueppel, 260

Iowa 1169, 152 N.W.2d 281 (1967). In Severson, this court noted that

although the two proceedings arise out of the same conduct, they

proceed independently of the other.       Severson, 260 Iowa at 1176, 152

N.W.2d at 285. Therefore, “[a]cquittal of the criminal charge of operating

a motor vehicle while intoxicated did not preclude [revocation of]

plaintiff’s driver’s license.” Id.
                                     7

      The divorce between the two proceedings was reaffirmed in

Westendorf v. Iowa Department of Transportation, 400 N.W.2d 553 (Iowa

1987).   In Westendorf, the issue was whether evidence obtained in

violation of the constitution was admissible in the civil license

proceeding, even if the same evidence was inadmissible in the parallel

criminal proceeding.      Westendorf, 400 N.W.2d at 556.       Using a cost-

benefit analysis, this court determined that the exclusionary rule did not

apply in the license proceeding, thereby allowing the introduction of

evidence in the civil proceeding that was suppressed in the criminal

proceeding. Id. at 557.

      Subsequent    to     Westendorf,   the   legislature   enacted   section

321J.13(4), now codified in section 321J.13(6). That section provides in

relevant part:
            6. a. The department shall grant a request for a
      hearing to rescind the revocation if the person whose motor
      vehicle license or operating privilege has been or is being
      revoked under section 321J.9 or 321J.12 submits a petition
      containing information relating to the discovery of new
      evidence that provides grounds for rescission of the
      revocation.
            b. The person shall prevail at the hearing if, in the
      criminal action on the charge of violation of section 321J.2
      or 321J.2A resulting from the same circumstances that
      resulted in the administrative revocation being challenged,
      the court held one of the following:
           (1) That the peace officer did not have reasonable
      grounds to believe that a violation of section 321J.2 or
      321J.2A had occurred to support a request for or to
      administer a chemical test.
            (2) That the chemical test was otherwise inadmissible
      or invalid.
            c. Such a holding by the court in the criminal action
      is binding on the department, and the department shall
      rescind the revocation.
Iowa Code § 321J.13(6).
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       This court’s first opportunity to consider the impact of section

321J.13(6) on the division between criminal and civil OWI proceedings

was in Manders v. Iowa Department of Transportation, 454 N.W.2d 364

(Iowa 1990).    While this court reaffirmed Westendorf—that it was

immaterial that the evidence of intoxication was unconstitutionally

obtained for purposes of the civil license proceeding—it did not directly

address the impact or legislative policy behind the enactment of section

321J.13(6). Manders, 454 N.W.2d at 366–67. Resolution of that issue

was unnecessary as there was no evidence Manders had been criminally

adjudicated for OWI, so section 321J.13(6) had not been triggered. Id.

       The question left open in Manders—whether section 321J.13(6)

“operates as an exclusionary rule ‘in the limited situation in which an

adjudication on the admissibility of evidence relevant to the implied

consent law has been made in a criminal proceeding growing out of the

same    facts,’ ”—was   addressed   that   same   year   in   Brownsberger.

Brownsberger v. Dep’t of Transp., 460 N.W.2d 449, 451 (Iowa 1990)

(quoting Manders, 454 N.W.2d at 366).        In Brownsberger, this court

determined that in enacting section 321J.13(6), the legislature was

attempting to remove some of the barriers between the civil license

proceeding and the criminal OWI prosecution.       Id.   To effectuate that

purpose, the legislature fashioned a mandatory exclusionary rule that

binds the IDOT to certain actions taken in the criminal proceeding. Id.

Section 321J.13(6), therefore, constitutes a mandatory exclusionary rule,

which prevents the introduction of evidence in a civil license proceeding

that has been suppressed in the parallel criminal proceeding.

       B.   Iowa Rule of Criminal Procedure 2.33(1).            “Under the

common law, in absence of a controlling statute or rule of court, the

power to dismiss a criminal charge . . . lies in the sole discretion of the
                                          9

prosecutor.”     Manning v. Engelkes, 281 N.W.2d 7, 10 (Iowa 1979).

Numerous states, including Iowa, have deviated from this common law

tradition of unfettered prosecutorial discretion.              Id.    Iowa Rule of

Criminal Procedure 2.33(1) prescribes the procedure by which a

prosecutor may seek dismissal of a pending criminal charge. 1 The rule

states:
       The court, upon its own motion or the application of the
       prosecuting attorney, in the furtherance of justice, may order
       the dismissal of any pending criminal prosecution, the
       reasons therefor being stated in the order and entered of
       record, and no such prosecution shall be discontinued or
       abandoned in any other manner. Such a dismissal is a bar
       to another prosecution for the same offense if it is a simple
       or serious misdemeanor; but it is not a bar if the offense
       charged be a felony or an aggravated misdemeanor.
Iowa R. Crim. P. 2.33(1) (emphasis added).

       While this court has had few occasions to examine the contours of

rule 2.33(1), prior case law does establish some basic parameters. First,

a district court may overrule a motion to dismiss where there has been

an abuse of prosecutorial discretion or the dismissal is sought in bad

faith. Manning, 281 N.W.2d at 11–12. “ ‘Likewise, dismissals sought on

grounds far afield of the law or facts, even though innocently motivated,

would warrant this Court’s disapproval.’ ”             Id. at 12 (quoting United

States v. Hastings, 447 F. Supp. 534, 536–37 (E.D. Ark. 1977)).

       Second, our rule of criminal procedure requires more than a

cursory explanation for the dismissal. For a court to properly exercise its

discretion under rule 2.33(1) the State must offer “a more substantial

record than [a] bare motion.” Id. at 13. In making a motion to dismiss,

therefore, “the State must provide appropriate and sufficient reasons for


       1Rule  2.33(1) applies only to the dismissal of pending criminal charges.
Prosecutors in Iowa retain discretion not to proceed with the formal filing of criminal
charges.
                                    10

the dismissal.” Abrahamson, 746 N.W.2d at 273. Adequately stating the

grounds for dismissal also allows for appellate review of a district court’s

decision to grant or deny the dismissal. See, e.g., Lakewood v. Pfeifer,

583 N.E.2d 1133, 1136 (Ohio Mun. Ct. 1991) (rejecting dismissal for

“insufficient evidence”).   An appellate court cannot evaluate whether a

district court properly exercised its discretion without a record of the

grounds on which such discretion was exercised.

      C.    Application of Principles.    Taeger argues that the district

court improperly granted the State’s motion to dismiss because the

court’s written decision did not adequately set forth the grounds for

dismissal in compliance with rule 2.33(1). He further asserts that the

State is attempting to avoid the application of Iowa Code section

321J.13(6) by preemptively moving to dismiss the criminal OWI action

when it became clear that he would prevail on the motion to suppress.

Under such circumstances, dismissal of the criminal action without an

adjudication on the motion to suppress was not “in the furtherance of

justice.”

      The State conversely asserts that while it may have given

conflicting grounds for the dismissal, it provided adequate grounds to

support a dismissal under rule 2.33(1). Without evidence of bad faith,

nothing further is required under the rule for dismissal, even in the

unique context of section 321J.13(6). According to the State, Taeger’s

remedy, if any, lies outside the context of these criminal proceedings.

      We agree with Taeger. As in Brownsberger, this court’s task is to

interpret the interplay between 321J.13(6) and rule 2.33(1) in a way that

will advance the expressed legislative purpose.        Brownsberger, 460

N.W.2d at 451. In enacting section 321J.13(6), the legislature intended

to provide a remedy in the civil licensing proceeding, even if incomplete,
                                      11

when the evidence of intoxication was obtained in violation of

constitutional or statutory law.

      In determining whether a dismissal is “in the furtherance of

justice” under rule 2.33(1), the policy expressed in section 321J.13(6)

cannot be ignored. It is clear that the legislature in section 321J.13(6)

desired to allow those accused of OWI to utilize favorable judicial

determinations on suppression motions in criminal cases in the parallel

civil proceeding.   To allow prosecutors to dismiss criminal cases while

motions to suppress are pending in order ensure that section 321J.13(6)

is not triggered would be to sanction a manipulation that is not “in the

furtherance of justice” in light of the clear legislative direction.
      As a result, once a motion to suppress has been filed, dismissal
under rule 2.33(1) will only be “in the furtherance of justice” when the
State articulates grounds for dismissal independent of those raised in the
motion to suppress. If the State fails to show such independent grounds,
the motion to dismiss should be denied and the court should proceed to
an adjudication on the motion to suppress. After the motion to suppress
has been determined, the prosecution may then renew its motion to
dismiss “in the furtherance of justice” free from the policy constraints of
section 321J.13(6).
      The fact that the State conceded to a dismissal of the charges
against Taeger with prejudice in this case does not change our analysis.
While the State asserts that it should have complete discretion to seek a
dismissal with prejudice, such an assertion is not consistent with the
broad language of rule 2.33(1).         Rule 2.33(1) grants district courts
discretion in reviewing all motions for dismissal and does not distinguish
as to the type of dismissal sought.
                                   12

      While the reasons for the State’s motion to dismiss in this case are
opaque, they appear to mirror the assertions raised in Taeger’s motion to
suppress. Dismissal of the criminal charges against Taeger, prior to the
adjudication of his motion to suppress, therefore, was in error based on
the proferred reasons.   In light of our ruling, the order of the district
court dismissing the case is reversed and the matter is remanded to the
district court for an adjudication on the motion to suppress.
      IV. Conclusion.
      For the reasons stated above, the decision of the district court is
reversed and the case remanded for further proceedings.
      REVERSED AND REMANDED.
