              IN THE SUPREME COURT OF IOWA
                               No. 09–0512

                            Filed April 15, 2011


STATE OF IOWA,

      Appellant,

vs.

JUSTIN JOSEPH HUTTON,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Carol L.

Coppola, District Associate Judge.



      On further review, defendant asserts the results of his breath test

should have been suppressed.         DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.


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

Attorney General, John P. Sarcone, County Attorney, and Daniel J.

Rothman, Assistant County Attorney, for appellant.



      Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C.,

Des Moines, for appellee.
                                         2

HECHT, Justice.

       After being charged with operating while intoxicated (OWI) in

violation of Iowa Code section 321J.2 (2009), 1 the defendant moved to

suppress the results of his breath test. The district court granted his

motion, concluding the advisory given by a police officer was misleading

and therefore violated section 321J.8, rendered the defendant’s consent

to the test involuntary, and violated the defendant’s substantive due

process rights.     The State was granted discretionary review, and the

court of appeals reversed the district court.            On further review, we

conclude the breath test results should not have been suppressed and

remand for further proceedings.

       I. Background Facts and Proceedings.

       After receiving a report of someone passed out in a Ford Bronco in

a parking lot, Ankeny police officers found Justin Hutton parked at a

Quik Trip shortly after 2:00 a.m. on December 20, 2008.                When they

spoke with Hutton, the officers suspected he was intoxicated.                   He

admitted he had been drinking and failed several field sobriety tests. A

preliminary breath test indicated Hutton’s blood alcohol concentration

was above the legal limit.        He was arrested and taken to the police

station.

       Although Hutton held a commercial driver’s license (CDL), he had

been driving a noncommercial vehicle just prior to his arrest.              At the

station, an officer requested Hutton submit to another breath test and

read Hutton an implied consent advisory. Hutton agreed to take the test,

which indicated his blood alcohol concentration was .205.



       1The   2009 Iowa Code contains enactments of the general assembly that became
effective on or before July 1, 2008.
                                     3

      The State charged Hutton with OWI, first offense, in violation of

Iowa Code section 321J.2. Hutton moved to suppress the results of the

breath test.      The district court granted the motion, concluding the

consent advisory was misleading, violating Hutton’s substantive due

process rights, rendering his consent involuntary, and violating Iowa

Code section 321J.8.

      The State sought discretionary review, arguing the district court

erred in concluding the advisory misstated the law. We granted review

and transferred the case to the court of appeals. The court of appeals

reversed, determining the advisory did not misstate the law, and

remanded for further proceedings. We granted Hutton’s application for

further review.

      II. Scope of Review.

      We review Hutton’s claim that the advisory he was given violated

Iowa Code section 321J.8 for corrections of errors at law. State v. Garcia,

756 N.W.2d 216, 220 (Iowa 2008). His claim that his due process rights

were violated will be reviewed de novo. State v. Massengale, 745 N.W.2d

499, 500 (Iowa 2008).       To assess his claim that his consent was

involuntary, we will “evaluate the totality of the circumstances” and

review the claim de novo. Garcia, 756 N.W.2d at 219.

      III. Discussion.

      Iowa Code chapter 321J “ ‘establishes the basic principle that a

driver impliedly agrees to submit to a test [to determine alcohol

concentration or presence of a controlled substance] in return for the

privilege of using the public highways.’ ” Massengale, 745 N.W.2d at 501

(alteration in original) (quoting State v. Hitchens, 294 N.W.2d 686, 687

(Iowa 1980)); see also Iowa Code § 321J.6(1).       Despite the statutory

presumption of consent, a person may refuse to submit to chemical
                                       4

testing.   See Iowa Code § 321J.9.         However, because there are both

administrative and criminal repercussions for submitting to or refusing a

chemical test, section 321J.8 requires an officer to advise the person of

certain consequences that may result from the decision. Id. § 321J.8.

      In his motion to suppress, Hutton argued the breath test results

should be suppressed because the consent advisory inaccurately

represented the consequences of his decision to submit to the test or not.

Contending the advisory was misleading, Hutton asserted it violated Iowa

Code section 321J.8, caused his consent to be involuntary, and violated

his due process rights. The State’s response at the district court level

and through its application for discretionary review is that the advisory

did not misstate the law and so could not have misled Hutton or violated

his due process or statutory rights.

      A. Interpretation of Section 321.208.           The relevant statutes

have been in flux since 2005.      Prior to 2005, a CDL was subject to

revocation for one year for offenses committed while operating a

commercial vehicle.      Iowa Code § 321.208 (2005) (providing for

revocation of CDL for one year for, among other things, operating a

commercial vehicle while under the influence of alcohol or a controlled

substance, operating a commercial vehicle with an alcohol concentration

of .04 or more, or refusing to submit to chemical testing). At that time,

section 321J.8 required a peace officer to advise a person driving a

commercial vehicle that his or her CDL would be revoked for a year if he

or she refused testing or submitted to the test and the results indicated a

blood alcohol content of .04 or higher. Id. § 321J.8 (2005).

      Effective July 1, 2005, section 321.208 was amended.             The

amendments left unchanged the provision that a CDL would be revoked

for one year if a person operated a commercial vehicle with an alcohol
                                             5

concentration of .04 or higher. Id. § 321.208(1) (2005 Supp.). However,

the amendments provided that a CDL would be revoked for one year if a

CDL holder operated either a commercial or a noncommercial vehicle

“while under the influence of an alcoholic beverage” or “refus[ed] to

submit     to    chemical      testing”    while     operating     a    commercial       or

noncommercial vehicle. Id. § 321.208(2) (2005 Supp.). Section 321J.8,

the statute imposing the advisory requirement, however, was not

amended to reflect the 2005 changes to 321.208 until 2007. Effective

July 1, 2007, section 321J.8 was amended to require an officer to advise

a person driving a noncommercial vehicle that if he or she refuses testing

or “operates a motor vehicle while under the influence of an alcoholic

beverage” his or her CDL will be revoked for a year. Id. § 321J.8(1)(c)(2)

(2007 Supp.).

       In short, when Hutton was arrested in December 2008, section

321J.8 required he be advised that his CDL would be revoked if he

refused the test or if he was found to have operated his vehicle while

under the influence of an alcoholic beverage. However, the advisory read

to him contained the following language:

       If you hold a commercial driver’s license the department will
       disqualify your commercial driving privilege for one year if
       you submit to the test and fail it, you refuse to take the test,
       or you were operating while under the influence of an
       alcoholic beverage or other drug or controlled substance or a
       combination of such substances.

(Emphasis added.)         Although the advisory read to Hutton warned him

that his CDL would be revoked for a year if he consented to the test and

failed it, 2 section 321.208(2) (the revocation statute) did not at that time


       2Both   parties agree that, because Hutton was driving a noncommercial vehicle,
in this case a “failed” breath test refers to a result indicating a blood alcohol content of
.08 or higher.
                                     6

explicitly provide for revocation of a CDL for “failing” a chemical test and

section 321J.8 (the warning statute) did not require the failure language

to be included in the advisory.

      Hutton argues that section 321.208(2)(a) did not authorize CDL

revocation for failing a chemical test while operating a noncommercial

vehicle. Hutton maintains that because Iowa law distinguishes between

operating a vehicle “under the influence” and failing a chemical test, the

plain language of section 321.208(2)(a) only authorized revocation if he

refused the test or “operate[d a vehicle] while under the influence of an

alcoholic beverage.” See Iowa Code section 321J.2 (2009) (setting forth

different alternatives as a basis for a conviction for operating while

intoxicated, including either operating a motor vehicle “[w]hile under the

influence of an alcoholic beverage” or while “having an alcohol

concentration of .08 or more”). Hutton contends that if the legislature

had   intended   to   require   revocation   of   a   CDL   for   operating   a

noncommercial vehicle and testing above the legal limit, it would have

articulated that proposition, just as it did in section 321.208(1)(a)

(providing for disqualification of CDL for one year if a person “operat[es] a

commercial motor vehicle with an alcohol concentration . . . of 0.04 or

more”).   Because the legislature used different terminology and used

terminology that has distinctive legal meaning, Hutton argues it is clear

the legislature intended revocation only when it could be established that

the person operated a motor vehicle while “under the influence.”

      The State contends the advisory did not misstate the law.           The

State maintains that test failure is a ground for CDL disqualification and

that any omission in the statute to refer explicitly to test failure is the

result of “inartful drafting.” The State cites recent amendments to the

relevant code sections which explicitly provide for revocation of a CDL for
                                             7

failing a breath test and asserts these amendments indicate the

legislature sought to clarify its intent. 3             The State also emphasizes

language from our opinion in Massengale, contending we equated

“failing” a breath test with driving under the influence of alcohol.

       Although we may consider former and subsequent versions of a

statute to ascertain the legislature’s intent, we only do so when the

statutory langauge is ambiguous. State v. Guzman-Juarez, 591 N.W.2d

1, 3 (Iowa 1999); see also State v. Spencer, 737 N.W.2d 124, 129 (Iowa

2007). A statute is ambiguous if reasonable minds could disagree as to

its meaning. Spencer, 737 N.W.2d at 129. Ambiguity may arise either

from the meaning of particular words or “ ‘from the general scope and

meaning of a statute when all its provisions are examined.’ ” Id. (quoting

IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001)).

       We do not find the relevant statutory language to be ambiguous in

this case. Iowa law has consistently and clearly distinguished between

driving with a blood alcohol content that exceeds the statutory threshold

and driving while under the influence of alcohol or drugs.                        Section

321J.2 provides different alternatives to establish a conviction for

operating while intoxicated, including either operating a motor vehicle

“while under the influence of an alcoholic beverage” or while “having an

alcohol concentration of .08 or more.”              Iowa Code § 321J.2.          Notably,

section 321.208 also distinguished between driving with a blood alcohol


       3In  2009, the legislature amended both sections 321.208 and 321J.8. Section
321.208 now provides that a CDL holder is disqualified from driving for one year if the
person operates a noncommercial vehicle “while intoxicated, as provided in section
321J.2, subsection 1.” Iowa Code § 321.208(2)(a) (2009 Supp.). Section 321J.8(1)(c)(2)
now provides that a person must be advised that his commercial driving privileges will
be revoked for a year if he drives a noncommercial vehicle and “either refuses to submit
to the test or submits to the test and the results indicate the presence of . . . an alcohol
concentration equal to or in excess of the level prohibited by section 321J.2.” Id.
§ 321J.8(1)(c)(2).
                                           8

concentration above a specified limit and driving under the influence.

Iowa Code §§ 321.208(1)(a) and (2)(a) (providing for CDL revocation for

driving a commercial vehicle with a blood alcohol concentration in excess

of .04 and for driving a noncommercial vehicle while under the

influence).      Our caselaw, as well, has distinguished between the two

alternatives. See State v. Hubka, 480 N.W.2d 867, 872 (Iowa 1992) (“[A]

person may be convicted of OWI if she operates a motor vehicle either

while ‘under the influence’ of alcohol or while having a blood alcohol

content of .10 or more.” (Emphasis omitted.)). We have long recognized

that the determination of whether a person is under the influence of an

alcoholic beverage is focused on the conduct and demeanor of the

person, not a numerical test result. See State v. Truesdell, 679 N.W.2d

611, 616 (Iowa 2004) (“[A] person is ‘under the influence’ when the

consumption of alcohol affects the person’s reasoning or mental ability,

impairs a person’s judgment, visibly excites a person’s emotions, or

causes a person to lose control of bodily actions.”). We presume, unless

clear evidence to the contrary is shown, that the legislature knows the

existing state of the law. State v. Freeman, 705 N.W.2d 286, 291 (Iowa

2005).

       Accordingly, we conclude the version of section 321.208 in effect at

the time of Hutton’s arrest did not provide for a one-year CDL

suspension for “failing” a breath test. 4 This conclusion, however, does

not end the analysis.

       B. Did the Advisory Violate Iowa Code Section 321J.8?                      As

described above, section 321J.8(1)(c)(2) required a CDL holder driving a

noncommercial vehicle to be advised that his or her CDL would be

       4To    the extent any language in Massengale contradicts our holding today, we
disavow it.
                                      9

revoked for one year if he or she refused to submit to a chemical test or

operated a motor vehicle while under the influence of an alcoholic

beverage. See Iowa Code § 321J.8(1)(c)(2). There is no dispute that the

advisory read to Hutton contained these required elements.          However,

Hutton’s advisory included additional language warning him, incorrectly,

that his CDL would be revoked for a year if he submitted to the test and

failed it.

       Section 321J.8(1)(c) does not require the warnings to be conveyed

in any particular language and does not explicitly prohibit an officer from

conveying more information than is required. When assessing a claim

that an advisory did not comply with section 321J.8, we consider

whether      “the   statutory   purpose     was   accomplished”   under   the

circumstances.      Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 212

(Iowa 2001). The purpose of section 321J.8’s advisory requirement “ ‘is

to provide a person who has been required to submit [to] a chemical test

a basis for evaluation and decision-making in regard to either submitting

or not submitting to the test.’ ”     Id.    Under these circumstances, we

conclude the purpose of the statute was accomplished when Hutton was

advised, as required by section 321J.8(1)(c), that he would have his CDL

revoked for a year if he refused the test or was operating under the

influence.

       Under the circumstances presented here, we conclude the

inclusion of the additional and inaccurate warning that Hutton’s CDL

would be revoked if he took and failed the test did not preclude

achievement of the statutory purpose.         Hutton does not contend the

inclusion of this additional warning rendered the advisory confusing or

obscured the meaning of the accurate warnings. Hutton, despite being

warned that the range of grounds for sanctions was greater than it really
                                         10

was, consented to the test.           Accordingly, the circumstances do not

support an argument that the excess verbiage in the advisory induced

Hutton to consent to the test. Just as in Voss, “there is no evidence in

the record that [Hutton] was confused about the consequences of his

decision.”    Id.     Under these circumstances, we conclude section

321J.8(1)(c)(2) was not violated by the advisory in this case.

      C. Did the Advisory Violate Hutton’s Due Process Rights?

Hutton contends our decision in Massengale requires suppression of his

breath test results because his substantive due process rights were

violated when he received the misleading and inaccurate advisory.

      Massengale, like Hutton, held a CDL but was arrested for driving a

noncommercial vehicle while intoxicated.          Massengale, 745 N.W.2d at

500–01. He was read an implied consent advisory that failed to inform

him that his decision to submit to the test would have any consequences

on his commercial license. Id. at 502. We determined that, although it

satisfied the requirements of section 321J.8, the advisory was misleading

in its disclosure of the revocation consequences to his commercial

driving privileges.   Id. at 503. 5    Applying a rational basis analysis, we

considered    whether     there    was    a   “reasonable    fit”   between    the
government’s purpose (to give arrested individuals information to make a

reasoned and informed decision) and the means chosen to advance that

purpose (an advisory that omitted key information). Id. at 503–04. We

concluded there was no “reasonable fit” and accordingly Massengale’s

due process rights had been violated. Id. at 505.



       5We concluded because Massengale had not been told anything with regard to

the consequences on his CDL that he would have likely been led to believe the
consequences to his CDL were the same as the those to his regular driver’s license,
when in fact they were different. Massengale, 745 N.W.2d at 503–04.
                                    11

      Hutton asserts the advisory read to him is analagous to the

misleading advisory in Massengale because it contained incorrect

information and thus did not reasonably further the government’s

purpose of providing him the information necessary to make a reasoned

and informed decision. We do not agree. While it is optimal to include

only perfectly accurate information in the advisory, the excess verbiage in

the advisory read to Hutton clearly did not induce him to take the test

because it overwarned him of the consequences of consenting to the

breath test and providing the state with incriminating evidence against

him on an OWI charge. Under these circumstances, we conclude there

was a reasonable fit between the government’s purpose and the means

chosen by the State to advise Hutton of the consequences of his decision.

      Further, we do not think our decision in Massengale stands for the

proposition that any flaw in an implied consent advisory constitutes a

due process violation. The advisory read to Massengale omitted any and

all information about the consequences of his decision on his CDL. We

noted that “[w]e cannot be confident Massengale’s decision to submit to

testing was unaffected by the State’s misleading and inadequate

advisory.”   Id. at 504.    In contrast, the advisory read to Hutton

communicated the information required by section 321J.8 and needed by

Hutton to make his decision, and we are confident that his decision to

submit to testing was unaffected by the incorrect additional information

included in the advisory. We cannot ignore the fact that Hutton, despite

being inaccurately advised that mere failure of the test would result in

the revocation of his CDL, nonetheless submitted to the test. Applying

the “reasonable fit” analysis, we conclude the means utilized by the

government, an advisory that overstated the range of grounds for CDL

revocation for an individual electing to consent to chemical testing but
                                    12

correctly stated the sanction for refusal to submit to testing, adequately

advanced the purpose of “giving arrested individuals information to make

‘a reasoned and informed decision.’ ” Id. (quoting State v. Bernhard, 657

N.W.2d 469, 473 (Iowa 2003)).

      D. Did the Incorrect Advisory Render Hutton’s Consent

Involuntary? Hutton also claims that because the advisory misstated

the law, it rendered his consent involuntary. To review Hutton’s claim,

“we evaluate the totality of the circumstances to determine whether or

not the decision was made voluntarily.”      Garcia, 756 N.W.2d at 219.

“[T]o be valid, [the driver’s consent to testing] must be voluntary and

uncoerced.” State v. Gravenish, 511 N.W.2d 379, 381 (Iowa 1994); see

also Bernhard, 657 N.W.2d at 473 (“The ultimate question is whether the

decision to comply with a valid request under the implied-consent law is

a reasoned and informed decision.”).

      As we have discussed above in the context of Hutton’s other

claims, we are confident Hutton was not induced to consent to the test

by the inclusion of the incorrect excess verbiage in the advisory.     The

excess verbiage should have discouraged Hutton from submitting to the

test as he did.   Accordingly, we find no grounds to conclude Hutton’s

consent was coerced or uninformed. “[N]ot every inaccurate depiction by

law enforcement officers that might bear on a subject’s election to submit

to chemical testing is a basis for suppressing the test results.” Berhnard,

657 N.W.2d at 473. This is especially true under these circumstances.

      IV. Conclusion.

      We conclude section 321.208(2)(a) (2009) did not authorize CDL

revocation for “failing” a chemical test while operating a noncommercial

vehicle and the advisory read to Hutton overstated the range of grounds
                                  13

for revocation of his CDL. However, we also conclude that despite the

inclusion of incorrect information, the advisory read to Hutton did not

violate section 321J.8, did not violate Hutton’s due process rights, and

did not render his consent involuntary.      Accordingly, the results of

Hutton’s breath test should not have been suppressed, and we vacate the

decision of the court of appeals, reverse the judgment of the district

court, and remand for further proceedings.

     COURT OF APPEALS DECISION VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.

     All justices concur except Waterman, Mansfield, and Zager, JJ.,

who take no part.
