STATE OF IOWA, Plaintiff-Appellant, vs. DENNIS ALLEN PHIPPS, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-552 / 08-2000
Filed August 6, 2009
STATE OF IOWA,
Plaintiff-Appellant,
vs.
DENNIS ALLEN PHIPPS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,
Judge.
Following the grant of discretionary review, the State seeks reversal of the
district court’s ruling disallowing use of a previous conviction of operating while
intoxicated to enhance a current charge. REVERSED.
Thomas J. Miller, Attorney General, Mary Tabor and Kyle Hanson,
Assistant Attorneys General, Darin J. Raymond, County Attorney, and Amy
Oetken, Assistant County Attorney, for appellant.
Michael P. Murphy of Murphy, Collins & Bixenman, Le Mars, for appellee.
Considered by Vogel, P.J., and Potterfield and Mansfield, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
Dennis Phipps was arrested on July 20, 2008, and charged with operating
while intoxicated, third offense, in violation of Iowa Code section 321J.2 (2007). 1
Phipps has two previous convictions for operating while intoxicated that the State
alleges elevate the current charge to a third offense. Phipps was convicted of
operating while intoxicated on May 23, 2000. Phipps concedes that his 2000
conviction may be used to enhance his current charge. Phipps was also arrested
on July 7, 1995, for operating while intoxicated.
Because of this arrest, his
license was revoked effective July 18, 1995, and the revocation concluded July
18, 1996. Phipps was convicted of the July 7, 1995 charge of operating while
intoxicated on September 4, 1996.
On October 10, 2008, Phipps filed a motion for adjudication of law points,
arguing the effective date of his license revocation resulting from the 1996
conviction was more than twelve years before the arrest on his current charge.
Therefore, according to his reading of the statutory twelve-year look-back
provision, the 1996 conviction could not be used to enhance Phipps’s charge in
the current matter, and the current charge should be only a second offense. On
December 3, 2008, the district court filed a written ruling finding the 1996
conviction could not be used to enhance Phipps’s present charge. The State
filed an application for discretionary review. The Iowa Supreme Court granted
discretionary review on January 7, 2009. The State asserts the statute at issue
1
Phipps was also charged with driving while revoked in violation of Iowa Code section
321J.21. That charge is not at issue on appeal.
3
is unambiguous, but if statutory interpretation was necessary, the district court
misinterpreted the statute.
II. Standard of Review
We review an adjudication of law points for errors at law. State v. Maher,
618 N.W.2d 303, 305 (Iowa 2000). We review issues of statutory interpretation
and application for errors of law.
Iowa R. App. P. 6.4; State v. Morris, 416
N.W.2d 688, 689 (Iowa 1987).
III. Merits
Iowa Code section 321J.2(4)(a) provides, “Any conviction or revocation
deleted from motor vehicle operating records pursuant to section 321.12 shall not
be considered as a previous offense.” Iowa Code section 321.12(4) explains
when records should be destroyed and states:
The director shall not destroy any operating records pertaining to
arrests or convictions for operating while intoxicated, in violation of
section 321J.2 or operating records pertaining to revocations for
violations of section 321J.2A, except that a conviction or revocation
under section 321J.2 or 321J.2A that is not subject to 49 C.F.R.
§ 383 shall be deleted from the operating records twelve years after
the date of conviction or the effective date of revocation.
The State argues the plain language of this statute should be understood
to convey that a conviction shall be deleted twelve years after the date of
conviction, and a revocation shall be deleted twelve years after the effective date
of revocation.
The district court determined this statute was ambiguous and
construed the statute to provide that convictions and/or revocations shall be
deleted from the record twelve years from whichever occurred first as to a single
driving incident.
4
“We resort to rules of statutory construction only when the explicit terms of
a statute are ambiguous. A statute is ambiguous if reasonable minds could differ
or be uncertain as to the meaning of the statute.” State v. Albrecht, 657 N.W.2d
474, 479 (Iowa 2003) (internal quotations and citations omitted).
When we
interpret statutes, our goal is to determine legislative intent. State v. Adams, 554
N.W.2d 686, 689 (Iowa 1996). We do not speculate as to the probable legislative
intent apart from words used in the statute.
Id.
Legislative intent can be
expressed by omission as well as inclusion. Id. “In searching for legislative
intent, we consider . . . the language of the statute, . . . its subject matter, the
object sought to be accomplished, the purpose to be served, underlying policies,
remedies provided, and the consequences of various interpretations.” Albrecht,
657 N.W.2d at 479.
We agree with the district court that the statute at issue is ambiguous. A
review of the legislative history of Iowa Code section 321.12 helps clarify
legislative intent in drafting the current statute. Before the statute was amended
in 1997, Iowa Code section 321.12 (1997) read:
The director shall destroy any operating records pertaining to
arrests or convictions for operating while intoxicated . . . which are
more than twelve years old.
The twelve-year period shall
commence with the date of the arrest or conviction for the offense,
whichever first occurs . . . .
The director shall destroy any operating records pertaining to
revocations for violations of section 321J.2A which are more than
twelve years old. The twelve-year period shall commence with the
date the revocation of the person’s operating privileges becomes
effective.
This section is instructive in two ways. First, it demonstrates the legislature’s
intent to have two distinct twelve-year periods running, one for the arrest or
5
conviction, and another for the revocation of operating privileges.
Second, it
demonstrates the legislature’s understanding and use of the phrase “whichever
first occurs.” The district court interpreted the statute at issue to allow for the
deletion of convictions and/or revocations from the record twelve years after
whichever occurred first. In reaching this conclusion, the district court read the
phrase “whichever first occurs” into the statute. In interpreting statutes, we are
confined to the express terms of the statute. State v. Byers, 456 N.W.2d 917,
919 (Iowa 1990). The phrase “whichever first occurs” was removed from the
statute when it was amended in 1997. Had the legislature intended the twelveyear look-back period to apply to either a conviction or revocation, whichever
occurred first, it presumably would have left the phrase “whichever first occurs” in
the statute.
It appears that the 1997 amendment was an attempt by the legislature to
join the two distinct paragraphs of section 321.12 (1997) into one paragraph so
as to avoid repetition. However, this amendment allowed the current statute to
retain the same meaning as the pre-1997 version.
Thus, under the current
statute, a conviction shall be deleted from the operating records twelve years
after the date of conviction, and a revocation shall be deleted from the operating
records twelve years after the effective date of revocation.
Consequently,
Phipps’s 1996 conviction would have properly been on his record when he was
arrested in 2008, and the State could use the 1996 conviction to enhance the
current charge.
REVERSED.
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