                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2177
                             Filed January 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEFFREY JOHN MYERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      Jeffrey John Myers appeals his conviction for operating while intoxicated,

first offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, Presiding Judge.

       A Charles City police officer stopped a vehicle for having unilluminated

taillights. He observed signs of intoxication in driver Jeffrey John Myers. After

administering field sobriety tests, the officer arrested Myers for operating a motor

vehicle while under the influence. Myers consented to a urine test, which screened

positive for marijuana metabolites and amphetamine.

       The State charged Myers with operating a motor vehicle while intoxicated

(first offense) in violation of Iowa Code section 321J.2(1)(a) and (c) (2016).1 Myers

moved to suppress the evidence on the ground that his taillights were actually

illuminated.   He asserted the stop violated his constitutional rights against

unreasonable searches and seizures. See State v. Pettijohn, 899 N.W.2d 1, 14

(Iowa 2017) (citing the guarantees of the Fourth Amendment to the United States

Constitution and Article I, section 8 of the Iowa Constitution to be secure from

“unreasonable searches and seizures”). Following an evidentiary hearing, the

district court denied the motion.

       Myers stipulated to a bench trial on the minutes of testimony. The district

court found him guilty of “all the elements of operating under the influence, first

offense.” In its judgment and sentence, the court convicted Myers under Iowa

Code section 321J.2(1)(a) and (b), but oral comments during the trial on the

minutes of evidence clarified the conviction was based on section 321J.(1)(a) and

(c).




1
  Although the State did not identify these code provisions, the language in the trial
information tracked the language of these provisions.
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       On appeal, Myers contends (1) the district court should have denied his

motion to suppress evidence gained following the stop and (2) the evidence was

insufficient to establish the presence of a controlled substance in his system.

I.     Suppression Ruling

       “When a peace officer observes a traffic offense, however minor, the officer

has probable cause to stop the driver of the vehicle.” State v. Harrison, 846

N.W.2d 362, 365 (Iowa 2014) (quoting State v. Mitchell, 498 N.W.2d 691, 693

(Iowa 1993)).       The police officer observed Myers driving after dark with

unilluminated taillights.    See Iowa Code § 321.387.2            He approached Myers’

vehicle and “explained he didn’t have any taillights.” According to the officer,

Myers “was like, oh, and then reached down and turned them on.” When the officer

was asked if “they [were] on to begin with and then brightened,” he responded,

“No, they weren’t on.” The officer explained that on some “newer cars,” “you

actually have to adjust [the taillights].”

       A dash camera video corroborated the officer’s observation.                 Although

headlights of the law enforcement vehicle initially obscured the visibility of Myers’

taillights, the taillights noticeably illuminated after the officer informed Myers of the

infraction. The illumination coincided with a movement by Myers to the right. On

our de novo review of this constitutional issue, we agree with the district court that

the officer had probable cause to stop the vehicle. We affirm the court’s denial of

Myers’ suppression motion.




2
  Section 321.387 states: “Every motor vehicle and every vehicle which is being drawn at
the end of a train of vehicles shall be equipped with a lighted rear lamp or lamps, exhibiting
a red light plainly visible from a distance of five hundred feet to the rear.”
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II.     Sufficiency of the Evidence

        As noted, Myers stipulated to a trial on the minutes of evidence. The

minutes included a toxicology report, which stated:

        A positive screen indicates the possible presence of a substance
        and/or metabolites at a level that meets or exceeds the levels
        established by the Iowa Administrative Code 661-157.7 (321J).
               ....
               Report(s) on positive screens to confirm the presence of
        specific drugs or metabolites will follow.

(Emphasis added.) No confirming reports followed.

        Myers argues the evidence was insufficient to support his conviction under

section 321J.2(1)(c). Myers focuses on section (1)(c) alone because, in his view,

the State chose “to marshal an offense only under section 321J.2(1)(c) and this

alternative “controls when evaluating the sufficiency of the evidence.”

        The district court did not view the State’s presentation so narrowly. The

court entered judgment on two alternatives and, at the trial on the minutes, recited

the State’s burden under both section 321J.2(1)(c) and (a). Specifically, the court

said the State would have to prove Myers “had a detectable level of a controlled

substance in [his] blood stream” [321J.2(1)(c)] and the State “could also prove [he

was] under the influence of something” [321J.2(1)(a)]. Cf. State v. Lukins, 846

N.W.2d 902, 912 (Iowa 2014) (reversing a conviction following a bench trial on the

minutes of testimony where the district court’s order was “devoid of fact findings”

and “unclear”). Because the court considered both provisions, we will address

both.
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       Iowa Code section 321J.2(1)(c) states, “A person commits the offense of

operating while intoxicated if the person operates a motor vehicle in this state . . .

[w]hile any amount of a controlled substance is present in the person, as measured

in the person’s blood or urine.” Myers admits he screened positive for marijuana

metabolites and amphetamine in an initial screening test but argues confirmatory

testing was required before the amounts could truly be deemed positive. In his

view, “possible presence [of drugs] does not establish actual presence.”

       Myers’ argument is appealing at first blush. But the Iowa Supreme Court

recently considered a “drug screen detect[ing] a nonimpairing metabolite” and

reaffirmed that the statutory “any amount” language “means any amount greater

than zero.” State v. Childs, 898 N.W.2d 177, 178-79 (Iowa 2017) (quoting State v.

Comried, 693 N.W.2d 773, 778 (Iowa 2005)). The court made no mention of a

confirmatory test, noting only that the defendant “consented to a urine test, which

revealed the presence of sixty-two nanograms per milliliter of a nonimpairing

metabolit of marijuana.” Id. at 179. By all indications, then, the test in Childs was

an initial screening test.

       As in Childs, the amounts detected in Myers’ initial screening results

exceeded the standards adopted by the Iowa Department of Public Safety “for

determining detectable levels of controlled substances in the division of criminal

investigation criminalistics laboratory initial screening.” See Iowa Admin. Code r.

661-157.7; cf. Comried, 693 N.W.2d at 777 (rejecting the defendant’s argument

that a regulation “setting cutoff levels for initial screening tests for drugs in urine

samples” modified the definition of “any” in Iowa Code section 321J.2(1)(c)

because “the [department of public safety], by referring to the federal regulations,
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only intended its regulation’s cutoff levels to apply to initial testing of urine” and,

“[i]n Comried’s case, the test confirming the presence of methamphetamine was

not an initial screening, but a confirmatory test”).       The “positive” urine test

amounted to substantial evidence in support of a finding of guilt under section

321J.2(1)(c). See State v. Lane, 743 N.W.2d 178, 181 (Iowa 2007) (reviewing

sufficiency of the evidence challenge for substantial evidence and stating we are

obligated to view the evidence in the light most favorable to the State).

       We turn to section 321J.2(1)(a). This provision requires proof Myers was

operating a motor vehicle “[w]hile under the influence of an alcoholic beverage or

other drug.” The minutes of evidence disclose circumstantial evidence of a

controlled substance in Myers’ body. The officer who stopped the vehicle opined,

“I got the impression that he was under some type of controlled substance.” He

conveyed his impression to Myers, who acknowledged he had used narcotics in

the past.   The officer documented the following indicators of Myers’ current

substance use: (1) his voice was “very shaky”; (2) he was “sweating profusely”; (3)

his eyes were “watery and bloodshot”; (4) his pupils dilated only slightly when the

flashlight was near his eyes; (5) the rear of his tongue was brownish green; (6) he

performed poorly on field sobriety tests; (7) he was sluggish; (8) he was

uncoordinated; and (9) he was sensitive to light. The cited evidence constitutes

substantial evidence in support of the district court’s finding of guilt under section

321J.2(1)(a).

       We affirm Myers’ conviction for operating while intoxicated, first offense.

       AFFIRMED.
