               IN THE SUPREME COURT OF IOWA
                            No. 92 / 06-1466

                         Filed February 29, 2008

STATE OF IOWA,

      Appellant,

vs.

CODEY THOMAS MASSENGALE,

      Appellee.


      Appeal from the Iowa District Court for Iowa County, Douglas S.

Russell, Judge.



      State appeals district court’s decision granting defendant’s motion to

suppress breath test results in an operating-while-intoxicated case.

AFFIRMED.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, and Lewis McMeen, County Attorney, for appellant.



      Robert G. Rehkemper of Gourley, Rehkemper & Lindholm, P.L.C., for

appellee.
                                       2

STREIT, Justice.

         Codey Massengale was pulled over for speeding and arrested for

driving while intoxicated. He held a commercial driver’s license but was

driving his noncommercial vehicle at the time of his arrest. He filed a

motion to suppress the results of his breath test, challenging the adequacy

of the implied consent advisory read to him before he submitted to the

breath test. The district court granted Massengale’s motion. It found

Massengale’s consent to the test was involuntary because the advisory was

inaccurate. We granted the State’s application for discretionary review.

Because the advisory read to Massengale violated substantive due process,

we affirm the district court.

         I.    Facts and Prior Proceedings.

         Just before 1:00 a.m. on April 2, 2006, an Iowa County deputy sheriff

noticed a pickup truck speeding down Fourth Street in Victor, Iowa. The

deputy shined his flashlight toward the driver to get his attention. Codey

Massengale, the driver, slowed down and pulled over.
         When Massengale stepped out of his truck, he was unsteady on his

feet, had bloodshot, watery eyes, and smelled of an alcoholic beverage.
Massengale admitted he had been drinking beer that night. Massengale

begged the deputy not to arrest him for drunk driving because he would

lose his job.      He promised he would never drink and drive again.

Massengale said he knew his blood alcohol concentration was over the legal

limit. He failed the horizontal gaze nystagmus test administered by the

deputy, and a preliminary breath test indicated his blood alcohol

concentration exceeded the legal limit. There was an open beer in the

truck.
                                            3

      The deputy arrested Massengale for operating a motor vehicle while

intoxicated. He transported Massengale to the Iowa County Jail where

Massengale was read the “implied consent advisory.” Massengale submitted

to a Datamaster breath test, which showed his blood alcohol concentration

was .143.

      The State charged Massengale with operating while intoxicated (OWI),

first offense, in violation of Iowa Code section 321J.2 (2005).1 Massengale

pled not guilty. He filed a motion to suppress the breath test results, which

the State resisted. Massengale challenged the adequacy of the implied

consent advisory given to him before he submitted to the breath test. He

alleged the advisory was inaccurate and misleading with respect to the

applicable suspension periods to his commercial driving privileges and

therefore “violated due process and rendered [his] ‘consent’ involuntary.”

Following an evidentiary hearing, the district court granted Massengale’s

motion. We granted the State’s application for discretionary review.

      II.       Scope of Review.

      We review constitutional claims de novo. Grovijohn v. Virjon, Inc., 643

N.W.2d 200, 202 (Iowa 2002).

      III.      Merits.

      A.        Iowa’s Implied Consent Law. Iowa’s implied consent statute

“establishes the basic principle that a driver impliedly agrees to submit to a

test [to determine alcohol concentration or presence of a controlled

substance] in return for the privilege of using the public highways.” State v.

Hitchens, 294 N.W.2d 686, 687 (Iowa 1980). Iowa Code section 321J.6(1)

states:

      A person who operates a motor vehicle in this state under
      circumstances which give reasonable grounds to believe that
      1All   references to the Iowa Code are to the 2005 version unless stated otherwise.
                                      4
      the person has been operating a motor vehicle in violation of
      section 321J.2 or 321J.2A is deemed to have given consent to
      the withdrawal of specimens of the person’s blood, breath, or
      urine and to a chemical test or tests of the specimens for the
      purpose of determining the alcohol concentration or presence
      of a controlled substance or other drugs, subject to this
      section. . . .
However, a person has the right to withdraw his implied consent and refuse

the test. Iowa Code § 321J.9 (“If a person refuses to submit to the chemical

testing, a test shall not be given . . . .”). But see id. §§ 321J.10, .10A

(allowing chemical testing without consent if, among other things, a traffic

incident resulting in death or personal injury reasonably likely to cause

death occurred). We have previously said the right to refuse the test is a

statutory right and not mandated by the provisions of the United States

Constitution.    State v. Knous, 313 N.W.2d 510, 512 (Iowa 1981); see

Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908

(1966) (holding taking a blood sample against the OWI defendant’s objection

did not violate the Fourth or Fifth Amendments of the United States

Constitution).
      Under Iowa Code section 321J.8, when a peace officer requests a

person to submit to chemical testing, the peace officer must advise the

person of the consequences of refusing the test as well as the consequences

of failing the test. The clear intent of section 321J.8 is to provide a person

who has been asked to submit to chemical testing

      a basis for evaluation and decision-making in regard to either
      submitting or not submitting to the test. This involves a
      weighing of the consequences if the test is refused against the
      consequences if the test reflects a controlled substance, drug,
      or alcohol concentration in excess of the “legal” limit.

Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 212 (Iowa 2001).

      B.    Due Process.      When Massengale was arrested, he held a

commercial driver’s license (CDL) but was driving a noncommercial vehicle.
                                       5

Massengale argues the implied consent advisory violates due process

because it misled him with respect to the consequences of his decision on

his CDL. See U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any

person of life, liberty, or property, without due process of law”); Iowa Const.

art. I, § 9 (“no person shall be deprived of life, liberty, or property, without

due process of law”). As a result, Massengale contends the results of the

breath test should be suppressed in his OWI trial. Massengale does not

clearly articulate whether he is alleging a procedural or substantive due

process violation. Nevertheless, his reference to “fundamental fairness”

sufficiently alerted us to a potential substantive due process violation.

      A substantive due process analysis begins with an identification of

the nature of the right at issue. Miller v. Smokers Warehouse Corp., 737

N.W.2d 107, 111 (Iowa 2007).        If a fundamental right is involved, the

government may not infringe on that right, “ ‘no matter what process is

provided, unless the infringement is narrowly tailored to serve a compelling

state interest.’ ” Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682,
694 (Iowa 2002) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct.

1439, 1447, 123 L. Ed. 2d 1, 16 (1993)). For all other interests, “the Due
Process Clause, ‘demands no more than a “reasonable fit” between

government purpose . . . and the means chosen to advance that purpose.’ ”

Miller, 737 N.W.2d at 111 (quoting Reno, 507 U.S. at 302, 305, 113 S. Ct. at

1447–49, 123 L. Ed. 2d at 18); see also State v. Seering, 701 N.W.2d 655,

662 (Iowa 2005) (“If a fundamental right is not implicated, a statute need

only survive a rational basis analysis, which requires us to consider

whether there is ‘a reasonable fit between the government interest and the

means utilized to advance that interest.’ ” (quoting State v. Hernandez-

Lopez, 639 N.W.2d 226, 238 (Iowa 2002))).
                                     6

In this case, there is no fundamental right. Rather, at issue is a statutory

right to withdraw one’s implied consent to chemical testing. Thus, we must

determine whether there is a reasonable fit between the legislature’s

purpose—granting individuals arrested for OWI the right to make a

reasoned and informed decision with respect to chemical testing—and the

means chosen to advance that purpose—the implied consent advisory. See

State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003) (stating “[t]he ultimate

question is whether the decision to comply with a valid request under the

implied-consent law is a reasoned and informed decision”).

      Officer Parsons read the following advisory to Massengale before

requesting a breath sample from him:

      The Implied Consent Law requires that a peace officer advise
      the person of the following:

      Refusal to submit to the withdrawal of a body specimen for
      chemical testing will result in revocation of your privilege to
      operate a motor vehicle for one year if you have not
      previously been revoked within the previous twelve years under
      the implied consent or drunk driving laws of this state or two
      years if you have one or more revocations within the previous
      twelve years. . . .

      Refusal to submit to a blood or urine test for drugs other than
      alcohol or a combination of alcohol and another drug
      constitutes a refusal and the above mentioned revocation
      periods apply.

      If you consent to chemical testing and the test results indicate
      an alcohol concentration of eight hundredths or more, or if the
      test results indicate the presence of a controlled substance or
      other drug or a combination of alcohol and another drug in
      violation of [Iowa Code section] 321J.2, the department shall
      revoke your privilege to operate a motor vehicle for a period
      of 180 days if you have no revocation within the previous
      twelve years under the drunk driving or implied consent law, or
      one year if you have one or more previous revocations under
      those provisions.
                                              7

(Emphasis added.)2          The parties agree this advisory conforms to the

requirements set out in Iowa Code section 321J.8, which specifies what

information must be conveyed in the implied consent advisory.3

       Prior to July 1, 2005, Iowa Code section 321J.8 accurately reflected

the status of the laws pertaining to license suspensions for individuals

(whether they held commercial or noncommercial driver’s licenses) who


       2 The
           advisory also had a separate paragraph entitled “Implied Consent Advisory for
Commercial Motor Vehicle Operators Only.” It states:
       If you are operating a commercial motor vehicle and you submit to chemical
       testing and the test results indicate an alcohol concentration of four
       hundredths or more OR if you refuse to submit to chemical testing, you
       shall be disqualified from operating a commercial motor vehicle for a period
       of one year.
        The deputy did not read this paragraph to Massengale because Massengale was not
driving a commercial motor vehicle at the time of his arrest.

       3Iowa   Code section 321J.8 provides:

       A person who has been requested to submit to a chemical test shall be
       advised by a peace officer of the following:

       1. If the person refuses to submit to the test, the person’s driver’s license or
       nonresident operating privilege will be revoked by the department as
       required by and for the applicable period specified under section 321J.9.

       2. If the person submits to the test and the results indicate the presence of
       a controlled substance or other drug, or an alcohol concentration equal to or
       in excess of the level prohibited by section 321J.2 or 321J.2A, the person’s
       driver’s license or nonresident operating privilege will be revoked by the
       department as required by and for the applicable period specified under
       section 321J.12.

       3. If the person is operating a commercial motor vehicle as defined in
       section 321.1 and either refuses to submit to the test or submits to the test
       and the results indicate an alcohol concentration of 0.04 or more, the
       person is disqualified from operating a commercial motor vehicle for the
       applicable period under section 321.208 in addition to any revocation of the
       person’s driver’s license or nonresident operating privilege which may be
       applicable under this chapter.

       This section does not apply in any case involving a person described in
       section 321J.7.
                                      8

were arrested for operating while intoxicated and were requested to submit

to chemical testing. Effective July 1, 2005, section 321.208 was amended

to provide a one year CDL revocation for an individual who refused or failed

chemical testing regardless of whether the individual was operating a

commercial or noncommercial motor vehicle.         The amendment rewrote

subsection (2) which now states:

      A person is disqualified from operating a commercial motor
      vehicle for one year upon a conviction or final administrative
      decision that the person has committed any of the following
      acts or offenses in any state or foreign jurisdiction while
      operating a commercial motor vehicle or while operating a
      noncommercial motor vehicle and holding a commercial
      driver’s license:

      a. Operating a motor vehicle while under the influence of an
      alcoholic beverage or other drug or controlled substance or a
      combination of such substances.

      b. Refusal to submit to chemical testing required under
      chapter 321J.
Iowa Code § 321.208(2) (2007) (emphasis added). Thus an individual, such

as Massengale, holding a CDL and driving a noncommercial vehicle will lose

his commercial driving privileges for one year if he refuses or fails chemical

testing.   At the time of Massengale’s arrest, neither Iowa Code section

321J.8 nor the implied consent advisory read to Massengale had been

amended to reflect the change in section 321.208.

      We agree with Massengale the advisory was misleading with respect

to the revocation period for commercial driving privileges. The advisory

could be interpreted to mean the consequences to one’s CDL for refusing or

failing chemical testing are the same as the consequences to one’s

noncommercial driving privileges.      In other words, it is reasonable to

interpret the phrase—“privilege to operate a motor vehicle”—as including

the privilege to drive a commercial motor vehicle. Thus, an individual in
                                       9

Massengale’s position would likely believe he would lose his CDL for six

months if he failed the test and one year if he refused to submit to testing.

      The “reasonable fit” test is certainly deferential to the means the

government chooses to advance a legitimate purpose. Nevertheless, the

means chosen by the government here—a misleading implied consent

advisory—does not advance the purpose of the statute—giving arrested

individuals information to make “a reasoned and informed decision” with

respect to chemical testing. See Bernhard, 657 N.W.2d at 473; see also

Teson v. Dir. of Revenue, 937 S.W.2d 195, 197 (Mo. 1996) (holding warning

that “mislead[s] the arrestee into believing that the consequences of refusal

are different than the law actually provides” is not “sufficient for purposes of

due process”).

      The State argues Massengale’s decision to consent to the breath test

was not influenced by his misunderstanding because the revocation period

was the same for his CDL whether he refused the test or took it and failed

it. We cannot be confident Massengale’s decision to submit to testing was
unaffected by the State’s misleading and inadequate advisory. Compare

Voss, 621 N.W.2d at 212 (holding results of second chemical test for drugs
was admissible even though state trooper did not reread the implied

consent advisory in part because “there is no evidence in the record that

Voss was confused about the consequences of his decision”), with McDonnell

v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991) (holding an

implied consent advisory which misinformed defendant that she might be

prosecuted for refusing to submit to testing violated due process). After all,

the decision of whether to submit to testing must be made quickly and “will

frequently be made without [the] benefit of counsel.” Voss, 621 N.W.2d at

212. Moreover, under Iowa law, there are both civil and criminal penalties
                                           10

for driving under the influence.            The department of transportation is

required to immediately revoke an individual’s driver’s license for the

specified time if the person refuses to submit to chemical testing or if the

person takes the test and fails it. Iowa Code §§ 321J.9, .12. In addition,

the State has the authority to prosecute the individual for OWI, which is a

serious misdemeanor for the first offense.              Id. § 321J.2.       A person in

Massengale’s position may decide not to provide the State with evidence to

convict him for OWI if he understands he is going to lose his CDL for one

year whether he failed or refused the test. See State v. Moorehead, 699

N.W.2d 667, 673 (Iowa 2005) (stating “[a] breath test result is important

evidence in prosecutions for drunk driving”).

       The government has a significant interest in reducing the number of

highway accidents due to drunk driving. See Krueger v. Fulton, 169 N.W.2d

875, 878 (Iowa 1969). Moreover, it is legitimate for the government to

encourage individuals to consent to testing by penalizing those who refuse

testing. However, neither of these interests will be impinged by an implied
consent advisory accurately disclosing the consequences to commercial

driving privileges. In fact, since Massengale’s arrest, the legislature has
amended section 321J.8 to include the correct information.4




       4Section   321J.8 now includes the following paragraph:

       b. If the person is operating a noncommercial motor vehicle and holding a
       commercial driver’s license as defined in section 321.1 and either refuses to
       submit to the test or operates a motor vehicle while under the influence of
       an alcoholic beverage or other drug or controlled substance or a
       combination of such substances, the person is disqualified from operating a
       commercial motor vehicle for the applicable period under section 321.208 in
       addition to any revocation of the person’s driver’s license or nonresident
       operating privilege which may be applicable under this chapter.

2007 Iowa Acts ch. 69.
                                    11

      IV.   Conclusion.

      Under the circumstances, we find a reasonable fit lacking between the

government’s purpose in granting OWI suspects the right to make a

reasoned and informed decision and the implied consent advisory given in

this case. Massengale’s decision to consent to the breath test was not

reasoned and informed because the implied consent advisory was

misleading with respect to the applicable revocation periods for his CDL.

The district court properly granted Massengale’s motion to suppress. We

need not address Massengale’s alternative argument that his consent was

involuntary. We affirm the district court.

      AFFIRMED.
