Opinion
No. 5-219 / 04-0752
Filed April 28, 2005
Appeal from the Iowa District Court for Wapello County, Kirk A. Daily, Judge.
Roger Warren Foreman appeals his conviction for operating while revoked. AFFIRMED.
Steven Gardner of Kiple, Denefe, Beaver, Gardner Zingg, L.L.P., Ottumwa, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Mark Tremmel, County Attorney, and Rose-Ann Mefford, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Roger Warren Foreman appeals his conviction for driving while revoked in violation of Iowa Code section 321J.21 (2003). Because we find no error in the district court's order, we affirm.
I. Background Facts and Proceedings
In September of 2003, an Ottumwa police officer stopped Foreman for driving his motorcycle while his driver's license was revoked. Foreman was subsequently charged with that offense and his case proceeded to a bench trial. At the trial, the State admitted into evidence Foreman's driving record. Included within his record was an official notice from the Iowa Department of Transportation (DOT), dated February 25, 2001, indicating that Foreman's driver's license was revoked until February 25, 2002. This notice was accompanied by a return receipt signed by Foreman. Also included within Foreman's driving record was another notice from the DOT, dated May 16, 2002, amending the original revocation of Foreman's driver's license to six years, which resulted in Foreman's license being revoked from October 12, 2001 to October 12, 2007. The record before us does not indicate that the revocation notice was accompanied by a return receipt, a certified mailing receipt, a U.S. Postal Service certificate of mailing, or a DOT affidavit verifying that this notice was mailed to Foreman.
Foreman moved for a judgment of acquittal claiming that since there was no proof of the mailing nor the receipt of the 2002 six-year revocation notice, the evidence was insufficient to convict Foreman of driving while revoked. The district court denied Foreman's motion and entered a verdict finding him guilty of the crime of operating while revoked. Foreman appeals.
II. Scope or Review
We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The trial court's findings of guilt are binding on appeal if supported by substantial evidence. Id. III. Issue
The sole issue raised by Foreman on appeal is that the court erred in finding him guilty of violating Iowa Code section 321J.21 because the State failed to present evidence establishing that the DOT mailed notice of the amendment revoking his driver's license for six years. Iowa Code section 321J.21 provides in pertinent part:
A person whose driver's license . . . 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.
In State v. Thompson, 357 N.W.2d 591, 593 (Iowa 1984), our supreme court held that the elements of driving while revoked under former Iowa Code section 321B.38 (recodified in 1986 as section 321J.21) are "(1) defendant's license has been revoked, and (2) defendant had operated a motor vehicle while his license was revoked." Knowledge of the DOT's revocation of one's license is not an element of this crime. See State v. Sonderlieter, 251 Iowa 106, 108, 99 N.W.2d 393, 395 (1959) (holding that the legislature did not intend to make knowledge an element of the crime of driving while revoked); State v. Carmer, 465 N.W.2d 303, 304 (Iowa Ct.App. 1990) (affirming a jury instruction that had been challenged for not requiring the State to prove the defendant knew his license was revoked). In fact, our supreme court expressly rejected in Sonderlieter the proposition that "it is an element of proof in the crime [of driving while revoked] that the defendant actually receive the notice [of revocation]." See Sonderlieter, 251 Iowa at 108, 99 N.W.2d at 395.
Foreman contends the State failed to prove the first element of driving while revoked. Specifically, Foreman argues that the DOT, in mailing him notice of the revocation of his license, was required to comply with the notice procedures mandated by Iowa Code section 321.16 in order for the revocation to be effective, and that the State, by failing to demonstrate the DOT complied with section 321.16, failed to prove his license was revoked. Iowa Code section 321.16 provides the manner in which notice should be given when the DOT is "authorized or required" to give notice. See Iowa Code § 321.16. There is no evidence in the record indicating that the DOT complied with this provision in giving Foreman notice of the amendment to his driver's license revocation.
However, the legality of the revocation procedure cannot suffer a collateral attack in a subsequent criminal proceeding. See Thompson, 357 N.W.2d 591 at 594 (concluding the legislature did not intend the State to retry the elements of the revocation procedure in a subsequent criminal prosecution). Therefore, the State's failure to verify the DOT's mailing of the revocation notice cannot be raised now to undermine the only two elements the State was required to prove under Iowa Code section 321J.21. Moreover, Iowa Code section 321.16 provides that, "a claim of failure to receive a notice of revocation, suspension, or bar . . . shall not be a defense to the charge of driving while suspended, revoked, denied, or barred." Thus, the elements of driving while revoked are not negated by a lack of proof that the DOT complied with Iowa Code section 321.16 in providing Foreman notice nor by Foreman's claim of failure to receive such notice.
Therefore, we conclude the district court did not err in overruling the defendant's motion for judgment of acquittal. We accordingly affirm the decision of the district court.