              IN THE SUPREME COURT OF IOWA
                              No. 07–1237

                           Filed April 17, 2009


STATE OF IOWA,

      Appellee,

vs.

KYLE LYNN STONE,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County,

Joseph Moothart, District Associate Judge.



      A defendant appeals his conviction for driving while his license was

denied or revoked for an OWI test refusal. AFFIRMED.



      Jerald W. Kinnamon and J. Dean Keegan, Cedar Rapids, for

appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Brian J.

Williams, Assistant County Attorney, for appellee.
                                      2

WIGGINS, Justice.

      We must decide whether the State can prosecute a driver for

driving while his license was denied or revoked if the Iowa Department of

Transportation (DOT) subsequently rescinds the revocation. Because the

rescission of the revocation does not change the fact the driver’s license

was revoked at the time of the police stop, the State can proceed with the

prosecution. We also hold, under these circumstances, the introduction

of a certified driving record that displayed the subsequent rescission of

the revocation is not relevant to the prosecution and the district court

was correct in ruling the record inadmissible.

      I. Background Facts and Proceedings.

      A police officer stopped Kyle Lynn Stone on September 14, 2006, in

Waterloo. Officer Newell pulled Stone over for an expired registration tag

on his truck’s license plate. The officer noted the truck was wet on a

night without precipitation and there was a McDonald’s bag with warm

food in the truck.   The officer asked Stone for identification and then

checked the status of his driver’s license. That check showed the DOT

had revoked Stone’s license from March 2006 until March 2007 for an

operating-while-intoxicated (OWI) test refusal. The check also revealed

Stone had a temporary work permit.        The officer asked for the work

permit,   but   Stone   did   not   produce   the   permit   or   any   other

documentation. Stone told the officer that he worked for A-Line Metals

and was on his way home. The stop took place around 7:00 p.m. The

officer placed Stone under arrest explaining that a work permit does not

authorize someone to wash a vehicle or go to McDonald’s.

      At the time of the stop in question, Stone had insurance, had an

ignition interlock system in his truck, and had a restricted temporary

work permit.     On September 26, the county attorney filed a trial
                                     3

information charging Stone with driving while his license was denied or

revoked for an OWI test refusal in violation of Iowa Code section 321J.21.

On October 6, Stone filed a written arraignment and a plea of not guilty

to the charge.

      After the written arraignment, on December 8, the DOT sent Stone

notice that it had rescinded his March 2006 revocation.         This notice

stated, “The withdrawal of your Iowa motor vehicle privileges due to OWI

test refusal has been rescinded and removed from your record. You are

eligible to operate motor vehicles in Iowa.”

      Stone filed a motion in limine asking for the exclusion of any

reference to the driver’s license information that was not contained in the

current certified driving record, claiming that noncurrent information

would not be relevant. Stone also wanted to eliminate any reference to

suspensions or revocations that the DOT had rescinded and removed

from his driving record. In addition, Stone asked to redact or remove

from his certified driving record any reference to revocations that were

rescinded or to his disqualification for a license based on an OWI test

refusal. Finally, Stone requested a jury instruction stating the State had

to prove all elements including this statement: “The revocation of Kyle

Stone’s driver’s license was not subsequently rescinded.”

      The State filed its own motion in limine asking the court to prohibit

Stone from referencing the rescission of the revocation of his license that

occurred after September 15, 2006. The State claimed any reference to

the rescission would be irrelevant and confusing to the jury.

      The district court ruled Stone was precluded from presenting

evidence of the rescission of the revocation because it was not relevant

and would be confusing.      In so doing, the court acknowledged it was
                                      4

overruling the defendant’s motion in limine and granting the State’s

motion in limine.

      At trial, a driver’s license supervisor from the DOT made an offer of

proof. In the offer of proof, the supervisor testified that a certified driving

record is the official record, and contains personal information,

convictions, arrest dates, revocations, disqualifications, cancellations,

and suspensions. She stated that she believed rescind meant “it’s like it

never happened on the driving record so it’s no longer there.”            She

testified the certified driving record the defense provided displayed all

suspensions and revocations for Kyle Stone, but this record did not

include the March 2006 through March 2007 revocation. She testified

that logistically, the rescinded revocation stays in the applicant’s folder,

but it does not “count for . . . a second or subsequent” offense. She also

stated that a certified driving record would be “the most current” and the

most accurate portrayal of Stone’s driving record “[a]t this time.” After

hearing the offer of proof, the court refused to change its prior ruling on

the motions in limine.

      At trial, the State presented evidence of Stone’s driving record that

displayed the revocation for an OWI test refusal, but did not display the

later rescission of the revocation. A jury found Stone guilty of driving

while his license was denied or revoked in violation of Iowa Code section

321J.21. Stone appeals the conviction.

      II. Issues.

      Stone raises two issues on appeal: first, whether the rescission of

his revocation precludes the State from prosecuting him for driving while

his license was denied or revoked for an OWI test refusal in violation of

Iowa Code section 321J.21; and second, whether the court erred in not
                                         5

admitting Stone’s driving record that showed his license was not revoked

on September 14, 2006.

       III. Scope of Review.

       This court reviews standard claims of error in admission of

evidence for an abuse of discretion. State v. Boggs, 741 N.W.2d 492, 499

(Iowa 2007). However, when the admission turns on the interpretation of

a statute, this court reviews the district court decision for errors at law.

Id.

       IV. Analysis.

       The State charged Stone with violating section 321J.21 of the

Code. It provides in relevant part that

       [a] person whose driver’s license or nonresident operating
       privilege has been suspended, denied, revoked, or barred
       due to a violation of this chapter and who drives a motor
       vehicle while the license or privilege is suspended, denied,
       revoked, or barred commits a serious misdemeanor.

Iowa Code § 321J.21(1) (2005). To prove Stone’s guilt, the State must

prove beyond a reasonable doubt that the defendant’s license had been

revoked, and the defendant operated a motor vehicle while his license

was revoked.     State v. Thompson, 357 N.W.2d 591, 594 (Iowa 1984).1
Both parties acknowledge that a violation of section 321J.21 is a status

offense.

       Stone claims the State could not charge him under section

321J.21 because the DOT rescinded his license revocation. He argues

that when the DOT rescinds a revocation, the rescission applies



       1This  court has already acknowledged, “an individual violates section 321J.21
whenever a motor vehicle is operated outside the scope of a temporary restricted
license.” State v. Schmidt, 480 N.W.2d 886, 887 (Iowa 1992). Thus, Stone’s temporary
work permit does not alter his status as a “revokee” since he was driving outside the
scope of that permit, a finding he does not dispute on appeal.
                                    6

retroactively.   In other words, a rescission of a revocation means the

revocation never existed.

      The DOT rescinded Stone’s revocation pursuant to section

321J.13(6). It provides:

                    a. The department shall grant a request
             for a hearing to rescind the revocation if the
             person whose motor vehicle license or operating
             privilege has been or is being revoked under
             section 321J.9 or 321J.12 submits a petition
             containing information relating to the discovery
             of new evidence that provides grounds for
             rescission of the revocation.

                    b. The person shall prevail at the hearing
             if, in the criminal action on the charge of
             violation of section 321J.2 or 321J.2A resulting
             from the same circumstances that resulted in
             the administrative revocation being challenged,
             the court held one of the following:

                   (1) That the peace officer did not have
             reasonable grounds to believe that a violation of
             section 321J.2 or 321J.2A had occurred to
             support a request for or to administer a
             chemical test.

                  (2) That the chemical test was otherwise
             inadmissible or invalid.

                   c. Such a holding by the court in the
             criminal action is binding on the department,
             and the department shall rescind the revocation.

Iowa Code § 321J.13(6). Thus, the success of Stone’s argument depends

on the meaning of “rescind the revocation” contained in section

321J.13(6)(c).

      The Code does not define “rescind” in relation to the rescission of a

license revocation.    Therefore, to determine whether the rescission

applies retroactively, the court must interpret the statute. The purpose

of statutory construction is to determine legislative intent.     Auen v.
                                    7

Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004).               We

determine the legislature’s intent by the words chosen, not by what it

should or might have said.     State v. Wiederien, 709 N.W.2d 538, 541

(Iowa 2006). Absent a statutory definition or an established meaning in

law, the court gives words their ordinary and common meaning by

considering the context in which the legislature used the word. City of

Des Moines v. Employment Appeal Bd., 722 N.W.2d 183, 196 (Iowa 2006).

      Black’s Law Dictionary defines rescind as: “[t]o abrogate or cancel

(a contract) unilaterally or by agreement” or “[t]o make void; to repeal or

annul.”   Black’s Law Dictionary 1332 (8th ed. 2004).         The dictionary

defines rescind as to do away with, to take away, remove, take back,

annul, cancel, “to abrogate (a contract) by tendering back or restoring to

the opposite party what one has received from him,” and “to vacate or

make void (as an act) by the enacting or a superior authority; repeal.”

Webster’s Third New International Dictionary 1930 (unabr. ed. 2002).

None of these definitions in a noncontractual setting indicates the word

“rescind” means to retroactively undo all the effects of the initial action

that was later rescinded.

      Stone argues the contractual definition is controlling and that once

the DOT rescinded his revocation, it put him in the position as if the

revocation never took place. Stone’s reliance is misplaced.

      Rescission, as used in the contractual sense, is an equitable

remedy devised by the law. See Potter v. Oster, 426 N.W.2d 148, 151

(Iowa 1988) (stating “[r]escission is a restitutionary remedy which

attempts to restore the parties to their positions at the time the contract

was executed”). The remedy of rescission does not assume the events

occurring prior to the remedy did not occur. Barlow v. Comm’r of Pub.

Safety, 365 N.W.2d 232, 233 (Minn. 1985).
                                     8

      A situation more analogous to Stone’s is the legislature’s repeal of

an existing statute. Even though the legislature repeals a law, the repeal

of a law does not “affect any right which has accrued, any duty imposed,

any penalty incurred, or any proceeding commenced, under or by virtue

of the statute repealed.” Iowa Code § 4.1(26).

      Prior to the DOT’s rescission of Stone’s revocation, Stone had

notice his driving privileges were revoked, and he knew he could only

drive in situations allowed by his temporary work permit. The only fact

relevant to Stone’s prosecution was the status of his license on

September 14, 2006. The DOT’s rescission of Stone’s revocation did not

change the fact that on September 14, when he was stopped, Stone’s

license was revoked and he was driving his vehicle in a manner not

permitted by his temporary work permit.          Consequently, the DOT’s

rescission of Stone’s revocation does not prevent the State from

prosecuting Stone for driving while his license was denied or revoked for

an OWI test refusal.

      On appeal, Stone also raises a due process argument under the

state and federal constitutions. In his brief, he cites two Supreme Court

cases dealing with the substantive due process rights of prisoners. In

the district court, Stone’s attorney attempted to raise the due process

issue in the following exchange with the district court:

            But for our first three numbered paragraphs in the
      Motion in Limine, we would ask that the Court prohibit any
      reference at trial to any alleged sanction which is not
      contained in the current certified driving record of the Iowa
      Department of Transportation and which has been rescinded
      by the Iowa Department of Transportation. We would allege
      that failure to do so would be contrary to the Sixth and
      Fourteenth Amendments of the United States Constitution
      and Article 1, Section 8, 9, and 10 of the constitution of the
      State of Iowa.       And we would also rely on those
      Constitutional protections in our motion.
                                    9
            Thank you.

            THE COURT: Okay. What specific Constitutional
      protections are you referring to?

            MR. KEEGAN: Due process and fair trial.

      His attorney did not make any legal arguments or cite any

authority for his position. It is unclear from the record made whether he

was making a substantive or procedural due process argument. By not

specifying the nature of his constitutional claims in the district court,

Stone has failed to preserve error on his constitutional claims. State v.

Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002) (stating the party

must alert the court to the specific constitutional provisions at issue and

must explain the alleged violations of the provisions).       We will not

consider issues, even constitutional issues, which a party did not

properly raise in the district court. State v. Mitchell, 757 N.W.2d 431,

435 (Iowa 2008).

      The last issue Stone raises on appeal is the court’s failure to allow

him to introduce his certified driving record, as it existed after the DOT

rescinded the revocation, which showed his license was not revoked on

September 14, 2006.      The State brought a record custodian from the

DOT to testify as to the status of Stone’s driving privileges on

September 14. After laying the proper foundation, the custodian testified

the DOT’s records revealed on September 14 Stone’s driving license was

revoked subject to a temporary work permit. We agree with the district

court that the certified driving record showing the DOT had not revoked

Stone’s license on September 14 was inadmissible.

      Our rules of evidence define relevant evidence as “evidence having

any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it
                                    10

would be without the evidence.” Iowa R. Evid. 5.401. As we previously

held in this opinion, the status of Stone’s driving privileges on

September 14 is the only relevant fact the State needs to prove to convict

Stone of driving while his license was denied or revoked for an OWI test

refusal. The fact the DOT later rescinded his revocation is irrelevant to

any issue in this prosecution. Therefore, the court was correct when it

did not allow Stone to introduce his certified driving record, as it existed

after the DOT rescission.

      V. Disposition.

      We hold the DOT’s rescission of its revocation of Stone’s driver’s

license after the date he was charged with driving while his license was

denied or revoked for an OWI test refusal does not preclude the State

from pursuing the charge.     We also hold Stone failed to preserve any

constitutional claim on appeal, and the district court did not err in

refusing to admit Stone’s certified driving record that did not show his

revocation. We affirm the judgment of the district court.

      AFFIRMED.
