               IN THE SUPREME COURT OF IOWA
                              No. 16–2177

                           Filed March 8, 2019


STATE OF IOWA,

      Appellee,

vs.

JEFFREY JOHN MYERS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Floyd County, Peter B.

Newell, District Associate Judge.



      Appellant appeals from a judgment and sentence for operating a

motor vehicle with the presence of a controlled substance in his person.

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, Rachel Ginbey, County Attorney, and Randall Tilton,

Assistant County Attorney, for appellee.
                                     2

CADY, Chief Justice.

       In this appeal, we must decide if a conviction for the crime of

operating a motor vehicle while having any amount of a controlled

substance in a person as measured by the person’s urine can be based on

an initial laboratory test that was positive for controlled substances. We

conclude an initial test is insufficient under the facts of this case to

establish guilt beyond a reasonable doubt. We vacate the decision of the

court of appeals, reverse the judgment and sentence of the district court,

and remand the case to the district court for dismissal of the charge.

       I. Factual Background & Proceedings.

       The facts of this case resulted in the prosecution and conviction of

Jeffrey Myers for the crime broadly referred to as operating while

intoxicated (OWI).    On March 12, 2016, around 1 a.m., Myers was

operating a motor vehicle in Charles City. A police officer, Cory Van Horn,

observed the vehicle and noticed the taillights were not illuminated.

Officer Van Horn stopped the vehicle.     After he informed Myers of the

reason for the stop, Myers flipped a switch in the car’s interior, which

illuminated the lights. Officer Van Horn also noticed Myers was sweating

profusely.

       Officer Van Horn placed Myers in the passenger seat of his patrol

car.   He checked Myers’s eyes and noticed that they were watery and

bloodshot and that he had difficulty keeping them open. Additionally he

noted that Myers’s eyes dilated very little upon exposure to his flashlight

and that the back of Myers’s tongue was a brownish green color. Another

officer arrived at the scene to assist Officer Van Horn with the remainder

of the stop.

       Officer Van Horn administered several field sobriety tests, including

horizontal gaze nystagmus, lack of convergence, walk and turn, one leg
                                            3

stand, and the modified Romberg test. The test results prompted Officer

Van Horn to ask Myers if he had “taken” anything that night.                      Myers

replied he had taken cold medicine. The officers concluded Myers was

under the influence of a drug and arrested him. Myers consented to the

submission of a urine specimen for testing. An initial test of the urine

sample by the Iowa Division of Criminal Investigation (DCI) laboratory

revealed detectable levels of amphetamines and marijuana.

        On March 30, 2016, the State charged Myers by trial information

with OWI in violation of Iowa Code section 321J.2 (2016). 1 The minutes

of testimony included the official toxicology report from the DCI laboratory.

The positive screen for amphetamines was 589 ng/ml, and the positive

screen for marijuana metabolites was 62 ng/ml. 2 The report stated the

positive screens “indicate[] the possible presence” of substances at levels

equal to or more than the levels established in the Iowa Administrative

Code.    The document concluded by indicating a report on the positive




        1The trial information did not identify the specific subsections under section
321J.2 allegedly violated by Myers. Instead, it alleged Myers
               did operate a motor vehicle by one or more of the following
               means:
                      a. while under the influence of an alcoholic
               beverage or drugs or a combination of such substances;
                      b. while any amount of a controlled substance is
               present in the person as measured in the person’s blood or
               urine.
These allegations track with section 321J.2(1)(a) and (c). Yet, the State did not use (a)
and (c) in the charging recital of the trial information to identify the subsections under
section 321J.2(1). Instead, it used (a) and (b) to format the two specific statutory
allegations that tracked with section 321J.2(1)(a) and (c). Thus, it was clear the trial
information charged Myers under section 321J.2(1)(a) (driving under the influence) and
321J.2(1)(c) (operating with any amount of a controlled substance as measured in the
person’s blood or urine).
        2Measurements   are given in nanograms per milliliter.
                                     4

screens “to confirm the presence of specific drugs will follow.” The minutes

of testimony, however, did not include a follow-up report.

      On June 6, Myers filed a motion to suppress.           He argued his

taillights were illuminated and there was no basis to justify the stop. At

the suppression hearing, the State submitted a copy of Officer Van Horn’s

dash cam video recordings.      The district court denied the motion to

suppress. It concluded the taillights were not illuminated and the stop

was justified.

      The case proceeded to a bench trial on the minutes of testimony.

The district court found Myers guilty beyond a reasonable doubt.          In

making this finding on the record, the court explained,

      All right. Mr. Myers, basically the State has two things that
      they have to prove in order to establish this offense. The first
      is that you were driving or operating a motor vehicle. . . . That
      element has been established. The second element is at the
      time you were operating a motor vehicle, you had a detectable
      level of a controlled substance in your blood stream. They
      could also prove you were under the influence of something. In
      this case, you did agree to provide a urine sample. The urine
      sample was positive for both marijuana metabolites and for
      amphetamines; and so, those are the elements that the State
      has to establish, and I believe that the State has established
      those elements beyond a reasonable doubt.

It then entered a written finding that the minutes of testimony established

beyond a reasonable doubt that Myers committed all the elements of OWI

in violation of Iowa Code section 321J.2. It did not designate the specific

subsection.      The court imposed the mandatory minimum penalties,

including two days in jail and a fine of $1250.

      Myers appealed. He claimed (1) the district court erred by denying

his motion to suppress because there was no probable cause to support

the stop and (2) the evidence was insufficient to establish the presence of

a controlled substance in his system. Specifically, he argued the initial
                                      5

screen test only found the “possible presence” of drugs not their actual

presence. He argued a confirmatory test should have been done on his

urine to verify the presence of controlled substances.           Without a

confirmatory test, he claims the evidence in the minutes of testimony was

insufficient to support a finding of guilt.

      In response, the State argued the results of the laboratory test

included in the minutes of testimony were sufficient to support the

conviction. Alternatively, it asserted the lab report did measure an amount

of a controlled substance in the urine as required under the statute and,

combined with other circumstantial evidence of impairment described in

the minutes of testimony, constitutes sufficient evidence of guilt.

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

court properly denied Myers’s suppression motion. It also found there was

no legal requirement for a confirmatory test and concluded that the

detectable amounts of controlled substances by the initial test provided

sufficient evidence to support a conviction for OWI. Myers sought, and we

granted, further review.

      On further review, we only address the issue of whether or not the

minutes of testimony in this case provided sufficient evidence to support

a conviction for OWI. In re Marriage of Schenkelberg, 824 N.W.2d 481, 483

(Iowa 2012) (“[W]e have the discretion to review all or part of the issues

raised on appeal or in the application for further review.”). We do not

address the claim of error based on the denial of the motion to suppress.

      II. Scope of Review.

      We review a claim of insufficient evidence in a bench trial just as we

do in a jury trial. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). “If

the verdict is supported by substantial evidence, we will affirm.” Id. We

determine whether substantial evidence supports the verdict by reviewing
                                            6

“all the evidence and the record in the light most favorable to the trial

court’s decision.”      State v. Hearn, 797 N.W.2d 577, 580 (Iowa 2011).

Finally, our review of challenges to the sufficiency of evidence is for errors

at law because “the question . . . is simply whether the evidence was

sufficient to support [the] conviction.” State v. Petithory, 702 N.W.2d 854,

856 (Iowa 2005).

       III. Analysis.

       A. District Court Findings. We first consider the context of the

verdict and the finding of guilt by the district court. The trial information

alleged the violation of Iowa Code sections 321J.2(1)(a) and (c). The first

alternative was based on the operation of a motor vehicle while under the

influence of an alcoholic beverage or a drug. Iowa Code § 321J.2(1)(a).

The second alternative was based on the operation of a motor vehicle with

any amount of a controlled substance as measured in the person’s blood

or urine. Id. § 321J.2(1)(c). Yet, the written verdict entered by the district

court only made reference to section 321J.2.                  It did not specify any

particular subsection in finding Myers violated section 321J.2. The trial

transcript, however, revealed the district court only found Myers guilty of

violating section 321J.2(1)(c). The district court parenthetically mentioned

the State “could also prove” Myers was operating under the influence of a

controlled substance but made no finding that Myers was “under the

influence” to support guilt under section 321J.2(1)(a). The only finding

made was that Myers had “any amount” of a controlled substance as

measured in his urine. 3         Thus, we only consider whether substantial

evidence supported the verdict rendered.


       3A  finding that Myers had controlled substances in his system does not mean he
was under the influence of, or even intoxicated by, drugs or alcohol at the time of the
stop. The tendency of controlled substances, like marijuana metabolites, to “accumulate
in body fat, creat[es] higher excretion concentrations and longer detectability.” See Ctrs.
                                            7

       Additionally, even if the pronouncement by the district court is

considered a general verdict based on a crime with multiple bases for guilt,

substantial evidence must support each alternative under the statute. See

State v. Lukins, 846 N.W.2d 902, 912 (Iowa 2014); State v. Smith, 739

N.W.2d 289, 295 (Iowa 2007); State v. Heemstra, 721 N.W.2d 549, 559

(Iowa 2006).     Accordingly, in this case, if substantial evidence did not

support guilt under Iowa Code section 321J.2(1)(c), the conviction must be

reversed.     We therefore proceed to consider whether the minutes of

testimony supported the finding that Myers operated a motor vehicle while

any amount of a controlled substance was present in his person, as

measured by his urine.

       B. Overview of the Crime of Operating While Intoxicated. The

crime of operating while intoxicated can be committed in three ways. First,

the statute criminalizes operating a motor vehicle “[w]hile under the

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

substances.” Iowa Code § 321J.2(1)(a). Second, the statute criminalizes

operating a motor vehicle “[w]hile having an alcohol concentration of .08

or more.” Id. § 321J.2(1)(b). Third, the statute criminalizes operating a

motor vehicle “[w]hile any amount of a controlled substance is present in

the person, as measured by the person’s blood or urine.” Id. § 321J.2(1)(c).

Each prong uses a different theory and primarily relies on different

evidence. The first prong primarily utilizes evidence of a person’s conduct


for Disease Control, Urine Testing for Detection of Marijuana: An Advisory, CDC: Mortality
Weekly     Report     (Sept.     16,    1983),      https://www.cdc.gov/mmwr/preview/
mmwrhtml/00000138.htm. For that reason, a urine test alone cannot reveal current
impairment. See Stacy A. Hickox, Drug Testing of Medical Marijuana Users in the
Workplace: An Inaccurate Test of Impairment, 29 Hofstra Lab. & Emp. L.J. 273, 299–301,
333–34 (2012) (discussing the limitations of drug testing and the negative implications it
may have on employees using marijuana legally). Accordingly, we do not find the trial
judge made an adequate factual finding to support Myers’s conviction under subsection
(a).
                                      8

and demeanor. The second prong primarily utilizes evidence of the results

of testing that measures a person’s alcohol concentration level from a

breath, blood, or urine specimen. The third prong primarily uses evidence

of the results of testing that measures any amount of a controlled

substance from a blood or urine specimen. While the last two prongs

require evidence derived from a test, not conduct, the test under the third

prong requires no specific threshold level of a prohibited substance.

      C. Substantial Evidence of a Controlled Substance as Measured

by a Urine Test. In this case, we only consider if substantial evidence

supported the conviction under the third prong. The State claims the

initial screening test conducted by the DCI laboratory constitutes

sufficient evidence to support the conviction because it revealed the

“possible presence” of a controlled substance or metabolites in Myers urine

specimen in amounts that exceeded the standards for initial laboratory

testing for controlled substances.      See id. § 321J.2(12)(c) (imposing a

statutory requirement for the department of public safety to adopt

“nationally accepted standards for determining detectable levels of

controlled substances in the division of the criminal investigation’s initial

laboratory screening test for controlled substances”); Iowa Admin. Code r.

661—157.7 (adopting the federal guidelines for workplace testing in initial

screenings).   These standards established detectable levels for initial

laboratory testing at fifty ng/ml for marijuana metabolites and 500 ng/ml

for amphetamines. The initial test results in this case measured Myers

marijuana metabolites at sixty-two ng/ml and measured amphetamines

at 589 ng/ml. Thus, we must first decide if an initial test alone is sufficient

to establish guilt beyond a reasonable doubt when the laboratory who

conducted the test indicates the results only reveal the “possible presence”

of drugs.
                                      9

        D. Confirmatory Testing.      Testing for controlled substances in

urine specimens is generally recognized to consist of an initial test and a

confirmatory test. 1 Kevin B. Zeese, Drug Testing Legal Manual § 2:2 (2d

ed.), Westlaw (database updated June 2018) (“Drug testing, whether of

blood, urine, or other body chemicals, should be considered to be at least

a two-stage process. . . . This initial test alone is generally insufficient as

far as both the scientific and legal community are concerned.”); Wis. State

Crime     Labs,   Wis.   Dep’t   of   Justice,   WSCL     FAQs:    Toxicology,

https://www.doj.state.wi.us/section-faqs/wscl (last visited Mar. 1, 2019)

(“An immunoassay screen does not test in enough detail for a drug to be

identified or confirmed, so drugs or classes of drugs can only be indicated

from this test.”). The Iowa DCI described the process as follows:

        The detection of drugs in a urine sample is determined by
        initial screening or presumptive tests. These tests target
        compounds in a drug group rather than specific drugs.
        Following a positive screening result on a sample, a second
        confirmatory test is performed. This second test uses a
        different analytical technique to identify a specific drug
        compound.

Div. of Criminal, Iowa Dep’t of Pub. Safety, Urine Drug Analysis,

http://www.dps.state.ia.us/DCI/lab/toxicology/Urine_Drug_Analysis
.shtml (last visited Mar. 1, 2019).

        Iowa Code section 321J.2(1)(c) does not require a specific drug to be

identified.   The statute only requires any measurable amount of “a

controlled substance.” However, the identification of a specific drug in the

testing process serves to eliminate any errors in relying on the

identification of known compounds of a drug group.             Because most

confirmatory testing “technique[s] provide[] information about the

chemical structure of a substance, it is possible to definitively state the

specific drug that is present.” Wis. State Crime Labs, Wis. Dep’t of Justice,
                                            10

WSCL FAQs: Toxicology, https://www.doj.state.wi.us/section-faqs/wscl

(emphasis added) (last visited Mar. 1, 2019). Thus, confirmatory tests are

seen as safeguards against the potential flaws associated with the initial

drug test. See Karen E. Moeller et al., Clinical Interpretation of Urine Drug

Tests: What Clinicians Need to Know About Urine Drug Screens, 92 Mayo

Clinic Proceedings 774, 775 (2017)                   (“[I]mmunoassays will detect

substances with similar characteristics [to drug metabolites or classes of

drug metabolites], resulting in cross-reactivity leading to false-positive

results.”).

       For employment drug testing purposes, urine samples are divided

into two portions at the time of collection. Iowa Code § 730.5(7)(b). One

portion is used for initial drug testing; a confirmatory test of this sample

is required if the initial test reveals the presence of drugs.                           Id.

§ 730.5(7)(f)(1); see also Harrison v. Emp’t Appeal Bd., 659 N.W.2d 581,

582 (Iowa 2003) (explaining this procedure with citation to a prior Iowa

Code version). If the positive results are confirmed, an employee is then

entitled to another confirmatory test of the second portion.                             Id.

§ 730.5(7)(i)(1); see also Harrison, 659 N.W.2d at 582.

       Confirmatory drug tests are also a staple in federal employment drug

testing. The Mandatory Guidelines for Federal Workplace Drug Testing

Programs meticulously detail the procedures required for federal

employment drug testing.            73 Fed. Reg. 71,858 (Nov. 25, 2008).                The

regulations provide for both an initial drug test and confirmatory drug

test. 4 The regulations establish specific measurement cutoff requirements

       4Under   the federal framework, an initial drug test is defined as “[t]he test used to
differentiate a negative specimen from one that requires further testing for drugs or drug
metabolites.” Mandatory Guidelines for Federal Workplace Drug Testing Programs, 73
Fed. Reg. 71,858, 71,878. A confirmatory drug test is defined as “[a] second analytical
procedure performed on a different aliquot of the original specimen to identify and
quantify the presence of a specific drug or drug metabolite.” Id.
                                            11

for both initial drug tests and confirmatory drug tests and prescribe strict

standards to reduce the risk of inaccurate test results. Id. at 71,858,

71,861–62.

       We too have recognized the existence of a confirmatory test in State

v. Comried, 693 N.W.2d 773, 774 (Iowa 2005). In Comried, the defendant

was convicted of vehicular homicide while having a controlled substance

in his system in violation of sections 321J.2(1)(c) and 707.6A. Id. Comried

challenged the “any amount of a controlled substance” language in section

321J.2(1)(c). Id. at 774. He argued we should apply the department of

public safety rule that established cutoff levels for measurement of drug

concentrations. Id. at 775. The state argued, and we agreed, that “ ‘any

amount’ means what it says—if a test detects any amount of a controlled

substance the any-amount element is satisfied.” Id. at 775, 778. Yet, we

observed the distinction between initial and confirmatory tests:

       [The state’s criminalistics] laboratory performs two types of
       tests: an initial screening test and a confirmatory test. The
       initial test is performed at certain “cutoff levels,” meaning that
       only drug concentrations over the cutoff level will yield a
       “positive” test result. Any concentration below the cutoff level
       is reported “negative.” If the initial screening test shows
       positive, a second test is performed on the sample. This
       second test, the confirmatory test, is presumably more
       expensive but is also more reliable and produces very accurate
       results.

Id. at 774 (emphasis added) (citation omitted). 5


       5It  is relevant to note that our decision in Comried relied on an Arizona case, State
v. Phillips, 873 P.2d 706, 708 (Ariz. Ct. App. 1994), that interpreted an Arizona statute
similar to Iowa Code section 321J.2. However, a recent Arizona decision held “drivers
cannot be convicted of [DUI] based merely on the presence of a non-impairing metabolite
that may reflect the prior usage of marijuana.” State ex rel. Montgomery v. Harris, 322
P.3d 160, 164 (Ariz. 2014). This decision, in effect, makes Phillips’s application to
marijuana ineffective. Yet, despite this change in the law, we reaffirmed our Comried
holding in State v. Childs, 898 N.W.2d 177, 187 (Iowa 2017), stating, “We apply the Iowa
statute as written and leave it to the legislature whether to revisit the zero-tolerance ban
on driving with even nonimpairing metabolites of marijuana.”
                                      12

      This background provides context to the issue we confront and helps

explain the force of two important statements contained in the written

initial report by the DCI laboratory in this case.           First, the report

specifically stated the positive screens only indicated the “possible

presence” of a controlled substance. Second, the report stated a second

report to confirm the presence of specific drugs would follow.

      We recognize the initial test is evidence of the presence of a

controlled substance in the urine of a person.          However, the lack of

confidence in the results of the initial test has given rise to the common

requirement for a confirmatory test in other areas of drug testing.           If

confirmatory testing is a part of workplace drug testing, it would be just

as important, if not more important, in the criminal justice system.

Significantly, the minutes of testimony in this case did not include any

expert testimony or other evidence to explain the accuracy of the initial

test beyond its admitted possibility of the presence of controlled

substances. Thus, we are left with doubts about its accuracy, and those

doubts mean the initial test falls short of establishing guilt beyond a

reasonable doubt. See, e.g., Hearn, 797 N.W.2d at 580 (“[E]vidence which

merely raises suspicion, speculation, or conjecture is insufficient.”

(quoting State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992))). We conclude

the results of the initial testing of the urine specimen, alone, is insufficient

to satisfy the burden of proof required of our criminal justice system. To

support a conviction under the statute, the test must identify an amount

of a controlled substance in a blood or urine sample beyond a reasonable

doubt. Without other evidence, a test that only identifies the “possible

presence” of a controlled substance falls short of satisfying the reasonable

doubt standard.
                                     13

         E. Circumstantial Evidence of Impairment.        Notwithstanding,

the State argued that even if the test results only show a “possible

presence” of a controlled substance, this evidence, together with the

circumstantial evidence of impairment disclosed by the minutes of

testimony in the case, is sufficient to support the conviction. It asserts

that the initial test satisfied the requirement for the evidence of guilt be

based on a test that measures a controlled substance in a person’s urine.

Additionally, it claims the observations of Myers at the scene of the stop

elevated the level of certainty in the test results to a level beyond

reasonable doubt. This evidence included observations of his conduct and

physical condition, as well as his performance on numerous field sobriety

tests.     Thus, the question is whether circumstantial evidence of

impairment—bloodshot eyes, poor performance on field sobriety tests,

drowsiness—provides substantial evidence to support a conviction under

Iowa Code section 321J.2(1)(c) in the absence of a confirmatory test.

         The conduct and demeanor of a person are important considerations

in determining whether a person is “under the influence” under section

321J.2(1)(a). State v. Price, 692 N.W.2d 1, 3 (Iowa 2005). Moreover, a

witness is permitted to “state whether or not another was intoxicated at a

particular time” and nonexperts may even “state how far another was

affected by intoxication.” State v. Davis, 196 N.W.2d 885, 893 (Iowa 1972)

(quoting State v. Cather, 121 Iowa 106, 108, 96 N.W. 722, 722 (1903)).

This evidence, in turn, can support a conviction. See State v. Truesdell,

679 N.W.2d 611, 616 (Iowa 2004) (finding witnesses’ and police officers’

reports regarding defendant’s erratic driving and behavior supported a

finding that he was under the influence of alcohol when he operated his

vehicle). Thus, evidence of impaired conduct and the demeanor of a person

could help support a laboratory test indicating the presence of a controlled
                                           14

substance in that person. Yet, the only issue under section 321J.2(1)(c) is

whether a test shows the presence of a controlled substance, not conduct.

Impaired conduct can be consistent with the presence of a controlled

substance, but it can also result from a medical condition or other causes

unrelated to the consumption of a controlled substance.                        Unlike a

confirmatory test that validates a preliminary finding of a controlled

substance, witness testimony of impairment does not serve to validate the

presence of a controlled substance in a person, at least not without expert

testimony that could eliminate causes for the conduct and demeanor other

than the effects of a controlled substance or other evidence of drug

consumption by the person sufficient to eliminate the reasonable doubt

left by the preliminary test. Without this evidence, the reasonable doubt

that emanates from the initial test of a “possible presence” of a controlled

substance is not eliminated by the circumstantial evidence that a person

is under the influence.

       The reasonable doubt standard has a deep and important meaning

within the American criminal justice system. 6 It is important this meaning

always be observed in each case. In this case, it means the plain language

of Iowa Code section 321J.2(1)(c) cannot be satisfied by relying on the
circumstantial evidence of impairment.




              6The   reasonable-doubt standard plays a vital role in the American
       scheme of criminal procedure. It is a prime instrument for reducing the
       risk of convictions resting on factual error. The standard provides concrete
       substance for the presumption of innocence—that bedrock “axiomatic and
       elementary” principle whose “enforcement lies at the foundation of the
       administration of our criminal law.”
In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 1072 (1970) (quoting Coffin v. United
States, 156 U.S. 432, 453, 15 S. Ct. 394, 403 (1895)).
                                   15

      IV. Conclusion.

      We conclude that the minutes of testimony were insufficient to

establish that Myers violated Iowa Code section 321J.2(1)(c) beyond a

reasonable doubt. We reverse the judgment and sentence of the district

court and remand the case to the district court to dismiss the charge.

      REVERSED AND REMANDED.

      Wiggins and Appel, JJ., join this opinion. Mansfield, Waterman, and

Christensen, JJ., concur specially. McDonald, J., takes no part.
                                     16

                                                  #16–2177, State v. Myers

MANSFIELD, Justice (concurring specially).

       I join the court’s well-reasoned opinion. I write separately to explain

why nothing precludes the State from asking the district court to consider

Jeffrey Myers’s potential guilt under Iowa Code section 321J.2(1)(a) (2016)

on remand. As the court notes, the district court made no factual finding

on that theory.

       State v. Pexa is on point. See 574 N.W.2d 344 (Iowa 1998). There

the state maintained that the defendant was guilty of unauthorized

possession of an offensive weapon under two separate definitions of

“offensive weapon.” Id. at 345. Following a bench trial, the district court

found the defendant guilty under the Iowa Code section 724.1(3) (1995)

alternative but did not consider the section 724.1(4) alternative. Id. On

appeal, we found that the evidence did not support the section 724.1(3)

alternative on which the defendant was convicted by the trial court. Id. at

346.    However, rather than acquitting the defendant entirely as he

requested, we remanded the case for further proceedings so the court

could consider and rule on the section 724.1(4) alternative. Id. at 346–47.

We explained, “A failure to consider an alternative definition of the offense

charged does not constitute an acquittal of that offense for double jeopardy

purposes.” Id. at 347.

       The same analysis applies here. The district court clearly did not

acquit Myers of the section 321J.2(1)(a) alternative when it said, “They

could also prove you [Myers] were under the influence of something.” So

that alternative remains fair game on remand.

       The New Mexico Court of Appeals recently cited to Pexa in a case

with facts quite similar to ours. See State v. Ben, 362 P.3d 180, 183 (N.M.

Ct. App. 2015). In Ben, the defendant was charged with driving while
                                     17

intoxicated (DWI) under New Mexico law.         Id. at 181.   The criminal

complaint alleged violations of both the “per se” and the “under the

influence” subsections—alternatives that mirror the options available

under Iowa law.    Id.   After a nonjury trial, the magistrate found the

defendant guilty of per se DWI but “did not refer to the impaired DWI

provision.” Id. Following an appeal to the district court, a jury convicted

the defendant of impaired DWI but found no violation of per se DWI. Id.

The defendant appealed further, arguing that his district court conviction

on the impaired theory of DWI violated double jeopardy. Id. As the New

Mexico Court of Appeals explained,

      Defendant divides the single offense of DWI into its alternative
      theories, contending that his conviction in the first trial on
      one theory of DWI (the per se theory) necessarily constitutes
      an implied acquittal on the alternative theory on which no
      conviction was entered (the impaired DWI theory).

Id. at 183.

      The court disagreed with this argument and elaborated as follows:

             When a defendant is convicted based on one of two
      alternative means of committing a single crime, which is the
      situation presented in this case, the near uniform majority of
      jurisdictions that have considered the issue have refused to
      imply an acquittal on the other alternative. See United States
      v. Ham, 58 F.3d 78, 84–86 (4th Cir. 1995); United States v.
      Wood, 958 F.2d 963, 971–72 (10th Cir. 1992); United States
      ex rel. Jackson v. Follette, 462 F.2d 1041, 1047, 1049–50 (2d
      Cir. 1972); Beebe v. Nelson, 37 F. Supp. 2d 1304, 1308 (D.
      Kan. 1999); Schiro v. State, 533 N.E.2d 1201, 1207–08 (Ind.
      1989); State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998) (“A
      failure to consider an alternative definition of the offense
      charged does not constitute an acquittal of that offense for
      double jeopardy purposes.”); State v. Wade, 284 Kan. 527,
      161 P.3d 704, 715 (2007); Commonwealth v. Carlino, 449
      Mass. 71, 865 N.E.2d 767, 774–75 (2007); People v. Jackson,
      20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722, 728–30
      (1967); State v. Wright, 165 Wash. 2d 783, 203 P.3d 1027,
      1035 (2009) (en banc); State v. Kent, 223 W. Va. 520, 678
      S.E.2d 26, 30–33 (2009); cf. State v. Terwilliger, 314 Conn.
      618, 104 A.3d 638, 651–52 (2014) (refusing to imply an
      acquittal where a general verdict form made it impossible to
                                     18
      know which theory supported the defendant’s conviction);
      Torrez, 2013–NMSC–034, ¶¶ 10–14, 305 P.3d 944 (same). But
      see Terry v. Potter, 111 F.3d 454, 458 (6th Cir. 1997); State v.
      Hescock, 98 Wash. App. 600, 989 P.2d 1251, 1256–57 (1999)
      (applying Terry).

Id.

      It is also worth noting that the official toxicology report from the Iowa

Division of Criminal Investigation (DCI) lab is part of the trial record here.

It was included in the minutes, and no one objected to its being

considered. Thus, while I agree that this lab report is not enough to prove

that Myers was guilty beyond a reasonable doubt under the Iowa Code

section 321J.2(1)(c) (2016) alternative, it is evidence that may be taken

into account in determining Myers’s guilt or innocence under section

321J.2(1)(a).

      Waterman and Christensen, JJ., join this special concurrence.
