### IN THE SUPREME COURT OF IOWA

No. 0 9

– 0512
Filed April 15 , 201 1

STATE OF IOWA , Appellant ,

vs.
JUSTIN JOSEPH HUTTON , Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.

On further review, defendant asserts th e results of his breath test
should have been suppressed. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED
.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarco ne, County Attorney, and Daniel J. Rothman, Assistant County Attorney, for appellant.

Robert G. Rehkemper of Gourley, Rehkemper & Lindhol m , P.L.C.,
Des Moines , for appellee.2

HECHT , Justice. After being charged with operating while intoxicated (OWI) in
violation o f Iowa Code section 321J.2 (2009 ), 1 the defendant moved to suppress the results of his breath test. The district court granted his motion, concludin g the advisory given by a police officer was misleading
and therefore violated section 321J.8, rendered the defendant’s consent to the test involuntary , and violated the defendant ’s substantive due process rights. The State was granted discretionary review, and the court of appeals reversed the district court. On further review, we conclude the breath test results should not have been suppressed and remand for further proceedings.
I. Background Facts and Proceedings
. After receiving a report of someone passed out in a Ford Bronco in a parking lot, Ankeny police officers found Justin Hutton parked at a Quik Trip shortly after 2:00 a.m. on December 20, 2008 . When they spoke with Hut ton , the officers suspected he was intoxicated. H e admitted he had been drinking and failed several field sobriety tests. A preliminary breath test indicated Hutton’s blood alcohol concentrat ion was above the legal limit. He was arrested and t aken to th e police
station. Although Hutton held a commercial driver’s license (CDL), he had been driving a noncommercial vehicle just prior to his arrest. At the station, an officer requested Hutton submit to another breath test and

r ead Hutton an implied consent advisory. Hutton agreed to take the test,
which indicated his blood alcohol concentration was .205.

1 The 2009 Iowa Code contains enactments of the general assembly that bec ame effective on or before July 1, 2008.3 The State charged Hutton with OWI , first offense, in violation of
Iowa Code section 321J.2

. Hutton moved to suppres s the results of the
breath test

. Th e district court granted the motion, concluding the

cons ent advisory was misleading , violating Hutton’s substantive due process rights , render ing his consent involuntary , and violat ing Iowa Code section 321J.8

. The State sought discretionary review, arguing t he district court erred in concluding the advisory misstated th e law. We granted review and transferred the case to the court of appeals. The court of appeals

reverse d , determining the advisory did not misstate the law, and
remanded for further proceedings. We granted Hutton’s application for
further review.
II. Scope of Review
. We review Hutton’s claim that the advisory he was given violated
Iowa Code section 321J.8 for corrections of errors at law. State v. Garcia , 756 N.W.2d 216, 220 (Iowa 2008). His claim that his due process rights
were violated will be reviewed de novo. State v. Mas s engale , 745 N.W.2d 499, 500 (Iowa 2008). To assess his claim that his consent was involuntary, we will “evaluate the totality of the circumstances” and

rev iew the claim de novo. Garcia , 756 N.W.2d at 219.
III. Discussion
. Iowa Code chapter 321J “ ‘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.’ ” Massengale , 745 N.W.2d at 501 (alteration in or iginal) ( quoting State v. Hitchen s , 294 N.W.2d 686, 687 (Iowa 1980) ) ; s ee also Iowa Code § 321J.6(1)

. Despite the statutory presumption of consent, a p erson may refuse to submit to chemical4 testing. See Iowa Code § 321J.9. However, because there are bot h administrative and criminal repercussions for submitting to or refus ing a chemical test, sec tion 321J.8 requires an officer to advise the person of certain consequences that may result from the decision. Id. § 321J.8

. In his motion to suppress, Hutton argued the b reath test results should be suppressed because the consent advisory inaccurately represented the consequences of his decision to submit to the test or not. Contending the advisory was misleading, Hutton asserted it violated Iowa Code section 321J.8, caused his consent to be involuntary , and violated his due process rights. The State’s response at the district court level and through its application for discretionary review is that the advisory
did not misstate t he law and so could not have misled Hutton or violated his due process or statutory rights.
A. Interpretation of S ection 321.208. The relevant statutes have been in flux since 2005. Prior to 2005, a CDL was subject to revocation for one year for offen ses committed while operating a
commercial vehicle. Iowa Code § 321.208 (2005) (pr o vi di ng for revocation of CDL for one year for, among other things, operating a
commercial vehicle while under the influence of alcohol or a controlled substance, operating a commercial vehicle with an alcohol concentration
of .04 or more , or refusing to submit to chemical testing). At that time, section 321J.8 required a peace officer to advise a person driving a
commercial vehicle that his or her CDL would be revoked for a year if he or she refused testing or submitted to the test and the results indicated a blood alcohol content of .04 or higher. Id. § 321J.8 (2005). Effective July 1, 2005, section 321.208 was amended

. The
amendments left unchanged the provision that a CDL would be revoked for one year if a person operated a commercial vehicle with an alcohol5 concentration of .04 or higher. Id. § 321.208 (1) (2005 Supp.). However, the amendments provided that a CDL would be revoked for one year if a CDL holder operated either a commercial or a noncommercial vehicle “while under the influence of an alcoholic beverage” or “refus[ed] to submit to chemical testing” whil e operating a commercial or

non commercial vehicle. Id. § 321.208(2) (2005 Supp.) . Section 321 J .8,
the sta tute imposing the advisory requirement , however, was not
amended to reflect the 2005 changes to 321.208 until 2007. Effective July 1, 2007, section 321J.8 was amended to require an officer to advise a person driving a noncommercial vehicle that if he or s he refuses testing or “operates a motor vehicle while under the influence of an alcoholic beverage” his or her CDL will be revoked for a year. Id. § 321J.8 (1)( c )(2) (2007 Supp.).
In short , when Hutton was arrested in December 2008, section
321J.8 required he be advised that his CDL would be revoked if he refused the test or if he was found to have operated his vehicle while under the influence of an alcoholic beverage. However, the advisory read to him contained the following language:

I f you hol d a commercial driver’s license the department will disqualify your commercial driving privilege for one year if you submit to the test and fail it , you refuse to take the test, or you were operating while under the influence of an alcoholic beverage or ot her drug or controlled substance or a combination of such substances. (Emphasis added.) Although t he advisory read to Hutton warned him
that his CDL would be revoked for a year if he consented to the test and
failed it , 2 section 321.208(2) (the revocation statute) did not at that time

2 Both parties agree that, because Hutton was driving a noncommercial vehicle, in this case a “failed” breath test refers to a result indicating a blood alcohol content of .08 or higher.6 explicitly provide for revocation of a CDL for “failing” a chemical test and section 321J.8 (the warning statute) did not require the failure language to be included in the advisory. Hutton argues that section 321.208 (2)( a ) did n ot authorize CDL revocation for failing a chemical test while operating a noncommercial
vehicle

. Hutton maintains that because Iowa law distinguishes between operating a vehicle “under the influence” and failing a chemical test, the plain language of section 321.208 (2)( a ) only a uthorized revocation if he
refuse d the test or “operate [d a vehicle] while under the influence of an alcoholic beverage.” See Iowa Code section 321J.2 (2009) (setting forth
different alternatives as a basis for a conviction for operating while intoxicated, including either operating a motor vehicle “ [ w ] hile under the influence of an alcoholic beverage” or while “having an alcohol
concentration of .08 or more ”)

. Hutton contends that i f the legislature had intended to require revocation of a CDL for operating a
noncommercial vehicle and testing above the legal limit, it w ould have articulated that proposition, just as it did in section 321.208(1)( a ) (providing for disquali fi cation of CDL for one year if a person “operat[es] a

c ommercial motor vehicle with an alcohol concentration . . . of 0.04 or more”). Because the legislature used different terminology and used terminology that has distinctive legal meaning , Hutton argues it is clear the legislature intended revocation only when it could be established that the person operated a motor vehicle while “under the influence.”
The State contends the advisory did not misstate the law. The
State maintains t hat test failure is a ground for CDL disqualification and

t hat any omission in the statute to refer explicitly to test failure is the result of “inartful drafting.” T he State cites recent amendments to the
relevant code sections which explicitly provide for r evocation of a CDL for7 failing a breath test and assert s these amendments indicate the legislature sought to clarify its intent. 3 The State also emphasizes
la nguage from our opinion in Mas sengale , contending we equat ed “failing” a breath test with driving under the influence of alcohol. Although we may consider former and subsequent versions of a
statute to ascertain the legislature’s intent , we only do so when the statutory lan g auge is ambiguous

. State v. Guzman

- Juarez , 591 N.W.2d 1, 3 (Iowa 1999) ; see also State v. Spencer , 737 N.W.2d 124, 129 (Iowa 2007)

. A statute is ambiguous if reasonable minds could disagree as to its meaning. Spencer , 737 N.W.2d at 129. Ambiguity may arise either
from the m eaning of particular words or “ ‘from the general scope and meaning of a statute when al l its provisions are examined.’ ” Id. ( quoting IBP, Inc. v. Harker , 633 N.W.2d 322, 325 (Iowa 2001) )

. We do not find the relevant statutory language to be ambiguous in this case. Iowa law has consistently and clearly distinguished between driving with a blood alcohol content that exceeds the statutory threshold and driving while under the influence of alcohol or drugs. Section
321J.2 provides different alternatives to establish a conviction for operating while intoxicated, including either operating a m otor vehicle “while under the influence of an alcoholic beverage” or while “having an
alcohol concentration of .08 or more.” Iowa Code § 321J.2. Notably, section 321.208 also distinguishe d between driving with a blood alcohol

3 In 2009, the legislature ame nded both sections 321.208 and 321J.8. Section 321.208 now provides that a CDL holder is disqualified from driving for one year if the person operates a noncommercial vehicle “while intoxicated, as provided in section 321J.2, subsection 1.” Iowa Code § 3 21. 208(2)( a ) (2009 Supp.). Section 321J.8(1)( c )(2) now provides that a person must be advised that his commercial driving privileges will be revoked for a year if he drives a noncommercial vehicle and “either refuses to submit to the test or submits to th e test and the results indicate the presence of . . . an alcohol concentration equal to or in excess of the level prohibited by section 321J.2.” Id. § 321J.8(1 )( c )( 2).8 concentration above a specif ied limit and driving under the influence. Iowa Code § § 321.208(1)( a ) and (2)( a ) (providing for CDL revocation for driving a commercial vehicle with a blood alcohol concentration in excess of .04 and for driving a noncommercial vehicle while under the
inf luence) . Our caselaw, as well, has distinguished between the two
alternatives. See State v. Hubka , 480 N.W.2d 867, 872 (Iowa 1 992) (“ [ A ] person may be convicted of OWI if she operates a motor vehicle either
while ‘under the influence’ of alcohol or while having a blood alcohol
content of .10 or more. ” (Emphasis omitted.))

. We have long recognized
that the determination of whether a person is under the influence of an alcoholic beverage is focused on the conduct and demeanor of the person, not a numerical test result. See State v. Truesdell , 679 N.W.2d 611, 616 (Iowa 2004) (“ [ A ] person is ‘under the influence’ when the consumption of alcohol affects the person’s reasoning or mental ability, impairs a per son’s judgment, visibly excites a person’s emotions, or causes a person to lose control of bodily actions

. ”). We presume, unless clear evidence to the contrary is shown, that the legislature knows the existing state of the law. State v. Freeman , 705 N.W. 2d 286, 291 (Iowa 2005). Accordingly, we conclude the version of section 321.208 in effect at the time of Hutton’s arrest did not provide for a one

- year CDL suspension for “failing” a breath test. 4 This conclusion, however, does not end the analysis

. B. Did the A dvisory V iolate Iowa Code S ection 321J.8? As described above, section 321J.8(1)( c )(2) required a CDL holder driving a
noncommercial vehicle to be advised that his or her CDL would be

4 To the extent any language in Massengale contradicts our holding today, we disavow it.9 revoked for one year if he or she refuse d to submit to a chemical test or operated a motor vehicle while under the influence of an alcoholic beverage

. See Iowa Code § 321J.8(1)( c )(2). There is no dispute that the advisory read to Hutton contained these required elements. However, Hutton’s advisory included ad ditional language warning him, incorrectly, that his CDL would be revoked for a year if he submitted to the test and
failed it. Section 321J.8(1)( c ) does not require the warnings to be conveyed in any particular language and does not explicitly prohibit an officer from conveying more information than is required. When assessing a claim
that an advisory did not comply with section 32 1J.8, we consider
whether “the statutory purpose was accomplished” under the
circumstances. V oss v. Iowa Dep’t of Transp. , 621 N.W.2d 208, 212 (Iowa 2001). The purpose of section 321J.8’s advisory requirement “ ‘i s to provide a person who has been required to submit [ to ] a chemical test
a basis for evaluation and decision

- making in regard to either submitting
or not submitti ng to the t est.’ ” Id. Under these circumstances, we conclude the purpose of the statute was accomplished when Hutton was advised, as required by section 321J.8(1)( c ), that he would have his CDL revoked for a year if he refused the test or was operating under the
influence.
Under the circumstances presented here , we conclude the
inclu s ion of the additional and inaccurate warning that Hutton’s CDL
would be revoke d if he took and failed the test did not preclude
achievement of the statutory purpose. H utton does not contend the inclusion of this additional warning rendered the advisory confusing or obscured the meaning of the accurate warnings. Hutton, despite bei ng warned that the range of grounds for sanctions was greater than it really10

was , consented to the test. Accordingly, t he circumstances do not support an arg u ment that t he excess verbiage in the advisory induced
Hutton to consent to the test. Just as in Voss , “there is no evidence in the record that [Hutton] was confused about the consequences of his
decision.” Id. Under these circumstances, we conclude section
321J.8 (1) ( c )(2) was not violated by the advisory in this case.
C. Did the A dvisory V iolate Hutton’s D ue P rocess R ights?
Hutton contends our decision in Massengale requires suppression of his
breath test results beca use his substantive due process rights were
violated when he received the misleading and inaccurate advisory. Massengale , like Hutton, held a CDL but was arrested for driving a
noncommercial vehicle while intoxicated. Massengale , 745 N.W.2d at
50 0

– 01 . He was read a n implied consent advisory that failed to inform
him that his decision to submit to the test would have any c onsequences on his commercial license. Id. at 502. We determined that , although it
satisfied the requirements of section 321J.8, the advisory was misleading
in its disclosure of the revocation consequences to his commercial driving privileges. Id. at 50 3. 5 Applying a rational basis analysis, we considered whether there was a “reasonable fit” between the government’s purpose (to give arrested individuals information to make a reasoned and informed decision) and the means chosen to advance that purpose (a n advisory that omitted key information). Id. at 503

– 0 4. We concluded there was no “reasonable fit” and accordingly Massengale’s due process rights had been violated. Id. at 505.

5 We concluded because Massengale had not been told anything with regard to the consequences on his CDL that he would have likely been led to believe the consequences to his CDL were the same as the those to his regular driver’s license, when in fact they were different

. Massengale , 745 N.W.2d at 503

– 04.11 Hutton asserts the advisory read to him is analagous to the misleading advisory in Massengale because it contained incorrect
information and thus d id not reasonably further the government’s

purpose of providing him the information necessary to make a reasoned
and informed decision. We do not agree. While it is optimal to include only perfectly accurate information in the advisory, t h e excess verbiage in
the advisory read to Hutton clearly did not induce him to take the test
because it overwarned him of the consequences of consenting to the
breath test and providing the state with incriminating evidence against
him on an OWI charge. Un der these circumstances, we conclude there was a reasonable fit between the government’s purpose and the means chosen by the S tate to advise Hutton of the consequences of his decision

. Further, we do not think our decision in M assengale stands for the proposition that any flaw in an implied consent advisory constitutes a due process violation. The advisory read to Massengale omitted any and all information about the consequences of his decision on his CDL. We noted that “[w]e cannot be confident Massengale’s decision to submit to testing was unaffected by the State’s misleading and inadequate advisory.” Id. at 504. In cont rast, the advisory read to Hutton
communicated the information required by section 321J.8 and needed by
Hutton to make his decision , and we are confident that his decision to submit to testing was unaffected by the incorrect additional information
included in the advisory

. We cannot ignore the fact that Hutton, despite being inaccurately advised that mere failure of t he test would result in
the re v o cation of his CDL , nonetheless submitted to the test. Applying the “reasonable fit” analysis, we conclude th e means utilized by the government, an advisory that overstated the range of grounds for CDL
revocation for an individual electing to consent to chemical testing but12 correctly stated the sanction for refusal to submit to testing , adequately
advance d the pu rpose of “giving arrested individuals information to make
‘a r easoned and informed decision.’ ” Id. (quoting State v. Bernhard , 657 N.W.2d 469, 473 (Iowa 2003) )

. D. Did the I ncorrect A dvisory R ender Hutton’s C onsent
I nvoluntary? Hutton also claims that because the advisory misstated the law, it rendered his consent involuntary. To review Hutton’s claim,

“ we evaluate the totality of the circumstances to determine whether or not the decision was made voluntarily.” Garcia , 756 N.W.2d at 219.

“ [ T ] o b e valid, [ the driver’ s consent to testing ] must be voluntary and
uncoerced. ” State v. Gravenish , 511 N.W.2d 379, 381 (Iowa 1994) ; see also Bernhard , 657 N.W.2d at 473 (“ 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

. ”).
As we ha ve discussed above in the context of Hutton’s other claims, we are confident Hutton was not induced to consent to the test by the inclusion of the incorrect excess verbiage in the advisory

. T he excess verbiage should have discouraged Hutton from submitting to the

test as he did

. Accordingly, we find no grounds to conclude Hutton’s consent was coerced or uninformed. “[N]ot every inaccurate depiction by
law enforcement officers that might bear on a subject’s election to submit to chemical testing is a basis f or suppressing the test results. ” Berhnard , 657 N.W.2d at 473. This is especially true under these circumstances.
IV. Conclusion.
W e conclude secti on 321.208(2)( a ) (200 9 ) did not authorize CDL
revocation for “failing” a chemical test while operating a noncommercial
vehicle and the advisory read to Hutton overstated the range of grounds13 for revocation of his CDL. However, we also conclude that despit e the inclusion of incorrect information, the advisory read to Hutton did not violate section 321J.8, did not violate Hutton’s due process rights, and did not render his consent involuntary. Accordingly, the results of
Hutton’s breath test should not have been suppressed, and we vacate the decision of the court of appeals, reverse the judgment of the district

court , and remand for further proceedings. COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED. All justices concur except Waterman, Mansfield, and Zager , JJ.,
who take no part.