               IN THE SUPREME COURT OF IOWA
                            No. 25 / 06-0410

                        Filed December 28, 2007

STATE OF IOWA,

      Appellant,

vs.

DAWN MARIE NAIL and
JOSHUA KUCERA,

      Appellees,


      Appeal from the Iowa District Court for Johnson County, Sylvia A.

Lewis, District Associate Judge.



      We granted discretionary review of a district court decision which

declared Iowa Code section 907.14(1) void for vagueness. REVERSED AND

REMANDED FOR FURTHER PROCEEDINGS.



      Thomas J. Miller, Attorney General, Kristin Guddall and Darrel L.

Mullins, Assistant Attorneys General, J. Patrick White, County Attorney,

and Iris Frost, Assistant County Attorney, for appellant.



      John B. Whiston, Iowa City, and Rachel C.B. Antonuccio and Mary T.

Northrup, Student Legal Interns, for appellees.
                                     2

APPEL, Justice.

       In this case, the court is called upon to determine whether Iowa Code

section 907.14(1) (2005), which provides for a civil money penalty as a

result of a deferred judgment, is constitutional. The defendants argue that

the statute is unconstitutionally vague because it does not expressly

contain a limit on the amount of penalty assessed. They further allege that

the provision violates due process of law by imposing punishment prior to

an adjudication of guilt. The district court found the statutory provision

constitutionally infirm and refused to enforce it against the appellees Nail

and Kucera. We granted the State’s discretionary appeal to address these

constitutional issues. For the reasons expressed below, we reverse the

ruling of the district court and remand the case for further proceedings.

       I. Background Facts and Prior Proceedings.

       On July 4 and July 16, 2005, respectively, Dawn Nail and Joshua

Kucera were arrested for first offense operating a motor vehicle while

intoxicated (OWI). Both defendants originally pled not guilty. As part of a

plea bargain, the defendants entered written guilty pleas. The written guilty

pleas stated that the defendants understood the nature of the charge and

knew “the maximum possible penalty and any mandatory minimum penalty

therefor” and that the court may enter the maximum sentence provided by

law.

       Both defendants requested deferred judgments. As part of the plea

bargain, the State and the defendants agreed that the defendants “may

receive a deferred judgment, self-supervised probation, and must complete

the Kirkwood Weekend Program.” The district court accepted the pleas. A

hearing was then set for the entry of judgment and sentencing.
                                      3

      Prior to the scheduled hearing, the defendants challenged the

potential imposition of a civil penalty as part of a deferred judgment. Iowa

Code section 907.14(1) provides:

      Upon entry of a deferred judgment pursuant to section 907.3, a
      defendant shall be assessed a civil penalty of an amount not
      less than the amount of any criminal fine authorized by law for
      the offense under section 902.9 or section 903.1.

The defendants argued, among other things, that the civil penalty

authorized by section 907.14(1) violated both the United States and the

State of Iowa Constitutions because (1) the statute was void for vagueness
as it failed to establish a ceiling for potential civil penalties and lacked

substantive guidelines or criteria for law enforcement and courts to apply,

and (2) the statute imposed a civil penalty prior to an adjudication of guilt,

thereby violating due process.

      At the beginning of the hearing, the district court proposed separating

the granting of a deferred judgment from the imposition of a civil money

penalty. The State and the defendants agreed to this approach.

      When the court asked for a statement on the issue of granting a

deferred judgment, defense counsel asked the court that “part of the guilty

plea colloquy be conducted by the Court to make sure that [the defendants

are] fully informed about the maximum sentence that would be available if

they do not get a deferred.” In response, the district court stated that upon

conviction of first offense OWI, there is a minimum jail sentence of forty-

eight hours and a maximum jail sentence of one year, a fine of $1000 is

assessed, along with a thirty-two percent surcharge and court costs, but no

civil money penalty is imposed. After the district court’s statement, the

defense counsel advised the court that the defendants wished to maintain

their pleas of guilt, which was confirmed by each defendant on the record.
                                      4

      The district court then returned to the issue of whether the

defendants should be granted a deferred judgment. The State did not resist

deferred judgment in light of the defendants’ lack of prior criminal history

and their relatively low levels of intoxication—.093 and .092.       Defense

counsel further assured the court that the defendants realized that they

had each made “a horrible error of judgment” and promised that the court

“should not see them again, ever.”

      At this point, the district court asked each defendant if they requested

a deferred judgment and each answered affirmatively. The court, without

objection from the defense, granted deferred judgment in each case. As a

condition of the deferred judgment, the court ordered that each defendant

be on self-supervised probation, pay a fee to the Department of Corrections

for the administration of the program, and complete the Kirkwood Weekend

Program. After granting the deferred judgments, the court then proceeded

to entertain arguments related to the lawfulness of the civil penalty.

      After the hearing, the district court entered an order holding that

Iowa Code section 907.14(1) as applied to Nail and Kucera violated the Due

Process Clause of the Fourteenth Amendment of the United States

Constitution. The district court found that the statute does not set an

upper limit on the civil penalty and that the minimum amount is either

$1000 as established by Iowa Code section 321J.2(2)(a)(2) or $250 pursuant

to Iowa Code section 903.1. Further, the district court stated that the

statute does not indicate whether the amount assessed may be suspended,

paid through community service work, or reduced under conditions set

forth in chapter 321J. The court rejected the State’s claim that the statute

was remedial in nature and designed to recoup the costs of investigating,

prosecuting, and administering to defendants who receive deferred
                                      5

judgments. The court further found that the imposition of the civil penalty

had the characteristics of a criminal punishment. For these reasons, the

court held that Iowa Code section 907.14(1) violated the Due Process Clause

of the United States Constitution. We granted the State’s application for

discretionary review.

      II. Standard of Review.

      Review of constitutional claims is de novo. State v. Shanahan, 712

N.W.2d 121, 131 (Iowa 2006).

      III. Due Process: Void for Vagueness.

      A. Overview of the Void-for-Vagueness Doctrine. The Fourteenth

Amendment to the Constitution of the United States provides that “[n]o

state shall . . . deprive any person of life, liberty, or property, without due

process of law.”    U.S. Const. amend. XIV, § 1.         Similarly, the Iowa

Constitution, Article I, section 9 provides that “no person shall be deprived

of life, liberty, or property, without due process of law.” Iowa Const. art. I,

§ 9. This court has generally deemed the federal and state due process

clauses to be “ ‘identical in scope, import, and purpose.’ ”             In re

Guardianship of Hedin, 528 N.W.2d 567, 575 (Iowa 1995) (quoting Bruns v.

State, 503 N.W.2d 607, 611 (Iowa 1993)). Neither party has suggested that

a due process analysis under the Iowa Constitution should be approached

differently than under the parallel provision in the United States

Constitution. Therefore, for the purposes of this opinion, we will treat the

provisions as identical. Sanchez v. State, 692 N.W.2d 812, 819 (Iowa 2005);

Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004) (“[I]t is

prudent to delay any consideration of whether a different analysis is

appropriate to a case in which this issue was thoroughly briefed and
                                     6

explored.” (citing In re Detention of Garren, 620 N.W.2d 275, 280 n.1 (Iowa

2000))).

      Due process is designed to ensure fundamental fairness in

interactions between individuals and the state. Among other things, the

Due Process Clause prohibits enforcement of vague statutes under the void-

for-vagueness doctrine. There are three generally cited underpinnings of

the void-for-vagueness doctrine. First, a statute cannot be so vague that it

does not give persons of ordinary understanding fair notice that certain

conduct is prohibited. Second, due process requires that statutes provide

those clothed with authority sufficient guidance to prevent the exercise of

power in an arbitrary or discriminatory fashion. Third, a statute cannot

sweep so broadly as to prohibit substantial amounts of constitutionally-

protected activities, such as speech protected under the First Amendment.

State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996) (citing Grayned v. City of

Rockford, 408 U.S. 104, 108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d 222,

227–28 (1972)), overruled on other grounds by State v. Robinson, 618 N.W.2d

306, 312 (Iowa 2000).

      The United States Supreme Court has employed vagueness analysis

both in the context of proscribing criminal conduct and in imposing

criminal penalties. United States v. Evans, 333 U.S. 483, 68 S. Ct. 634, 92

L. Ed. 823 (1948). The majority of cases in other jurisdictions agree. See

State v. Thompson, 495 A.2d 1054, 1061 (Conn. 1985); Commonwealth v.

Gagnon, 441 N.E.2d 753, 755 (Mass. 1982); Duquette v. Warden, New

Hampshire State Prison, 919 A.2d 767, 773 (N.H. 2007); State v. Manzie, 773

A.2d 659, 661 (N.J. 2001); State v. Egbert, 748 P.2d 558, 559 (Utah 1987);

Nowack v. State, 774 P.2d 561, 564 (Wyo. 1989). But see State v. Booth, 347

So. 2d 241, 243 (La. 1977). We hold, therefore, that the void-for-vagueness
                                      7

doctrine applies to legislation establishing civil or criminal sanctions. State

v. Powers, 278 N.W.2d 26, 29 (Iowa 1979).

      In order to provide due deference to our legislature, this court has

applied what has been called avoidance theory in the context of due process

challenges to legislative acts. Stuart Buck & Mark L. Rienzi, Federal Courts,

Overbreadth, and Vagueness:          Guiding Principles for Constitutional

Challenges to Uninterpreted Statutes, 2002 Utah L. Rev. 381, 391–92 (2002);

Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1948–49 (1997).

For example, in determining whether a statute is unconstitutionally vague,

this court presumes the statute is constitutional and gives “ ‘any reasonable

construction’ ” to uphold it. State v. Millsap, 704 N.W.2d 426, 436 (Iowa

2005) (quoting Hunter, 550 N.W.2d at 462) (emphasis added).

      Conversely stated, challengers to a statute must refute “ ‘every

reasonable basis’ ” upon which a statute might be upheld. State v. Seering,

701 N.W.2d 655, 661 (Iowa 2005) (quoting State v. Hernandez-Lopez, 639

N.W.2d 226, 233 (Iowa 2002)) (emphasis added). Where a state “statute

‘can be made constitutionally definite by a reasonable construction, . . . this

Court is under a duty to give the statute that construction.’ ” State v.

Williams, 238 N.W.2d 302, 306 (Iowa 1976) (quoting United States. v.

Harriss, 347 U.S. 612, 618, 74 S. Ct. 808, 812, 98 L. Ed. 989, 996–97

(1954)). Avoidance theory, moreover, applies to the interpretation as well as

the construction of statutes.      Norman Singer, Statutes and Statutory

Construction § 45:04 (6th ed. 2000) (noting that the distinction between

interpretation and construction is not meaningful).

      The underpinning of avoidance theory is that a definitive judicial gloss

can save a statute from void-for-vagueness infirmity. The United States

Supreme Court has repeatedly made clear that vagueness challenges are
                                        8

determined on the basis of statutes and pertinent case law rather than the

subjective expectations of particular defendants based on incomplete legal

knowledge. See, e.g., Kolender v. Lawson, 461 U.S. 352, 370, 103 S. Ct.

1855, 1865, 75 L. Ed. 2d 903, 918 (1983); Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5, 102 S. Ct. 1186,

1191 n.5, 71 L. Ed. 2d 362, 369 n.5 (1982); Bouie v. City of Columbia, 378

U.S. 347, 355 n.5, 84 S. Ct. 1697, 1703 n.5, 12 L. Ed. 2d 894, 901 n.5

(1964).

      Although the incorporation of code books and case law in the

evaluation of fair notice has been criticized on the ground that ordinary

citizens lack access to them, see John Calvin Jefferies Jr., Legality,

Vagueness, and Construction of Penal Statutes, 71 Va. L. Rev. 189, 207–08

(1985), United States Supreme Court holdings that vagueness may be cured

through judicial narrowing have been widely accepted and characterized as

settled law. See id. at 207; Andrew E. Goldsmith, The Void-for-Vagueness

Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 295 (2003)

(noting judicial narrowing of statute as cure to vagueness problems); Robert

Batey, Vagueness and the Construction of Criminal Statutes—Balancing Acts,

5 Va. J. Soc. Pol’y & L. 1, 5 (1997) (stating that it is settled law that judicial

glosses on criminal statute can “cure” vagueness); Note, The Void-for-

Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 73 (1960)

(observing that the Supreme Court “invariably” allows clarifying gloss of

state courts to penal statutes in vagueness context).

      A statute may be saved from constitutional deficiency, moreover, if its

meaning is fairly ascertainable by reference to other similar statutes or

other statutes related to the same subject matter. Branch v. Smith, 538 U.S.

254, 281, 123 S. Ct. 1429, 1445, 155 L. Ed. 2d 407, 432–33 (2003); State v.
                                      9

Iowa Dist. Ct., 616 N.W.2d 575, 581 (Iowa 2000) [hereinafter State]; Powers,

278 N.W.2d at 29. This reference to other related statutes is commonly

referred to as the interpretation or construction of a statute in pari materia.

      The in pari materia approach is especially appropriate in the area of

criminal law, where our legislature has established a number of code

chapters with highly detailed, interconnecting provisions.               When

considering an incremental modification, the legislature sometimes adopts

relatively cryptic measures that can be fully understood only in the context

of the web of preexisting statutes. While such statutes may occasionally be

imperfectly drawn, a statute which is not a paradigm of legislative drafting

does not necessarily pose a constitutional problem if any inherent

difficulties are resolved through judicial interpretation. Colten v. Kentucky,

407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed. 2d 584, 590 (1972);

Commonwealth v. Heinbaugh, 354 A.2d 244, 246 (Pa. 1976).

      In light of our recognition of the nature and realities of the legislative

process, we have repeatedly emphasized that sentencing provisions in

Iowa’s criminal code must be read in pari materia with other sentencing

provisions found elsewhere in the code. State, 616 N.W.2d at 581; State v.

Carstens, 594 N.W.2d 436, 437 (Iowa 1999); State v. Kostman, 585 N.W.2d

209, 212 (Iowa 1998); State v. Daniel, 574 N.W.2d 333, 335 (Iowa 1998);

State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990); State v. Link, 341 N.W.2d

738 (Iowa 1983), superseded by statute as stated in Jenney v. Iowa Dist. Ct.,

456 N.W.2d 921, 923 (Iowa 1990); State v. Hildebrand, 280 N.W.2d 393, 397

(Iowa 1979). Through such interpretation, we necessarily operate on the

objective assumption that the legislature strives to create a symmetrical and

harmonious system of laws. State, 616 N.W.2d at 581; Fitzgerald v. State,

220 Iowa 547, 552, 260 N.W. 681, 683–84 (1935).
                                        10

      B.    Application of Void-for-Vagueness Principles:          Is there a

Ceiling for Civil Penalties Imposed Pursuant to Iowa Code Section

907.14(1)? In examining the language of section 907.14(1), the legislature

plainly established a floor for civil penalties in deferred judgment

proceedings, but did not expressly create a ceiling. As a result, Nail and

Kucera claim that the statute provides no guidance of any kind for a district

court judge, who would be empowered to impose a potentially limitless civil

money penalty for even minor crimes.

      The State does not directly contest the proposition that a statute that

creates an unlimited civil penalty provision would violate due process.

Instead, the State asserts that a cardinal rule of statutory construction is

that a statute should not be interpreted or construed to create absurd

results. State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003). It would be

absurd, according to the State, to read section 907.14(1) as authorizing the

court to impose a civil penalty of literally any amount. In order to avoid this

potentially absurd result, the State argues that the reference in section

907.14(1) to fines “authorized by law for the offense under sections 902.9 or

section 903.1” establishes an upper limit by implication.

      We do not agree that the express language found in the narrow

confines of section 907.14(1) establishes a ceiling for civil penalties. The

statutory language itself—“a defendant shall be assessed a civil penalty of

an amount not less than the amount of any criminal fine authorized by law

for the offense under section 902.9 or section 903.1”—simply establishes a

floor for civil penalties, not a ceiling.

      But the analysis does not end at this point. While the language of

section 907.14(1) considered in isolation does not expressly establish a

ceiling, our cases dictate that this code provision must be read in pari
                                     11

materia with the system of laws that make up our criminal law to produce a

coherent whole. See, e.g., Byers, 456 N.W.2d at 919; Hildebrand, 280

N.W.2d at 397. While the penalties imposed under our deferred judgment

statute may be only quasi-criminal rather than criminal in nature, the

statute itself is part of the system of laws that govern criminal conduct

generally and must be considered in this larger context. State v. McSorley,

549 N.W.2d 807, 809 (Iowa 1996) (noting that statutes related to same

subject matter or to closely allied subject matter must be considered together

in light of common purposes and intent); Wonder Life Co. v. Liddy, 207

N.W.2d 27, 32 (Iowa 1973) (same).

      The concept of reading a penalty statute in para materia with other

criminal statutes has been utilized by this court to provide a statutory floor

where the provision expressly created only a ceiling. For example, in Link,

341 N.W.2d at 738, we considered the meaning of Iowa Code section

908.11. This provision stated that upon the revocation of probation, the

district court was empowered to sentence the defendant to “the sentence

[previously] imposed or any lesser sentence.” Id. at 739. This provision

created a ceiling, namely, the sentence previously imposed, but no floor.

Read literally, the phrase “any lesser sentence” could be construed as

authorizing the district court to impose a sentence less than the relevant

statutory minimum or even no sentence at all. Id. at 740.

      This court in Link rejected the literalist approach, holding that upon

revocation of probation, the sentence must be within the range of sentences

that could have been imposed in the underlying criminal proceeding. Id.

Link stands for the proposition, therefore, that where the words of a

particular sentencing statute establish a ceiling but no floor, the statute
                                     12

should not be read in isolation, but should be read in context with other

related sentencing provisions of the criminal code. Id.

      While the legislature in Link enacted a provision with a ceiling but no

expressly stated floor, in this case the legislature enacted a statute with a

floor but no expressly stated ceiling.    For purposes of in pari materia

analysis, this is a distinction without a difference. We note that other

courts have used in pari materia analysis to establish ceilings for criminal

sanctions where specific statutes established only penalty floors.       For

example, in Commonwealth v. Bell, 645 A.2d 211, 216–17 (Pa. 1994), the

court held that a statute establishing a three-year minimum sentence, but

no maximum sentence, was to be read together with a general criminal

statute establishing a maximum penalty of five years. Similarly, in United

States v. Bruney, 866 F. Supp. 874, 878 (D.V.I. 1994), the court held that a

catch-all sentencing provision provided a maximum sentence for a specific

statute that failed to provide any limitation on the maximum penalty.

      In this case, the issue is made awkward by the fact that the

legislature expressly incorporated Iowa Code sections 902.9 and 903.1 in

establishing a floor but did not make a parallel reference to the statutes to

establish a ceiling. Where the legislature has expressly cited sections 902.9

and 903.1 to establish a floor, but has declined to reference the cited

statutes to create a ceiling, it can be argued that a court has no business

rewriting the statute. According to the defense, the legislature considered

the provisions of sections 902.9 and 903.1 and expressly chose to

incorporate them for purposes of creating a floor and purposefully failed to

reference them to create a ceiling. Arguably, this court should have no role

in upsetting this legislative choice. Zomer v. West River Farms, Inc., 666
                                              13

N.W.2d 130, 133 (Iowa 2003); State v. Wedelstedt, 213 N.W.2d 652, 656–57

(Iowa 1973).

       On the other hand, if we fail to adopt an in pari materia analysis to

impose a ceiling on civil penalties under section 907.14(1), we violate the

rule of statutory construction that a statute must be interpreted in a

fashion that avoids unreasonable or absurd results inconsistent with

legislative intent. See Iowa Code § 4.4(3) (noting that the legislature is

presumed to intend “a just and reasonable result”); Pickett, 671 N.W.2d at

870; State, 616 N.W.2d at 589. It would be absurd to suggest that the

legislature intended to vest unlimited discretion in a district court to

establish a civil money penalty. Indeed, even the notion that the legislature

intended to allow a district court to impose a civil penalty in excess of the

potential criminal penalty is wholly illogical and would introduce

unintentional distortions into the criminal justice system.                       State, 616

N.W.2d at 581 (rejecting statutory interpretation that would have treated

younger offenders more harshly than older offenders for same crime).

Deferred judgments are reserved for those defendants deserving a second

chance.

       We are convinced that the legislature, despite its clumsy wording, did

not intend the absurd result of allowing district courts to impose unlimited

civil penalties in section 907.14(1).1 Instead, objectively viewed, we believe

       1In  brief, Nail and Kucera allege that the legislature deliberately chose not to cap the
amount of the civil penalty. We disagree. Prior to the passage of Iowa Code section
907.14(1), an amendment was introduced which set the civil penalty floor at one hundred
dollars and ceiling at one thousand dollars for all crimes regardless of the permissible fines
available for criminal convictions. Additionally, this proposed across-the-board limitation
made the imposition of the civil penalty permissive rather than mandatory in the deferred
judgment setting. S. Amend. 3103A, 81st G.A., Reg. Sess. (Iowa 2005) (proposed
amendment to House File 682). Thus, the proposed amendment stood for much different
propositions than that advanced by the defendants in this case. In any event, these
portions of the amendment were withdrawn prior to a vote. Id. Due to the nature of the
proposed amendment as well as the failure of the legislature to vote upon it, it is not
                                              14

that the enactment of section 907.14(1) was an incremental legislative act

which must be read in context of the ceiling established by Iowa Code

sections 902.9 and 903.1 even though the legislature did not expressly

incorporate the ceiling into the statute.

        With this interpretation, we give the statute a reasonable, contextual

interpretation that is workable, promotes symmetry, and which therefore

best manifests legislative intent. State, 616 N.W.2d at 581. Further, our

approach gives life to the notion that a declaration of unconstitutionality

should be avoided where possible through any reasonable statutory

interpretation. Hernandez-Lopez, 639 N.W.2d at 233.

        Under our interpretation, the provisions of Iowa Code sections 902.9

and 903.1 apply to create a ceiling for civil penalties that may be imposed

when judgments are deferred. For serious misdemeanors like first offense

drunk driving, the range of permissible criminal fines at the time of the

convictions of Nail and Kucera was between $250 and $1500. This range,

however, applies only “if a specific penalty is not provided for.” Iowa Code

§ 903.1. The Iowa legislature has enacted a specific penalty for first time

OWI, namely, a $1000 fine. Id. § 321J.2(2)(a)(2). As a result, the range of

potential fines for serious misdemeanors under section 903.1 has no

application.      Instead, the penalty authorized by law under Iowa Code

section 907.14(1) for first offense OWI is the “specific penalty . . . provided

for” in Iowa Code section 321J.2(2)(a)(2)—$1000.

______________________________
dispositive, or even illustrative, of the legislature’s intent regarding a civil penalty ceiling.
See Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501, 108
S. Ct. 1350, 1354, 99 L. Ed. 2d 582, 589 (1988) (“But unenacted approvals, beliefs, and
desires are not laws.”); Johnson v. Transp. Agency of Santa Clara County, California, 480
U.S. 616, 671–72, 107 S. Ct. 1442, 1473, 94 L. Ed. 2d 615, 656 (1987) (Scalia, J.,
dissenting) (warning that courts risk “ignor[ing] rudimentary principles of political science
[when they] draw any conclusions regarding [legislative] intent from the failure to enact
legislation.”).
                                     15

      We also hold that because Iowa Code section 907.14(1) must be read

in the context of our body of criminal law, the general sentencing provisions

of criminal law in Iowa Code section 901.5 apply. That provision vests the

district court with wide discretion in and general criteria for imposing

sentences.   Hildebrand, 280 N.W.2d at 396.        The range of sentencing

discretion under section 901.5 includes suspension of half the $1000 fine

as provided in Iowa Code section 321J.2(2)(a)(2), requiring a defendant to

perform community service in lieu of the fine under Iowa Code section

909.3A, and allowing payments to be made in installments under Iowa Code

section 909.3.   In other words, the discretionary tools available to the

district court in the imposition of a civil penalty pursuant to a deferred

judgment under section 907.14 are coextensive with those of the court in

imposing a criminal fine under section 901.5 because the civil money

penalty under section 907.14(1) is imposed “pursuant to Iowa Code section

901.5.” Carstens, 594 N.W.2d at 437 (holding that section 902.9 sets forth

general sentencing parameters, but must be read in pari materia with

specific sentencing provisions found elsewhere in the Code).        Any civil

penalty that is imposed under section 907.14 is thus subject to other

provisions of the criminal code related to the imposition of fines. State, 616

N.W.2d at 581 (holding that statute must be interpreted consistently with

other statutes concerning the same or related subjects).

      Given our approach to the statute, we next determine whether the

statute is vague as applied to Nail and Kucera. We conclude the statute, as

we have construed it, satisfies due process. Because the criminal law

sanction for first offense OWI includes a $1000 fine, subject to discretionary

reduction by the district court, our construction of the deferred judgment

statute, as incorporating an identical monetary sanction, eliminates any
                                              16

potential problem of fair notice to a person of ordinary intelligence. Further,

by restricting the range of sentencing options, the second prong of due

process attack related to the potential of arbitrary or discriminatory

enforcement has also been eliminated. Apprendi v. New Jersey, 530 U.S.

466, 481, 120 S. Ct. 2348, 2358, 147 L. Ed. 2d 435, 449 (2000); see, e.g.,

Williams v. New York, 337 U.S. 241, 246, 69 S. Ct. 1079, 1082, 93 L. Ed.

1337, 1341 (1949) (“[B]oth before and since the American colonies became a

nation, courts in this country and in England practiced a policy under

which a sentencing judge could exercise a wide discretion in the sources

and types of evidence used to assist him in determining the kind and extent

of punishment to be imposed within limits fixed by law.” (Emphasis added.)).

       In sum, Iowa Code section 907.14(1), as construed in this opinion

and applied in this case, does not give rise to a due process claim under

either the Iowa or United States Constitutions.2

       IV. Due Process: Punishment Prior to Adjudication of Guilt.

       Nail and Kucera launch a second due process attack, asserting that a

civil penalty under section 907.14(1) cannot be imposed prior to an

adjudication of guilt. In briefing, the parties engage in a battle at close

quarters regarding whether the civil penalty in section 907.14(1) is criminal

or civil in nature. Specifically, the State contends that the purpose of the


       2Nail  and Kucera further allege that plea bargains, where there is a potential for
deferred judgment, cannot be knowingly and voluntarily entered as the potential amount of
civil penalty under section 907.14(1) is uncertain. While our construction of the statute
eliminates any vagueness problem in future cases, State v. Speck, 242 N.W.2d 287, 293
(Iowa 1976), there might be an issue as to whether our decision should be retroactively
applied to defeat a challenge to the validity of Nail’s and Kucera’s guilty pleas. Nail and
Kucera, however, requested the deferred judgment and then agreed at the district court
hearing to separate the issue of granting a deferred judgment from their challenge to the
civil penalty provision of Iowa Code section 907.14(1). Further, in the colloquy before the
district court, they were clearly informed that the criminal penalty for first offense driving a
motor vehicle while intoxicated included a $1000 fine. Under these circumstances, the
suggestion that the guilty pleas were involuntary has a hollow ring.
                                      17

“civil penalty” is to recover costs of investigating, prosecuting, and

administering deferred judgments. Nail and Kucera contend that the “civil

penalty” is primarily punitive in nature. See Clinton Cmty. Sch. Dist. v.

Anderson, 322 N.W.2d 73, 75–76 (Iowa 1982) (discussing whether a “civil

penalty” is civil or criminal in nature).

         We believe that the parties have focused on the wrong issue. We

recognize that generally speaking, due process requires that criminal

penalties be imposed only after an adjudication of guilt. Bell v. Wolfish, 441

U.S. 520, 535 n.16, 99 S. Ct. 1861, 1872 n.16, 60 L. Ed. 2d 447, 466 n.16

(1979); Hernandez-Lopez, 639 N.W.2d at 237 n.5. The foundation of this

requirement is the presumption of innocence. It would be fundamentally

unfair to impose criminal penalties in a contested matter until the matter of

guilt or innocence is determined.           These are bedrock principles of

constitutional law. We further recognize that a plea bargain and the grant

of a deferred judgment are not ordinarily considered adjudications of guilt—

the prosecution not being complete until a final judgment has been entered.

State v. Anderson, 246 N.W.2d 277, 279 (Iowa 1976); State v. Farmer, 234

N.W.2d 89, 92 (Iowa 1975).

         In this case, however, while there may be no adjudication of guilt,

there has been an admission of guilt. Nail and Kucera have filed written

guilty pleas and personally affirmed their guilt in open court. There is no

question of guilt or innocence to be adjudicated. Any due process claim

rooted in the presumption of innocence evaporates in light of their guilty

pleas.

         Further, the State is not seeking to force a deferred judgment on

these defendants. In this case, deferred judgment offers the defendants the

significant benefit of avoiding inevitable criminal conviction.           The
                                            18

defendants, moreover, specifically requested that the court grant them this

benefit.

       It is well-settled that a defendant who pleads guilty surrenders basic

constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243 n.5, 89 S. Ct.

1709, 1712 n.5, 23 L. Ed. 2d 274, 279–80 n.5 (1969).                          Where the

defendants have admitted guilt and themselves requested a deferred

judgment in order to avoid an adjudication of guilt, it cannot be maintained

that an adjudication of the underlying criminal offense is a prerequisite to

the imposition of a penalty, regardless of whether the penalty is considered

civil or criminal.

       A defendant who voluntarily seeks a deferred judgment to avoid a

final criminal adjudication cannot object to the lack of one when statutory

sanctions under a deferred judgment are imposed. As a result, we hold that

the imposition of a civil penalty for deferred judgments does not affront

fundamental fairness notions inherent in the due process guarantees of the

Iowa and United States Constitutions.3

       V. Conclusion.

       The opinion of the district court holding Iowa Code section 907.14(1)

unconstitutional is reversed. The case is remanded to the district court for

further proceedings.

       REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

       3We   note that below, Nail and Kucera alleged that a double jeopardy-excessive fines
issue potentially lurked in the shadows of this case. They claim that if a deferred judgment
is subsequently revoked after the payment of a civil money penalty, the State could seek to
impose the maximum fine authorized by law in addition to the civil penalty already
collected. As a result, Nail and Kucera argue, the cumulative payments made by a
defendant could exceed the maximum penalty established by the legislature for the offense.
Nail and Kucera, however, have not had their deferred judgments revoked and, as a result,
the issue is not ripe for review. Moreover, the Iowa legislature has amended Iowa Code
section 908.11(5), which now reduces the fine in a revoked deferred judgment by the
amount of the civil penalty previously assessed. 2007 Iowa Acts ch. 180, § 12. As a result,
the issue is moot without the likelihood of repetition and is not addressed in this opinion.
