                IN THE SUPREME COURT OF IOWA
                               No. 12–0344

                            Filed April 12, 2013


BRANDON DEAN WATSON,

        Appellant,

vs.

IOWA DEPARTMENT OF TRANSPORTATION
MOTOR VEHICLE DIVISION,

        Appellee.


        On review from the Iowa Court of Appeals.




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

Paulsen, Judge.



        Appellant seeks further review of court of appeals decision

affirming the disqualification of his commercial driver’s license for one

year.    DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.



        Billy J. Mallory of Brick Gentry, P.C., West Des Moines, for

appellant.



        Thomas J. Miller, Attorney General, and Michelle R. Linkvis,

Assistant Attorney General, for appellee.
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HECHT, Justice.

       A commercial driver appeals a one-year disqualification of his

commercial      driver’s    license    (CDL).       The       Iowa   Department    of

Transportation     (IDOT)    suspended        his   license    for   operation   of a

commercial motor vehicle with an alcohol concentration of .04 or more,

in violation of Iowa Code section 321.208(1)(a) (2011).                    In review

proceedings below, the driver contested the suspension on the ground

that the IDOT had erred in concluding that in the CDL context,

breathalyzer test results are not to be adjusted for the breathalyzer test’s

recognized margin of error.           The district court and court of appeals

affirmed the IDOT decision.           Finding no ambiguity in the applicable

statutes, we affirm.

       I. Background Facts and Proceedings.

       Brandon Watson was driving a commercial motor vehicle in

Monroe County, Iowa on October 22, 2010.                  An Iowa state trooper

stopped Watson and, after obtaining consent, administered a DataMaster

breathalyzer test. The test result indicated an alcohol concentration of

0.041. Based on the test result, the IDOT determined that Watson had

operated a commercial vehicle with an alcohol concentration of .04 or

more, in violation of Iowa Code section 321.208(1)(a), and issued Watson

a notice of a one-year suspension of his CDL. Watson appealed, arguing

Iowa’s CDL suspension statute requires that the IDOT subtract the

breathalyzer’s recognized margin of error of .004 from test results, and

therefore, the IDOT had insufficient evidence to find he had violated the

statute. 1 On intra-agency review, the IDOT sustained the suspension.


       1The parties agree that the recognized margin of error for the DataMaster is
.004, and that, had the margin of error been subtracted from Watson’s test result, the
IDOT would have found an alcohol concentration of .037.
                                       3

      Watson sought judicial review of the agency’s decision in Polk

County District Court.       The district court affirmed the agency’s

determination in relevant part, holding the agency had correctly

concluded the statutory provisions controlling CDL revocations do not

authorize margin of error adjustments of breath test results.           Watson

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

of appeals affirmed. Watson requested further review, and we granted

the request to determine whether the IDOT erred in failing to adjust

Watson’s test result by the margin of error.

      II. Scope of Review.

      Iowa Code chapter 17A governs judicial review of agency actions.

Wallace v. Iowa State Bd. of Educ., 770 N.W.2d 344, 347 (Iowa 2009).

The district court reviews for errors at law.           Ludtke v. Iowa Dep’t of

Transp., 646 N.W.2d 62, 64 (Iowa 2002).            On appeal, we apply the

standards of chapter 17A to determine whether we reach the same

conclusions as the district court.         Id. at 65.    If we reach the same

conclusions, we affirm; otherwise we may reverse. Lee v. Iowa Dep’t of

Transp., 693 N.W.2d 342, 344 (Iowa 2005). We will uphold the IDOT’s

factual findings if, after reviewing the record as a whole, we determine

substantial evidence supports the findings. Iowa Code § 17A.19(10)(f).

      This case involves the IDOT’s interpretation of a statute. Reversal

may be warranted where “substantial rights . . . have been prejudiced

because   the   agency   action   is   ...     [b]ased    upon   an   erroneous

interpretation of a provision of law whose interpretation has not clearly

been vested by a provision of law in the discretion of the agency.” Id.

§ 17A.19(10)(c). Because this is not an area where interpretation of the

law has been clearly vested in the discretion of the agency, we need not

give deference to the IDOT’s interpretation of section 321.208 and may
                                     4

substitute our judgment de novo for the agency’s interpretation.      Lee,

693 N.W.2d at 344.

      III. Discussion.
      Watson contends, as he did below, that under Iowa’s CDL

suspension statute the IDOT is required to subtract a breathalyzer’s

standard margin of error from test results before making an alcohol

concentration determination.       Had the IDOT made the required

subtraction, Watson contends, there would have been no evidence to

support a suspension under the statute.       The IDOT counters that the

general margin of error provision in Iowa’s operating-while-intoxicated

statute does not apply in the CDL context.

      Iowa Code section 321.208, entitled “Commercial driver’s license

disqualification,” provides for CDL disqualification as follows:

             1. A person is disqualified from operating a
      commercial motor vehicle for one year upon a conviction or
      final administrative decision that the person has committed
      any of the following acts or offenses in any state or foreign
      jurisdiction while operating a commercial motor vehicle:

            a. Operating a commercial motor vehicle with an
      alcohol concentration, as defined in section 321J.1, of 0.04
      or more.

            ....

           12. a. A person is disqualified from operating a
      commercial motor vehicle if the person either refuses to
      submit to chemical testing required under chapter 321J or
      submits to chemical testing and the results show an alcohol
      concentration as defined in section 321J.1 of 0.04 or more.

Iowa Code § 321.208.     Both provisions refer the IDOT, in determining

alcohol concentration in the CDL suspension context, to section 321J.1,

which defines alcohol concentration as “the number of grams of alcohol

per any of the following:” (a) one hundred milliliters of blood; (b) two
                                      5

hundred ten liters of breath; or (c) sixty-seven milliliters of urine.      Id.

§ 321J.1(1). Section 321J.1 does not, however, address margin of error

adjustments of test results. Id. § 321J.1.

      The margin of error provision at the center of this controversy is

set forth in Iowa Code section 321J.12(6), entitled “Test result

revocation.” The statute provides:

      The results of a chemical test may not be used as the basis
      for a revocation of a person’s driver’s license or nonresident
      operating privilege if the alcohol or drug concentration
      indicated by the chemical test minus the established margin
      of error inherent in the device or method used to conduct the
      chemical test is not equal to or in excess of the level
      prohibited by section 321J.2 or 321J.2A.

Id. § 321J.12(6). This margin of error provision refers expressly to the

prohibitions in sections 321J.2 and 321J.2A, which set maximum

allowable alcohol concentrations for noncommercial drivers ages twenty-

one and up, and noncommercial drivers under the age of twenty-one,

respectively. See id. §§ 321J.2, .2A. Section 321J.12(6) thus requires

that the IDOT, before making a determination of alcohol concentration

for the purpose of suspending a noncommercial license, adjust chemical

test results downward by the test’s standard margin of error.
      In interpreting a statute, our goal “is to give effect to the legislative

intent of [the] statute.” State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999).

In addition to the words chosen by the legislature, we will also consider

“ ‘the objects sought to be accomplished and the evils and mischiefs

sought to be remedied, seeking a result that will advance, rather than

defeat, the statute’s purpose.’ ”    Id. (quoting Danker v. Wilimek, 577

N.W.2d 634, 636 (Iowa 1998)). In construing provisions of the relevant

statutes previously, we have searched for the legislature’s intent as

evidenced by what the legislature said, rather than what it might have
                                     6

said.   See State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999).       We

have observed that legislative intent is expressed by omission as well as

by inclusion and that the express mention of certain sections implies the

exclusion of others. Wiebenga v. Iowa Dep’t of Transp., 530 N.W.2d 732,

735 (Iowa 1995). We have also explained that when the text of a statute

is plain and its meaning clear, the court should not search for a meaning

beyond the express terms of the statute. Guzman-Juarez, 591 N.W.2d at

2.

        We have noted the high standards our legislature has set in

prohibiting drunk driving by commercial drivers, and we have observed

that    commercial   drivers   are   held   to   higher   standards   than

noncommercial drivers.     Wiebenga, 530 N.W.2d at 735.          We have

explained that the legislature has distinguished commercial from

noncommercial drivers in various provisions of our drunk driving

statutes, in part because commercial drivers are often faced with riskier

and more difficult tasks than noncommercial drivers. Id.

        Applying these principles of interpretation and policy here, we

cannot conclude the legislature intended its margin of error provision in

section 321J.12(6) would apply in the CDL suspension context.         The

provision, by its express terms, refers only to sections 321J.2 and

321J.2A—sections governing license revocations for noncommercial

licensees. The margin of error provision makes no reference to section

321.208, which governs license revocations for commercial drivers. The

express directive requiring the margin of error adjustment in the

noncommercial licensee context and the absence of any reference to such

adjustment in the CDL context together inform our conclusion that the

legislature never intended margin of error adjustment of CDL operators’

test results. Wiebenga, 530 N.W.2d at 735.
                                       7

      Further, in the absence of clear guidance otherwise, we hesitate to

read the margin of error provision’s explicit reference to sections 321J.2

and 321J.2A as not limiting the provision’s application, because such a

reading may render the provision illogical or render sections of the

provision unnecessary surplusage.          In other words, if we read section

321J.12(6) as controlling determinations of alcohol concentration in

scenarios    other   than   the     noncommercial      revocations   expressly

mentioned, we are left with no clear guidance as to how to read “level

prohibited by” and the disjunctive “321J.2 or 321J.2A” language of the

provision.   According to the provision as unambiguously written, the

IDOT must subtract the recognized margin of error from the test result

before comparing the result to the maximum allowable concentration in

either section 321J.2, if dealing with a noncommercial driver ages

twenty-one and up, or section 321J.2A, if dealing with a noncommercial

driver under age twenty-one.        If the provision were also applicable to

commercial suspensions, we think it unlikely the maximum allowable

limits in sections 321J.2 and 321J.2A would apply, given that the

commercial suspension section sets its own maximum allowable limit.

We cannot, however, read the language of section 321J.12(6) referring to

noncommercial revocations out of the provision entirely, and thus we

would confront questions of which concentration limit applies in various

circumstances—questions we do not believe the legislature intended to

raise in drafting this provision.

      We also think it significant that our legislature adopted the margin

of error provision in 1986, added the CDL suspension section in 1990,

and, in revisiting the margin of error provision in the years since, has

never made it expressly applicable to CDL suspensions. See, e.g., 1986

Iowa Acts ch. 1220, § 12 (adding original margin of error provision); 1990
                                            8

Iowa Acts ch. 1230, § 51 (adding original CDL suspension provision);

1995 Iowa Acts ch. 48, § 17 (modifying the margin of error provision to

refer to both noncommercial drivers ages twenty-one and up, and

noncommercial drivers under age twenty-one).                     The legislature has

amended the margin of error provision twice since adopting the CDL

suspension provision at issue here and has amended on at least one

other occasion other paragraphs in section 321J.12 to modify maximum

allowable limits and references to other suspension scenarios. See 1995

Iowa Acts ch. 48, § 17; 1998 Iowa Acts ch. 1138, § 20; 2003 Iowa Acts

ch. 60, §§ 5–6.       Moreover, the legislature added express references to

commercial drivers and the maximum allowable commercial limit in other

sections of 321J when it added the CDL suspension provision in 1990.

See Iowa Acts 1990 ch. 1230, § 85 (adding commercial vehicle provision

to section 321J.6); id. § 86 (adding commercial vehicle provision to

section 321J.8). The legislature did not, however, amend then and has

not since amended section 321J.12(6) to incorporate references to the

CDL suspension section, and we cannot conclude the legislature

intended this broader application urged by Watson. 2

       Watson      advances      the    additional     contention      that    the   CDL
suspension provision’s “alcohol concentration” language is to be

distinguished from “chemical testing,” and that the distinction compels

adjustment of chemical test results by the recognized margin of error

before determining an alcohol concentration.                      That argument is

unpersuasive for two reasons. First, we have already observed that the

       2We  observe, as the district court did below, that section 321J.1 defines “driver’s
license,” unless “context otherwise requires,” to include a commercial driver’s license for
the purposes of chapter 321. Iowa Code § 321J.1(7). Because of the plain language of
section 321J.12(6) and the ambiguity this broader definition would introduce, however,
we conclude context requires the margin of error provision be read with the narrower
noncommercial definition.
                                     9

definition section expressly referenced by the CDL suspension provision

defines “alcohol concentration” and makes no mention of margin of error

adjustment.    We are hesitant to read an additional limitation into

“alcohol concentration” not contemplated by the provision’s explicit

definition. Second, paragraph twelve of the CDL suspension provision,

reproduced above, suggests that a chemical test result indicates an

alcohol concentration regardless of margin of error adjustment.        Iowa

Code § 321.208(12)(a) (chemical test result may “show an alcohol

concentration as defined in section 321J.1.”). We cannot conclude the

legislature intended to incorporate margin of error adjustment in the

CDL suspension context with its choice of specific language in section

321.208.

      Having found it logical in the past that the legislature would

distinguish commercial drivers from ordinary drivers in revocation

proceedings, we find no reason to dismiss the principle here. Wiebenga,

530 N.W.2d at 735. We find no indication in the structure or language of

the relevant statutes that the legislature intended that a breathalyzer test

result be adjusted by the recognized margin of error in making an alcohol

concentration determination for the purpose of CDL suspensions.

      IV. Conclusion.

      We conclude the IDOT properly interpreted Iowa Code section

321.208.   As a result, we conclude the IDOT’s finding that Watson’s

alcohol concentration was 0.041 was supported by substantial evidence.

We affirm the agency’s one-year suspension of Watson’s CDL privilege.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.
