               IN THE SUPREME COURT OF IOWA
                               No. 16–1525

                             Filed June 7, 2019


STATE OF IOWA,

      Appellee,

vs.

TIMOTHY ALVIN NEWTON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Ringgold County,

Dustria A. Relph, Judge.



      Appeal from judgment and sentence for operating while intoxicated

and child endangerment.         DECISION OF COURT OF APPEALS

AFFIRMED;         DISTRICT    COURT     JUDGMENT      AND     SENTENCE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant

Attorney General, and Clint L. Spurrier, County Attorney, for appellee.
                                        2

CADY, Chief Justice.

      In this appeal from a judgment and sentence entered by the

district court for operating while intoxicated (OWI), second offense, we

consider whether the portion of the statute that makes it unlawful for a

person to operate a motor vehicle “[w]hile any amount of a controlled

substance is present in the person” violates the Due Process Clause of

the United States and Iowa Constitutions.        Iowa Code § 321J.2(1)(c)

(2014).

      After we transferred the case to the court of appeals, it found the

statute was constitutional but reversed the judgment and sentence after

finding the district court failed to engage in a proper colloquy before

accepting the stipulation relating to the prior conviction for OWI.    It

declined to address a claim of sentencing error. On further review, we

only address the due process claim and agree with the court of appeals

on the disposition of the other issues.     We conclude the clause of the

OWI statute that makes it unlawful for a person to operate a motor

vehicle with any amount of a controlled substance in his or her person

does not violate the Due Process Clause of either our Federal or State

Constitution as applied to this case.

      I. Background Facts and Proceedings.

      Timothy Newton was convicted following a jury trial of the crime of

OWI, second offense, in violation of Iowa Code section 321J.2(1) and

section 321J.2(2)(b).   He was also convicted of child endangerment, in

violation of section 726.6(1)(a) and section 726.6(7).   The background

facts date back to the early morning hours of September 3, 2014, when a

deputy sheriff discovered a sports utility vehicle and a detached trailer

stuck in a muddy ditch near the driveway of a home. Newton was in the

driver’s seat of the vehicle. The engine was running. Newton’s seat was
                                     3

in a reclined position and the driver’s door was open. Newton’s eleven-

year-old son was standing just outside the vehicle.

      Newton displayed signs of intoxication or impairment to the deputy

sheriff. He appeared oblivious to his surroundings and was disoriented.

Newton was also confused, even about the day of the week. He could

only vaguely describe how the vehicle and trailer had entered the ditch.

Another deputy who arrived shortly after the first deputy performed

several field sobriety tests. Newton failed some of the tests and passed

others. A preliminary breath test did not detect the presence of alcohol

in his body, but the horizontal gaze nystagmus test and other testing

indicated to the deputy that Newton was under the influence of a

substance. Additionally, the deputy had previously been told by another

law enforcement officer that Newton was known to use drugs.

      The deputies invoked implied-consent procedures. A urine sample

was eventually obtained from Newton and analyzed at the State

Department of Criminal Investigation laboratory. The sample was found

to contain benzodiazepine, opiates, cocaine metabolites, marijuana

metabolites, and tricyclics. A confirmatory test validated these results.

Newton was subsequently charged with OWI, second offense, and child

endangerment. He filed a motion to suppress the urine sample, claiming

the deputy invoked the implied-consent procedures without having

reasonable grounds to believe Newton was operating the vehicle while

under the influence. The district court found Newton displayed visible

signs of impairment at the scene to support reasonable grounds for

invoking the implied-consent testing procedures. It denied the motion.

      At trial, Newton’s father testified that he was driving the vehicle at

the time it entered the ditch and that Newton and his son were

passengers in the vehicle. Newton’s son testified that Newton drove the
                                     4

vehicle only in an attempt to remove it from the ditch after his

grandfather left the scene to find help. Newton’s wife and son testified

Newton had been ill for several days and had been acting lethargic and

exhausted.

      The State criminologist who tested the urine sample testified to the

results.   He also explained the metabolism process of drugs in the

human body. He explained that the process causes drug metabolites to

pool in a person’s bladder and remain there for days.         He further

explained this process means a urine sample of a person can test

positive for drugs or the metabolites of drugs consumed many days prior

to the time the sample was taken and long after the effects of the drug

have dissipated.     Another toxicologist testified consistently with the

testimony of the State’s criminologist.

      The jury was instructed that Newton could be found guilty of

operating while intoxicated if he operated a motor vehicle either while

(a) under the influence of drugs or (b) having any amount of a controlled

substance present, as measured in his blood or urine. The jury was also

instructed that each juror did not need to agree to one alternative to

return a verdict only that all jurors at least needed to agree to one of

either of the alternatives.

      The jury returned a verdict of guilty to operating while intoxicated

and child endangerment. Newton subsequently stipulated to a previous

conviction of operating while intoxicated in 2007 to elevate the OWI

conviction to a second offense. At sentencing, the district court denied

probation, in part, by mentioning that Newton had been charged with

another crime that allegedly occurred after his arrest in this case.

Following sentencing, Newton appealed.
                                             5

       Newton raised three issues on appeal.                     First, he claimed a

conviction for operating while intoxicated based on a finding of “any

amount” of a controlled substance in his person under Iowa Code section

321J.2(1)(c) violated his due process rights under the Federal and State

Constitutions. 1 Second, he claimed his stipulation to a prior conviction

for OWI was not entered knowingly and voluntarily. Finally, he claimed

the district court considered unproven offenses in imposing the sentence.

       We transferred the case to the court of appeals. It found section

321J.2(1)(c) did not violate the Due Process Clause of either the Federal

or State Constitution.         However, it found the district court failed to

engage in the required colloquy before accepting Newton’s stipulation to

the prior conviction for OWI. Accordingly, the court of appeals directed

that the sentence be vacated and remanded the case for a new hearing

on the prior conviction. It declined to address the claim of sentencing

error concerning the prior unproven offense.

       Newton sought, and we granted, further review. On further review,

we only consider Newton’s claim that his rights under the Due Process

Clause of the State and Federal Constitutions were violated when he was

prosecuted for having “any amount” of a controlled substance in his

urine. As to the two remaining claims, we agree with the analysis and

conclusions of the court of appeals. The case must be returned to the



       1A  general verdict must reveal the basis for the guilty verdict when a defendant
is charged under a statute with alternative crimes. See State v. Lukins, 846 N.W.2d
902, 912 (Iowa 2014) (rejecting guilty verdict when court failed to determine whether
defendant was guilty under Iowa Code section 321J.2(1)(a) (2011), operating under the
influence of alcohol, drugs, or a combination of the two, or section 321J.2(1)(b),
operating with an alcohol concentration of .08 or more). But see 2019 Iowa Legis. Serv.
S.F. 589, § 32 (West) (codified at Iowa Code § 814.28 (2019)) (barring appellate revision
of a verdict “on the basis of a defective or insufficient theory if one or more of the
theories presented and described in the complaint . . . is sufficient to sustain the verdict
on at least one count”).
                                     6

district court for a new multiple-offender hearing pursuant to the

procedures established in State v. Harrington, 893 N.W.2d 36, 47 (Iowa

2017). Additionally, because the case must be returned for entry of a

new judgment and resentencing, we agree it is unnecessary to address

the claim of sentencing, error raised in this case.

      In regard to the Due Process Claim, Newton asserts the “any

amount” standard under Iowa Code section 321J.2(1)(c) is vague and not

rationally related to the purpose of the statute.     Newton asserts the

statute is vague because it fails to provide fair notice of when conduct is

prohibited because a urine sample can contain metabolites or derivatives

of a controlled substance days after use of the controlled substance and

after impairment from the drug has dissipated. He further claims these

consequences can lead to arbitrary arrests and prosecutions.       Newton

further asserts a substantive due process claim.      He claims the “any

amount” standard is not rationally related to a legitimate highway safety

purpose, or any other governmental interest, under the statute.

      II. Standard of Review.

      Our review of constitutional challenges to a statute is de novo.

Taft v. Iowa Dist. Ct., 879 N.W.2d 634, 638 (Iowa 2016).      Because we

presume statutes are constitutional, “ ‘[t]he challenger bears a heavy

burden, because it must prove the unconstitutionality beyond a

reasonable doubt.’ ”       Id. (alteration in original) (quoting State v.

Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)).         “Such a party

must negate every reasonable basis upon which the court could hold the

statute constitutional.”    State v. Biddle, 652 N.W.2d 191, 200 (Iowa

2002).
                                     7

      III. Due Process of Law.

      A. Preservation of Error.       The State claims Newton failed to

preserve error because he was required to raise his due process claim in

district court by filing a motion to dismiss the trial information no later

than forty days after the arraignment.      It argued his failure to do so

constituted a waiver of the issue on appeal.        See Iowa R. Crim. P.

2.11(2)(b), (3), (4). The State, however, did not object to the claim on the

ground of untimeliness when it was raised by Newton in the district

court on the first day of trial. Instead, the State resisted the claim on the

merits, and the district court fully considered the issue and made a

ruling on the merits.     Consequently, the State waived any timeliness

objection on appeal by failing to make it in district court. See State v.

Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (rejecting consideration of the

State’s timeliness objection due to its failure to raise the issue at the

district court level).

      B. Standing.       The State also claims Newton lacks standing to

bring a facial challenge to the statute because it is not vague as applied

to him. The State points out that Newton’s facial challenge rests on the

absence of notice to drivers who violate the statute when a trace amount

of a controlled substance remains in the bladder after impairment

associated with the use of the drug has ended. It argues the statute is

not vague as applied to Newton because his conduct at the time of the

stop gave the arresting officers reasonable grounds to believe he was

under the influence at the time.

      Ordinarily, if a statute is not unconstitutional as applied to the

litigant who brings the claim, the litigant has no standing to argue the

statute as unconstitutional on its face. See State v. Hunter, 550 N.W.2d

460, 463–64 (Iowa 1996), overruled on other grounds by State v.
                                       8

Robinson, 618 N.W.2d 306, 312 (Iowa 2000) (en banc). While exceptions

exist, none are applicable to this case.        Accordingly, we will review

Newton’s claim to first determine if the statute was vague as applied to

him. Newton argues his conduct at the scene of the stop was the result

of an illness, implying that any amount of drugs in his urine sample was

from past use and was not indicative of impairment. He argues that the

absence of a specific threshold amount renders the statute vague and

that this claimed deficiency applies to the circumstances of his case.

      C. Due Process Challenge to Iowa Code Section 321J.2(1)(c).

Iowa Code section 321J.2(1) criminalizes the operation of a motor vehicle

in this state while the operator is under the influence under three

conditions. The first condition is when the driver is under the influence

of an alcoholic beverage or other drug or a combination of such

substances. Id. § 321J.2(1)(a). The second condition is when the driver

has an alcohol concentration of .08 or more.        Id. § 321J.2(1)(b).   The

third condition is when the driver has “any amount of a controlled

substance” present in his or her person “as measured in the person’s

blood or urine.”    Id. § 321J.2(1)(c).    The purpose of the statute is to

protect Iowans from the risk of injury or death caused by people who

drive motor vehicles after drinking alcoholic beverages or using other

intoxicating drugs. See State v. Childs, 898 N.W.2d 177, 183 (Iowa 2017)

(recognizing purpose of OWI statute); State v. Comried, 693 N.W.2d 773,

775 (Iowa 2005).      It is common knowledge that the consumption of

alcohol and other drugs can impair the ability to safely operate a motor

vehicle.

      At the same time, all statutes that govern the conduct of people,

regardless   of   their   compelling   purpose,   must   comply   with    the

fundamental concepts of fairness implicit in the constitutional right to
                                      9

“due process of law.” U.S. Const. amend. XIV, § 1; Iowa Const. art. I, § 9

(due process of law). One such concept is the prohibition against vague

statutes.   The Due Process Clauses of the United States and Iowa

Constitutions prohibit vague statutes. See State v. Musser, 721 N.W.2d

734, 745 (Iowa 2006). The clause is broad and captures the common

concept that all laws are required to give people of ordinary intelligence

fair warning of the prohibited conduct so they will have a reasonable

opportunity to navigate through life by engaging in lawful conduct and

spurning unlawful conduct.      Id.   No law can become a trap for the

innocent. See State v. Bower, 725 N.W.2d 435, 441 (Iowa 2010); see also

Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2299

(1972). Thus, the general touchstone of vagueness is whether the statute

itself, or as construed, “made it reasonably clear at the relevant time that

the defendant’s conduct was criminal.”     State v. Lanier, 520 U.S. 259,

267, 117 S. Ct. 1219, 1225 (1997).          Additionally, the concept of

vagueness not only is tied to the requirement of adequate notice, it also

exists to prevent arbitrary or discriminatory law enforcement and

prohibits statutes that threaten substantial amounts of constitutionally

protected activities. See State v. Nail, 743 N.W.2d 535, 539 (Iowa 2007).

      Likewise, the substantive guarantees of due process under both

Federal and State Constitutions prohibits government from enacting laws

that infringe upon “rights ‘implicit in the concept of ordered liberty.’ ”

Hernandez-Lopez, 639 N.W.2d at 237 (quoting United States v. Salerno,

481 U.S. 739, 746, 107 S. Ct. 2095, 2101 (1987)).       When the right at

stake is not fundamental, as in this case, this component of due process

requires a reasonable fit between the purpose of the law and the means

used under the law to advance that purpose.        See King v. State, 818

N.W.2d 1, 27 (Iowa 2012).
                                      10

      While we reserve the right to apply the due process provisions of

the Federal and State Constitutions independently, we find no reason in

this case to use a different analysis or to reach different outcomes.

Thus, in this case, our analysis under both constitutions is the same.

      Newton breaks down his due process claim into two parts. Under

the first, he asserts the “any amount” standard under Iowa Code section

321.2(1)(c) is impermissibly vague and fails to reasonably apprise drivers

like him of the prohibited conduct under the statute. Under the second

part, he claims the statute violates due process because it is not

rationally related to its objective of curtailing impaired driving.

      Both components of the claim are built on the same foundation.

Newton relies on scientific evidence presented at trial to establish that

the legal standard of driving with “any amount” of a controlled substance

in the body can be violated when a driver operates a motor vehicle days

after consuming a controlled substance and days after the effects or

impairment of the drug have dissipated. It is an outcome that can occur

when a urine sample, as opposed to a blood sample, is used to test for

the presence of a controlled substance under the statute. As established

at trial, it can occur due to the manner in which a controlled substance

metabolizes in the human body. As drugs are metabolized in the body

and eventually expelled, the drug metabolites pool in a person’s urine.

The metabolites will remain in the urine for days or longer until fully

discharged.    Thus, a urine sample tested for the presence of the

controlled substance can detect a drug long after consumption and after

the effects of the drug have dissipated. Based on the evidence that the

criminal statute can capture the drivers who are not impaired, Newton

argues it both fails to give persons without scientific knowledge of
                                    11

metabolism, like him, fair warning of the prohibited conduct and has an

inadequate fit to the objective of keeping impaired drivers off the road.

        A statute that criminalizes driving a motor vehicle with a trace

amount of metabolites of a controlled substance stored in the body long

after the impairment has dissipated brings these two important

constitutional due process principles at issue in this case into play. Yet,

the “any amount” criminal standard cannot be viewed in isolation

because it does not operate standing alone.        Instead, the challenged

statute must be viewed in the broader “statutory scheme of which it is a

part.” Robinson, 618 N.W.2d at 314–15. Thus, the question we face is

whether the statute when read together with associated laws adequately

informs persons of ordinary intelligence of the proscribed criminal

conduct. See Musser, 721 N.W.2d at 745.

        Iowa Code section 321J.2(1)(c) does not operate to criminally

punish the conduct of people who drive with any amount of a controlled

substance in the body until other statutory requirements first come into

play.    First, section 321J.2(1)(c) only criminalizes driving with “any

amount of a controlled substance . . . present in the person, as measured

in the person’s blood or urine.” Id. § 321J.2(1)(c). This standard means

no prosecution can occur until a blood or urine sample is obtained and

tested. Id. Second, a blood or urine sample can only be obtained from a

driver pursuant to the implied-consent law or the companion procedures

governing the withdrawal of a specimen under special circumstances.

See id. § 321J.6 (governing implied-consent testing); see also id.

§§ 321J.7; .10; .10A (governing specific testing procedures in special

circumstances).    Under the implied-consent laws, a urine sample can

only be obtained from a driver and tested for a controlled substance if a

peace officer first has reasonable grounds to believe the driver was
                                     12

violating section 321J.2(1) and at least one of seven implied-consent

conditions is present, including the condition that a peace officer

administered a preliminary breath screening test that indicated an

alcohol concentration level less than the prohibited legal level and has

reasonable grounds to believe the driver was under the influence of a

controlled substance, a drug other than alcohol, or a combination. Id.

§§ 321J.2(1); .6(1)(a)–(g).   Likewise, the special procedures require the

peace officer to have reasonable grounds to believe that the statute was

violated.   Id. §§ 321J.10; .10A.     Thus, associated provisions of the

operating-while-intoxicated laws supplement the “any amount” standard

to require the existence of circumstances of impairment or other

reasonable grounds of a violation at or near the time of the stop before a

urine sample can be requested and obtained.         Although the implied-

consent requirements are not elements of the crime, they nevertheless

are legal requirements that are determined by the court and restrain law

enforcement and the prosecution of the crime.

      We have previously recognized that the “any amount” standard of

section 321J.2(1)(c) is strict, but its unsparing approach is ameliorated

by the requirements that the traffic stop be lawful and the police officer

have reasonable grounds to believe the driver was impaired or otherwise

in violation of the statute. Childs, 898 N.W.2d at 185. Importantly, the

standard cannot be met without a blood or urine test. State v. Myers, ___

N.W.2d ___ (Iowa 2019). If the implied-consent law was not followed, the

test results cannot be used against the driver in a criminal prosecution.

State v. Albrecht, 657 N.W.2d 474, 477 (Iowa 2003). Thus, a properly

invoked blood or urine test is part and parcel to a criminal prosecution

under Iowa Code section 321J.2(1)(c).
                                    13

      In the same way, the statutory requirement of reasonable grounds

helps supply the notice required under the Due Process Clause to drivers

that their conduct may be in violation of the statute. Just as a peace

officer must possess reasonable grounds to believe a driver is in violation

of the statute, drivers possess common knowledge that the consumption

of alcoholic beverages and controlled substances alter thinking and

impair physical actions. Persons of ordinary intelligence know that their

conduct may be in violation of the statute if they drive a motor vehicle

after intoxicating drugs are consumed. We previously recognized in State

v. Bock how this proposition applies to the driving while intoxicated

statutes to supply reasonable notice to drivers who consume alcoholic

beverages, when we said,

      Although persons engaging in consumption of alcoholic
      beverages may not be able to ascertain precisely when the
      concentration of alcohol in their blood, breath, or urine
      reaches the proscribed level, they should, in the exercise of
      reasonable intelligence, understand what type of conduct
      places them in jeopardy of violating the statute. We believe a
      realization of this potential jeopardy of violating the statute
      is sufficient to satisfy the requirements of due process.

357 N.W.2d 29, 34 (Iowa 1984). The proposition applies in the same way

to controlled substances.      While the notice is not flawless, it is

reasonable under the circumstances.       Drivers of ordinary intelligence

know they risk violating Iowa Code section 321J.2(1)(c) when they drive

after consuming or ingesting intoxicants or controlled substances to the

point that others can observe reasonable grounds of a violation of the

statute. On the other hand, when a driver has no reason to know she or

he may be driving impaired, a police officer is not normally able to

observe reasonable grounds that the driver has violated the statute to

invoke the testing needed to support a prosecution.
                                         14

       Nevertheless, Newton asserts this notice fails to inform drivers, like

himself, who operate a motor vehicle after the effects of using a

controlled substance have ended but before the metabolites in the urine

have been totally discharged. Under this circumstance, Newton argues

the statute does not provide drivers of ordinary intelligence notice that

their actions may be in violation of the statute.

       We recognize that the constitutional standard at issue in this case

is reasonable notice.      We also observe that unique challenges exist in

providing sufficient notice under section 321J.2(1)(c) to satisfy the due

process standard, even though the State’s interest in regulating drug-

impaired driving is compelling.          We discussed these challenges and

complications in both Childs and Comried and identified how they help

serve to justify a flat ban. 2 See Childs, 898 N.W.2d at 184–85; Comried,

693 N.W.2d at 776.

       We acknowledge the implied-consent law is not a perfect means to

steer drivers away from violating the provisions of Iowa Code section

321J.2(1)(c) as they navigate through life. Yet, the central imperfection of

the statutory scheme, as revealed by Newton’s argument, is when the

grounds to initiate the implied-consent testing may be unrelated to
observations of impaired driving.          For example, under the statutory

scheme, a peace officer with knowledge of the process of the metabolism

of marijuana in the body and with reasonable grounds to believe a

person has ingested marijuana within a week or so of driving could

conceivably have reasonable grounds to stop a vehicle for violation

section 321J.2(1)(c) and invoke the implied-consent testing procedures


       2The  strict standard relates in part to the current hurdles in testing drug
impairment. See Childs, 898 N.W.2d at 184. For example, at this time, there is no
device for a peace officer to identify marijuana-impaired driving or even an accepted
standard to identify such an impairment. Id.
                                       15

without objective signs of driver impairment. This circumstance could

occur because implied consent can be invoked when the police officer

has reasonable grounds to believe the driver has “any amount” of a

controlled substance in his or her body and one of the seven other

conditions exist. See Iowa Code § 321J.6. The scientific knowledge of

metabolism    could    supply    the   reasonable    grounds.         The    same

circumstance, however, would not give a driver without scientific

knowledge of the process of metabolism notice that driving a vehicle days

or weeks after drug use may be a crime under section 321J.2(1)(c). The

reasonable standard under the Due Process Clause is that of a person of

ordinary intelligence, and this standard would not impute scientific

knowledge to such a person.       Thus, if the deputy sheriff in this case

would have invoked implied consent only because he had heard Newton

was a drug user and suspected trace amounts of metabolites would be in

his body, the question we face would be different.

      Notwithstanding, this particular type of due process claim does not

exist in this case. In this case, the reasonable grounds by a police officer

to   invoke   the   implied-consent    testing   was     based   on    objective,

contemporaneous signs of impaired driving.          The district court in this

case found the arresting officer had reasonable grounds to invoke

implied-consent     based   on   the   visible   signs   of   intoxication    and

impairment exhibited by Newton at the scene of the stop. Although the

district court mentioned additional evidence that Newton had been

identified as a “drug user,” it did not rely on this evidence to find

reasonable grounds to invoke implied consent. Newton was prosecuted

because he exhibited signs of impairment, and the effects of drug use

commonly known by drivers gave him notice that he may be in violation

of the law at the time he operated the vehicle.
                                       16

      The due process concerns that a different case would present

under the statute are not presented in this case.           As the statute is

applied to Newton, it provided reasonable notice.            Accordingly, the

statute does not violate the Due Process Clause as applied to Newton,

and he is without standing to assert the claim that the statute is

unconstitutional   on    its   face.        We   reserve   judgment    on   the

constitutionality of the statute when the reasonable grounds to invoke

implied consent would not involve contemporaneous objective signs of

impairment.

      Based on the same reasoning, we reject the substantive due

process claim raised by Newton. When a prosecution under the statute

is driven by reasonable grounds of an ongoing impairment, as in this

case, the “any amount” standard is rationally related to the compelling

safety concerns of the State. As with the vagueness claim, we reserve

judgment under different circumstances.

      IV. Conclusion.

      We conclude section 321J.2(1)(c) does not violate the requirements

of due process under the Federal or State Constitutions as applied to the

circumstances of this case.       We affirm the decision of the court of

appeals, affirm the judgment and sentence of the district court in part

and reverse in part, and remand for further proceedings.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT     JUDGMENT        AND      SENTENCE         AFFIRMED      IN    PART,

REVERSED IN PART, AND REMANDED FOR RESENTENCING.

      All justices concur except Appel, J., who dissents, and McDonald,

J., who takes no part.
                                     17

                                                #16–1525, State v. Newton

APPEL, Justice (dissenting).

      I respectfully dissent.

      First, in parts of the majority opinion, the generic label “due

process” is used to describe the plaintiff’s claim. The plaintiff, however,

seeks to raise two distinct claims under the due process rubric in this

appeal.

      The first claim relates to vagueness.       The plaintiff claims the

statute is so vague that a reasonable person cannot comply. Second, he

claims that because marijuana metabolites stay in the system for many

days long after any impairment in driving, the statute violates

substantive due process in seeking to criminalize such conduct. I find

the first issue related to fair notice troubling, while the second issue has

not been preserved for our review.

      On the fair notice issue, the majority cites State v. Bock, 357

N.W.2d 29, 33–34 (Iowa 1984) (en banc), for the proposition that the

statute here is not void for vagueness. In Bock, we upheld a proscribed

threshold for operating a vehicle while intoxicated contained in Iowa law.

See id. We noted,

      Although persons engaging in consumption of alcoholic
      beverages may not be able to ascertain precisely when the
      concentration of alcohol in their blood, breath, or urine
      reaches the proscribed level, they should, in the exercise of
      reasonable intelligence, understand what type of conduct
      places them in jeopardy of violating the statute. We believe a
      realization of this potential jeopardy of violating the statute
      is sufficient to satisfy the requirements of due process.

Id. at 34. I agree with the result, and even the reasoning, in Bock. But

the issue here is different. The average person who goes to a bar and

consumes a number of alcoholic beverages in a few hours knows, or

should know, of the jeopardy. Better not drive. Take a taxi. Go home
                                       18

and sleep it off. But most people of average intelligence do not know that

inactive marijuana metabolites stay in a user’s system for days after any

potential impairment has vanished.

      Indeed, casual marijuana users of ordinary intelligence would be

shocked to learn that many days after use and long after any

impairment, they might be found intoxicated under the statute because

of very small amounts of an inactive marijuana metabolite remaining in

the system even though their driving was unimpaired by the past

marijuana use. A person who has had a few drinks before driving knows

of the risk of alcohol-based intoxication, but does not know of the

jeopardy posed by ingesting marijuana many days before.

      The majority suggests there are protections against arbitrary

enforcement because there must be a valid stop and then a valid reason

for a urine sample. Of course, anyone can be stopped any time for some

kind of traffic violation. That is little protection.

      Nonetheless, before a urine sample is obtained, ordinarily there

must be probable cause or reasonable suspicion to support the draw.

But that is not always the case. The presence of marijuana metabolites

in urine might be discovered in cases involving an accident in which the

driver is hospitalized and standard medical tests are undertaken. See,

e.g., Iowa Code § 147A.8(1) (2017); see also id. § 321J.7 (providing for

medical testing of unconscious persons or persons incapable of consent

or refusal to determine presence of alcohol or controlled substances). In

short, the majority’s ruling that arbitrary enforcement is not a problem

under the statute should be considered limited to the facts of this case

and not a blanket blessing under the statute.

      On the issue of substantive due process, I have serious doubts on

the merits.   See State v. Childs, 898 N.W.2d 177, 196–201 (Appel, J.,
                                          19

dissenting). But the issue has not been preserved. Meier v. Senecaut,

641 N.W.2d 532, 537–40 (Iowa 2002). Only the question of fair notice

was presented to, and ruled upon, by the district court. 3 I thus would

not address the issue.

       But the use of an overbroad irrebuttable presumption that the

presence of a trace of marijuana metabolite in the urine automatically

means that the driver was impaired by marijuana is simply irrational. It

is defended on the ground that there is no more accurate urine test and

that more accurate testing would be too expensive.                Think about that

proposition. The science behind urine testing is not very accurate, but it

satisfies due process, apparently, because it is cheap and leads to more

convictions, many of which may apply to people that have not been

driving while impaired by the use of marijuana. Because of the poor fit

between a trace of metabolite in the urine and the purpose of the statute

on punishing impaired drivers, the statute strikes me as presenting a

substantive due process problem. State v. Hernandez-Lopez, 639 N.W.2d

226, 238 (Iowa 2002).




       3The parties agreed to consider the due process issue at the close of the State’s
evidence. The defendant raised the issue during consideration of the jury instructions.
In objecting to the proposed jury instruction, the defendant stated that “we’re still
relying on the issue that the Iowa Code 321J.2(1) is unconstitutionally vague as it
applies to defendant in violation of the due process clause of the Fourteenth
Amendment to the United States [Constitution] and Article I, Section 9 of the Iowa
Constitution, that being the implied consent and the two-hour time span and the
presence of any amount of controlled substance in a person’s urine or blood can
amount to operating while intoxicated.” The district court overruled the objections.
