               IN THE SUPREME COURT OF IOWA
                              No. 11–0719

                         Filed February 22, 2013


STATE OF IOWA,

      Appellee,

vs.

JEFFREY ALAN SCHORIES,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Odell G.

McGhee, Judge.



      A criminal defendant challenges his conviction for driving while

intoxicated. REVERSED.



      Mark C. Smith, State Appellate Defender and Martha J. Lucey,

Assistant Appellate Defender, and Samuel S. Berbano, Student Legal

Intern, for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, John P. Sarcone, County Attorney, and Brendan E.

Greiner, Assistant County Attorney, for appellee.
                                      2

APPEL, Justice.

      Jeffrey Schories was arrested and charged with operating a vehicle

while under the influence of a controlled substance in violation of Iowa

Code section 321J.2(1)(c) (2009). Schories asserted, among other things,

the affirmative defense provided under Iowa Code section 321J.2(7)(b),

which provides that an operator of a vehicle cannot be convicted of

operating under the influence of a drug if he is taking the drug as

prescribed by his doctor and in accordance with the labeling directions of

the pharmacy. Notwithstanding this defense, a jury convicted Schories
of operating while intoxicated.

      On appeal, Schories claims there was insufficient evidence to

support the verdict, that the court failed to properly instruct the jury on

the prescription drug defense, and that the district court improperly

allowed evidence into the record related to a syringe found in the

automobile he was driving at the time of his arrest. Further, Schories

asserts his lawyer provided ineffective assistance by failing to properly

preserve his insufficiency-of-the-evidence claim, failing to ask for a

spoliation instruction in light of the state’s failure to preserve the syringe,

failing to ask for a more specific instruction related to his affirmative

defense, and failing to present evidence that Schories sold his plasma,

which would have rebutted any inference that may have arisen from the

presence of track marks and bruising over the veins of his arms.

However, because we find there was insufficient evidence to support the

verdict and reverse the district court, we need not consider Schories’s

other claims.

      I. Factual and Procedural Background.
      On August 27, 2010, Des Moines police officer Colin Boone

observed Schories driving a vehicle in what Officer Boone considered an
                                        3

erratic manner.   After a preliminary investigation at the scene, which

included the discovery of a syringe in between the front seat and the

center console of the vehicle driven by Schories, Officer Boone

transported Schories to the police station for further evaluation. After

additional tests revealed methadone in Schories’s urine, the State

charged him with operating while intoxicated under Iowa Code section

321J.2(1)(c), which provides that a driver commits the offense when

driving “[w]hile any amount of a controlled substance is present in the

person, as measured in the person’s blood or urine.”                   Iowa Code
§ 321J.2(1)(c). Schories pled not guilty, and the case proceeded to trial.

At the close of evidence, Schories moved for a judgment of acquittal

based on the prescription drug defense, arguing it was clear that the

methadone     found   in   Schories’s       urine   was   consistent    with   his

prescription for methadone and that the State had failed to prove beyond

a reasonable doubt that he was not taking it in accordance with the

instructions of his physician or in accordance with the labeling

instructions of the pharmacy. The court denied the motion and the jury

found Schories guilty. Because Schories argues his conviction cannot be

sustained on the basis that the jury’s findings were not supported by

substantial evidence, we summarize the evidence offered at trial.

      A. Testimony of Officer Boone. The State called Officer Boone

as its sole witness at trial.    Officer Boone has received three weeks

training as a drug recognition expert. In addition to his ordinary police

work, Boone has taught drug recognition courses at the Iowa Law

Enforcement Academy for the past two years.

      On August 27, he was on routine patrol on East 14th Street in
Des Moines.    According to Boone, around 11:15 p.m. he observed a

vehicle that “left the pack I was in and caught the pack in front of him.”
                                    4

Based on this observation, Officer Boone suspected the vehicle was

speeding.    The vehicle then made a few lane changes without using a

turn signal. Further, Officer Boone noticed that the vehicle was following

another vehicle by a distance of only one car length in a 35-mile-per-

hour zone. Considering the driving of the vehicle “erratic,” Officer Boone

decided to make a traffic stop.

      Schories was the driver of the vehicle. Officer Boone observed that

Schories had “bloodshot, watery eyes” and a “deep raspy voice.” Officer

Boone further observed that when Schories exited the vehicle, he had
“improper balance” and “slow” movements. According to Officer Boone,

Schories “didn’t seem like—like he was acting what I would call normal.”

      Based on his observation, Officer Boone asked Schories to submit

to a horizontal gaze nystagmus test. A horizontal gaze nystagmus test

involves determining whether the eyes jerk involuntarily when a stimulus

moves from side to side. Schories’s eyes tracked smoothly.

      Officer Boone also asked Schories to perform what is known as a

Rhomberg test. The Rhomberg test asks a person to tip back his head

and estimate the moment when thirty seconds has elapsed. During the

test, Officer Boone observed Schories “swaying back and forth.” Schories

estimated thirty seconds had elapsed when twenty-two seconds had

passed.     Boone also obtained consent for a preliminary breath test,

which did not indicate the presence of alcohol.

      Schories asked Officer Boone to retrieve his wallet and cell phone

from the car. When Officer Boone looked for the wallet and cell phone in

the car, he found an orange syringe between the seat and the center

console. The syringe, however, was not preserved for evidence or testing
by law enforcement.      The car was not registered to Schories, but
                                     5

belonged to another person who is identified but not further described in

the record.

        Officer Boone also discovered an unmarked pill bottle in Schories’s

front pocket when he patted him down. Officer Boone checked the pills

against his “drug bible,” a book he kept in his police vehicle that

contained descriptions of various drugs.     Using the drug bible, Officer

Boone specifically identified the pills found in the unmarked pill bottle as

methadone and hydromorphone, two controlled substances.

        Officer Boone took Schories to the Des Moines police station for
further examination. Schories consented to a data master breath test

which, like the preliminary breath test administered at the traffic stop,

showed no indication of alcohol. Schories also told Boone that he had

taken a hydromorphone at 8:00 p.m. or 9:00 p.m. that evening.

        Officer Boone next examined Schories for physical signs of drug

use.    He again observed “droopy eyelids, bloodshot, watery eyes” and

pupils that were “a little constricted.” His pulse was a “little high” at 100

beats per minute, with normal being in the range of 60 to 90 beats per

minute.

        Officer Boone examined Schories’s eye function.           He again

administered the horizontal gaze nystagmus test, which was negative.

He also performed the lack of convergence test, during which the

examiner makes two circles in front of the suspect’s nose with a finger

and then touches the tip of the nose to determine if the eyes of the

suspect converge.     Schories’s eyes did not converge.       Officer Boone

testified, however, that twenty percent of the population cannot converge

their eyes even when not under the influence of drugs.
        Officer Boone next administered the Rhomberg test for the second

time.     This time, Schories estimated thirty seconds had elapsed in
                                    6

twenty-four seconds. Officer Boone observed eye tremors and front-to-

back swaying while administering the test.     Officer Boone then asked

Schories to perform a walk-and-turn test.     During the walk-and-turn

test, Officer Boone concluded that Schories demonstrated three of eight

criteria showing the influence of a drug. Officer Boone also conducted a

finger-to-nose test, during which Schories was asked to touch the tip of

his nose.   Schories missed the tip of his nose four times out of six

attempts.   Officer Boone concluded Schories’s coordination was off.

Officer Boone did not ask Schories to perform a one leg stand test,
however, in light of Schories’s assertion that his back injuries made it

problematic for him to perform.

      Officer Boone again took Schories’s pulse, which he found to be at

104 beats per minute. Schories’s blood pressure was also high, 160 over

98.   His body temperature was low, 96.8 degrees Fahrenheit.      Officer

Boone also measured Schories’s pupils in a dark room and found that

they were on “the constricted side of normal.”     Further, Officer Boone

observed that Schories’s muscles were “flaccid.”

      Officer Boone examined Schories’s arms and hands for injection

sites. He saw bruising over the veins of both arms and red marks that

resembled track marks. Because of the lack of pus oozing from the sites,

Officer Boone concluded the injections did not occur “within the last few

hours,” but instead occurred “within a day or two.” Officer Boone stated

that hydromorphone and methadone can be injected.

      Based on “the totality of circumstances,” Officer Boone believed

Schories was under the influence of a narcotic. Schories consented to

providing a urine sample for chemical testing. His urine tested positive
for methadone.
                                     7

      During the investigation, Schories told Officer Boone he was under

the care of a physician for pain management and had prescriptions for

methadone and hydromorphone. Schories told Boone that he had taken

both drugs that day.

      On cross-examination, Officer Boone admitted he was not a doctor,

that a lot of drivers speed or follow cars too closely who are not under the

influence of a drug, and that raspy and slurred speech, bloodshot eyes,

and droopy eyelids can be caused by other things besides use of

narcotics. With respect to the syringe, Officer Boone admitted that the
car did not belong to Schories and that he had not tested it for drugs.

Boone testified, “I secured [it] in our syringe container. . . . They dispose

of them properly because they are medical and biological hazards.”

Officer Boone admitted he did not find the other elements of a “hype kit”

such as a handle, elastic band, cooker, matches, lighter, tourniquet, or

cottons in the vehicle driven by Schories. Officer Boone recognized that

the mere presence of an injection site does not mean someone is under

the influence of a drug. While the version of the National Highway Traffic

Safety Administration manual that was used when Officer Boone was

trained in 2006 or 2007 stated that methadone cannot be injected, he

believed that version was not “up to date” based upon what he had read

on the Internet.    When asked by the State on redirect examination

whether methadone could be reduced to a liquid state and then

transported, Officer Boone responded that it “could.”         Officer Boone

admitted he initially believed Schories was under the influence of

marijuana based on his observations, but that subsequent chemical

testing was negative for the presence of marijuana.
      Schories’s counsel also probed the validity of certain physical

indicators cited by Officer Boone in his direct examination. Officer Boone
                                     8

admitted a person who has taken a narcotic analgesic, such as

methadone, should have a lower-than-normal pulse rate and blood

pressure, not higher-than-normal signs as exhibited by Schories.       He

also admitted the Rhomberg test and finger-to-nose test had not been

scientifically validated.   He admitted he did not observe a number of

symptoms of use of narcotic analgesics, such as drowsiness, dry mouth,

euphoria, facial itching, and slow breathing.

      B. Testimony of Dr. Daniel Baldi. Schories called his physician,

Dr. Daniel Baldi, as a witness in support of his defense.     Dr. Baldi’s
substantive testimony can be summarized as follows.       Since the early

2000s, Dr. Baldi has treated Schories for chronic back pain following

back surgery.    For a couple years prior to Schories’s arrest, Dr. Baldi

prescribed methadone and hydromorphone for Schories for pain

management. He testified methadone has a long half-life and provides

long-term relief while hydromorphone is taken for break-through pain.

Dr. Baldi prescribed two eight-milligram tablets of hydromorphone to be

taken three times a day, plus one additional tablet at bedtime. He also

prescribed four ten-milligram tablets of methadone to be taken in the

morning, two in the afternoon, and two at bedtime.

      Dr. Baldi did not specifically have a discussion with Schories

concerning driving while using the medication and did not advise

Schories to refrain from driving while taking the drugs.        Dr. Baldi

administered random drug tests on Schories. With the exception of one

time in the “distant past” when he tested positive for marijuana, Schories

never tested positive for any drug other than those prescribed. Dr. Baldi

testified he could not recall any occasion where Schories ran out of his
prescription too soon and noted that it had not been a recent problem for

Schories. He stated that he saw no abuse of the drug by Schories and
                                       9

that if he had, he would have taken appropriate steps such as seeing him

more frequently, taking him off the medication, giving him less

medication, giving him more drug screens, or ending the doctor–patient

relationship in the event of illegal abuse.

      On cross-examination, Dr. Baldi was presented monographs for

methadone and hydromorphone issued by Hy-Vee. The monographs are

several pages of print that accompany a prescription obtained from a

pharmacy.    The monographs for both methadone and hydromorphone

state: “This drug may make you dizzy or drowsy.          Do not drive, use
machinery, or do any activity that requires alertness until you are sure

you can perform such activity safely.” The monographs were admitted

into evidence over Schories’s objection.

      Dr.   Baldi   stated    both   methadone   and   hydromorphone    are

addictive. He further testified that he did not prescribe that the drugs be

injected and that he would have been concerned if he had observed

Schories with somnolence or dizziness.        He testified that he would be

surprised if Schories was driving erratically, that he had driven beside

him coming home from work without observing any problems, and that

hundreds of persons receive methadone shots each morning at two local

clinics and subsequently drive to work. He further testified that while

constricted pupils are a common side effect of all opioids, to the best of

his knowledge, nystagmus, or the jerking of the eye, is not.

      II. Standard of Review.

      We review challenges to the sufficiency of the evidence for

correction of legal errors.    State v. Heard, 636 N.W.2d 227, 229 (Iowa

2001). Further, we review de novo the constitutional claim of ineffective
assistance of counsel. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
                                     10

      III. Sufficiency of the Evidence.

      A. Issue Preservation. Schories’s counsel moved for judgment of

acquittal for failure of the State to present sufficient evidence both on the

substantive crime and on the prescription drug defense.          On appeal,

Schories presses only the latter claim.

      The State suggests that Schories did not properly preserve the

issue at trial because Schories “did not challenge the State’s evidence

disproving his prescription medication defense.” As a result, the State

argues the only avenue to review the issue is through a claim for
ineffective assistance of counsel. See, e.g., State v. Fountain, 786 N.W.2d

260, 263 (Iowa 2010).

      Schories counters that he recognizes we have required counsel to

point out specific deficiencies in the evidence in the district court. See

State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). He claims, however,

that his motion was sufficient to preserve the issue. In the alternative,

Schories urges us to consider the challenge as a claim of ineffective

assistance of counsel.

      In making the motion for acquittal, Schories’s counsel asserted the

State had presented insufficient evidence to overcome the prescription

drug defense because the evidence demonstrated Schories had a

prescription for the methadone found in his urine and was taking the

drug in accordance with the directions of his physician and the

pharmacy. Although the statement was conclusory, counsel did identify

the elements of the affirmative defense for which the State allegedly had

insufficient evidence. In Crone, we emphasized that in order to preserve

error on a motion to acquit, the defendant must specifically identify the
elements for which there was insufficient evidence. Id.; see also State v.

Geier, 484 N.W.2d 167, 170 (Iowa 1992) (finding no preservation where,
                                            11

in motion to acquit, defendant did not state that stun gun does not

satisfy element of “dangerous weapon”). However, to the extent Schories

stated the evidence showed that he had a prescription for methadone

and that he was taking the drug in accordance with the directions of his

physician and in accordance with the labeling instructions of the

pharmacy, he has preserved error on this issue.1

       In any event, the question of preservation hardly matters because

Schories may raise the issue through a claim of ineffective assistance of

counsel. It would surely be ineffective under the standards announced
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984),2 if Schories’s counsel failed to preserve a valid motion for

acquittal based on the State’s lack of substantial evidence tending to

disprove the elements of the prescription drug defense.                     Further, the

prejudice prong would obviously be satisfied where acquittal would have

resulted if trial counsel had preserved the motion. Finally, there is no

conceivable strategic reason for failing to preserve a potentially valid

motion to dismiss for lack of sufficient evidence. Therefore, in order to

determine the ineffectiveness issue on this appeal, we are only required



       1Schories’s   counsel did not raise a sufficiency-of-the-evidence challenge on the
question of whether Dr. Baldi had instructed Schories not to drive. At trial, however,
the State made no claim that Dr. Baldi had instructed Schories not to drive and neither
party proposed an instruction on the issue. Because this issue was not contested at
trial, Schories’s counsel had no obligation to specifically raise a claim of lack of evidence
based upon it.
       2Although    Schories makes an ineffectiveness claim under both the Sixth
Amendment of the United States Constitution and article I, section 8 of the Iowa
Constitution, he asserts the test announced in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is the appropriate test under both
constitutions. Where counsel does not assert a different standard under the Iowa
Constitution than that developed by the United States Supreme Court under the
Federal Constitution, we ordinarily apply the test advocated by the parties, but reserve
the right to apply the test in a different manner. E.g., NextEra Energy Res. LLC v. Iowa
Utils. Bd., 815 N.W.2d 30, 45 (Iowa 2012).
                                        12

to determine whether the motion would have been meritorious even if the

sufficiency of the evidence challenge had not been preserved.

      B. Merits of Motion for Acquittal Based on Insufficient

Evidence.    There is no question that a reasonable fact finder could

conclude that Schories was driving a vehicle on August 27 when a

controlled substance, methadone, was in his system, as shown by the

urine test. Thus, the basic elements of the offense established in Iowa

Code section 321J.2(1)(c) were uncontested and clearly established. The

fighting issue is whether Schories was entitled to acquittal as a matter of
law based on the evidence presented relating to the prescription drug

defense. See Iowa Code § 321J.2(7)(b). Once a defendant has presented

evidence sufficient to show the prescription drug defense applies, the

State has the burden of disproving each element of the defense beyond a

reasonable doubt. See, e.g., State v. Lawler, 571 N.W.2d 486, 489 (Iowa

1997).   It is undisputed that Schories had a valid prescription for

methadone at the time of his arrest. The question thus becomes this:

was there substantial evidence in the record to support the jury’s

conclusion that Schories at the time of his arrest was not taking

methadone according to his physician’s instructions and the labeling

directions of the pharmacy?

      Schories claims there was not sufficient evidence to support the

jury verdict because there was no evidence that he failed to take the

prescription drugs as directed by his doctor or the pharmacy. According

to Schories, once a valid prescription is established, the State must then

show that Schories did not take the prescription as directed by his

physician or pharmacy.      According to Schories, the State proved only
methadone use, not methadone abuse. The State counters with three

theories to sustain the jury verdict.
                                    13

      1. Substantial evidence based on behavior and symptoms.          The

first substantial evidence theory offered by the State is based on a series

of inferences that the State claims the jury was entitled to draw based on

the behavior and symptoms exhibited by Schories on August 27.

According to the State, a reasonable jury could infer that Schories’s

erratic driving and difficulty with various tests on the night in question

resulted from methadone intoxication.       The State further asserts a

reasonable jury could conclude that because Schories had been under

the supervision of Dr. Baldi in connection with his methadone
prescription for a period of approximately two years, Schories would have

reported to Dr. Baldi if he had been experiencing serious side effects from

taking the drug. If Schories had reported serious side effects, the State

argues, a reasonable jury could conclude that Dr. Baldi would have then

adjusted the dosage until the side effects were alleviated. In other words,

according to the State, a reasonable jury could infer that Schories, if he

was taking methadone as prescribed by Dr. Baldi, would not have been

experiencing the side effects exhibited on August 27 because such side

effects would have been reported to Dr. Baldi earlier and would have led

to an adjustment in the prescription.    Thus, according to the State, a

reasonable jury could conclude that Schories was taking methadone in

excess of the amount prescribed by Dr. Baldi.

      The problem with this theory is that the behavior and symptoms

exhibited by Schories on August 27 were comparatively mild. Without

expert testimony, the evidence is not sufficiently strong to allow a

reasonable jury to conclude beyond a reasonable doubt that Schories

was abusing rather than simply using methadone according to his
prescription. See State v. Lawson, 913 A.2d 494, 504–05 (Conn. App. Ct.

2007) (holding that expert testimony is required to link a trace amount of
                                    14

methadone to a driving impairment); State v. Bealor, 902 A.2d 226, 237–

38 (N.J. 2006) (noting that expert testimony is preferred on a cause of

intoxication other than alcohol).     While the State established that

methadone was in Schories’s urine, it did not introduce any evidence

regarding the amount of methadone in his urine. The mere presence of

methadone does not establish misuse because its presence could have

been the product of valid use consistent with his prescription. Similarly,

the mere facts that Schories changed lanes multiple times or sped from

one pack of cars to another do not establish misuse. See People v. Vente,
970 N.E.2d 578, 579–80 (Ill. App. Ct. 2012) (driving in a lane improperly

and making an improper turn do not, standing alone, show an unlawful

consumption of controlled substance).     While Dr. Baldi was generally

asked whether the erratic driving of a patient on methadone would be a

subject of concern, he was not specifically asked whether the driving

observed on the night in question, in addition to the symptoms observed

by Officer Boone, suggested Schories was abusing methadone. Further,

a pain patient who experienced the mild side effects arguably established

by the record would not necessarily report them to his physician. We

therefore conclude the inferences the State asked the jury to draw were

too speculative to support a jury verdict of guilt beyond a reasonable

doubt. See State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004).

      2. Substantial evidence of violation of labeling instructions.   The

State argues it offered substantial evidence from which a jury could

conclude beyond a reasonable doubt that Schories violated the labeling

directions provided by his pharmacy by driving a vehicle on August 27.

The State offered into evidence the monographs for methadone and
hydromorphone.     These monographs provide details about the drugs,

their side effects, and appropriate usages.    Both monographs stated:
                                         15

“This drug may make you dizzy or drowsy. Do not drive, use machinery,

or do any activity that requires alertness until you are sure you can

perform such activity safely.” Dr. Baldi testified that these monographs

are provided to a consumer by the pharmacy when the prescription is

filled.3 The State argues there was substantial evidence Schories violated

the instruction in the monograph that he should not drive until he was

sure he could do so safely. The nub of the State’s argument is Schories’s

behavior and symptoms on August 27 demonstrated that he objectively

could not drive safely and that from these facts a jury could conclude
beyond a reasonable doubt Schories drove his vehicle when he was not

sure he could do so safely.

       The record contains evidence that Schories was driving in a less

than optimum manner and in a fashion that would to some extent

increase the risk of harm to himself and others. Many people drive in

this fashion, however, without being under the influence of methadone or

any other drug.      We do not think there is sufficient evidence in this

record for a jury to conclude beyond a reasonable doubt that Schories

was not sure he could perform the activity of driving safely as a result of

methadone usage when he drove on the night in question. There is no

evidence Schories had been warned in the past that he should not drive

because of the side effects of methadone. There is no evidence in the

record of previous mishaps or problems that might have put Schories on

notice that he should not be driving while taking methadone. Further,

we think the State’s theory requires a sense of self-awareness that is not

       3On   appeal, Schories does not question that the monographs are part of the
labeling instructions of a prescription drug. The Food, Drug, and Cosmetic Act defines
“labeling” as including any written material accompanying the drug. See 21 U.S.C.
§ 321(m) (2006) (labeling includes “all labels and other written, printed, or graphic
matter (1) upon any article or any of its containers or wrappers, or (2) accompanying
such article”).
                                    16

likely to be exhibited by many persons taking prescription drugs.      We

conclude there is insufficient evidence for a jury to conclude beyond a

reasonable doubt that Schories was not sure, on August 27, that he

could drive safely.

      3. Substantial evidence of unauthorized injection of methadone.

The State argues it offered sufficient evidence to allow a reasonable jury

to conclude beyond a reasonable doubt that Schories was injecting the

methadone, a procedure not directed by his physician. On August 27,

Schories exhibited track marks and bruising on both arms.         Further,
police found a syringe in the car he was driving at the time of his arrest.

Schories had also been driving erratically and arguably exhibited some

symptoms of methadone use. Thus, the State claims that a reasonable

jury could infer beyond a reasonable doubt that Schories was taking

methadone by injection and that this unauthorized use was the cause of

the behavior and symptoms of methadone intoxication.

      We are unconvinced by this last theory. While Schories had track

marks and bruising on his arms on the night of his arrest, Officer Boone

testified he did not see any oozing from the track marks and offered his

opinion that the bruises and track marks were a day or more old.

Further, Schories asserted he had taken methadone on the day of his

arrest.   While Schories could have injected methadone at some point

prior to his arrest, the record is silent as to how long methadone remains

in a person’s urine when it is injected.     Thus, even if Schories had

injected methadone, there is no evidence in the record that would permit

a reasonable jury to infer that the methadone measured in Schories’s

urine on August 27 was taken by injection as opposed to another method
consistent with the directions of his physician and the pharmacy.

Further, the track marks could have resulted from the injection of
                                   17

something other than the methadone that was measured in Schories’s

system on August 27.      Finally, the jury was left to speculate as to

whether methadone could be injected.         Officer Boone testified the

National Highway Transportation Safety Manual upon which he was

trained indicated methadone could not be injected, but added that his

unidentified searches on the Internet suggested the manual was

incorrect. Thus, although it is clear there has been some needle activity

on Schories’s arms in the past, there was no evidence of needle activity

on the day of his arrest, no evidence of how long methadone remains in a
person’s urine after injection, and no direct evidence that the tracks and

bruising were a result of the injection of the methadone that was present

in his urine on August 27. As with the other theories, we conclude the

evidence is simply too speculative for a jury to conclude beyond a

reasonable doubt Schories had injected the methadone measured in his

urine on August 27.

      IV. Conclusion.

      We conclude there was insufficient evidence for a jury to conclude

beyond a reasonable doubt the State disproved Schories’s prescription

medication defense to operating while intoxicated.      As a result, the

judgment of the district court is reversed.       Because jeopardy has

attached to the defendant, the district court on remand shall enter

judgment for the defendant.

      REVERSED.

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

who dissent.
                                    18

                                               #11–0719, State v. Schories


WATERMAN, Justice (dissenting).
      I respectfully dissent because I conclude the evidence was
sufficient to sustain Schories’s conviction for operating a motor vehicle
while under the influence of a controlled substance in violation of Iowa
Code section 321J.2(1)(c) (2009), notwithstanding his defense that he
was prescribed methadone by Dr. Daniel Baldi. The majority usurps the
role of the jury by dissecting the State’s rebuttal of the prescription-drug
defense into separate, distinct theories and finding the evidence
insufficient for each unique theory viewed in isolation. That is not how
the case was tried and submitted to the jury that convicted Schories, nor
should that approach govern appellate review for sufficiency.        It was
undisputed that Schories had methadone in his system when driving and
the only fighting issue was whether he was using it in compliance with
instructions. We must examine the entire trial record in the light most
favorable to the verdict. The aggregate evidence was more than sufficient
to support the jury’s rejection of his prescription-drug defense. See Iowa
Code § 321J.2(7)(b) (requiring proof defendant took prescribed drug as
instructed by his physician and the labeling directions of the pharmacy).
      Schories was lawfully stopped by Officer Boone for erratic driving—
speeding, repeated lane changes, and tailgating. The majority equates
Schories’s manner of driving to that of many sober drivers. But, neither
Schories nor the majority contends Officer Boone lacked probable cause
for this traffic stop. Next, we have Officer Boone’s close observation of
Schories’s symptoms and behavior on the side of the road and at the
police station. Officer Boone testified Schories had “improper balance”
and moved slowly getting out of the vehicle. His speech was slurred. His
coordination was off. He displayed visible signs of impairment on several
                                     19

field tests for sobriety. He failed to touch his finger to his nose four times
out of six.    He “sway[ed] back and forth” when asked to tilt his head
back. He showed three signs of impairment on the walk-and-turn test.
He had watery, bloodshot eyes; eye tremors; droopy eyelids; and
constricted pupils. He failed an eye convergence test that eighty percent
of people can pass when sober. Officer Boone, based on all his personal
observations, testified he believed Schories was under the influence of a
narcotic.     The majority, relying on its review of the cold transcript,
characterizes Schories’s behavior and symptoms the night of his arrest
as “comparatively mild.”     I defer to the jury that apparently had a
different take on Officer Boone’s live testimony.
      Schories had needle track marks on his arm and a syringe within
his reach in the vehicle he was driving alone. He had both methadone
and hydromorphone pills with him.             Schories tested positive for
methadone in his urine.
      The pharmacy’s instructions accompanying Schories’s methadone
prescription state: “This drug may make you dizzy or drowsy. Do not
drive, use machinery, or do any activity that requires alertness until you
are sure you can perform such activity safely.”           Dr. Baldi testified
methadone is addictive and has a long half-life.           Dr. Baldi further
testified he will make adjustments for patients who report methadone
affects their driving. Schories had been taking prescription methadone
for two years—ample time to work with Dr. Baldi on the appropriate
dosages to avoid impaired driving. Schories was to take the methadone
orally.     Injecting it would constitute abuse.       Schories offered no
explanation at trial for the syringe in his passenger compartment or the
needle tracks on his arm.
      Officer Boone’s unthinking disposal of the syringe in the biohazard
container is regrettable. The opportunity was lost to test the syringe for
                                      20

methadone or the DNA of Schories or another. But, the majority stops
short    of   contending   evidence   of   the   syringe   should have   been
suppressed, a remedy defense counsel never requested at trial. The jury
was entitled to consider the presence of the syringe in the vehicle within
Schories’s reach, together with the needle tracks on his arm and his
multiple behavioral and symptomatic signs of impairment.
        The foregoing evidence in the aggregate was sufficient for a jury to
find Schories either injected the methadone or ingested too much,
contrary to the instructions from his physician or pharmacy.
        The majority errs by rejecting an injection theory based on Officer
Boone’s speculation the needle tracks on the arm were not made “within
the last few hours” because there was no pus oozing out at the time of
his arrest. I find it inconsistent for the majority to credit Officer Boone’s
lay opinion on the age of Schories’s needle marks while rejecting Officer
Boone’s opinion that Schories was under the influence of a narcotic
based on his observed behavior and symptoms.               An appellate court
should not cherry-pick testimony from the same witness to believe and
disbelieve in the guise of determining the sufficiency of the evidence. It is
the jury’s role to weigh the evidence and decide what testimony is
credible.
        Theoretically, it is possible that Schories was using methadone in
compliance with his physician’s instructions, despite his erratic driving,
his drugged appearance, the syringe in the car, and the track marks on
his arm. But, a jury was entitled to find otherwise.
        The jury reasonably could conclude at least one of the needle
tracks was less than a day old or infer Schories injected himself in a
fresh spot Officer Boone did not examine, or find that at the time of his
arrest Schories remained impaired by methadone previously injected in
his arm. On this record, a reasonable jury could find Schories violated
                                     21

Dr. Baldi’s instructions by injecting the methadone.     Alternatively, the
jury could find Schories took more methadone in pill form than permitted
by the labeling instructions.
      The majority opinion will require expert testimony in more OWI,
prescription-drug-defense cases. The majority asserts: “Without expert
testimony, the evidence is not sufficiently strong to allow a reasonable
jury to conclude beyond a reasonable doubt that Schories was abusing
rather than simply using methadone according to his prescription.”
Thus, the majority questions the lack of evidence that methadone can be
injected and faults the lack of expert testimony as to how long injected
methadone would remain detectable in a person’s urine.            Yet, the
majority cites no Iowa case or other persuasive authority requiring expert
testimony to show defendant was abusing a prescription drug when
other signs of impairment are present.       The two cases cited by the
majority do not support requiring expert testimony here.
      The majority relies solely on State v. Lawson, 913 A.2d 494, 504–
05 (Conn. App. Ct. 2007), for the proposition that “expert testimony is
required to link a trace amount of methadone to a driving impairment.”
(Emphasis added.)     Yet, that case is inapposite.   There, the appellate
court affirmed the conviction of a drunk driver who caused a fatal
collision by turning into the path of the victim–motorcyclist, who braked
and swerved but was unable to avoid the impact. Lawson, 913 A.2d at
496. “The victim was thrown from the motorcycle and died as a result of
the collision.” Id. An autopsy revealed a trace amount of methadone in
the victim’s blood.   Id. at 503.   There was no evidence the victim was
driving erratically or was otherwise impaired. Lawson argued the jury
should have been allowed to consider evidence of the trace amount of
methadone in the victim’s blood, despite the lack of any “testimony as to
the effect of the drug on the victim’s ability to operate the motorcycle.”
                                    22

Id. at 504.    The appellate court disagreed and affirmed Lawson’s
conviction because “there was no evidence that any impairment [of the
victim] could constitute an independent and intervening cause of the
collision.” Id. at 505. Lawson simply did not adjudicate whether expert
testimony is required to prove a defendant was abusing methadone.
      The second case cited by the majority actually affirmed the
defendant’s conviction for impaired driving without expert testimony and
reversed the intermediate appellate court decision requiring expert
testimony. See State v. Bealor, 902 A.2d 226, 237–38 (N.J. 2006). The
majority merely cites Bealor for the proposition that “expert testimony is
preferred on a cause of intoxication other than alcohol.”       (Emphasis
added.)    I agree.    Expert testimony may well assist the jury in
prescription-drug-defense cases, but should not be required when other
admissible evidence supports the finding of impaired driving. Indeed, in
Bealor, the New Jersey Supreme Court held that the arresting officer’s
lay observations of defendant’s impairment and the presence of
marijuana in his bloodstream were sufficient to convict him, without
expert testimony the drug impaired his driving.          Id. at 236 (“The
aggregate of those proofs was more than sufficient to permit the fact-
finder to conclude, beyond a reasonable doubt, that the defendant
violated the driving while intoxicated statute.”). The same is true here.
      In contrast to these two cases, I would commend to the majority
the well-reasoned decision of the Pennsylvania Supreme Court, which
specifically rejected an expert testimony requirement in a similar case
involving impaired driving and a prescription-drug defense.             See
Commonwealth v. Griffith, 32 A.3d 1231, 1238–39 (Pa. 2011).
      Prescription-drug abuse is a growing problem nationally and in
Iowa. Our laws prohibiting impaired driving are intended to save lives
and make our roads safer. See State v. Comried, 693 N.W.2d 773, 775–
                                     23

78 (Iowa 2005) (affirming conviction for vehicular homicide based on
trace amount of methamphetamine in defendant’s blood). We noted the
purpose of Iowa Code chapter 321J is “to reduce the holocaust on our
highways” caused in part by intoxicated drivers. Id. at 775 (citation and
internal quotation marks omitted). In State v. Garcia, 756 N.W.2d 216
(Iowa 2008), we reiterated that the purpose of chapter 321J is “ ‘to help
reduce the appalling number of highway deaths resulting in part at least
from intoxicated drivers.’ ” Garcia, 756 N.W.2d at 220 (quoting State v.
Wallin, 195 N.W.2d 95, 96 (Iowa 1972)).        We should not undermine
chapter 321J by playing Monday morning quarterback to second-guess
juries or by superimposing a requirement of expert testimony when the
aggregate record evidence is sufficient to prove prescription-drug abuse.
Unfortunately, the majority’s de facto expert testimony requirement will
raise the cost of prosecuting OWIs based on prescription-drug abuse.
       The district court correctly denied Schories’s motion for judgment
of acquittal challenging the sufficiency of the evidence. Schories raised
other issues including errors in the jury instructions.     I agree with
Schories that the jury instructions given may have confused the jury as
to who had the burden of proof concerning his prescription-drug defense.
The instructional error entitles him to a new trial.   I will refrain from
addressing the other issues not reached by the majority because its
holding today requires dismissal of the charges against him without a
retrial.
       Mansfield and Zager, JJ., join this dissent.
