              IN THE SUPREME COURT OF IOWA
                            No. 26 / 04-1578

                         Filed October 13, 2006


STATE OF IOWA,

      Appellant,

vs.

KEIAFFA NICHOLE GREEN,

      Appellee.


      Appeal from the Iowa District Court for Johnson County, Bruce D.

Goddard, Magistrate.



      State appeals from district court order voiding conviction of driving

under suspension. AFFIRMED AND REMANDED.



      Thomas J. Miller, Attorney General, Mark A. Hunacek, Assistant

Attorney General, J. Patrick White, County Attorney, and Derek Swanson,

Assistant County Attorney, for appellant.



      Thad J. Collins of Pickens, Barnes & Abernathy, Cedar Rapids, for

appellee.
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LARSON, Justice.

      Keiaffa Green was charged with operating a motor vehicle while her

license was suspended, a simple misdemeanor under Iowa Code sections

321.218 and 321.210(1)(f) (2003).         The State successfully applied for

discretionary review under Iowa Code section 814.5(2)(d) (review of “final

judgment or order raising a question of law important to the judiciary and

the profession”). We affirm and remand.

      I. Facts and Prior Proceedings.

      On July 27, 2003, Keiaffa Green was cited for driving ninety-two in a

sixty-five mph zone, a “serious violation” qualifying her for a license

suspension under Iowa Code section 321.210(1)(f). Iowa Department of

Transportation (DOT) records included a copy of a letter dated January 24,

2004, to Green notifying her that her license would be suspended as of

March 3, 2004. On March 4, 2004, Green was cited for driving under the

suspension. Following trial, a magistrate dismissed the charge on the

ground the State had failed to show that Green had actually received notice

of her suspension.

      The State argues that the district court lacked authority in a criminal

case (driving under suspension) to adjudicate the legality of the
suspension—an issue it claims may only be raised through judicial review

of agency action under Iowa Code chapter 17A. The State also argues that

the court erred in holding that the actual receipt of a notice of suspension is

required for conviction.

      Ordinarily, the legality of a license suspension must be determined in

judicial review proceedings under chapter 17A, not in a collateral criminal

proceeding based on that suspension. See State v. Clark, 608 N.W.2d 5, 9

(Iowa 2000) (holding that prosecution for driving while barred is not a

proper forum to challenge an underlying DOT failure to provide for a
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hearing); Iowa Dep’t of Transp. v. Dist. Ct., 534 N.W.2d 457, 459-60 (Iowa

1995) (holding that a district court in a criminal case lacked jurisdiction to

determine legality of underlying license revocation).

      In Clark a driver was charged with operating a vehicle while

suspended. The district court dismissed the charge because the DOT had

not complied with the statutory procedures for initiating the hearing on the

suspension. 608 N.W.2d at 6. Specifically, the district court ruled that the

notice of suspension, which stated that “unless you request a contested

hearing” the suspension would become effective, was contrary to statute

because it illegally shifted the burden of initiating a hearing to the driver.

Id. at 7. We reversed on the ground that the district court had no authority

in a criminal case to invalidate the DOT’s action. Id. at 8-9.

      In Iowa Department of Transportation v. Iowa District Court, the DOT

notified the driver that, under a recently enacted statute, his license was

revoked because of a drug violation. The driver filed an application for a

nunc pro tunc order seeking an adjudication that the new statute did not

apply to him. Iowa Dep’t of Transp., 534 N.W.2d at 458. The nunc pro tunc

order was entered, and the DOT obtained a writ of certiorari from this court.

We held that the district court lacked authority in a criminal action to
adjudicate the validity of the revocation; the licensee’s sole remedy was

through agency action under chapter 17A. Id. at 459.

      In both Clark and Department of Transportation it was clear that

agency proceedings had been commenced by the DOT through notification

to the driver of the pending suspension or revocation of their licenses.

Clark, 608 N.W.2d at 6; Dep’t of Transp., 534 N.W.2d at 458. Those cases

must be distinguished from the present case because in the present case,

the issue is whether the condition precedent to agency action, i.e., the

notice to the licensee, was established by the DOT.
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      Two statutes bear on DOT notices. Iowa Code section 321.16, the

general notice requirement, focuses on the sending of such notices. It

provides:

      When the department is authorized or required to give notice
      under this chapter or any other law regulating the operation of
      vehicles, unless a different method of giving notice is expressly
      prescribed, notice shall be given either by personal delivery to
      the person to be so notified or by personal service in the
      manner of original notice . . . or by first class mail addressed to
      the person at the address shown in the records of the
      department . . . .

Iowa Code § 321.16.
      In contrast to that statute, section 321.210(1) provides a more

stringent requirement for notices of suspension by focusing on the

licensee’s receipt of the notice. It provides:

      Prior to a suspension taking effect [for a serious violation] the
      licensee shall have received thirty days’ advance notice of the
      effective date of the suspension.

Iowa Code § 321.210(1).

      Green contends, and the district court held, that the DOT failed to

establish that Green actually received the thirty-day notice, as required by

section 321.201(1).     The DOT counters that it satisfied the notice
requirement by mailing it to Green’s last known address according to DOT

records, and the only reason Green did not get the notice was that she

moved to an address different from that shown in the DOT records without

notifying the DOT of the change of address as required by statute. We need

not address the issue of receipt because we conclude the State failed to

prove it mailed the notice.

      The district court found as a matter of fact that the DOT had mailed

the notice, based on the fact that it introduced a copy of a letter into

evidence. The DOT, however, produced no testimony to support its claim of
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mailing, nor did it produce an affidavit of mailing despite Iowa Code section

321.16’s requirement that the DOT “develop[] . . . affidavits verifying the

mailing of notices under this chapter.” The DOT’s administrative rules,

moreover, anticipate that more than a copy of a suspension notice may be

used to verify mailing. This rule provides:

      The department may prepare an affidavit of mailing verifying
      the fact that a notice was mailed by first-class mail. To verify
      the mailing of a notice, the department may use its records in
      conjunction with U.S. Postal Service records available to the
      department.

Iowa Admin. Code r. 761—615.37(4).

      The DOT points to this saving language of section 321.16, which

provides:

      A person’s . . . claim of failure to receive a notice of revocation,
      suspension, or bar mailed by first class mail to the person’s
      last known address shall not be a defense to a charge of driving
      while suspended, revoked, denied, or barred.

(Emphasis added.) This saving provision clearly contemplates that the

notice had been “mailed by first class mail.” In the present case, there was

no proof that the notice was in fact mailed. We do not believe that the

saving provision of Iowa Code section 321.16 may be read so broadly as to

relieve the DOT of showing the mailing of a notice such as by affidavit or a

certified mail receipt.   We cannot presume, based solely on the DOT’s

furnishing of a copy of a notice found in its files that the notice was actually

mailed.

      We affirm the district court’s order and remand for dismissal of the

charge.

      AFFIRMED AND REMANDED.

      All justices concur except Hecht, J., who takes no part.
