Toby Joseph Welch v. Iowa Department of Transportation, Motor Vehicle Division

IN THE SUPREME COURT OF IOWA

No. 10–2029

Filed August 12, 2011

TOBY JOSEPH WELCH,

Appellant,

vs.

IOWA DEPARTMENT OF TRANSPORTATION,

MOTOR VEHICLE DIVISION,

Appellee.

Appeal from the Iowa District Court for Polk County, Joseph E.

Smith, Senior Judge.

Toby Welch appeals the revocation of his driver’s license under

Iowa Code section 321J.9 (2009) for refusing to submit to chemical

testing. AFFIRMED.

Billy J. Mallory of Brick Gentry, P.C., West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, Noel C. Hindt, Assistant

Attorney General, for appellee.

2

MANSFIELD, Justice.

This case presents the question whether a motorist who initially

refuses chemical testing for intoxication may change his or her mind,

provided the motorist does so within a short and reasonable time and

certain other conditions are met. We conclude that a rule treating the

motorist’s initial refusal as determinative is supported by our precedents,

consistent with the general assembly’s intent, and easier for police and

courts to administer. Accordingly, we reject the motorist’s appeal and

uphold the revocation of his license.

I. Background Facts and Proceedings.

The essential facts of this case are not disputed. 1 Early on the

morning of August 1, 2009, Toby Welch was pulled over by Officer Ryan

King of the Des Moines Police Department for driving the wrong way

down a one-way street. At 1:54 a.m., Welch consented to and Officer

King administered a preliminary breath screening test (PBT). See Iowa

Code § 321J.5 (2009). The PBT indicated that Welch’s alcohol

concentration equaled or exceeded the statutory limit of 0.08. Welch was

arrested for the offense of operating while intoxicated (OWI) in violation of

Iowa Code section 321J.2 and transported to the police station.

At 2:14 a.m., after invoking the implied consent procedures and

reading Welch an implied consent advisory, Officer King requested a

breath specimen to be used for chemical testing. Officer King provided

Welch the opportunity to make phone calls “to seek advice about this test

that I’m asking you to take.” Welch left a message for his attorney at

2:15 a.m., spoke with his wife at 2:17 a.m., and left a message for his

mother at 2:19 a.m. At 2:20 a.m., the following conversation took place:

1A DVD recording was made of the events at the police station and is part of the

record.

3

OFFICER KING: Anybody else you’d like to call sir?

TOBY WELCH: Nope, I’m going to refuse though.

OFFICER KING: You’re going to refuse?

TOBY WELCH: Yep.

Officer King asked Welch to check the “refuse to submit” box and sign

the electronic tablet to confirm his refusal. See State v. Fischer, 785

N.W.2d 697, 706 (Iowa 2010) (determining that the use of a computer

screen satisfies the “written request” requirement of section 321J.6(1)).

Welch declined both requests. Welch then received a phone call which

he was permitted to answer.

At 2:23 a.m., Officer King and Welch continued their discussion of

King’s request for a breath specimen:

OFFICER KING: You do want to refuse, is that correct?

Toby?

TOBY WELCH: I plead the fifth.

OFFICER KING: Ok.

TOBY WELCH: My name is not Toby.

OFFICER KING: Your name is not Toby?

TOBY WELCH: No sir.

OFFICER KING: What’s your name then?

TOBY WELCH: Can’t tell you.

OFFICER KING: Ok. Just so you know, I’ve written in

refused to sign and checked the refused box since you don’t

want to take the test. You will lose your license for a period

of one year.

Welch was placed in a temporary holding area and at some point

within the next eight minutes received a return phone call from his

attorney. At 2:31 a.m., speaking from the holding area, Welch engaged

another officer in the following dialogue:

TOBY WELCH: Can I talk to anybody?

OFFICER: About what?

TOBY WELCH: I’d like to go ahead and blow.

OFFICER: Excuse me?

4

TOBY WELCH: I refused to blow earlier but I’d like to go

ahead and blow.

OFFICER: Who was doing the testing?

TOBY WELCH: What’s that?

OFFICER: The officer in there did your testing? Hey Ryan?

OFFICER KING: Yeah?

TOBY WELCH: I didn’t want to and I refused it.

OFFICER: He refused to test right?

OFFICER KING: Yeah, he refused to even sign the box.

Informed of Welch’s newfound desire to consent, Officer King

responded that Welch had already refused to submit to the breath test,

and it was now “too late.” At 2:35 a.m., Welch again requested the test.

He stated, “My lawyer told me I need to blow tonight.” He then asked

Officer King to “throw the paperwork away.” Officer King declined

Welch’s request, commenting, “You made your choice not to take the

test.”

Based on his refusal to submit to chemical testing, the Iowa

Department of Transportation (IDOT) revoked Welch’s driver’s license for

one year. Iowa Code § 321J.9(1)(a).

Welch requested an administrative hearing to contest the

revocation. See id. § 321J.13(1); Iowa Admin. Code r. 761—620.4(1)(a)–

(e). Welch argued revocation was improper because he cured his initial

refusal by subsequently consenting to take the requested test within a

short period of time. Citing to our decision in Krueger v. Fulton, 169

N.W.2d 875, 878–79 (Iowa 1969), the IDOT’s administrative law judge

sustained the revocation. Welch appealed to the director of the

department of transportation. See Iowa Code § 321J.13(3); Iowa Admin.

Code r. 761—620.4(2)(a)–(f). The reviewing officer affirmed, noting:

While [Welch’s] refusal in words and reluctance to submit in

writing could not be clearer, [Welch] claims a subsequent

consent rule is more logical and best furthers the purpose of

5

the implied consent statutes. The Iowa Supreme Court

disagreed forty years ago and has not waivered [sic] from

that conclusion.

Having exhausted his administrative remedies, Welch filed a

petition for judicial review with the district court. See Iowa Code

§ 321J.14; Iowa Admin. Code r. 761—620.4(3) (“The decision of the

director of transportation shall be the final decision of the department

and shall constitute final agency action for purposes of judicial review.

No further steps are necessary to exhaust administrative remedies.”).

The district court affirmed the revocation.

Welch appeals. We now must determine whether the “one refusal

is determinative” rule set forth in Krueger should be abrogated in favor of

a more flexible standard permitting a motorist’s subsequent consent to

cure a prior initial refusal to submit to chemical testing.

II. Standard of Review.

Judicial review of an IDOT driver’s license revocation for refusal to

submit to chemical testing is governed by the Iowa Administrative

Procedure Act (Iowa Code chapter 17A). See Iowa Code § 321J.14. The

district court reviews for correction of errors at law. Ludtke v. Iowa Dep’t

of Transp., 646 N.W.2d 62, 64 (Iowa 2002). On appeal, we apply the

standards of chapter 17A to determine whether the conclusions we reach

are the same as those of the district court. Id. at 65. If they are the

same, we affirm; otherwise we may reverse. Lee v. Iowa Dep’t of Transp.,

693 N.W.2d 342, 344 (Iowa 2005). Because this is not an area where

interpretation of the law has been clearly vested in the discretion of the

agency, we need not give deference to the IDOT’s interpretation of section

321J.9 and are free to substitute our judgment de novo for the agency’s

interpretation. Id.

6

In interpreting a statute, our goal “is to give effect to the legislative

intent of [the] statute.” State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999).

In addition to the words chosen by the legislature, we will also consider

“ ‘the objects sought to be accomplished and the evils and mischiefs

sought to be remedied, seeking a result that will advance, rather than

defeat, the statute’s purpose.’ ” Id. (quoting Danker v. Wilimek, 577

N.W.2d 634, 636 (Iowa 1998)).

III. Analysis.

A. Iowa’s Implied Consent Law. Enacted in 1963, Iowa’s implied

consent law was intended to “control alcoholic beverages and aid the

enforcement of laws prohibiting operation of a motor vehicle while in an

intoxicated condition.” 1963 Iowa Acts ch. 114, § 37 (codified at Iowa

Code § 321B.1 (1966)); 2 see also Fischer, 785 N.W.2d at 699–701

(providing a detailed historical overview of Iowa’s implied consent

statute). In construing various provisions of chapter 321J, we have

continuously affirmed that the primary objective of the implied consent

statute is the removal of dangerous and intoxicated drivers from Iowa’s

roadways in order to safeguard the traveling public. See, e.g., Severson

v. Sueppel, 260 Iowa 1169, 1174, 152 N.W.2d 281, 284 (Iowa 1967) (“It is

obvious the purpose of the Implied Consent Law is to reduce the

holocaust on our highways part of which is due to the driver who

imbibes too freely of intoxicating liquor.”); Shriver v. Iowa Dep’t of

Transp., 430 N.W.2d 921, 924 (Iowa 1988) (reiterating that the primary

purpose behind chapter 321J is to “promote the public safety by

removing dangerous drivers from the highways”).

2Prior to 1986, the implied consent provisions now contained in chapter 321J

were codified in chapter 321B.

7

In order to achieve this goal, the implied consent procedures

authorize the withdrawal and chemical testing of blood, breath, or urine

when a peace officer has reasonable grounds to believe that a person has

been operating a motor vehicle while under the influence of alcohol, a

controlled substance, or other drug, and at least one of a series of

additional conditions is met. 3 See Iowa Code § 321J.6(1) (2009).

Because section 321J.6 further provides that the intoxicated driver “is

deemed to have given consent” to withdrawal and testing, we have

recognized that implied consent “establishes the basic principle that a

driver impliedly agrees to submit to a test in return for the privilege of

using the public highways.” State v. Hitchens, 294 N.W.2d 686, 687

(Iowa 1980).

However, recognizing the potential invasiveness of collecting bodily

substances, the legislature did not endow the State with the unfettered

ability to invoke implied consent in order to obtain specimens for

chemical testing. See, e.g., State v. Hutton, 796 N.W.2d 898, 902 (Iowa

2011) (“Despite the statutory presumption of consent, a person may

refuse to submit to chemical testing.”); State v. Garcia, 756 N.W.2d 216,

220 (Iowa 2008) (indicating a driver’s decision to consent to testing must

be voluntary—i.e., “freely made, uncoerced, reasoned and informed”).

Thus, from a practical standpoint, and subject to certain exceptions, 4 the

driver must actually consent to chemical testing.

3For example, if “[a] peace officer has lawfully placed the person under arrest for

violation of section 321J.2” or “[t]he preliminary breath screening test was administered

and it indicated an alcohol concentration equal to or in excess of the level prohibited by

section 321J.2.” Iowa Code § 321J.6(1)(a), (d).

4For example, Iowa Code section 321J.7 provides that “[a] person who is dead,

unconscious, or otherwise in a condition rendering the person incapable of consent or

refusal is deemed not to have withdrawn the consent provided by section 321J.6.”

8

Section 321J.6(2) goes on to provide: “The peace officer shall

determine which of the three substances, breath, blood, or urine, shall

be tested. Refusal to submit to a chemical test of urine or breath is

deemed a refusal to submit, and section 321J.9 applies.”

The request for chemical testing must be made within two hours of

the PBT or arrest; otherwise, “a test is not required, and there shall be no

revocation.” Iowa Code § 321J.6(2). “If a person refuses to submit to the

chemical testing, a test shall not be given, but the department [of

transportation] . . . shall revoke the person’s driver’s license” for one year

if the driver has no previous revocation under chapter 321J. Id.

§ 321J.9(1)(a).

B. Previous Interpretation of “Refusal” as Used in Sections

321J.6 and 321J.9. Our previous decisions establish that a broad

definition of the term “refusal” is more closely aligned with the legislative

intent underlying the implied consent statute. In addition to explicit,

unqualified refusals, we have found that failures to cooperate,

conditional refusals, conditional assents, consents followed by a failure

to provide the requested specimen, and consents followed by combative

behavior all constitute refusals within the meaning of sections 321J.6(2)

and 321J.9(1). See State v. Bloomer, 618 N.W.2d 550, 553 (Iowa 2000)

(although driver stated he was not refusing breath test when he

requested urine test instead, his ultimate failure to take breath test

amounted to refusal); State v. Dulaney, 493 N.W.2d 787, 789 (Iowa 1992)

(motorist’s lack of response to request for chemical test and subsequent

statement to “[g]et your search warrant” was a failure to cooperate

amounting to implied refusal); Hoppe v. Iowa Dep’t of Transp., 402

N.W.2d 392, 393 (Iowa 1987) (consent followed by abusive and

belligerent behavior preventing the administration of the test deemed

9

refusal); McCrea v. Iowa Dep’t of Transp., 336 N.W.2d 427, 430 (Iowa

1983) (motorist’s consent to test but failure to provide urine specimen in

absence of valid medical reason considered refusal); Taylor v. Dep’t of

Transp., 260 N.W.2d 521, 524 (Iowa 1977) (driver’s conduct amounted to

refusal when, after asking to contact attorney, driver declined to

cooperate despite officer’s assistance in providing phone directory);

Morgan v. Iowa Dep’t of Pub. Safety, 227 N.W.2d 155, 157 (Iowa 1975)

(consent to blood test conditioned on having test administered at hospital

of motorist’s choosing was refusal); Buda v. Fulton, 261 Iowa 981, 991,

157 N.W.2d 336, 342 (Iowa 1968) (plaintiff’s statements reflecting a total

failure to cooperate were “tantamount to a declination”).

We have also previously addressed the circumstance where the

motorist initially declines chemical testing and then changes his or her

mind. In Krueger, a request for chemical testing was made thirty-five

minutes after the plaintiff’s arrest for OWI. 169 N.W.2d at 876. Krueger

originally refused to submit to blood and urine tests both orally and in

writing. Id. However, one hour and twenty-three minutes later (or one

hour and fifty-eight minutes after the arrest was made), Krueger, through

his attorney, consented to a blood test. Id. We rejected Krueger’s

contention that he had a right to withdraw his refusal at any time before

the expiration of the two-hour period, noting that the two-hour window

qualifies the results of the test for admission into evidence and does not

confer additional privileges or rights on the arrestee. Id. at 878 (citing

Neet v. Hults, 274 N.Y.S.2d 913, 915 (App. Div. 1966)). As we explained,

once a licensee has refused chemical testing, he is not entitled “to defeat

revocation of his driving privilege by showing he thereafter changed his

mind.” Id. at 879.

10

Four years later, in Swenumson v. Iowa Department of Public

Safety, 210 N.W.2d 660 (Iowa 1973), we considered whether a refusal to

consent accompanied by a request to consult with counsel constituted a

refusal within the meaning of the implied consent statute. We found that

such a “conditional refusal” was the equivalent of a conclusive refusal for

purposes of implied consent to chemical testing. Swenumson, 210

N.W.2d at 663. Reiterating Krueger’s holding that “one refusal is

determinative,” we also stated that the two-hour statutory requirement

“does not define a period during which at any time the arrested person

may decide he is willing to take [the test].” Id. at 662. Additionally, we

quoted with approval language from a similar case decided by the

Superior Court of New Jersey Appellate Division:

“Having in mind the remedial purpose of the statute,

and the rapidity with which the passage of time and the

physiological processes tend to eliminate evidence of

ingested alcohol in the system, it is sensible to construe the

statute to mean that anything substantially short of an

unqualified, unequivocal assent to an officer’s request that

the arrested motorist take the test constitutes a refusal to do

so. (citation omitted). The occasion is not one for debate,

maneuver or negotiation, but rather for a simple ‘yes’ or ‘no’

to the officer’s request.”

Id. (quoting State v. Pandoli, 262 A.2d 41, 42 (N.J. Super. Ct. App. Div.

1970)).

A few years after that, in Hoffman v. Iowa Department of

Transportation, 257 N.W.2d 22 (Iowa 1977), we addressed the situation of

a motorist who had stated he would not take any test or make any

statement until he consulted his attorney. Upon speaking with his

attorney only six minutes later, the motorist requested a blood test.

Hoffman, 257 N.W.2d at 24. We deemed Hoffman’s initial response to be

a “qualified refusal,” and on that basis affirmed the revocation of

Hoffman’s driver’s license, citing to our decisions in Krueger and

11

Swenumson. Id. at 26. Even though Hoffman’s subsequent consent

occurred “within minutes,” we said the officer “was on sound legal

ground in refusing to give the test after the refusal.” Id.; see also

Morgan, 227 N.W.2d at 157 (holding that the statute contains no

requirement that an officer make a second request after driver

conditioned his consent on having test performed at a different hospital).

Swenumson and Hoffman preceded our decisions in State v. Vietor,

261 N.W.2d 828, 831 (Iowa 1978), and Fuller v. State, 275 N.W.2d 410,

411 (Iowa 1979), where we made clear that an arrested motorist who

asks to call his or her attorney shall be afforded a right to do so before

being required to elect whether to submit to the chemical test. See Iowa

Code § 804.20 (formerly Iowa Code § 755.17). A motorist is not deemed

to have refused the test for purposes of the implied consent law merely

by making such a request. Fuller, 275 N.W.2d at 411. Nevertheless,

Vietor and Fuller did not call into question the validity of the “one

refusal” rule, and Welch concedes that his section 804.20 statutory right

to attorney consultation is not at issue here.

C. Application of this Interpretation to the Present Case.

Welch does not contest that he initially refused to submit to a breath

test. After speaking with his wife and leaving messages for his attorney

and his mother, Welch declined to make any additional phone calls and

said he would not provide a breath specimen. Welch’s statement, “I’m

going to refuse,” constituted an explicit refusal. Further, and as the

district court noted, Welch’s subsequent statements and conduct

amounted to a failure to cooperate. See, e.g., Taylor, 260 N.W.2d at 524

(failure to cooperate is refusal to consent to chemical testing). Welch

declined to electronically check the appropriate box or sign the IDOT’s

“Request and Notice Under Iowa Code Chapter 321J/Section 321.208”

12

form in order to indicate his consent or refusal. At 2:23 a.m., when

Officer King once again sought confirmation of Welch’s refusal, Welch

became unresponsive stating, “I plead the fifth” and “My name is not

Toby.” Thus, the record contains substantial evidence supporting the

agency’s determination that Welch initially refused chemical testing. See

Iowa Code § 17A.19(10)(f).

Instead, Welch argues that he did not refuse chemical testing

within the meaning of the implied consent statute because his

subsequent consent to the breath test at 2:31 a.m. essentially negated

his 2:20 and 2:23 a.m. refusals. In support of this argument, Welch

asks us to limit Krueger and Swenumson to their facts. He urges that

the rule denying effect to a subsequent consent only applies when a

significant amount of time has passed from the earlier refusal.

Welch’s attempt to distinguish his case from Krueger and

Swenumson is not persuasive. True, the gap here is significantly shorter

than it was in Krueger (eleven minutes as opposed to one hour and

twenty-three minutes). But in Krueger, the time lapse between initial

refusal and subsequent consent was not determinative. Rather, without

referencing any specific period of time, we rejected outright the notion

that a motorist should be given more than one opportunity to make an

informed decision. Krueger, 169 N.W.2d at 879. Similarly, in

Swenumson, although that case did not involve an actual attempt to

withdraw a prior refusal, we reaffirmed Krueger’s holding that “one

refusal is determinative.” Swenumson, 210 N.W.2d at 662.

Welch’s argument also fails to account for our decision in Hoffman,

where the time separation between the original “qualified refusal” and the

later attempt to consent was even briefer than it was here. There, only

six minutes elapsed between Hoffman’s initial response and his

13

subsequent request to take the test. Hoffman, 257 N.W.2d at 24–25. We

nonetheless reiterated that “[o]ne refusal is determinative.” Id. at 26.

In short, under our prior case law, Welch’s words and actions

constituted a refusal within the meaning of sections 321J.6(2) and

321J.9(1), and his request for a breath test eleven minutes later would

have no legal effect.

D. Should We Overrule Our Prior Interpretation of “Refusal”?

Thus, in order for Welch to prevail, we must abandon our existing bright-

line rule in favor of an approach that enables subsequent consent to

chemical testing to cure an initial refusal in certain circumstances.

Welch urges us to adopt the five-factor test espoused by the Supreme

Court of Kansas in Standish v. Department of Revenue, 683 P.2d 1276,

1280 (Kan. 1984), which entailed a slight modification of a test

announced by the North Dakota Supreme Court in Lund v. Hjelle, 224

N.W.2d 552, 557 (N.D. 1974). Under Standish, a previous refusal is

effectively rescinded when subsequent consent is made:

(1) within a very short and reasonable time after the prior

first refusal; (2) when a test administered upon the

subsequent consent would still be accurate; (3) when testing

equipment is still readily available; (4) when honoring the

request will result in no substantial inconvenience or

expense to the police; and (5) when the individual requesting

the test has been in the custody of the arresting officer and

under observation for the whole time since arrest.

Id. at 1280. Welch contends this “flexible” approach is more logical and

fair and best furthers the purpose of the implied consent statute.

Although all fifty states have adopted implied consent procedures,

jurisdictions are divided in their treatment of an attempt to retract an

initial refusal. See generally Jonathan M. Purver, Annotation, Driving

While Intoxicated: Subsequent Consent to Sobriety Test as Affecting Initial

Refusal, 28 A.L.R.5th 459 (1995). A minority of state appellate courts

14

have adopted some form of the so-called flexible rule. Id. 5 Under this

approach, a previous refusal may generally be cured by a subsequent

request for a chemical test so long as the request is made within a

reasonable time and the delayed administration of the test will neither

materially affect the test results nor substantially inconvenience the

police. Minnesota, New Hampshire and Ohio have adopted a narrower,

but still somewhat forgiving, standard by which a refusal may only be

withdrawn “almost immediately.” 6 The majority of jurisdictions,

however, have endorsed a stricter approach, finding an initial declination

to be binding and conclusive and refusing to recognize a driver’s

5Pruitt v. State, 825 P.2d 887, 892–94 (Alaska 1992) (adopting Lund test); Gaunt

v. Motor Vehicle Div., 666 P.2d 524, 527–28 (Ariz. Ct. App. 1983) (adopting four of the

Lund factors); Gallion v. Colo. Dep’t of Revenue, 155 P.3d 539, 541–42 (Colo. App. 2006)

(allowing recantation if made in sufficient time to obtain a blood or breath sample

within two hours of the person’s driving), aff’d, 171 P.3d 217 (Colo. 2007); Larmer v.

State, 522 So. 2d 941, 943–44 (Fla. Dist. Ct. App. 1988) (employing three of the Lund

factors); Dep’t of Pub. Safety v. Seay, 424 S.E.2d 301, 302 (Ga. Ct. App. 1992) (adopting

Standish test); State v. Moore, 614 P.2d 931, 935 (Haw. 1980) (adopting Lund test); In re

Pangburn, 857 P.2d 618, 620 (Idaho 1993) (adopting three factors in the flexible rule);

Standish, 683 P.2d at 1280 (changing the first Lund factor to “within a very short and

reasonable time after the prior first refusal”); Pickard v. State, 572 So. 2d 1098, 1101

(La. Ct. App. 1990) (adopting Lund test); In re Suazo, 877 P.2d 1088, 1096 (N.M. 1994)

(adopting Lund with a “stricter standard regarding the temporal criterion”); Lund, 224

N.W.2d at 557 (outlining five-factor subsequent consent test); Baldwin v. State ex rel.

Dep’t of Pub. Safety, 849 P.2d 400, 406 (Okla. 1993) (adopting Standish test); State v.

Bonvie, 936 A.2d 1291, 1301 (Vt. 2007) (modifying the first and fifth factors of the

Standish test); see also Md. Code Ann., Transp. § 16–205.1(g) (West, Westlaw through

2011 Reg. Sess.); State v. Lynch, 274 A.2d 443, 444 (Del. Super. Ct. 1971) (indicating,

in dicta, the implied consent statute “obviously was not intended to preclude an

accused from changing his mind and consenting to the test”).

6Lewis v. Comm’r of Pub. Safety, 737 N.W.2d 591, 593 (Minn. Ct. App. 2007)

(“[A] subsequent change of heart does not revoke an intial refusal, even when a

relatively short period of time has elapsed between the intial refusal and the

reconsideration except for an ‘almost immediate’ change of mind.”); Harlan v. State,

308 A.2d 856, 858–59 (N.H. 1973) (suggesting an “almost immediately” standard); In re

Brooks, 271 N.E.2d 810, 812 (Ohio 1971) (setting forth the “almost immediately”

standard).

15

subsequent change of heart. 7 Nine states do not appear to have

addressed the issue. 8

After taking into account the duration of our existing interpretation

of sections 321J.6(2) and 321J.9(1), the text and history of chapter 321J,

and the various rationales underlying both the bright-line and flexible

approaches, we adhere to our previous view that an initial refusal to

consent to chemical testing is binding.

“Stare decisis is a valuable legal doctrine which lends stability to

the law . . . .” Kersten Co., Inc. v. Dep’t of Soc. Servs., 207 N.W.2d 117,

121 (Iowa 1973). Concomitant to this preference for upholding our prior

decisions is the notion that sustained legislative silence raises an

inference of the legislature’s assent to our jurisprudence. See, e.g.,

Lockray v. State, 495 N.W.2d 754, 755 (Iowa 1993) (highlighting that

“issues of statutory interpretation settled by the courts and not disturbed

7Zidell v. Bright, 71 Cal. Rptr. 111, 113 (Ct. App. 1968); Marshall v. District of

Columbia, 498 A.2d 190, 192 (D.C. 1985); People v. Shorkey, 321 N.E.2d 46, 48 (Ill.

App. Ct. 1974); Parker v. State, 530 N.E.2d 128, 130–31 (Ind. Ct. App. 1988);

Humphries v. Commonwealth, 807 S.W.2d 669, 670 (Ky. Ct. App. 1991); State v. Landry,

428 A.2d 1204, 1206 (Me. 1981); Dudenhoeffer v. Dir. of Revenue, 780 S.W.2d 701, 703

(Mo. Ct. App. 1989); Johnson v. Div. of Motor Vehicles, 711 P.2d 815, 817 (Mont. 1985);

Hoyle v. Peterson, 343 N.W.2d 730, 734 (Neb. 1984); Schroeder v. State, 772 P.2d 1278,

1280 (Nev. 1989); State v. Corrado, 446 A.2d 1229, 1232 (N.J. Super. Ct. App. Div.

1982); Donahue v. Tofany, 304 N.Y.S.2d 484, 485 (App. Div. 1969); Mathis v. N.C. Div. of

Motor Vehicles, 322 S.E.2d 436, 438 (N.C. Ct. App. 1984); Bergstrom v. Motor Vehicles

Div., 799 P.2d 673, 674 (Or. Ct. App. 1990); Commonwealth v. Schaefer, 300 A.2d 907,

908 (Pa. Commw. Ct. 1973); Leviner v. S.C. Dep’t of Highways & Pub. Transp., 438

S.E.2d 246, 248 (S.C. 1993); Peterson v. State, 261 N.W.2d 405, 410–11 (S.D. 1977);

Conrad v. Schwendiman, 680 P.2d 736, 738 (Utah 1984); Dep’t of Licensing v. Lax, 888

P.2d 1190, 1192–93 (Wash. 1995); State v. Rydeski, 571 N.W.2d 417, 420 (Wis. Ct. App.

1997); Farmer v. State, 986 P.2d 165, 167–68 (Wyo. 1999); see also W. Va. Code Ann.

§ 17C–5–7(a) (West, Westlaw through 2011 Reg. Sess.) (providing fifteen minutes after

the warnings before the refusal is considered final and the officer has no further duty to

provide person with an opportunity to take the test); Chipman v. Delponte, No. CV90 03

27 35S 1990 WL 275841, at *3 (Conn. Super. Ct. Oct. 24, 1990) (unpublished opinion)

(suggesting a bright-line approach).

8Alabama, Arkansas, Massachusetts, Mississippi, Rhode Island, Tennessee,

Texas and Virginia.

16

by the legislature over a period of time have become tacitly accepted by

the legislative branch”); Cover v. Craemer, 258 Iowa 29, 34, 137 N.W.2d

595, 599 (Iowa 1965) (declining to change the meaning of a statute

decided almost sixty years previously because the construction “has

evidently met the approval of each successive legislature”).

These guiding principles are especially salient when the general

assembly has reenacted or repeatedly amended the statutory provision in

question without disturbing our previous interpretation. See State v.

Jones, 298 N.W.2d 296, 298 (Iowa 1980) (“The legislature is presumed to

know the state of the law, including case law, at the time it enacts a

statute.”).

Krueger was decided in 1969; Swenumson in 1973; Hoffman in

1977. The general assembly repealed the entire OWI chapter (321B) of

the Iowa Code in 1986 and reenacted the revised provisions in chapter

321J. See 1986 Iowa Acts ch. 1220 (codified at Iowa Code ch. 321J).

The “refusal to submit” provision has itself been amended numerous

times. See, e.g., 2010 Iowa Acts ch. 1097, § 8 (codified at Iowa Code

§ 321J.9(2) (2011)); 2001 Iowa Acts ch. 32, § 47 (codified at Iowa Code

§ 321J.4(4) (2003)); 1997 Iowa Acts ch. 177, § 14 (codified at Iowa Code

§ 321J.9(1)–(2) (1999)); 1995 Iowa Acts ch. 48, § 16 (codified at Iowa

Code § 321J.9 (1997)); 1984 Iowa Acts ch. 1292, § 13 (codified at Iowa

Code § 321B.13 (1985)); 1982 Iowa Acts ch. 1167, § 20 (codified at Iowa

Code § 321B.13 (1983)). We assume the legislature “is familiar with the

holdings of this court relative to legislative enactments and that if we

have improperly decided what their intention was they will by additional

legislation state the real intention.” Mallory v. Paradise, 173 N.W.2d 264,

266 (Iowa 1969). Despite ample opportunities, the general assembly has

declined to overturn our decisions in this area. Thus, it is appropriate

17

for us to conclude that after more than four decades of legislative

quiescence, the legislature is satisfied with a bright-line interpretation of

its statute.

According to Iowa’s refusal-revocation provision, if a person

“refuses” to submit to chemical testing, “a test shall not be given” and the

department of transportation “shall revoke the person’s driver’s license.”

Iowa Code § 321J.9(1) (2009). Because some jurisdictions that follow a

flexible standard have statutory language which closely resembles our

own, it would be difficult to say that the language of section 321J.9(1) is

totally unambiguous. See, e.g., N.D. Cent. Code Ann. § 39–20–04 (West,

Westlaw through 2009 Reg. Sess.) (containing similar language to Iowa’s

implied consent law but interpreted by the North Dakota Supreme Court

as authorizing a flexible approach). Still, when the language chosen by

the legislature is such that reasonable minds could disagree as to its

meaning, we strive for an interpretation that “best achieves the statute’s

purpose, and avoids absurd results.” State v. Bower, 725 N.W.2d 435,

442 (Iowa 2006). Even if we were writing on a blank slate, which we are

not, we would not be inclined to adopt Welch’s multifactor approach.

To begin with, Welch’s complicated standard appears to be at odds

with the simplicity of the statute’s wording. The law provides that a test

shall not be given if the person “refuses to submit to the chemical

testing,” Iowa Code § 321J.9(1), not if the person “continues to refuse” or

“fails to consent within a reasonable time period.” See, e.g., Hoyle v.

Peterson, 343 N.W.2d 730, 734 (Neb. 1984) (“There is nothing in [the

implied consent statute] which implies additional time for reflection or

reconsideration after a driver’s refusal to take the test.”); State v.

Bernhardt, 584 A.2d 854, 859 (N.J. Super. App. Div. 1991) (“[N]otions of

curing defects . . . have no application [to the failure to give a breath

18

sample] absent a clear expression to the contrary by the Legislature.”);

see also Fischer, 785 N.W.2d at 705–06 (“We do not read a requirement

into a statutory scheme when none exists because ‘[i]t is not our province

to write such a requirement into the [implied consent] statute.’ ” (quoting

Gottschalk v. Sueppel, 258 Iowa 1173, 1183, 140 N.W.2d 866, 872 (Iowa

1966))).

Furthermore, we have characterized an administrative license

revocation under section 321J.9 as remedial, promoting the overarching

remedial purpose of chapter 321J itself. State v. Vogel, 548 N.W.2d 584,

586–87 (Iowa 1996); see also State v. Murray, 539 N.W.2d 368, 369 (Iowa

1995) (OWI statutes are remedial in nature). In order to best effectuate

their corrective design, OWI statutes are liberally construed in favor of

the public interest the legislature sought to protect and against the

private interests of the drivers involved. Murray, 539 N.W.2d at 369–70.

Allowing a motorist under some circumstances to retract a prior decision

not to consent to chemical testing appears inconsistent with this overall

principle.

Additionally, a bright-line rule has the advantage of providing clear

guidance to law enforcement personnel. Clarity as to what the law

requires is generally a good thing. It is especially beneficial when the law

governs interactions between the police and citizens. Law enforcement

officials have to make many quick decisions as to what the law requires

where the stakes are high, involving public safety on one side of the

ledger and individual rights on the other. A clear, teachable rule is a

high priority. Welch’s flexible approach, by contrast, is likely to lead to

uncertainty in particular cases. See, e.g., Stone v. McCullion, 500 N.E.2d

19

326, 328 (Ohio Ct. App. 1985) (“No specific period of time . . . can be laid

down as reasonable or unreasonable in any and all events.”). 9

Also, Iowa’s existing, clearcut “one refusal” rule reduces the time

and cost burdens on law enforcement. As we noted in Krueger, if a

motorist can change his or her mind, this means the officer must remain

with or near the arrested motorist, effectively removing him or her from

other duties, until the “reasonable” time has expired. 169 N.W.2d at

879; see also, e.g., Zidell, 71 Cal. Rptr. at 113 (“It would be inconsistent

with the purpose of the statute to hold that either [the arresting officer],

or the officers on duty at the police station, were required to turn aside

from their other responsibilities and arrange for administration of a

belated test when once appellant had refused to submit after fair warning

of the consequences.”). Welch may argue that the last two of the five

Standish factors alleviate this burden, because the initial refusal may be

withdrawn only if there will be no substantial inconvenience or expense

to the police and the individual requesting the test has been in the

custody of the arresting officer. But “inconvenience” is in the eye of the

beholder, and debates could arise as to whether the motorist remained in

the officer’s custody and, if not, whether the officer deliberately placed

9Compare In re Smith, 770 P.2d 817, 822 (Idaho Ct. App. 1989) (ten to twenty

minute delay is permissible), Lund, 224 N.W.2d at 556–57 (reversing license revocation

where driver subsequently requested test one hour after initial refusal), and Baldwin,

849 P.2d at 401–02 (consent provided between five and ten minutes after prior refusal

was timely recantation) with Zahtila v. Motor Vehicle Div., 560 P.2d 847, 849 (Colo. App.

1977) (case remanded to determine whether twenty-five minute delay would materially

affect result), Moore, 614 P.2d at 935 (case remanded to determine whether thirteen

minute delay was fatal to subsequent consent), Standfish, 683 P.2d at 1280 (request

made fifteen to thirty minutes after the driver had been placed in jail “was too late”),

and Suazo, 877 P.2d at 1097 (declining to prescribe a specific time limit but finding

“[t]he temporal standard . . . will always be a very short time, never more than a matter

of minutes”).

20

the motorist in another person’s custody in order to avoid a possible

retraction.

IV. Conclusion.

For the foregoing reasons, we hold that a motorist’s request to take

the chemical test need not be honored after he or she has previously

refused that test following a valid implied consent advisory. In this case,

Welch’s words and actions amounted to a “refusal” within the meaning of

sections 321J.6 and 321J.9. His subsequent request for a breath test

did not alter the legal effect of that refusal. The district court’s ruling

upholding the revocation of Welch’s driver’s license is affirmed.

AFFIRMED.