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. HernandezLopez, 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.