                IN THE SUPREME COURT OF IOWA
                              No. 08–0513

                         Filed January 20, 2012


STATE OF IOWA,

      Appellee,

vs.

JONATHAN Q. ADAMS,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Eliza J.

Ovrom, Judge.



      On further review, defendant asserts he was denied effective

assistance of counsel in his trial for homicide by vehicle. DECISION OF

COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT

AFFIRMED IN PART AND VACATED IN PART AND REMANDED FOR
RESENTENCING.


      Alfredo G. Parrish and Andrew J. Dunn of Parrish Kruidenier
Dunn Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines, for
appellant.


      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Karen Doland (until withdrawal), Assistant Attorney
General, John P. Sarcone, County Attorney, and James P. Ward,
Assistant County Attorney, for appellee.
                                     2

HECHT, Justice.

      After his vehicle collided with and killed a bicyclist, the defendant

was convicted of homicide by vehicle, operating while intoxicated, and

leaving the scene of an accident. He appealed on several grounds, and

the court of appeals concluded his convictions were supported by

sufficient evidence but remanded for a sentencing correction.          We

granted further review to determine whether the State must prove in a

prosecution under Iowa Code section 707.6A(1) (2007) that the

defendant’s intoxication was a proximate cause of the victim’s death and,

if so, whether the defendant’s trial counsel was ineffective for failing to

raise the issue below. We conclude the State must prove the defendant’s

intoxicated driving caused the victim’s death to sustain a conviction for

homicide by vehicle.    As we conclude the record is not adequate to

determine whether defendant’s trial counsel was ineffective in failing to

raise the causation issue, we affirm the conviction.

      I. Background Facts and Proceedings.

      A reasonable fact finder could find the following facts from the

testimony at trial.    On the evening of December 8, 2006, Jonathan

Adams attended a party at a friend’s house in Des Moines. By his own

admission, he consumed between three and five beers over a five-hour

period and may have drunk twice that much. At about 10:45 p.m., he

and an acquaintance, Sean Erickson, left the party in Adams’ car with

Adams driving. The right headlight on Adams’ car was not functioning.

As they traveled westbound on Park Avenue, Adams’ car struck Tina

Marie Brown, who was bicycling in the right hand lane, also heading

west. Brown was propelled onto the hood of the car, and her head struck

the windshield, shattering the passenger side.     Her body came to rest
                                         3

eighty-six feet from the initial site of impact.          Brown died from her

injuries.

       Adams and Erickson were the only witnesses to the accident.

Adams testified he was looking down at his radio when the impact

occurred, and therefore he did not know what he had hit. Erickson also

could not tell what they had hit. He initially thought it was a trash can,

and then later told Adams he thought it might have been a bicycle.

Adams did not stop to investigate but instead continued driving home.

The next day, after hearing news reports about a hit and run causing

Brown’s death, he purchased a tarp and covered his car. After several

days, he turned himself in.

       In January, Adams was charged with murder by vehicle, operating

while intoxicated, and leaving the scene of an accident. At trial, although

he admitted drinking several beers on the night in question, he denied

being intoxicated. Several witnesses who had been with Adams at the

party testified specifically about whether Adams appeared to be under

the influence of alcohol. Five of these witnesses testified that Adams did

not appear to be under the influence of alcohol, but the sixth, who had

been smoking marijuana throughout the evening, testified to the

contrary. The investigating officers conceded on cross-examination that

the evidence gathered from the accident scene did not tend to establish

Adams was driving recklessly or at an excessive rate of speed at the time

of the accident.

       Adams was convicted on all three counts. He appealed, and the

court of appeals concluded his convictions were supported by sufficient

evidence but remanded the case for resentencing. 1                Adams sought

       1On  appeal, the parties agreed the trial court erred by entering judgment on
both the homicide by vehicle and the OWI charges. Accordingly, the court of appeals
vacated the OWI judgment and remanded for resentencing.
                                            4

further review, which we granted for the determination of whether, in a

prosecution for a violation of section 707.6A, the State must prove the

defendant’s intoxication was a proximate cause of the victim’s death and

whether Adams’ trial counsel was ineffective for failing to challenge the

sufficiency of the evidence establishing a causal connection between

Adams’ intoxication and Brown’s death. 2

       II. Scope of Review.

       Our review of the interpretation of statutes is for correction of

errors at law. State v. Sluyter, 763 N.W.2d 575, 579 (Iowa 2009). We

review constitutional claims, however, de novo.                 Collins v. State, 588

N.W.2d 399, 401 (Iowa 1998).

       III. Discussion.

       A. The State’s Burden to Prove Causation Under Section

707.6A(1). Iowa Code section 707.6A provides:
             1. A person commits a class “B” felony when the
       person unintentionally causes the death of another by
       operating a motor vehicle while intoxicated, as prohibited by
       section 321J.2. 3 . . .

               ....

              2. A person commits a class “C” felony when the
       person unintentionally causes the death of another by any of
       the following means:

              a. Driving a motor vehicle in a reckless manner with
       willful or wanton disregard for the safety of persons or
       property, in violation of section 321.277.

       2Because  the causation issue relates only to Adams’ conviction for murder by
vehicle, the court of appeals’ resolution of Adams’ claim of insufficient evidence to
support his conviction for driving while intoxicated will stand as a final judgment in this
case.
       3Iowa  Code section 321J.2 defines the offense of “operating while intoxicated” as
“operat[ing] a motor vehicle . . . [w]hile under the influence of an alcoholic beverage or
other drug,” “[w]hile having an alcohol concentration of .08 or more,” or “[w]hile any
amount of a controlled substance is present in the person’s blood or urine.” Iowa Code
§ 321J.2(1).
                                     5

             b. Eluding or attempting to elude a pursuing law
      enforcement vehicle, in violation of section 321.279, if the
      death of the other person directly or indirectly results from
      the violation.

            3. A person commits a class “D” felony when the
      person unintentionally causes the death of another while
      drag racing, in violation of section 321.278.

            4. A person commits a class “D” felony when the
      person unintentionally causes a serious injury, as defined in
      section 321J.1, by any of the means described in subsection
      1 or 2.

Iowa Code § 707.6A.

      Adams contends the word “by” in section 707.6A(1) expresses a

legislative intent that a conviction may be had under the statute only

upon proof that the defendant’s intoxication was the proximate cause of

another’s death.   Adams posits that a comparison of the language of

subsection (1) with subsection (3) demonstrates an intent to treat

operating while intoxicated and drag racing differently.   Subsection (1)
addresses the unintentional death of another “by operating a motor

vehicle while intoxicated,” but subsection (3) addresses unintentionally

causing the death of another “while drag racing.” Id. (emphasis added).

This difference, according to Adams, demonstrates the legislature knew

how to distinguish between language of causation (“by”) and language

indicating a temporal relationship (“while”).

      The State, however, asserts the plain language of subsection (1)

demonstrates the legislature did not intend to require a causal

connection between the defendant’s intoxication and the victim’s death.

Rather, the State contends the causal language “by” only applies to

“operating a motor vehicle.”    Thus the death must be caused by the

defendant’s operation of a motor vehicle, and the defendant must be

operating a motor vehicle while he is intoxicated, but the State need not
                                      6

prove the victim’s death was caused by the defendant’s intoxication to

sustain a conviction under the interpretation favored by the State. The

State further contends a comparison of the language in the different

subsections does not support Adams’ interpretation because the

operative word in both subsection (1) and subsection (3) is “while.”

      Because we think there is more than one plausible interpretation

of the statute, we must look beyond the plain language of the statute to

resolve the ambiguity.    See State v. Wiederien, 709 N.W.2d 538, 541

(Iowa 2006). Our goal is to “ascertain and effectuate the true legislative

intent.”    State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000).             We

examine the language of the statute, its underlying purpose and policies,

and the consequences stemming from different interpretations. Id. In

doing so, we must construe the statute in its entirety. Id. “If more than

one statute relating to the subject matter at issue is relevant to the

inquiry, we consider all the statutes together in an effort to harmonize

them.” Id.

      In determining the intent of the legislature, we will not construe

the language of a statute to produce an absurd or impractical result. Id.

“We presume the legislature intends a reasonable result when it enacts a

statute.” Id. Additionally, “ ‘we strictly construe criminal statutes’ and

resolve doubts in favor of the accused.” State v. McCullah, 787 N.W.2d

90, 94 (Iowa 2010) (citation omitted).

      Prior to the enactment of section 707.6A explicitly addressing

homicide by vehicle, vehicular homicide cases were prosecuted under a

manslaughter statute according to common law principles. See State v.

Rullestad, 259 Iowa 209, 212, 143 N.W.2d 278, 280 (1966); State v.

Kellison, 233 Iowa 1274, 1277, 11 N.W.2d 371, 373 (1943). Kellison and

Rullestad    both   addressed   the   evidence   required   to   establish    a
                                           7

manslaughter       conviction      when     the    defendant      was     accused     of

unintentionally killing another person by driving while intoxicated.                  In

Kellison, the defendant was charged with and tried for manslaughter “by

operating an automobile while intoxicated” when he struck and killed a

pedestrian with his car while he was “badly intoxicated.” 233 Iowa at

1275, 11 N.W.2d at 372. At the close of the State’s evidence, he moved

for a directed verdict, arguing the evidence did not show he drove

recklessly or with wanton abandon other than that he drove while

intoxicated. Id. at 1276, 11 N.W.2d at 372. The district court granted

his motion, and the State appealed. Id. Reversing the district court’s

ruling, we held a conviction for “death of another caused by drunken

driving” could be sustained without proof that the defendant drove

recklessly. Id. at 1278, 11 N.W.2d at 373. 4

       Although Kellison did not explicitly contend the district court’s

directed verdict should be upheld because the State had not proven his

“drunken driving” was the cause of the victim’s death, we considered

whether the evidence was sufficient to establish such a causal

connection. Id. at 1279, 11 N.W.2d at 374. We determined we were “not

justified in holding as a matter of law that there was no direct causal
connection between defendant’s drunken driving and [the victim’s]

death.” Id.

       Twenty years later, in Rullestad, the defendant did make the

argument not explicitly raised by Kellison, and we concluded the State


       4Kellison was tried under Iowa Code section 12919 (1939) which provided: “Any
person guilty of the crime of manslaughter shall be imprisoned in the penitentiary not
exceeding eight years, and fined not exceeding one thousand dollars.” The court
concluded the statute did not change the common law definition of involuntary
manslaughter which included “the unintentional killing of a human being by another in
the doing of an unlawful act not amounting to a felony or in the doing of a lawful act in
an unlawful manner.” Kellison, 233 Iowa at 1277, 11 N.W.2d at 373.
                                     8

must “show a direct causal connection between defendant’s drunken

driving and the death.” 259 Iowa at 212, 143 N.W.2d at 280. Such was

the state of the law when section 707.6A was enacted in 1986 and

codified in 1987. In construing statutes, we assume the legislature is

familiar with the existing state of the law when it enacts new legislation.

Hines v. Ill. Cent. Gulf R.R., 330 N.W.2d 284, 289 (Iowa 1983). Further,

“[a] statute will not be presumed to overturn long-established legal

principles, unless that intention is clearly expressed or the implication to

that effect is inescapable.”   Id. (citation and internal quotation marks

omitted).

      When section 707.6A was first codified in 1987 it provided, in

relevant part:
             1. A person commits a class “D” felony when the
      person unintentionally causes the death of another by either
      of the following means:

             a. Operating a motor vehicle while under the influence
      of alcohol or a drug or a combination of such substances or
      while having an alcohol concentration of .10 or more, in
      violation of section 321J.2.

             b. Driving a motor vehicle in a reckless manner with
      willful or wanton disregard for the safety of persons or
      property, in violation of section 321.277.

Iowa Code § 707.6A (1987).

      The statutory framework clearly tracked the holding in Kellison—

“[i]nvoluntary manslaughter may be committed where death results from

drunken driving or from wanton and reckless operaton of a vehicle.” 233

Iowa at 1277, 11 N.W.2d at 373. Subsection (1) provided that a person

commits a class “D” felony when he unintentionally causes the death of

another by either driving while intoxicated or driving recklessly.

However, the statute included no clear expression of the legislature’s

intent as to whether the State must prove a direct causal connection
                                        9

between the defendant’s intoxicated driving and the victim’s death to

support a conviction. In such instances of ambiguity, we rely upon the

rule of construction that presumes the legislature did not intend to

overturn long-established legal principles in the absence of a clear

expression of an intent to do so. Hines, 330 N.W.2d at 289.

      As the legislature has amended section 707.6A over the years, it

has increased the penalty for causing a death by intoxicated driving, but

the language relevant to the question of causation has not been altered.5

We find no indication in the subsequent revisions of the statute of a

legislative intent to eliminate the common law requirement that the State

must prove a causal connection between the defendant’s intoxicated

driving and the victim’s death.

      The State contends that the purpose underlying the statutes (both

sections 707.6A and 321J.2) supports a conclusion that the legislature

intended to deter drunk driving by imposing a severe sanction on anyone

who causes a death while driving under the influence of alcohol or drugs,

whether the death is caused by the driver’s intoxicated driving or not.

The legislature certainly has a strong interest in deterring driving while

intoxicated. However, driving while intoxicated has been prohibited by

statute in this state since 1937. Importantly, it was prohibited at the

time Rullestad was decided which held that proof of a causal connection

between the defendant’s intoxicated driving and the victim’s death was

required in a manslaughter prosecution. While it may be conceivable the

legislature determined the hazards to the public of drunk driving was

such that it justified punishing a person for homicide by vehicle without



      5The  relevant portion of the statute was amended in 1990 and 1997. See 1990
Iowa Acts ch. 1251, § 55; 1998 Iowa Acts ch. 177, §§ 26–28.
                                          10

requiring a causal connection between the intoxicated driving and the

death, the legislature did not express this intent. 6

       The State also urges us to interpret the statute as providing a

rebuttable presumption that the defendant’s intoxication was a cause of

the victim’s death because drunk driving is such an inherently

dangerous activity. This approach, the State urges, would still allow a

defendant to assert a defense based on an intervening or superseding

cause of the accident. While this may indeed be a reasonable construct,

it was not articulated by the legislature in section 707.6A(1), and it is not

the court’s role to reconfigure the statute.

       We conclude it is the State’s burden under section 707.6A(1) to

prove a causal connection between the defendant’s intoxicated driving

and the victim’s death. Although the statute does not impose a burden

on the State to prove a specific causal connection between the

defendant’s intoxication and the victim’s death, it does require proof of a

factual causal connection between a specific criminal act—“intoxicated

driving”—and the victim’s death. Put another way, the statute demands

more than mere proof that the defendant’s driving caused the death of

another person. A defendant may be found guilty of homicide by vehicle

only if the jury finds beyond a reasonable doubt that his criminal act of

driving under the influence of alcohol caused the victim’s death.




       6In State v. Comried, this court affirmed a conviction under section 707.6A(1)(c)
upon evidence the defendant operated a motor vehicle while having an amount of a
controlled substance in his body and caused a death. 693 N.W.2d 773, 778 (Iowa
2005). It should be noted that the issue of whether the State must, to sustain a
conviction under section 707.6A(1), prove a causal connection between the defendant’s
intoxicated driving and the resulting death was not raised in that case and was
therefore not decided by this court. Accordingly, Comried does not stand for the
proposition that a conviction under the statute may be sustained without proof of a
causal connection between the defendant’s intoxicated driving and a death. Any
language suggesting a contrary conclusion is dicta.
                                    11

      Because the nature of the State’s burden to prove causation is of

central importance to our analysis in this case, we shall briefly address

this court’s relevant precedents addressing the subject. We have noted

that both factual and legal, or proximate, cause may come into play in

criminal cases just as in civil tort cases. State v. Marti, 290 N.W.2d 570,

584–85 (Iowa 1980). Suggesting “proximate cause” concepts were much

the same in civil and criminal cases, we concluded instructions defining

proximate cause in civil trials may be appropriate for use in criminal

trials. Id. at 584. We continued the analogy between civil and criminal

cases for purposes of the separate factual and legal aspects of causation

by observing that proximate cause is established in a criminal case if the

defendant’s conduct “is a ‘substantial factor’ in bringing about the harm

and . . . there is no other rule of law relieving the defendant of liability

because of the manner in which her conduct resulted in the harm.”

State v. Hubka, 480 N.W.2d 867, 869 (Iowa 1992). Recently, in a case in

which a defendant asserted the act of a third party intervened and

relieved him of criminal responsibility, we stated:

      “[I]n the context of a homicide case, [a] ‘proximate cause’ is a
      cause which, in a natural and continuous sequence and
      unbroken by any new and independent cause, produces the
      injury, without which the injury would not have occurred
      and from which a person of ordinary prudence could have
      reasonably foreseen that such a result, or a similar injurious
      result, was probable under the facts as they existed.”

State v. Dalton, 674 N.W.2d 111, 118 (Iowa 2004) (citation omitted).

      However, in our most recent discussion of causation principles in a

criminal case, we clarified that when “causation does surface as an issue

in a criminal case, our law normally requires us to consider if the

criminal act was a factual cause of the harm.”        State v. Tribble, 790

N.W.2d 121, 126–27 (Iowa 2010). Except where multiple acts contribute
                                          12

to cause a consequence, the determination of factual causation turns

simply on whether “ ‘the harm would not have occurred absent the

[defendant’s] conduct.’ ” Id. at 127 (quoting Restatement (Third) of Torts:

Liability for Physical and Emotional Harm § 26, at 346 (2010)). 7

       Our review of this case leads us to conclude that this is just such a

“normal” case in which “our law . . . requires us to consider if the

criminal act was a factual cause of the harm.” Id. at 126–27. As our

decision in this case makes clear, the causation question in a

prosecution under Iowa Code section 707.6A(1) asks whether the victim’s

death would have occurred in the absence of the defendant’s criminal

act—intoxicated driving.

       B. Ineffective Assistance of Counsel. The State contends error

has not been preserved on the issue of whether in a prosecution for

homicide by vehicle under section 707.6A(1) the State must establish the

defendant’s intoxicated driving was the cause of the victim’s death.

Adams concedes the issue was not raised before the district court, but he

argues his trial counsel was ineffective for failing to request a jury

instruction on causation and properly raise the State’s proof of

causation.

       If the defendant has reasonable grounds to believe the record is

adequate for the court to address the issue, the defendant may raise a


         7As we understand his argument, Adams contends his trial counsel was

ineffective in failing to challenge the State’s proof of a causal (factual) connection
between his criminal act and the victim’s death, and in failing to challenge the district
court’s jury instruction addressing the State’s burden of proof of factual causation. We
therefore do not address today whether the “legal cause” aspect of the former proximate
cause doctrine has any continuing viability in criminal cases after our decision in
Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009) (adopting the Restatement
(Third) of Torts formulation of causation for civil cases and substituting the “scope of
liability” inquiry for the former concepts of “proximate cause” and “legal cause”); see
also State v. Hubka, 480 N.W.2d 867, 869 (Iowa 1992) (concluding the contributory
negligence of a homicide victim will not constitute a legal cause allowing a defendant to
escape criminal responsibility for homicide).
                                    13

claim of ineffective assistance of counsel on direct appeal.     Iowa Code

§ 814.7(2) (2007). If we determine the record is adequate, we may resolve

the claim. Id. § 814.7(3). If we conclude the record is insufficient for

appellate review, we may preserve it for postconviction proceedings. Id.

The elements of a claim of ineffective assistance of counsel are well-

established.    To prevail on his claim, Adams must prove by a

preponderance of the evidence that “(1) his trial counsel failed to perform

an essential duty, and (2) this failure resulted in prejudice.”        State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006); see also Strickland v.

Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d

674, 693 (1984).    To meet the first prong, “ ‘counsel’s performance is

measured against the standard of a reasonably competent practitioner

with the presumption that the attorney performed his duties in a

competent manner.’ ” Dalton, 674 N.W.2d at 119 (citation omitted). To

satisfy the prejudice prong, Adams must show “ ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the results of

the proceeding would have been different.’ ” Id. (citation omitted).

      This court has previously held that to sustain a conviction for

“manslaughter by drunken driving” it is necessary to show a direct

causal connection between defendant’s drunken driving and a decedent’s

death. Rullestad, 259 Iowa at 212, 143 N.W.2d at 280; see also State v.

Wullner, 401 N.W.2d 214, 219 (Iowa Ct. App. 1986) (“In order to sustain

an involuntary manslaughter conviction based upon the public offense of

drunk driving, it is necessary to show a direct causal connection between

the drunk driving and the death.”). More recently, the court of appeals

has concluded proof of such a causal connection is required for a

conviction under section 707.6A(1)(a).      See State v. Wieskamp, 490

N.W.2d 566, 567 (Iowa Ct. App. 1992) (“[A] sober driver driving with
                                          14

reasonable care would have struck the victim . . . .                         Therefore

Wieskamp’s intoxicated driving was not a substantial factor in causing

the victim’s death.      We dismiss the vehicular homicide charge. . . .”).

However, Adams’ trial counsel failed to challenge the State’s proof of a

causal connection between Adams’ criminal act of intoxicated driving and

Brown’s death. 8

       We conclude the record is inadequate, however, to permit us to

resolve Adams’ ineffective assistance of counsel claim on direct appeal.

First, we note the defense interposed by Adams’ counsel in the district

court was based solely on the proposition that the State failed to prove

Adams was operating a vehicle while under the influence of alcohol at the

time of the crash. A defense challenging the State’s proof of a causal

connection between Adams’ alleged intoxicated driving and Brown’s

death was not presented at trial. 9 Trial counsel has not been permitted



       8Instructionnumber 22, the marshalling instruction for the homicide by vehicle
charge against Adams, allocated to the State the burden to prove:
       1. On or about the 18th day of December 2006, the Defendant operated
          a motor vehicle while under the influence of alcohol.
       2. The Defendant’s actions unintentionally caused the death of Tina
          Marie Brown.
The language utilized by the district court in this instruction for the second element of
the charge did not conform to the Iowa State Bar Association’s Criminal Jury
Instruction number 710.1 which would expressly require proof that the defendant’s act
or acts set out in element 1 (the criminal act of intoxicated driving) caused a death. As
our opinion in this case makes clear, proof of a causal connection between the criminal
act and the death is required in prosecutions under section 707.6A(1). Accordingly, we
urge district courts to use the uniform instruction in cases of this type.
        9Although we conclude we are unable on direct appeal to decide as a matter of

law whether Adams’ trial counsel breached a duty in failing to raise the causation issue,
we note the record does tend to prove Brown was wearing dark clothing while bicycling
on a highly traveled city street late at night in December at the time of the crash. The
right headlight of Adams’ car was not functioning. Under these circumstances, we
think a rational fact finder could have found Adams’ alleged intoxicated driving was not
the factual cause of Brown’s death because a driver who had not ingested alcohol before
the crash would have struck the victim under the circumstances.
                                    15

an opportunity to explain whether a causation defense was considered,

and if it was considered, whether there were plausible strategic reasons

for not pursuing it.

      We therefore affirm Adams’ conviction for murder by vehicle and

leave his claim of ineffective assistance of counsel for possible

postconviction proceedings.

      IV. Conclusion.

      We affirm Adams’ conviction for homicide by vehicle and affirm the

court of appeals’ resolution of Adams’ claim of insufficient evidence to

support his conviction for driving while intoxicated. We also affirm the

court of appeals resolution of Adams’ sentencing challenge and vacate

the OWI judgment, and remand to the district court for resentencing.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART AND VACATED IN PART

AND REMANDED FOR RESENTENCING.

      All justices concur except Waterman, J., who concurs specially and

Mansfield, J., who takes no part.
                                           16
                                                #10:152/08–0513, State v. Adams


WATERMAN, Justice (concurring specially).

       I specially concur.          I join the majority in affirming Adams’

conviction for vehicular homicide and in rejecting Adams’ claim the State

must separately prove the driver’s intoxication (as opposed to driving

while intoxicated) caused the death for a conviction under Iowa Code

section 707.6A(1) (2007). I also agree with the majority’s conclusion that

the Iowa State Bar Association (ISBA) Criminal Jury Instruction 710.1

correctly states the law and should be given in vehicular homicide

(intoxication) cases of this type. I write separately to elaborate on my

reasons.

       The text of the statute does not require a separate finding Adams’

intoxication caused the death.           Our task is to interpret the statute as

written:

       A person commits a class “B” felony when the person
       unintentionally causes the death of another by operating a
       motor vehicle while intoxicated, as prohibited by section
       321J.2.

Iowa Code § 707.6A(1). The fighting issue is framed by a decision of the

Indiana Supreme Court construing equivalent statutory language 10 to

hold causation is proven by showing “the driver ran into the victim.”

Micinski v. State, 487 N.E.2d 150, 154 (Ind. 1986). The court reasoned,

“We find nothing in the statute to indicate the General Assembly

intended to require that the State prove a causal link between the

driver’s intoxication and the fact the injury resulted from his driving.” Id.

       10Ind.   Code § 9–4–1–54(b)(2) (1982) (“A person who operates a vehicle while
intoxicated commits a Class A misdemeanor. However, the offense is a Class C felony if
it results in the death of another person and is a Class D felony if the offense results in
serious bodily injury (as defined by IC 35–41–1–2), other than death, to another
person.”).
                                          17

The Micinski court rejected the argument that the jury should be asked,

“ ‘Is it the driver’s intoxication that caused him to hit the victim?’ ” Id.

The court concluded that this was not what the legislature intended.

Rather, the focus should be “on the driver’s acts and not on speculation

about whether he could have stopped if he had been sober. If the driver’s

conduct caused the injury, he commits the crime.”                      Id.   As I explain

below, application of our own rules of statutory interpretation leads to

the same conclusion here.

      The    ISBA     criminal     jury   instruction       on    vehicular       homicide

(intoxication) correctly applies the statutory elements of the offense.11

The majority faults the district court for rephrasing the second element

to replace “defendant’s act or acts set out in Element 1” with simply,

“defendant’s actions” in the instruction given at trial. I think it is clear in

context that the actions referenced in the instruction given were Adams’

operation of his vehicle while intoxicated. The revision was immaterial,

and the instruction given was not erroneous.

      11ISBA   Criminal Jury Instruction No. 710.1 provides:
             710.1 Homicide By Vehicle (Intoxication) - Elements. The
      State must prove both of the following elements of Homicide By Vehicle:
             1. On or about the ______ day of ___________, 20___, the
      defendant:
             a. operated a motor vehicle while under the influence of alcohol
      or a drug or a combination of such substances; or
            b. operated a motor vehicle            while    having      an   alcohol
      concentration of [.08] or more, or
            c. operated a motor vehicle while any amount of a controlled
      substance was present, as measured in the defendant’s blood or urine.
             2. The defendant’s act or acts           set   out   in    Element    1
      unintentionally caused the death of (victim).
              If the State has proved both of the elements, the defendant is
      guilty of Homicide by Vehicle. If the State has failed to prove either of the
      elements, the defendant is not guilty of Homicide by Vehicle (and you will
      then consider the charge of _______________________ as explained in
      Instruction No._____).
                                     18

      The legislature chose to impose greater criminal penalties on

people who cause fatal accidents while driving drunk, based on the

common knowledge that alcohol impairs judgment, motor skills,

perception, and reaction times.    It is safe to assume that alcohol is a

contributing factor in most accidents involving drunk drivers, which is

why the legislature’s policy choice makes sense.       But, the legislature

stopped short of requiring the jury to separately find the intoxication

itself caused the accident. Adams’ trial counsel therefore lacked a valid

objection to the instruction.

      To provide context to explain why the jury was properly instructed,

it is worth reviewing the facts supporting the jury verdict.

      A. Facts Supporting the Jury Verdict. Tragedy results when a

drunk driver and bicyclist meet on the road. The accident occurred

shortly before 11 p.m., Friday, December 8, 2006, after an evening that

Adams spent with his friend, Sean Erickson, drinking at a bring-your-

own beer party in Des Moines. Adams drove because Erickson’s license

was suspended from a prior drunk-driving conviction. They bought beer

at a local gas station; Adams picked up a twelve-pack of Budweiser cans

and Erickson purchased a twenty-pack of Budweiser bottles.            They

arrived at the party between 5:30 p.m. and 5:45 p.m. and began drinking

their beer.   When they departed about five hours later, they had four

cans and two bottles left, twenty-six fewer twelve-ounce beers than they

brought. Another partygoer drank a thirty-pack of Busch Light during

the party.     A witness, Matthew Montgomery, testified Adams and

Erickson appeared intoxicated at the party. Montgomery himself smoked

marijuana throughout the party. Adams testified he sipped three to four

cans of beer and opened a bottle of Budweiser, but admitted he may have

consumed twice that many. Adams denied he was under the influence
                                     19

when he left the party and asserted others drank some of his beer.

Erickson testified he got “pretty drunk” at the party and told his cousin

later that both he and Adams were intoxicated.               Other partygoers

testified   Adams   was    “aggressive”   and   “arrogant”    at   the   party.

Montgomery described Adams as “a little unsteady on his feet” and that

[h]is speech seemed to be a little bit slurred.”    Another guest testified

Adams was “loud and obnoxious,” and “the entire time [she] saw him he

had a can of beer or a bottle of beer in his hand.”          Montgomery also

testified Adams rocked back and forth, wobbled at the party, and

appeared too intoxicated to drive home.

      Adams and Erickson left together in Adams’ Monte Carlo about

10:45 p.m. They stashed in the backseat the six beers remaining from

the thirty-two full beers they brought to the party.          The right front

headlight was not functioning. Adams was driving west on Park Avenue

when Brown was bicycling in the same direction on that road in the right

lane near the curb.       Adams testified he looked down to change the

satellite radio station when his car hit something that slammed into the

windshield and the windshield collapsed into the front seat. Adams kept

driving. Erickson said, “Dude, we just hit something.” Adams replied,

“No f------ s---, Sean, what was it . . . what the f--- was that?” A block

later, when questioned by Erickson, Adams exclaimed, “Shut the f--- up

and let me think for a minute.” They drove home and never reported the

accident. A passerby found Brown’s body around 11 p.m., and Brown

was pronounced dead at the scene.         She had a fractured skull.       The

court of appeals affirmed Adams’ conviction for vehicular homicide and

noted:

      It is difficult to describe in a judicial opinion the impression
      conveyed by the post-accident photographs of Adams’
      vehicle. The windshield, where Brown’s head and body hit
                                    20
      the car, was smashed in, shattered, and collapsed into the
      front passenger seat.      Yet Adams claimed not to have
      realized that he had hit someone.

This is powerful evidence of intoxication. Any person in possession of his

faculties would have realized he had hit someone. The jury could infer

Adams was intoxicated simply by his denial that he knew he hit the

victim and continued driving.

      The verdict was also supported by expert medical testimony. Polk

County Medical Examiner, Gregory Schmunk, testified intoxication

reduces visual acuity and impairs perception:

            You don’t see things as well as you would normally
      when you were sober. Either you physically are not seeing
      them if you’re at a fairly high level of intoxication, or you’re
      just not paying attention to what your visual cues are. . . .
      [Y]ou may be looking directly at someone, but you’re paying
      no attention to them because your mind . . . or your thinking
      functions are affected.
            ....
            . . . You may see something but not perceive it. You’re
      not paying attention.

      When Adams heard news reports of Brown’s fatal hit-and-run

death, he bought a tarp to cover his Monte Carlo. He turned himself in

two days later, too late for any chemical test to determine his blood
alcohol level at the time of the accident. Adams’ conduct in fleeing the

scene showed impaired judgment and consciousness of guilt. The court

of appeals concluded sufficient evidence supported Adams’ convictions

for vehicular homicide (intoxication), operating a motor vehicle while

intoxicated (OWI), and leaving the scene of an accident.

      The majority correctly allows the decision of the court of appeals to

stand as the final judgment that the evidence was sufficient to convict

Adams of vehicular homicide while intoxicated.
                                     21

      B. Interpretation of Iowa Code Section 707.6A(1). The majority

correctly rejects Adams’ belated argument that the statute requires proof

his intoxication caused Brown’s death.       Application of our well-settled

principles of statutory interpretation shows the proof required is simply

that the defendant’s act of driving while intoxicated caused the death.

      “The polestar of statutory interpretation is the intent of the

legislature.” State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000). In

State v. Comried, we reiterated the principles of interpretation most

pertinent to construing section 707.6A(1):

      “When we interpret a statute, we attempt to give effect to the
      general assembly’s intent in enacting the law. Generally,
      this intent is gleaned from the language of the statute. To
      ascertain the meaning of the statutory language, we consider
      the context of the provision at issue and strive to interpret it
      in a manner consistent with the statute as an integrated
      whole. Similarly, we interpret a statute consistently with
      other statutes concerning the same or a related subject.
      Finally, statutes are interpreted in a manner to avoid absurd
      results and to avoid rendering any part of the enactment
      superfluous.”
             Also, “[i]n construing a statute denouncing the offense
      of driving while under the influence of intoxicants, the
      manifest purpose of the statute may not be ignored.
      Although such a statute is a penal statute and must be
      strictly construed, such a statute, since it is designed to
      protect the public, should be liberally or reasonably
      construed in order to effect its purpose to protect, as far as
      may be, every person lawfully on the highway, and to reduce
      the hazard of prohibited operation of a motor vehicle to a
      minimum.”

693 N.W.2d 773, 775 (Iowa 2005) (quoting State v. Pickett, 671 N.W.2d

866, 870 (Iowa 2003) (first quotation); 61A C.J.S. Motor Vehicles § 1385,

at 274 (2002) (second quotation)).

      A conviction for vehicular homicide under 707.6A(1) rests on a

predicate offense of operating a motor vehicle in violation of Iowa Code

section 321J.2. In Comried, we noted “the purpose of chapter 321J is ‘to
                                     22

reduce the holocaust on our highways[,] part of which is due to the driver

who imbibes too freely of intoxicating liquor.’ ” Id. (quoting State v. Kelly,

430 N.W.2d 427, 429 (Iowa 1988)); see also State v. Garcia, 756 N.W.2d

216, 220 (Iowa 2008) (observing the purpose underlying Iowa Code

section 321J is “ ‘to help reduce the appalling number of highway deaths

resulting in part at least from intoxicated drivers.’ ” (quoting State v.

Wallin, 195 N.W.2d 95, 96 (Iowa 1972))).

      The majority correctly rejects Adams’ effort to add a proof

requirement not found in the statute—that his intoxication proximately

caused Brown’s death, as opposed to simply his act of driving while

intoxicated.   As the Wisconsin Supreme Court aptly observed, it is

impossible and unnecessary to separate the intoxication from the act of

driving:

            The legislature has determined that combining the
      operation of a motor vehicle with being in an intoxicated
      state is conduct which is malum prohibitum and is
      pervasively antisocial. . . . The commission of the offense
      does not require any erratic or negligent driving. Because
      driving under the influence of an intoxicant is malum
      prohibitum it is impossible to separate the intoxication from
      the driving or the driving from the intoxication. . . .

             . . . The statute does not include as an element of the
      crime a direct causal connection between the fact of
      defendant’s intoxication, conceptualized as an isolated act,
      and the victim’s death. Under this statute there is an
      inherently dangerous activity in which it is reasonably
      foreseeable that driving while intoxicated may result in the
      death of an individual. The legislature has determined this
      activity so inherently dangerous that proof of it need not
      require causal connection between the defendant’s
      intoxication and the death.

State v. Caibaiosai, 363 N.W.2d 574, 577–78 (Wis. 1985); see also People

v. Martin, 640 N.E.2d 638, 646 (Ill. App. Ct. 1994) (“[I]n the case of a

defendant convicted of DUI [driving under the influence], the law holds

him accountable for precisely those harms actually risked by his
                                     23

conduct—namely, that he might seriously injure pedestrians on or next

to the roadway, or that he might crash his vehicle into other vehicles on

the roadway, seriously injuring their occupants.”).

      The    State   correctly   observes   section   707.6A(1)   imposes   a

presumption the driver’s intoxication proximately caused the accident.

This conclusion is reinforced by the statute’s imposition of liability for

even trace amounts of controlled substances. See Comried, 693 N.W.2d

at 775–76, 778 (construing sections 321J.2(1)(c) and 707.6A(1)). A driver

with only a trace amount of methamphetamine in his blood may, in fact,

be unimpaired, yet if he gets in a fatal accident, he can be found guilty of

vehicular homicide. Id. at 778. The Comried court observed:

             The legislature could reasonably have imposed such a
      ban because the effects of drugs, as contrasted to the effects
      of alcohol, can vary greatly among those who use them. One
      court has observed that,

             since the manufacture and distribution of illicit
             drugs are unregulated and because the drugs’
             potency varies, the effects are unpredictable.
             Therefore, . . . there is no level of use above
             which people can be presumed impaired or
             below which they can be presumed unimpaired.

Id. at 776 (quoting State v. Phillips, 873 P.2d 706, 708 (Ariz. Ct. App.
1994)).     We recognized section 321J.2(1)(c) prohibits “people from
operating motor vehicles with controlled substances in their bodies,
whether or not they are under the influence.” Id. We affirmed Comried’s
conviction under section 707.6A(1) because he was in a fatal accident
while he had a detectable amount of methamphetamine in his blood. Id.
at 778 (“ ‘[A]ny amount’ means any amount greater than zero.”).
Obviously, the jury, to convict, did not separately find that the trace
amount of methamphetamine caused Comried’s fatal accident. A trace
amount is unlikely to cause an accident. If a trace amount of a drug can
                                         24

support a conviction, it is nonsensical to require proof the alcohol an
intoxicated driver consumed caused the accident. Comried was decided
unanimously a mere seven years ago.              Stare decisis is yet another
compelling reason to reject Adams’ interpretation.
       Because the effects of alcohol are better known, the legislature
requires proof the defendant was driving “while intoxicated.” Iowa Code
§ 707.6A(1). Intoxication is presumed at a blood alcohol level of .08. Id.
§ 321J.2(1)(b). But, proof of intoxication supports a conviction without a
separate finding the intoxicant caused the accident.              The legislature
intentionally   stopped     short   of   requiring    proof   that   the   alcohol
intoxication, or the consumption of any amount of illicit drugs, actually
caused the fatal accident.       It did so to avoid the difficulties of proof
separating intoxication from driving that the Wisconsin Supreme Court
noted in Caibaiosai.      363 N.W.2d at 577–78.         This is not unusual in
criminal law.     For example, armed robbery requires a robbery that
occurred while the defendant was armed. Iowa Code § 711.2. The State
need not prove the weapon was necessary to accomplish the robbery.
       Our legislature knows how to draft vehicular homicide penal

statutes that require the jury to specifically find the predicate driving

violation proximately caused the death. The eluding provision, section

707.6A(2)(b), for example, criminalizes “caus[ing] the death of another by

. . . [e]luding or attempting to elude a pursuing law enforcement vehicle

. . . if the death of the other person directly or indirectly results from the

violation.” (Emphasis added.) That italicized language was not included

in section 707.6A(1) or (3) which govern fatal accidents that happen

when the defendant is driving “while” intoxicated or drag racing. 12 This


       12“A person commits a class ‘D’ felony when the person unintentionally causes
the death of another while drag racing, in violation of section 321.278.” Iowa Code
§ 707.6A(3) (emphasis added).
                                        25

is because drag racing and driving while intoxicated are both inherently

dangerous. “[L]egislative intent is expressed by the omission as well as

by [the] inclusion of statutory terms.” See Oyens Feed & Supply, Inc. v.

Primebank, 808 N.W.2d 186, 193 (Iowa 2011) (citation and internal

quotation marks omitted); State v. Beach, 630 N.W.2d 598, 600 (Iowa

2001). If the legislature had intended to require proof the defendant’s

intoxication caused the victim’s death, it would have added conditional

language    to   section   707.6A(1),   such   as   it   included   in   section

707.6A(2)(b).    Adams asks us to effectively rewrite the statute to add

such a requirement the legislature chose to omit.

      The Dram Shop Act provides an example where the legislature

clearly conditioned liability on a finding the driver’s intoxication

proximately caused the victim’s harm. Iowa Code section 123.92 gives

victims of drunk drivers a statutory right to sue the licensed vendor who

sold alcoholic beverages to a person the seller knew or should have

known was intoxicated or would become intoxicated.                  Iowa Code

§ 123.92.    However, the legislature expressly provided the following

affirmative defense: “If the injury was caused by an intoxicated person, a

permittee or licensee may establish as an affirmative defense that the

intoxication did not contribute to the injurious action of the person.”

Iowa Code § 123.92.        The legislature provided no such affirmative

defense to a charge of vehicular homicide while intoxicated.             See id.

§ 707.6A(1). It is not our role to create such a defense, much less impose

another element of the offense the State must prove beyond a reasonable

doubt.
      In the rare case in which the evidence clearly establishes alcohol is
not a factor because a sober driver would have struck the victim under
the same circumstances, Iowa law recognizes a defense based on sole
                                    26

proximate cause or superseding cause. See State v. Hubka, 480 N.W.2d
867, 869 (Iowa 1992) (“[T]he defendant may be relieved of criminal
responsibility if a court finds that the intervening events are such as to
break the chain of causal connection between the defendant’s conduct
and the victim’s death.”); see also Micinski, 487 N.E.2d at 154 (“This is
not to say that a drunk driver who hits a child who has run out from
between two parked cars is not entitled to ask a jury to find him not
guilty because there is reasonable doubt whether he caused the
collision.”); State v. Rivas, 896 P.2d 57, 62 (Wash. 1995) (“[A]n
intoxicated defendant may still avoid responsibility for a death which
results from his or her driving if the death is caused by a superseding,
intervening event.”).
      In Hubka, our court affirmed the defendant’s conviction for
vehicular homicide under section 707.6A(1), rejecting the argument that
the sole proximate cause of the victim children’s death was the failure to
use proper child seat restraints.    480 N.W.2d at 870.        In State v.
Wieskamp, our court of appeals reversed a conviction for vehicular
homicide because “as a matter of law . . . a sober person driving with
reasonable care would have struck and killed the victim.” 490 N.W.2d
566, 567 (Iowa Ct. App. 1992). In Wieskamp, an intoxicated driver ran
over the victim who was “lying in the street covered solely in dark
clothing in an unlighted area of the highway.” Id. The Wieskamp court
emphasized there was “no evidence in the record to dispute Sgt. Sellars’
opinion testimony that a sober person would not have seen the victim
‘until they were right on top of them.’ ” Id. By contrast, the record here
includes expert testimony that Adams’ intoxication would have impaired
his night vision and perception. It was for the jury to decide whether
Adams’ act of driving while intoxicated caused the accident.
                                           27

       Our interpretation of the statute is consistent with State v.
Rullestad. 259 Iowa 209, 143 N.W.2d 278 (1966). That case predated
the codification of section 707.6A(1) in 1986. 1986 Iowa Acts ch. 1220,
§ 41. The Rullestad court stated that “it is necessary to show a direct
causal connection between defendant’s drunken driving and the death.”
Id. at 212, 143 N.W.2d at 280. The Rullestad court, however, did not
attempt to separate out the defendant’s intoxication as a cause of the
death, apart from the defendant’s act of driving while intoxicated.                    Id.
Proof for a conviction under Rullestad is the same as proof for conviction
under section 707.6A(1)—the jury must find the defendant’s act of
operating a motor vehicle while intoxicated caused the death, not that
the intoxication itself was a cause.
       Other courts construing equivalent statutory language have
expressly rejected arguments the State must prove the intoxication was a
proximate cause of the victim’s death. See, e.g., State v. Benoit, 650 A.2d
1230, 1233 (R.I. 1994) (“We do, however, agree with the state’s
contention that the statute does not require the intoxication of the
defendant to be a proximate cause of the death . . . . Therefore, all the
state need prove is that the defendant’s operation of his or her motor
vehicle was a proximate cause of the death in question occurring while
the defendant was legally intoxicated.”); 13 see also People v. Garner, 781
P.2d 87, 89 (Colo. 1989) (“The statute does not require evidence that the
intoxication affected the driver’s operation in a manner that results in a
collision. The clear intent of the legislature is to punish and thereby to




       13R.I. Gen. Laws § 31-27-2.2(a) (1982) (“When the death of any person other
than the operator ensues as a proximate result of an injury received by the operation of
any vehicle, the operator of which is under the influence of any intoxicating liquor . . .,
the person so operating such vehicle shall be guilty of ‘driving under the influence of
liquor or drugs, resulting in death.’ ”).
                                           28

deter the conduct of voluntarily driving while intoxicated.”); 14 Magaw v.
State, 537 So. 2d 564, 566–67 (Fla. 1989) (“This legislation requires a
causal connection between the driver’s conduct (the operation of a motor
vehicle) and the resulting accident. . . .             Moreover, the state is not
required to prove that the operator’s drinking caused the accident.”); 15
Micinski, 487 N.E.2d at 154; Rivas, 896 P.2d at 61 (approving a jury
instruction comment stating the amended statute modified existing
caselaw “by changing the causal connection . . . between the defendant’s
intoxicated condition and the victim’s death to a causal connection
between the defendant’s operation of a motor vehicle and the victim’s
death”); 16 Caibaiosai, 363 N.W.2d at 577–78. 17                    These cases are
persuasive authority contrary to Adams’ proffered interpretation of
section 707.6A(1).
       For these additional reasons, I concur with the majority opinion.




       14Colo.    Rev. Stat. § 18–3–106(1)(b)(I) (1986) (“If a person operates or drives a
motor vehicle while under the influence of any drug or intoxicant and such conduct is
the proximate cause of the death of another, he commits vehicular homicide. This is a
strict liability crime.”).
       15Fla. Stat. § 316.193(1) (Supp. 1986) (defining “driving under the influence” as

occurring only when “[t]he person is under the influence of alcoholic beverages, any
chemical substance set forth in s. 877.111, or any substance controlled under chapter
893, when affected to the extent that his normal faculties are impaired”).
       16Wash.  Rev. Code § 46.61.520 (1991) (“When the death of any person ensues
within three years as a proximate result of injury proximately caused by the driving of
any vehicle by any person, the driver is guilty of vehicular homicide if the driver was
operating a motor vehicle: (a) While under the influence of intoxicating liquor or any
drug, as defined by RCW 46.61.502 . . . .”).
       17Wis. Stat. § 940.09(1)(a) (1984) (stating a person commits a Class D felony who
“(1) causes the death of another, (2) by the operation of a vehicle, (3) while under the
influence of an intoxicant”).
