                   IN THE SUPREME COURT OF IOWA
                            No. 30 / 06-0203

                           Filed April 27, 2007

STATE OF IOWA,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR
JOHNSON COUNTY,

      Defendant.


      Certiorari to the Iowa District Court for Johnson County, Amanda P.

Potterfield, Judge.



      The State contends the district court exceeded its statutory authority

when it granted the defendant a deferred judgment. WRIT SUSTAINED;

SENTENCE VACATED; REMANDED FOR RESENTENCING.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, J. Patrick White, County Attorney, and Rachel

Zimmermann and Iris Frost, Assistant County Attorneys, for plaintiff.



      Jerald W. Kinnamon and J. Dean Keegan, Cedar Rapids, for

defendant.
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HECHT, Justice.

      The State filed a petition for writ of certiorari alleging the district

court exceeded its statutory authority in granting David Jensen a deferred

judgment. We conclude Iowa Code section 321J.2(3)(a)(1) (2005) prohibits a

deferred judgment under the circumstances of this case. We consequently

sustain the writ, vacate the sentence, and remand for resentencing.

      I.    Background Facts.

      On January 31, 2005, between approximately 9:00 p.m. and 9:50

p.m., David Jensen drank three double scotches at a bar in Solon, Iowa. At

10:03 p.m., the Johnson County Sheriff’s Department received a call

indicating a vehicle had been driving erratically and doing “donuts” on the

road. Deputy Mark Prentice arrived at the location of the dispatch and

found Jensen walking along the road, his car in a ditch.         The deputy

detected the odor of an alcoholic beverage on his breath, slurred speech,

unsteady balance, and red, glassy eyes. The deputy administered three

standardized field sobriety tests and a preliminary breath test, all of which

indicated impairment.
      Jensen was transported to the University of Iowa Department of
Public Safety for additional testing.      At 11:28 p.m., Jensen took a

DataMaster breath test, which indicated a .170 alcohol concentration.

      II.   Background Proceedings.

      The State charged Jensen with operating while intoxicated (OWI), in

violation of Iowa Code section 321J.2(1)(a) (operating a motor vehicle while

under the influence of alcohol) and section 321J.2(1)(b) (operating a motor

vehicle while having an alcohol concentration of .08 or more). Jensen filed

a written plea of guilty to the crime of operating a motor vehicle while under

the influence, in violation of section 321J.2(1)(a). However, in his written
                                       3

plea, Jensen requested a deferred judgment, expressly denying the State’s

allegation that he had driven with an alcohol concentration above .08. The

State moved unsuccessfully to set aside the guilty plea because of Jensen’s

denial of this allegation.

      At Jensen’s sentencing hearing, the parties disputed Jensen’s

eligibility for a deferred judgment.       The State contended Jensen was

ineligible pursuant to Iowa Code section 321J.2(3)(a)(1), which prohibits a

court from granting a deferred judgment if “the defendant’s alcohol

concentration established by the results of an analysis of a specimen of the

defendant’s blood, breath, or urine withdrawn in accordance with this

chapter exceeds .15.” According to the State, Jensen’s DataMaster test

indicating a .17 alcohol concentration conclusively rendered him ineligible

for a deferred judgment under this provision.
      Jensen argued that, under the particular circumstances of his case,

the test result did not render him ineligible for a deferred judgment.

Experts for both the State and the defense testified at the sentencing

hearing that Jensen would not have absorbed enough alcohol for his alcohol

concentration to actually have exceeded .15 at the time he was driving.
According to Jensen, this evidence rebutted a presumption contained in

section 321J.2(8)(a):

      The alcohol concentration established by the results of an
      analysis of a specimen of the defendant’s blood, breath, or
      urine withdrawn within two hours after the defendant was
      driving or in physical control of a motor vehicle is presumed to
      be the alcohol concentration at the time of driving or being in
      physical control of the motor vehicle.

The State responded that this evidentiary presumption is applicable

only at trial, not at sentencing. The district court agreed with Jensen

and granted a deferred judgment.
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      The State filed a petition for writ of certiorari to “challenge the

authority of the district court to grant a deferred judgment in violation of

Iowa Code section 321J.2(3)(a)” and “to resolve . . . whether the two-hour

evidentiary presumption in section 321J.2(8) applies to the district court’s

determination [of] whether a defendant is eligible for a deferred judgment

under section 321J.2(3)(a)(1).” We granted the petition and ordered further

proceedings pursuant to the rules of appellate procedure. Iowa R. App. P.

6.303.
      III.   Scope of Review.

      Because the State’s claim involves statutory interpretation, our review

is for correction of errors at law. State v. Booth, 670 N.W.2d 209, 211 (Iowa

2003).

      IV.    Discussion.

      This case presents a question of statutory interpretation: Whether

section 321J.2(3)(a)(1) renders Jensen ineligible for a deferred judgment

because his breath test indicated an alcohol concentration in excess of .15,

in spite of evidence introduced at his sentencing hearing tending to prove

his alcohol concentration at the time of driving did not exceed .15. The
rules of statutory interpretation that guide our analysis are well settled.

When a statute’s text is plain and its meaning clear, we do not “ ‘search for

meaning beyond [the statute’s] express terms.’ ” State v. Knowles, 602

N.W.2d 800, 801 (Iowa 1999) (quoting State v. Chang, 587 N.W.2d 459, 461

(Iowa 1998)). The terms of a statute must be enforced as written. Brown v.

Star Seeds, Inc., 614 N.W.2d 577, 579 (Iowa 2000).

      Statutory text may express legislative intent by omission as well as

inclusion. State v. Miller, 590 N.W.2d 45, 47 (Iowa 1999). The court “may

not . . . enlarge or otherwise change the terms of a statute as the legislature
                                      5

adopted it.” Id. When a proposed interpretation of a statute would require

the court to “read something into the law that is not apparent from the
words chosen by the legislature,” the court will reject it. State v. Guzman-

Juarez, 591 N.W.2d 1, 2 (Iowa 1999).

      We conclude the text of section 321J.2(3)(a)(1) clearly indicates its

application does not depend on proof that an alcohol concentration of .15 or

above existed at the time of driving. The statute prohibits the granting of a
deferred judgment when “the defendant’s alcohol concentration established

by the results of an analysis of a specimen of the defendant’s blood, breath,

or urine withdrawn in accordance with this chapter exceeds .15.” Jensen

asks us to rewrite the statute to deny a deferred judgment to any defendant

whose “alcohol concentration . . . exceeded .15 at the time of driving.” We

have no authority to do so. Guzman-Juarez, 591 N.W.2d at 2 (rejecting a

defendant’s interpretation of section 321J.2(3)(a)(1) that would require

“read[ing] something into the law that is not apparent from the words

chosen by the legislature”).

      We rejected a similar invitation to add words to section 321J.2(3)(a)(1)
in State v. Rettinghaus, 591 N.W.2d 15, 16 (Iowa 1999). In that case, two
defendants were found guilty of OWI, first offense, in violation of section

321J.2(1)(b). Rettinghaus, 591 N.W.2d at 16. The intoxilyzer measured

their blood alcohol concentrations at .152 and .156. Id. At sentencing, the

defendants asserted they were eligible for deferred judgments because when

the intoxilyzer’s margin of error was taken into account, their alcohol

concentrations would have been reduced to .144 and .148, respectively. Id.

The district court concluded the defendants were ineligible for deferred

judgments under section 321J.2(3)(a)(1). Id. We held the district court

appropriately sentenced them based on their alcohol concentration test
                                      6

results because they did not dispute the accuracy of the results. Id. at 17.

We stated test results, not “some independent finding by the court

concerning the defendant’s blood alcohol content,” trigger the section

321J.2(3)(a)(1) limitation on sentencing options. Id.
      We find no merit in Jensen’s assertion that our interpretation of
section 321J.2(3)(a)(1) must be driven by the section 321J.2(8)(a)
presumption that the alcohol concentration contained in a specimen
withdrawn within two hours after the defendant drove is presumed to be the
concentration at the time of driving. The focus of section 321J.2(8)(a) is
expressly upon the concentration of alcohol in the defendant’s body at the
time of driving because that is the temporal focus of a charge filed under
section 321J.2(1).   Although the legislature could have incorporated a
similar temporal focus as a feature of sentencing in section 321J.2(3)(a)(1),
it did not do so. We conclude the omission signals a legislative intent to
deny a deferred judgment to any defendant whose alcohol concentration
exceeds .15 in a specimen withdrawn pursuant to chapter 321J,
notwithstanding the concentration might have been lower than .15 at the
time the defendant drove a vehicle.
      In spite of the clear statutory language governing this case, Jensen
insists there must be a connection between proof of the elements of the
crime and the availability of sentencing options. He contends sound policy
should preclude the sentencing of a defendant for violation of section
321J.2 based on a determination of his alcohol concentration at a time
other than when he drove. We disagree. The legislature may direct a court
to sentence a defendant based on policy considerations and statutory
criteria that are distinct from the precise elements of the crime of which the
defendant has been convicted. See, e.g., Iowa Code § 321J.2(3)(a)(2)-(3)
(sentencing enhancements for defendants who have previously been
                                      7

convicted of OWI or have previously received a deferred judgment or
sentence for OWI); id. § 901A.2 (sentencing enhancements for defendants
previously convicted of sexually predatory offenses); id. § 902.8 (minimum
sentences for habitual offenders). The legislature has done so in section
321J.2(3)(a)(1) by prescribing that a defendant convicted of violating section
321J.2(1) shall be ineligible for a deferred judgment if the alcohol
concentration in a blood, breath or urine sample withdrawn under chapter
321J exceeds .15, without regard to the fact that the concentration may
have been lower when he drove while under the influence of alcohol or with
an alcohol concentration of .08 or more.
      Chapter 321J makes it illegal to operate a motor vehicle while having
an alcohol concentration in excess of .08 or at such concentration as to
render the operator under the influence of alcohol. Id. § 321J.2(1)(a)-(b).
Section 321J.2(3)(a)(1) evidences the legislature’s policy choice to enhance
deterrence of a particular subset of behavior: driving after drinking a
sufficient quantity of alcohol to produce an alcohol concentration in excess
of .15. The enhanced deterrence takes its form in a limitation on the
district court’s discretion in sentencing defendants who have consumed
enough alcohol before driving to test in excess of .15. This sentencing
parameter is the functional equivalent of a sentencing enhancement distinct
from the elements of the underlying charge. Jensen was convicted of a
violation of section 321J.2(1)(a) for operating while under the influence of
alcohol, and he was ineligible for a deferred judgment because the breath
specimen drawn in connection with the charge evidenced an alcohol
concentration in excess of .15. Accordingly, we sustain the writ, vacate the
sentence and remand for resentencing consistent with this opinion.
      WRIT SUSTAINED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.
