author:
GILBERTSON, Chief Justice. MEIERHENRY, Justice
      SABERS, Justice

text:
    2003 SD 64
    STATE of South Dakota, Plaintiff and Appellee, v. David CHRISTENSEN, Defendant and Appellant.
    Nos. 22442, 22443.
    Supreme Court of South Dakota.
    Argued March 26, 2003.
    Decided May 28, 2003.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Phillip 0. Peterson, Clay County Public Defender, Beresford, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] David Christensen (Christensen) was convicted of possession of marijuana and two counts of possession of child pornography. We affirm his conviction.

FACTS AND PROCEDURE

[¶ 2.] On June 29, 2001, a day after Christensen was detained at the Human Services Center (HSC) in Yankton, South Dakota for a psychological evaluation, his neighbor in Irene, South Dakota was granted a protection order against him. Christensen was served notice of this order while at HSC. As part of that order, Christensen was to surrender all of his firearms to the Clay County Sheriff. The protection order also gave the Sheriff the power to take necessary steps to obtain the firearms if they were not surrendered. After waiting approximately 48 hours for compliance by Christensen, Clay County Sheriff Passick, Irene Police Chief Nelson and Deputy Sheriff Howe went to Christensen’s residence in Irene to obtain the guns.

[¶ 3.] Upon entering the unlocked residence, the officers saw marijuana, marijuana paraphernalia and several weapons, including loaded high-powered assault weapons. The law enforcement officers took the guns and went to Vermillion to apply for a search warrant for various drugs and paraphernalia. The circuit court judge granted the warrant which gave the officers authority to search Christensen’s residence for drugs, drug paraphernalia, illegal weapons, and items which showed an intent to distribute drugs.

[¶ 4.] While the law enforcement officers were executing the warrant at Christensen’s residence, they came across a trunk in his bedroom, which they opened. Inside the trunk were various videotapes, some with sexually suggestive titles and photographs that depicted nude female children. During the course of the search, over a pound of marijuana and homemade “surveillance” videos of young female children were also found. Additionally, magazines for small children such as “Nickelodeon” and “Jack and Jill” were discovered, although no children lived in the residence.

[¶ 5.] A separate search warrant was then granted by the circuit court that authorized the officers to view the videotapes and magazines. Most of the contents of these videos and magazines were admitted at trial, over Christensen’s objections. Ultimately, Christensen was charged with 77 counts of possession of child pornography and one possession of marijuana. After a jury trial, he was convicted on two counts of possession of child pornography and for the possession of marijuana, from one to ten pounds. Christensen received a five-year prison sentence for the possession of marijuana, and one year each for the convictions of possession of child pornography, for violation of SDCL 22-22-23.1. The convictions of child pornography are to run concurrently to each other, but consecutively with the five-year possession of marijuana conviction.

[¶ 6.] Christensen raises the following issues for appeal:

1. Whether exigent circumstances were present to justify the officers’ entry without a search warrant into Christensen’s home in order to obtain the weapons.
2. Whether the trial court should have suppressed the videos and magazines found in the search of Christensen’s residence.
3. Whether the “surveillance” videos were properly admitted at trial as “other acts evidence” to show Christensen’s intent in possessing the alleged child pornography.

STANDARD OF REVIEW

[¶ 7.] Factual findings by the trial court are reviewed under the clear error standard of review. State v. Lamont, 2001 SD 92, ¶21, 631 N.W.2d 603, 610 (citing State v. Morato, 2000 SD 149, ¶ 10, 619 N.W.2d 655, 659) (citations omitted). However, “in reviewing decisions on motions to suppress for asserted constitutional violations our standard of review is de novo.” Id. (quoting Morato, 2000 SD 149, ¶10, 619 N.W.2d at 659) (additional citations omitted). This Court will not be restricted by the trial court’s “legal rationale for upholding the entry.” Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d at 610.

[¶ 8.] In admitting evidence as other acts evidence, the trial court will not be reversed absent an abuse of discretion. Novak v. McEldowney, 2002 SD 162, ¶ 7, 655 N.W.2d 909, 912 (citations omitted). Furthermore, the evidentiary ruling must be shown to be prejudicial error. Id.

ANALYSIS AND DECISION

[¶ 9.] 1. Whether exigent circumstances were present to justify the officers’ entry without a search warrant into Christensen’s home in order to obtain the weapons.

[¶ 10.] Christensen argues that his Fourth Amendment rights were violated when the officers entered his residence without a search warrant to obtain the guns. Further, he asserts that the officers knew that he was being held at HSC and was aware that he had been trying to contact a friend to lock his house and give his guns to the officers. The State contends that the officers’ actions were justified because of “exigent” circumstances, and that the protection order gave them the authority to take whatever steps deemed necessary to obtain the guns.

[¶ 11.] The Fourth Amendment of the Constitution guarantees citizens the protection from the unlawful searches and seizures by government actors. U.S. Const, amend. IV, SD Const., art. VI, § 11. An individual must have a reasonable expectation of privacy in the place searched or the article seized before the Fourth Amendment will apply. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Normally, police officers must obtain a warrant based on probable cause issued by a judge in order to seize someone’s property. See State v. DeLaRosa, 2003 SD 18, ¶ 7, 657 N.W.2d 683, 685 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)).

[¶ 12.] It is the State’s burden to show that a warrantless entry into a protected area was justified. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970); State v. Meyer, 1998 SD 122, ¶ 20, 587 N.W.2d 719, 723 (citations omitted). If exigent circumstances are present, then the police may be justified in entering a person’s residence without a warrant. Lamont, 2001 SD 92, ¶ 22, 631 N.W.2d at 610 (stating that “[t]he exigency exception exists because some situations dictate immediate police response rather than delay to obtain a warrant from a judge”). “Exigent circumstances exist when there is a situation that demands immediate attention and there is no time to get a warrant.” State v. Wilson, 2000 SD 133, ¶ 19, 618 N.W.2d 513, 520 (citing State v. Buchholz, 1999 SD 110, ¶ 18, 598 N.W.2d 899, 903 (citing State v. Hanson, 1999 SD 9, ¶ 35, 588 N.W.2d 885, 892)).

[¶ 13.] In determining whether exigent circumstances exist, “it is important to point out ... that safety factors are a valid consideration.” State v. Boll, 2002 SD 114, ¶ 48, 651 N.W.2d 710, 722-23 (Konenkamp, J, concurring specially) (citing Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Michigan v. Tyler, 436 U.S. 499, 509-10, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978)). Moreover, in United States v. Antwine, 873 F.2d 1144 (8th Cir.Ct.App.1989), the Eighth Circuit Court of Appeals held that a warrantless search for a gun inside defendant’s house was not unconstitutional. In that case, the officers went into defendant’s house, after he had been arrested in his yard, to retrieve a gun that defendant had earlier displayed. 873 F.2d at 1146. The officers were concerned for the safety of the two children who were inside the house. That court found that “the clear implication of [New York v. Quarles] is that a warrantless seizure of a weapon may be considered ‘reasonable’ within the meaning of the Fourth Amendment when justified by an officer’s legitimate concern for someone’s safety.” Id. at 1147 (citing Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)).

[¶ 14.] In this case, under this particular set of facts, we find that the officers’ entry into Christensen’s home to retrieve the weapons when the protection order provided for such action, and because of the exigency of the situation, did not violate Christensen’s Fourth Amendment rights.

[¶ 15.] No one else was in his home to surrender the guns to law enforcement. Moreover, the house was unlocked and unwary children could have entered to take possession of loaded firearms. The fact that guns were in that house was clearly known to the local residents which presented the potential of their theft and improper subsequent use.

[¶ 16.] Christensen, who was mentally unstable to the point of being placed at HSC at the time that the officers entered his home, had made threats to neighbors and other people around the town of Irene. He also had admitted to law enforcement officers that he often was armed and wore a bullet proof vest. Because the officers knew that Christensen had several firearms in his residence, and that he was going to be released from HSC at any time, their belief that the weapons posed a serious threat to the safety of the public was reasonable. See Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d at 610 (determining that in assessing whether the Fourth Amendment has been violated, the officers’ actions must be analyzed to determine if their actions were objectively reasonable). Further, this threat was apparent by the express terms of the protection order. The order gave Christensen notice that he must hand over all of his weapons to law enforcement, or otherwise, law enforcement would take whatever steps necessary to make sure that the firearms were recovered. Although Christensen argues that the officers knew that he had been trying to make arrangements with a friend to obtain the firearms and turn them over, this friend could have given the firearms back to Christensen in violation of the protection order.

[¶ 17.] Christensen next argues that the “plain view” exception to the warrant requirement does not apply in this case because the marijuana and paraphernalia were observed when the officers were unlawfully in the residence. However, because we held above that the officers were lawfully inside Christensen’s residence to obtain the firearms, the marijuana and other incriminating evidence were within their “plain view” and therefore, this exception to the warrant requirement applies. See State v. Wellner, 318 N.W.2d 324, 329 (S.D.1982) (holding that if a law enforcement officer is lawfully engaged in an activity in a particular place, and they view a suspicious object, they may seize it immediately).

[¶ 18.] 2. Whether the trial court should have suppressed the videos and magazines found in the search of Christensen’s residence.

[¶ 19.] Having determined that the officers’ entry was reasonable and not in violation of Christensen’s Fourth Amendment rights, we next turn to whether certain videotapes that were discovered during the course of searching the residence pursuant to a validly executed warrant were properly admitted against Christensen at trial.

[¶ 20.] In the course of obtaining Christensen’s firearms, the officers saw many incriminating items in his residence, such as marijuana and marijuana paraphernalia. Instead of seizing these items, they first went to the circuit judge and obtained a warrant to search the residence. Although the search warrant provided that the search was for drugs, drug paraphernalia, illegal weapons, and items to indicate an intent to distribute drugs, the State claims that the pornographic materials were seized pursuant to the “plain view” exception to the warrant requirement.

[¶ 21.] We agree with the State and hold that the pornographic materials found in Christensen’s residence were properly seized and it was not error for them to be subsequently admitted at trial. In State v. Larkin, we stated that “where a police officer while in the course of a lawful search pursuant to a valid search warrant inadvertently uncovers evidence of another crime ... the police officer may seize the evidence although it is not described in the warrant.” 87 S.D. 61, 64-5, 202 N.W.2d 862, 864 (1972) (citations omitted). Furthermore, according to Larkin, 87 S.D. at 65, 202 N.W.2d at 864:

The cases recognizing this exception have emphasized that before such a seizure will be lawful, the original search must be directed in good faith toward finding objects described in the search warrant and, in addition, the police officer must have probable cause to believe the inadvertently discovered evidence is in fact seizable.

[¶ 22.] In the instant case, the police officers were conducting a thorough search of Christensen’s residence in order to find illegal drugs, paraphernalia and firearms. When they discovered the trunk, it was reasonable for them to look inside to find such items. Instead, they found sexually explicit material which contained images of nude children and sexually suggestive titles of movies. Christensen argues that the officers did not have probable cause to believe that the tapes and magazines were seizable simply because the materials contained depictions of nude children.

[¶ 23.] The probable cause standard has been defined in State v. Zachodni, 466 N.W.2d 624, 629 (S.D.1991). According to Zachodni, probable cause justifying a search exists if “the facts found by the court or the magistrate would lead a reasonable and prudent person to believe it fairly probable that a crime had been committed and that evidence relevant to the crime would be uncovered by the search.” Id, at 629 (additional citations omitted). Furthermore, the probable cause determination is a function of “the totality of relevant circumstances.” Id. (citations omitted).

[¶ 24.] When the law enforcement officers saw videotapes with suggestive titles together with magazine covers containing pictures of naked children, it provided evidence of a possible crime. Quite obviously, in view of the “totality of relevant circumstances,” a reasonable and prudent person would view such material as relevant evidence of a crime. We, therefore, hold that this evidence was properly admitted against Christensen at trial.

[¶ 25.] 3. Whether the “surveillance” videos were properly admitted at trial as “other acts evidence” to show Christensen’s intent in possessing the alleged child Pornography.

[¶ 26.] In this final issue, Christensen argues that the “surveillance” videos were improperly admitted against him at trial. First, he asserts that there was no evidence that the surveillance videos were taken by Christensen or that it is his voice making the sexual comments about the children that were videoed. Second, he argues that the mental status of defendant was not relevant as to whether the material is child pornography. The trial court granted the State’s motion to use the videos at trial to show Christensen’s state of mind and intent of viewing nude depictions of small children. However, the trial court excluded some of the tapes; it only allowed into evidence the tapes that had comments allegedly made by Christensen on them.

[¶ 27.] Under SDCL 19-12-5 (FRE 404(b)), evidence may be admissible for reasons other than showing that a defendant has a propensity to commit the offense charged. This statute provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, ■ plan, knowledge, identity, or absence of mistake or accident.

Furthermore, this is a rule of inclusion and the trial judge may exclude such evidence only on the basis of prejudice, confusion, or waste of time. See SDCL 19-12-3 (FRE 403); State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798. However, before other acts evidence can be admitted, they must be shown to be relevant. According to Wright, 1999 SD 50, ¶ 14, 593 N.W.2d at 798-99:

Relevance under § 404(b) is established “only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.” Furthermore, the relevance of § 404(b) evidence is determined by a lower standard of proof than that required for a conviction. SDCL 19-9-8 (Rule 104(b)). The proponent has the burden of showing the relevance of the other crimes, wrongs, or acts. See SDCL 19-12-1 (Rule 401); SDCL 19-12-2 (Rule 402); SDCL 19-12-5 (Rule 404(b)).

[¶ 28.] The trial court did not abuse its discretion when it allowed the tapes into evidence. The State, as part of its case, had to prove each element of SDCL 22-22-23.1. This statute provided that the person must “knowingly” possess the pornographic material. Therefore, the State had to prove beyond a reasonable doubt that Christensen had the requisite intent of possessing the child pornography. Therefore, the surveillance videos could properly be used to show that this intent was present. Moreover, as the State argues, “Christensen’s possession of the tapes upon which implicit sexual statements were made about little girls suggests his intent and his thought process.” Under the standards of Wright, they were properly admitted. Not only is Christensen unable to show that the trial court abused its discretion, he is also unable to show how he was prejudiced.

[¶ 29.] KONENKAMP and ZINTER, Justices, concur.

[¶ 30.] MEIERHENRY, Justice, concurs in result.

[¶ 31.] SABERS, Justice, concurs in part and dissents in part.

MEIERHENRY, Justice

(concurring in result).

[¶ 32.] I concur in result, but write specially on Issue I.

[¶ 33.] I would affirm the trial court’s ruling because Christensen did not preserve this issue for appeal. The hearing in which the trial court determined that the initial entry of Christensen’s home without a warrant was lawful was not transcribed for this Court’s review. Without a transcript of the hearing, we cannot say whether the state did or did not present sufficient evidence of exigent circumstances to justify the warrantless entry of Christensen’s residence. We can only presume the trial court ruled properly. We have consistently held with an incomplete appellate record we presume that the trial court acted correctly. State v. Corey, 2001 SD 53, ¶ 12, 624 N.W.2d 841, 844.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 34.] I concur on Issues 1 and 2 but dissent on Issue 3. It seems clear that these “surveillance” videos were admitted to show that the defendant had a propensity to commit the offenses charged. This is contrary to SDCL 19-12-5, which provides in part:

Evidence of other ... acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

[¶ 35.] That is exactly what happened in this case and the State’s claim of showing “intent” is mere pretense. Unfortunately, this will continue to happen until we force the State to do it over until they do it right.

      . This neighbor lived across the street from Christensen's residence. The neighbor alleged Christensen had been threatening him with bodily harm for approximately two years. Such threats included that Christensen would "take care of him” and "no one would sleep that night.” The neighbor had also allegedly heard gun shots around or in Christensen’s residence.

      . The videos had titles such as "Czech Children's Days” and "Nudist Moms and Daughters.”

      . It is alleged by the State that Christensen secretly followed a number of little girls around Yankton, Vermillion, and Irene and videotaped them. One tape is a surveillance video made through a backyard fence into a neighbor's swimming pool area, which focuses on a very small girl in a swimming suit. On some of the "surveillance” videos, Christensen allegedly made verbal comments that have sexual overtones about the little girls. Another tape is of a little girl playing in her backyard. Comments such as “looks good,” moans of "Ummm” and "Oh yes,” can be heard when the little girl lifts her dress. Other tapes recovered from Christensen's house contain footage copied from television containing footage of little girls, little girls’ beauty pageants and the Jon Benet Ramsey case.

      .SDCL 22-22-23.1, as it existed in 2001, provided:
      Any person who knowingly possesses any book, magazine, pamphlet, slide, photograph, or film depicting a minor under the age of eighteen years engaging in a prohibited sexual act or in the simulation of such act or whose knowing possession encourages, aids, abets, or entices any person to commit a "prohibited sexual act” is guilty of a Class 6 felony.
      This statute has been repealed by SL 2002, ch. 109, § 3.

      . While the State does not argue that the domestic protection order in this case is the sole justification for upholding the legality of the search and seizure, it is important to note that the requirements for the issuance of a search warrant and a domestic protection order are very similar. Under SDCL 23A-35-4 a search warrant shall issue on evidence set forth in an affidavit establishing to the committing magistrate probable cause to believe the grounds for the issuance of the warrant exist. Under SDCL 25-10-3(2), a protection order shall be issued when a petition accompanied by an affidavit establishes to the satisfaction of the court that domestic abuse, as defined in SDCL 25-10-1(1), has occurred or the applicant is in fear of imminent physical harm or bodily injury.
      Herein the domestic protection order application and affidavit of the applicant stated: This has been an on going thing with him approx 2 yrs ago he said he would kill me if I stepped outside — has yelled & screamed at my wife and myself many times, we have heard gunshots twice in the last month. I leave for work early in the morning, I fear for my wife’s safety when I leave. On Sun June 24th he said he “was going to take care of me, and no one would sleep that night.” A shot was fired that night.
      I request he surrender all firearms to the Clay County Sheriff, and that the Clay County Sheriff be granted authority to enter his residence to confiscate all fire arm[s] immediately.
      Circuit Judge Eng upon review of this affidavit issued a domestic protection order which in part directed: "Respondent surrender all firearms to the Clay County Sheriff. If they are not surrendered, the Clay County Sheriff is to take steps necessary to obtain firearms.”
      Clearly the applicant for the domestic protection order had established probable cause to believe his claims were correct, that the guns were in Christensen’s house and that the applicant was entitled to the relief he sought.
      This is not to say that a proper protection order will in all cases satisfy the requirements of the Fourth Amendment. However, in this instance it clearly bolsters the State's argument that exigent circumstances justified the entry into Christensen’s home and the seizure of the contraband, especially the firearms which presented an immediate threat to Christensen’s neighbors and potentially the public.

      . The transcript of the January 18, 2002 hearing in which the trial court heard evidence concerning Christensen’s motion to suppress was not made part of the record. However, several other significant items were in the record that support the argument that the terms of the protection order gave the officers authority to enter the premises and that exigent circumstances were present. First, the trial court’s order, which denied Christensen's motion to suppress, states that the terms of the protection order gave the officers authority to enter the premises and the exigent circumstances were present. Second, the protection order and the affidavit in support of such order were made part of the record. Finally, the officers’ application for the search warrant set out law enforcement's contact with Christensen, including that he was in the HSC, he was attempting to contact others to retrieve the guns for him, and that it had been two days since receiving the requirement that he turn over his guns without any action.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. David Frazier BIRD, Appellant.
    No. 01-1223.
    Supreme Court of Iowa.
    May 7, 2003.
    Rehearing Denied July 1, 2003.
    Jerald W. Kinnamon and J.D. Keegan of Kinnamon, Kinnamon, Russo and Meyer, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and David Tiffany and Victoria Dominguez, Assistant County Attorneys, for appellee.
   LARSON, Justice.

David Bird was convicted of second-offense operating while intoxicated (OWI) and appealed. The court of appeals reversed on the ground the arresting officer had failed to follow the statutory and administrative requirements for administration of a preliminary breath test (PBT). We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

David Bird’s vehicle was stopped in Iowa City after he made an illegal turn. The arresting officer noticed an odor of alcohol, and Bird admitted he had been drinking. The officer testified that Bird told him he had consumed his last beer “about fifteen minutes ago.” Bird failed a horizontal gaze and nystagmus test. The officer administered a PBT with an Alco-Sensor III machine about four minutes after the stop. The result, at .117, was over the legal limit. The officer detected a distinct sway. Because of very cold weather conditions, the officer asked Bird to accompany him to the police station for further field sobriety tests. At the station, Bird failed two more field sobriety tests— the one-legged stand and the walk and turn. The officer then invoked implied-consent procedures and gave Bird an In-toxQyzer test. The result was .129. Bird was charged with OWI in violation of Iowa Code section 321J.2 (1999).

Bird moved to suppress the evidence that followed the PBT, claiming the test was not administered in compliance with the United States and Iowa Constitutions, Iowa Code chapter 321J, and rule 661-7.5(2) of the Iowa Administrative Code. The district court rejected these arguments and overruled the defendant’s motion. The court later expanded its ruling at the request of the defendant, finding that the calibration substantially complied with statutory requirements. The defendant waived his right to a jury trial. The court, on a stipulated record, found him guilty of second-offense OWI.

The court of appeals reversed on the ground the district court should have suppressed the PBT results because of “the arresting officer’s failure to follow the manufacturer’s operating instructions for the Aleo-Sensor III PBT device, as well as the Iowa City Police Department’s failure to record the value and method used to calibrate that device, [thus] necessitating] the exclusion of the Intoxilyzer test result in this case.” This ruling raises the two issues to be considered on our further review: (1) the officer’s failure to administer two PBTs, as suggested by the manufacturer’s instructions; and (2) failure of the police department to properly document the calibration of the PBT machine.

II. The Failure to Administer a Second PBT.

This issue is identical to that in State v. Albrecht, 657 N.W.2d 474 (Iowa 2003). In Albrecht we held that a second test was not required under either the Iowa Code or the administrative rules implementing those provisions. Albrecht, 657 N.W.2d at 481. Therefore, this argument must be rejected.

III. The Failure to Complete the Calibration Log.

Iowa Code section 321J.5, providing for the use of approved PBTs, is implemented by Iowa Administrative Code rule 661-7.5. Rule 661-7.5(2) discusses the calibration log:

7.5(2) Any peace officer using an approved device shall follow the instructions furnished by the manufacturer for use of such a device. Each unit shall be calibrated at least once per month using either a wet alcohol standard or a dry gas standard. The officer or officer’s department shall keep a record of each calibration. This record shall include:
a. The [identity of the] officer performing the calibration.
b. Date
c. The value and type of standard used.
d. Unit type and identification number.

(Emphasis added.)

The PBT device used in this case has been approved by the commissioner of public safety as required by statute. However, the calibration log required by the administrative rule did not show “[t]he value and type of standard used,” as required by “e.”

In considering what level of compliance is required for PBT testing, we have noted the limited role of these procedures: they are used only for screening purposes, to decide if an arrest should be made. The results are not admissible in an OWI trial. See Iowa Code § 321J.5(2); Al-brecht, 657 N.W.2d at 479. In fact, a PBT is only one of the means for screening. State v. Palmer, 554 N.W.2d 859, 864 (Iowa 1996). The horizontal gaze nystag-mus, walk-and-turn test, and one-legged standing test are approved as standardized and objective field sobriety tests. Id. Bird was given these tests and failed them all. The PBT test only supplemented the field tests and confirmed the officer’s decision to arrest Bird.

We believe the calibration of the machine substantially complied with the applicable statutes and administrative rules. If we were to require rigid adherence to the documentation requirements for the value and type of standard used in calibration, this would not reasonably advance the purposes of the PBT, which is to provide, perhaps with other tests, the information necessary to make an informed decision regarding a possible arrest. See State v. Schlemme, 301 N.W.2d 721, 724 (Iowa 1981) (requiring second officer, who had not made the initial arrest, to “rearrest” the subject does nothing to further the purposes of the statute; substantial compliance was sufficient); see also State v. Lindeman, 555 N.W.2d 693, 696 (Iowa 1996) (substantial compliance sufficient in applying Iowa Code section 321J.6 because allowing substantial compliance would not “compromise” the purposes of the statute); State v. Satern, 516 N.W.2d 839, 841 (Iowa 1994) (substantial compliance with section 321J.6 sufficient if purpose of statute not compromised).

IV. Conclusion.

The officer here substantially complied with the requirements of rule 661-7.5(2)(c). The PBT, together with the defendant’s performance on the other field tests, is sufficient to support the arrest and subsequent Intoxilyzer test. We therefore vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.


author: TERNUS, Justice.

text:
    GRIFFIN PIPE PRODUCTS CO., Appellee, v. Sam GUARINO, Appellant.
    No. 02-0655.
    Supreme Court of Iowa.
    June 11, 2003.

      Jacob J. Peters of Peters Law Firm, P.C., Council Bluffs, for appellant.
    John M. Burns of Burns Law Firm, Omaha, Nebraska, for appellee.
   TERNUS, Justice.

What impact does a semi-annual plant shutdown have on an injured employee’s rate of compensation for purposes of workers’ compensation benefits? In calculating the applicable rate in this case, the chief deputy workers’ compensation commissioner disregarded a two-week plant closure that occurred during the thirteen-week base period and substituted two weeks during which the employee worked. The district court and court of appeals disagreed with this approach.

Upon reviewing the governing statutes and considering the pertinent rules of statutory interpretation, we hold the agency correctly excluded from the base period the time during which the plant was closed. Therefore, we vacate the court of appeals’ contrary decision, reverse the judgment of the district court, and remand the case to the district court for entry of an order affirming the agency’s ruling.

I.Background Facts and Proceedings.

The facts relevant to the issue raised in this appeal are undisputed. In January 1999, the appellant, Sam Guarino, was injured in a workplace accident while employed by the appellee, Griffin Pipe Products Company, a self-insured employer. In the workers’ compensation case that followed, the parties disagreed on the compensation rate to be used in computing the employee’s weekly disability benefits. This dispute centered on whether two weeks during which the plant was closed should be included in the thirteen-week wage base used to determine the rate of compensation. See Iowa Code § 85.36(6) (1999) (providing that compensation rate for hourly employees is computed on the basis of the employee’s earnings in the thirteen weeks immediately preceding the injury).

The evidence introduced at the contested case hearing showed that every year the plant is shut down for two weeks during the summer and two weeks in late December for cleaning and maintenance. Production workers such as Guarino earn no wages during these periods, although maintenance workers and certain management employees continue to work. The annual December closure fell within the thirteen-week period preceding Guarino’s injury. When the plant was not shut down, Guarino was regularly scheduled to work a forty-hour week.

In calculating Guarino’s rate of compensation, the deputy commissioner excluded the shutdown weeks and substituted the two weeks immediately preceding the thirteen-week, pre-injury period. An award of weekly benefits was made based on the resulting rate. The chief deputy workers’ compensation commissioner affirmed the deputy’s decision in an intra-agency appeal.

On judicial review, the district court reversed the agency’s determination of the compensation rate and remanded the matter for recalculation of the rate using a thirteen-week period that included the two weeks of no earnings. Upon appeal, the court of appeals included only one no-earnings week, concluding the inclusion of only one week more fairly represented the earnings of a plant employee. The court reasoned that because “Guarino experiences a total of four weeks of unpaid time off each year [due to] regularly scheduled plant shutdowns,” he had “an average of one week of unpaid time off for every thirteen-week period.” Guarino v. Griffin Pipe Prods. Co., No. 02-0655, at 6, 2002 WL 31885878 (Iowa Ct.App. Dec. 30, 2002). This court granted further review.

II. Scope of Review.

Our review of an agency decision is for correction of errors of law and is controlled by Iowa’s Administrative Procedure Act, Iowa Code chapter 17A. Stone Container Corp. v. Castle, 657 N.W.2d 485, 488 (Iowa 2003); Iowa Code § 86.26. Reversal is appropriate when the agency has applied an erroneous interpretation of the law. Iowa Code § 17A.19(8)(e).

III. Discussion.

Because the resolution of the dispute before us turns on an interpretation of the workers’ compensation act, we begin our discussion with a review of the most pertinent rules of statutory interpretation. When we interpret a statute, we attempt to give effect to the general assembly’s intent in enacting the law. IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001). Generally, this intent is gleaned from the language of the statute. State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998). To ascertain the meaning of the statutory language, we consider the context of the provision at issue and strive to interpret it in a manner consistent with the statute as an integrated whole. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980). With respect to the workers’ compensation statute in particular, we keep in mind that the primary purpose of chapter 85 is to benefit the worker and so we interpret this law liberally in favor of the employee. Stone Container Corp., 657 N.W.2d at 489; Harker, 633 N.W.2d at 325.

With these principles to guide our analysis, we turn to the relevant statutory provisions. The basis for an injured employee’s compensation under the workers’ compensation act is “the weekly earnings of the injured employee at the time of the injury.” Iowa Code § 85.36. Section 85.36 defines “weekly earnings” as

[the] gross salary, wages, or earnings of an employee to which such an employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee’s employer for the work or employment for which the employee was employed....

Id. (emphasis added). For employees such as Guarino, who are paid on an hourly basis, “weekly earnings” are computed “by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury.” Id. § 85.36(6).

The question that arose in this case is how this computation is affected when one or more of the weeks in the thirteen-week period do not reflect the “customary hours ... regularly required by the employee’s employer.” Id. § 85.36. Guarino, focusing on the “customary hours” aspect of the statute, points out that in forty-eight of the fifty-two weeks in a year he is expected to work at least a forty-hour week. Therefore, he contends, the two-week lay off during which he worked no hours does not reflect his customary weekly earnings. The employer takes a different view of the statute, focusing on the “regularly required” language of section 85.36. It argues the plant shutdown was “regularly required” and therefore inclusion of the two weeks during which Guarino had no earnings is consistent with the legislature’s intended method for computing an employee’s compensation rate. Both parties claim our decisions in Thilges v. Snap-On Tools Corp., 528 N.W.2d 614 (Iowa 1995), and Weishaar v. Snap-On Tools Corp., 582 N.W.2d 177 (Iowa 1998), support their respective positions.

In the Thilges appeal, the employer challenged the district court’s reversal of the commissioner’s decision to include, in computing the employee’s average weekly earnings, several weeks in which the employee worked less than forty hours. 528 N.W.2d at 619. Applying the same statutory language at issue here, we rejected this challenge, stating,

Although [the employee] in fact worked less than forty hours during seven of the thirteen weeks immediately prior to the injury date of July 8, 1987, it also appears that this was the result of unanticipated occurrences that caused her to miss work on certain days. The customary hours for the full pay period for her job were, as the district court determined, a forty-hour week.

Id.

The compensation rate was also a disputed issue in our Weishaar case. There, the district court concluded the commissioner had erred in including two weeks in the computation of average earnings in which the employee worked twenty-four hours and nineteen hours, respectively. Weishaar, 582 N.W.2d at 181. The evidence showed that the employee was always scheduled to work forty hours per week unless she was under medical restrictions. Id. at 182. We interpreted Thilges to stand for the proposition that “if a forty-hour week is customary for the particular employee, that must be the basis of computation.” Id. Accordingly, we held “[t]he district court properly determined that only forty-hour-work weeks were to be included in calculating [the employee’s] average earnings.” Id.

The employer argues that the critical fact in these cases was the “unanticipated” nature of the occurrences resulting in the employees working less than their normal forty-hour workweek. See Thilges, 528 N.W.2d at 619 (stating lower-earnings weeks were “the result of unanticipated occurrences”). The district court seized on this fact, interpreting Thilges and We-ishaar to support a rule that “ ‘customary’ weeks do not include weeks where an employee does not work due to unanticipated occurrences.” (Emphasis added.) Because the plant shutdowns at issue here were routine or anticipated, the district court concluded the two no-earnings weeks occurring prior to Guarino’s injury were customary and therefore properly included in computing his wage rate.

We think the district court’s application of section 85.36 is incorrect. First of all, we note that the focus of the statute is on the “customary hours” the employee is “regularly required” to work. Why a particular week may not reflect the employee’s customary hours is important only insofar as it might be relevant to whether the hours worked in that week are in fact customary. Thus, the unanticipated nature of the occurrences that caused the employees in Thilges and Weishaar to work less than the number of hours they were normally required to work simply supported the conclusion that these weeks did not reflect the employees’ customary hours. It would be a mischaracterization of our prior cases to state that only unanticipated reductions in hours can cause a workweek to be excluded from the averaging period.

We agree with the agency that the issue under section 85.36 “is whether the hours of work in any particular workweek are representative of the hours typically or customarily worked by an employee during a typical or customary full week of work.” (Emphasis added.) This interpretation is most consistent with the language of the statute, which directs that the basis for computation of the weekly rate is to be the earnings that the “employee would have been entitled to had the employee worked the customary hours for the full pay period in which the employee was injured.” Iowa Code § 85.36 (emphasis added); accord James R. Lawyer & Judith A. Higgs, Iowa Workers’ Compensation Law and Practice § 12-4, at 123 (3d ed.1999) (stating weeks that contain “absences due to illness, vacation or other causes ... are not representative of [the worker’s] earnings” and are routinely excluded from the rate calculation).

Our interpretation of section 85.36 is also supported by the legislature’s amendment of this statute subsequent to our decisions in Thilges and Weishaar. In 2000, the general assembly added the following language to section 85.36(6):

If the employee was absent from employment for reasons personal to the employee during part of the thirteen calendar weeks preceding the injury, the employee’s weekly earnings shall be the amount the employee would have earned had the employee worked when work was available to other employees of the employer in a similar occupation. A week which does not fairly reflect the employee’s customary earnings shall be replaced by the closest previous week with earnings that fairly represent the employee’s customary earnings.

2000 Iowa Acts ch. 1007, § 2 (codified at Iowa Code § 85.36(6) (2001)) (emphasis added). We think this amendment clarified the legislature’s intent that a nonre-presentative week be excluded from the calculation of an employee’s compensation rate.

While it is true that “any material change in the language of a statute is presumed to alter the law,” State v. Ahitow, 544 N.W.2d 270, 273 (Iowa 1996), “[t]his presumption is not conclusive,” State v. Guzman-Juarez, 591 N.W.2d 1, 3 (Iowa 1999). We pointed out in Guzman-Juarez that the adoption of an amendment following controversies about the construction of a statute may indicate the legislature was merely clarifying its intent by amending the law. 591 N.W.2d at 3. That is the situation we found in that case. There the amendment was adopted after a great deal of dispute within the legal community concerning the correct application of the original statute. Id. at 4. We concluded that under these circumstances, “the amendment was enacted to clarify rather than to change the existing law.” Id.

We think the same conclusion can be reached here. Although our court, in the Thilges case, interpreted section 85.36 to permit the substitution of a typical workweek for a nonrepresentative week falling within the thirteen-week base period, confusion about the proper application of this rule continued, as illustrated by the We-ishaar case four years later. The amendment quoted above, adopted less than two years after our Weishaar decision, addressed this very controversy and confirmed this court’s interpretation of section 85.36. Thus, the 2000 amendment to section 85.36, like the amendment in Guzman-Juarez, clarified rather than changed the existing law. Accordingly, to determine what weeks should be included in the compensation rate calculation one must ask whether the earnings attributable to a particular week are customary, not whether a particular absence from work is anticipated. If an employee’s earnings in a particular week “do not fairly reflect the employee’s customary earnings,” the commissioner must disregard that week in computing the applicable compensation rate. 2000 Iowa Acts ch. 1007, § 2 (codified at Iowa Code § 85.36(6) (2001)).

Turning to the case at hand, we think the agency properly concluded the two weeks during which Guarino had no earnings did not reflect the customary hours he typically worked, despite the fact that the reason he did not work his normal hours — the plant shutdown — was expected. Therefore, the agency did not err in excluding these weeks from its calculation of Guarino’s rate of compensation.

IV. Summary and Disposition.

We find no error in the agency’s interpretation and application of the law in computing the compensation rate for Guarino’s disability benefits. We vacate the court of appeals decision reaching a contrary conclusion. Our decision also requires reversal of the district court’s judgment reversing the chief deputy commissioner’s ruling on this issue. We remand this case to the district court for entry of an order affirming the agency’s decision.

COURT OF APPEALS DECISION VACATED, JUDGMENT OF DISTRICT COURT REVERSED, AND CASE REMANDED WITH DIRECTIONS.


author: CARTER, Justice.

text:
    CITY OF IOWA CITY, A Municipal Corporation, Appellant, v. STATE BUILDING CODE BOARD OF REVIEW and Scott Kading, Appellees.
    No. 02-0461.
    Supreme Court of Iowa.
    June 11, 2003.

      Susan Dulek, Assistant City Attorney, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, and Jeanie Kunkle Vaudt, Assistant Attorney General, for appellee State Building Code Board of Review.
    Dennis Mitchell of Meardon, Sueppel & Downer, Iowa City, for appellee Scott Kading.
   CARTER, Justice.

The City of Iowa City (the city) appeals from the district court’s order upholding a reversal by the State Building Code Board of Review (BCBR) of the city’s denial of a building permit to Scott Kading. The ap-pellees are Kading and BCBR. It is the city’s contention that its actions were undertaken with regard to its own municipal building ordinances and were not properly renewable by the board. After reviewing the record and considering the arguments of the parties, we agree with the city’s contention. We reverse the judgment of the district court.

Kading purchased a building at 13 South Linn Street in Iowa City on September 7, 1999. He intended to open a restaurant business in the basement. That space had previously been occupied by a restaurant licensed for use by the city in 1988. That restaurant went out of business in 1997, and the location remained vacant until Kading purchased the building.

Kading applied for a building permit on July 17, 2000. The application was placed on hold while Kading’s architect and a city building inspector explored with state building code officials whether the statewide requirements for accessibility by persons with disabilities established in Iowa Code chapter 104A (1999) and administered by the State Building Code Commissioner (Commissioner of Public Safety), pursuant to Iowa Code section 103A.5(5), might be waived in favor of less restrictive requirements. Ultimately, on August 30, 2000, the Commissioner granted that request.

Notwithstanding the state agency’s waiver of the chapter 104A accessibility requirements, which incorporate the standards contained in the state building code, the city, whose municipal building ordinances incorporate the same accessibility standards, but with different rules for the application thereof to the renovation of existing buddings, refused to waive the local ordinance provisions. On November 27, 2000, the city denied Kading’s building application for failure to meet the local ordinance accessibility standards.

Kading attempted to appeal the decision of the city building officials to the BCBR. The city challenged the authority of that agency to review the decision of local building authorities. The BCBR accepted jurisdiction and determined that the renovation project contemplated by Kading at 13 South Linn Street was not subject to the accessibility standards for disabled persons contained in the state building code. After so finding, the agency purported to reverse the action of the local building authority and directed that “Mr. Kading shall be permitted to proceed with his project, as presented to this Board, without complying with the accessibility requirement for providing an accessible path for persons with disabilities.” The city filed a petition for judicial review of the BCBR decision, and following a hearing, the district court upheld the action of the BCBR.

I. The Issues on Appeal.

The dispositive issue on appeal is whether the BCBR had authority to overturn the decision of a local building department concerning the application of the city’s handicapped accessibility requirements to Kading’s renovation project. As a preliminary inquiry in reaching that decision, we examine the rules that govern the determination of Kading’s application for a building permit.

The city urges that its local building code is determinative of whether the handicapped accessibility requirements are triggered by Kading’s renovation of the basement. Under the city’s ordinance, any change in use of the structure for which the building permit is sought requires that the project comply in all respects with the city’s building code, including the provisions for accessibility for handicapped persons.

Kading and the BCBR urge that, because the accessibility requirements of chapter 104A have statewide application and purport to incorporate the standards contained in the state building code, that code and the accompanying administrative regulations should govern in deciding whether rehabilitation or renovation projects shall comply with the accessibility rules. The applicable state regulation provides “[additions, alterations or repairs may be made to any building or structure without requiring the existing building or structure to comply with all the requirements of this code provided the additions, alterations or repairs conform to that required for a new building or structure.” Iowa Admin. Code r. 661 — 16.130(3)(a). The BCBR concluded that under this regulation Kading was not required to comply with the handicapped-accessibility rules contained in the state building code.

We are convinced that the city has the stronger argument on this issue. Iowa Code section 103A.22 provides:

1. Nothing in this chapter shall be construed as prohibiting any governmental subdivision from adopting or enacting any building regulations relating to any building or structure within its limits, but a governmental subdivision in which the state building code has been accepted and is applicable shall not have the power to supersede, void, or repeal or make more restrictive any of the provisions of this chapter or of the rules adopted by the commissioner.
2. Nothing in this chapter shall be construed as abrogating or impairing the power of any governmental subdivision or local building department to enforce the provisions of any building regulations, or the applicable provisions of the state building code, or to prevent violations or punish violators except as otherwise expressly provided in this chapter.
3. The powers enumerated in this chapter shall be interpreted liberally to effectuate the purposes thereof and shall not be construed as a limitation of powers.

(Emphasis added.) We are satisfied that the converse of the language that we have italicized is that a governmental subdivision in which the state building code has not been adopted may adopt more restrictive regulations than those contained in the state building code.

The agency’s own rule supports the city’s claim that its local ordinance is determinative of whether Kading’s renovation project must comply with the handicapped-accessibility rules. Iowa Administrative Code rule 661 — 16.700(2) expressly provides that “[rehabilitation and renovation projects shall be made to comply with these [accessibility] rules whenever the projects are required by local building code or the state building code to meet requirements of new construction.” (Emphasis added.)

We have recognized that the regulations of administrative agencies are subject to the same rules of interpretation that apply in determining the meaning of statutes. Messina v. Iowa Dep’t of Job Serv., 341 N.W.2d 52, 56 (Iowa 1983); Motor Club of Iowa v. Dep’t of Transp., 251 N.W.2d 510, 518 (Iowa 1977). The words of a statute are to be given their plain and ordinary meaning absent legislative definition or a particular meaning in the law. State v. Jones, 524 N.W.2d 172, 174 (Iowa 1994); Schafer v. Cocklin, 504 N.W.2d 454, 455 (Iowa 1993). A statutory rule for the interpretation of legislative acts provides that “[w]ords and phrases shall be construed according to the context and the approved usage of the language.” Iowa Code § 4.1(38). In this regard, the ordinary grammatical sense of words is to prevail. Haugen v. Humboldk-Kossuth Joint Drainage Dist., 231 Iowa 288, 313, 1 N.W.2d 242, 255 (1941). Because the reference to the local building code and the state building code are stated in the disjunctive, we are convinced that under the agency’s regulation a local building ordinance may require renovation projects to comply with the accessibility requirements for new construction in instances where the state building code does not.

II. Whether the State Building Code Board of Review Had Authority to Review the City’s Denial of a Building Permit.

Kading, BCBR, and the district court all relied on the following statute in concluding that the board is empowered to reverse the determination made by city officials in the present controversy:

Any aggrieved person may appeal to the board for:
1. A reversal, modification, or annulment of any ruling, direction, determination, or order of any state agency or local building department affecting or relating to the construction of any building or structure, the construction of which -is pursuant or purports to be pursuant to the provisions of the state building code.
2. Review of the disapproval or failure to approve within sixty days after submission of:
a. An application for permission to construct pursuant to the code, or
b. Plans or specifications for construction pursuant to the code.

Iowa Code § 103A.16 (emphasis added).

The city argues that this statute only grants the BCBR authority to hear appeals from decisions of local building departments whose municipalities have formally adopted the state building code.

Iowa Code section 103A.12 provides:

The state building code is applicable in each governmental subdivision of the state in which the governing body has enacted an ordinance accepting the applicability of the code and has filed a certified copy of the ordinance in the office of the commissioner and in the office of the secretary of state. The state building code becomes effective in the governmental subdivision upon the date fixed by the governmental subdivision ordinance, if the date is not more than six months after the date of adoption of the ordinance.

Iowa City has not adopted the state building code. Its building code is patterned after the Uniform Building Code published by the International Conference of Building Officials. Section 1100 of the Iowa City code does incorporate the provisions of the state building code dealing with accessibility for the handicapped because those provisions are made applicable statewide by Iowa Code section 103A.5(5).

Kading and the BCBR argue the board may hear appeals from the decisions of local building departments in municipalities where the state building code has not been adopted if the issue involves a provision of the state building code that has statewide application. They urge that section 103A.5(5) establishes that the provisions of the state building code dealing with accessibility for handicapped persons shall apply statewide.

Our decision on the type of appeal that may be considered by the BCBR turns on the meaning of the language “the construction of which is pursuant or purports to be pursuant to provisions of the state building code” in paragraph 1 of section 103A.16 and the words “pursuant to the code” contained in sections 2(a) and 2(b) thereof. Without attempting to identify the types of cases that these words may include, we are confident that they do not include the taking of appeals to the BCBR in cases where the issue does not involve the state building code.

We have determined in division I of this opinion that the agency’s own administrative regulation empowers local governments to determine that rehabilitation and renovation projects shall comply with the accessibility rules contained in the state building code in situations where state law does not require that this be done. It is Iowa City’s effort to do that which is at issue in the present dispute. We are satisfied that the building code board was without authority to overturn the determination of local building officials concerning that issue.

We have considered all issues presented and conclude that the judgment of the district court should be reversed.

REVERSED.

All justices concur except LAVORATO, C.J., who takes no part.

      . Although there was concern about whether the city’s accessibility standard dictated the installation of an elevator to reach the proposed basement restaurant, the city ultimately did not require an elevator as a condition for issuing a building permit for the renovation of the basement area. It did require that there be an "accessible route” to the basement area. Under the city's definition, “accessible route” means
      a continuous unobstructed path connecting all accessible elements and spaces in a building or facility that can be negotiated by a severely disabled person using a wheelchair and that is also safe for and usable by people with other disabilities. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, walks, ramps, and lifts.
      Iowa City Mun.Code § 1101 (borrowing from the state law definition contained in Iowa Administrative Code rule 661 — 16.701).

      . There is a hotly contested factual issue concerning whether there had been a change of use of the subject premises sufficient to support the city’s application of the accessibility requirements. The BCBR concluded that, even if the change-of-use standard were employed, the facts did not show that there had been a change of use at the subject premises. Because we conclude that the BCBR had no authority to review this issue, the merits of this controversy are not a matter for our consideration.


text:
    OFFICE OF CONSUMER ADVOCATE, A Division of the Iowa Department of Justice, Appellant, v. IOWA UTILITIES BOARD, Appellee, and Qwest Corporation, Intervenor-Appellee.
    No. 02-0720.
    Supreme Court of Iowa.
    June 11, 2003.
    Donald G. Henry and John R. Perkins, Des Moines, for appellant.
    Cecil I. Wright and Allan Kniep, Des Moines, for appellee.
    David A. Sather, Des Moines, and Joseph Y. Hatala, Des Moines, for interve-nor-appellee.
   LARSON, Justice.

The Office of Consumer Advocate (OCA) appealed a district court ruling approving an Iowa Utilities Board determination that a rate reduction plan presented by Qwest Corporation (formerly US WEST) for selected telecommunications services should be approved. We affirm.

I. Facts and Prior Proceedings.

A three-year price regulation plan was submitted pursuant to Iowa Code section 476.97(1) (1997) by Qwest on July 1, 1998, and approved by the board. The price plan included provisions for rate increases and, as relevant in this case, provisions for rate decreases as well:

E. Price Decreases. [Qwest] can decrease any BCS [basic communications service] price to any lawful price, upon a showing that the requirements of IAC 38.5(4) are met. Any such decrease may be accumulated and used to offset a decrease or portion thereof required during the following 12 months.
[Qwest] shall decrease its BCS price in a percentage amount equal to the amount that the Productivity offset exceeds the annual rate of inflation ... on an anniversary date of the effective date of this Plan. If the required decrease is less than 2%, the reduction may be deferred for one year. Any required price decrease can be offset by a price increase which would have been permitted during the preceding twelve months.

The annual rate of inflation, according to the plan is

the annual percentage change (the value of the index in the most recent quarter divided by the value of the index for that quarter in the previous year minus one) in the Gross Domestic Product Price Index (GDPPI) constructed using chain-type annual weights as published in the most recently available monthly edition of the U.S. Department of Commerce’s Survey of Current Business, Table 7.1.

Under the Qwest plan, Qwest was required to adjust its prices on November 7, 1999, the beginning of the second year of the plan, if the productivity offset exceeded the inflation rate by two percent or more. On October 8,1999, a month before the end of the first year, Qwest submitted a letter indicating that a 1.41% decrease was required by the plan and notifying the board of its decision to defer the decrease for one year, as allowed by the plan. Qwest used the GDPPI calculations from the September 1999 advance GDPPI to calculate the decrease. On November 8, 1999, Qwest filed an amended calculation using the October 1999 advance GDPPI, which resulted in a reduction of 1.21%. In October 2000 Qwest submitted a proposal to adjust basic service prices using the GDPPI data available on the Bureau of Economic Analysis’s (BEA) website in order to make its calculations under Iowa Code section 476.97(3)(a)(5), and (6) (1999). Iowa Code section 476.97(3)(a)(5) provides:

The plan shall provide for both increases and decreases in the prices for basic communications services reflecting annual changes in inflation and productivity. Prior to January 1, 2000, the board shall use the gross domestic product price index, as published by the federal government, for an inflation measure, and two and six-tenths percentage points for a productivity measure. On or after January 1, 2000, the board by rule may adopt current measures of inflation and productivity.

Iowa Code section 476.97(3)(a)(6) provides rules for deferral and accumulations of price increases. It then provides:

A price decrease for basic communications services shall not be deferred or accumulated, except that price decreases of less than two percent may be deferred by the local exchange carrier for one year. A price decrease required under this section may be offset by a price increase for a basic communications service that would have been permitted under this section in the previous twelve-month period, but which was deferred by the local exchange carrier.

In October 2000 the OCA objected to Qwest’s price-plan adjustment, contending the rate of inflation, when measured according to the price plan, was 1.19%, which would result in a difference between productivity and inflation of 1.41%. The OCA also contended the statute and price plan require that reductions must be implemented across the board and that Qwest’s revenue-based method of reductions, to be applied to certain services, was unlawful.

The board ruled that the price plan allowed Qwest to make reductions to selected services, as it proposed, in order to implement the required decrease. The board also allowed Qwest to use the figures from the internet and not the figures provided by OCA, which were from the printed version of the same source. The board reasoned that the critical language in the price plan was that the figures used be the most current available and that the generally accepted definition of “published” was broad enough to include data publicly available regardless of its format— internet as well as printed form.

The OCA filed a petition for judicial review. The district court affirmed the board, concluding that the numbers from the BEA website provided the most accurate values and that the board’s decision to allow Qwest to use them was within the statute and within the zone of reasonableness. The court also found that reductions in price selectively based on revenue, rather than across the board, were reasonable and within the board’s discretion.

II. Standard of Review.

The board construed the applicable statutes in a way that supports its

conclusions, and the amount of deference we give to its interpretation is significant in our analysis of the case. Although courts give only limited deference to an agency interpretation of law, an “agency’s determination of a question of law is given careful consideration in areas of the agency’s expertise.” Madrid Home for the Aging v. Iowa Dep’t of Human Servs., 557 N.W.2d 507, 510-11 (Iowa 1996). The OCA argues that revisions to the Iowa Administrative Procedure Act (IAPA) in 1998 effectively overruled the Madrid Home decision, but we disagree. The revisions were intended to confirm and clarify “that interpretation is normally a judicial function, except when the legislature has delegated the discretionary authority to the agency.” Locate.Plus.Com v. Iowa Dep’t of Transp., 650 N.W.2d 609, 613 (Iowa 2002). One commentator has made the following observations with respect to the court’s determination of whether such authority has been delegated:

The reviewing court, using its own independent judgment and without any required deference to the agency’s view, must have a firm conviction from reviewing the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved, that the legislature actually intended (or would have intended had it thought about the question) to delegate to the agency interpretative power with the binding force of law over the elaboration of the provision in question.

Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 62 (1998) [hereinafter Bonfield].

The legislature carefully considered the role of the board in price regulation. In its policy statement, the legislature instructed the board to “address issues relating to the movement of prices toward cost and the removal of subsidies in the existing price structure of the incumbent local exchange carrier.” Iowa Code § 476.95(3) (1997). The legislature regarded the board’s expertise as critical to effective management of this area; the board was to “respond with speed and flexibility to changes in the communications industry.” (Iowa Code § 476.95(5)). We conclude the legislature gave the board discretion as contemplated by the IAPA. See Iowa Code § 17A.19(ll)(c). Therefore, the board’s interpretation of the applicable statutes is entitled to “appropriate deference.” Id.

Telecommunications services are a public utility, and the court grants “considerable deference to the agency’s expertise, especially when the decision involves the highly technical area of public utility regulation.” S.E. Iowa Coop. Elec. v. Iowa Utils. Bd., 633 N.W.2d 814, 818 (Iowa 2001). Given the legislature’s obvious regard for the expertise of the public utilities board in the area of price regulation of telecommunications services, it is clear that this is precisely the type of expertise toward which the court should grant great deference. The district court, in scrutinizing the agency’s decision to see if it fell within the “zone of reasonableness,” applied the proper standard of review. See id., 633 N.W.2d at 818; Bonfield at 63. We apply that standard of review in this appeal.

III. Resolution.

A. Which version is to be used? The OCA argues that some of the language in the Qwest price plan to the “Survey of Current Business,” requiring “the most recently available monthly edition,” means Qwest must use the printed version of the Survey. However, we believe this gives the word “publication” too narrow a meaning. The BEA, in describing the availability of its tables, makes no distinction as to the medium in which it is to be published. A notice on the availability of the new tables states: “The redesigned NIPA tables will be available in hard copy, on diskette, and on BEA’s Web site at www.bea.doc.gov on October 1.” Brent R. Moulton & David F. Sullivan, A Preview of the 1999 Comprehensive Revision of the National Income and Product Accounts, Survey of Current Business (September 1999) (available at www.bea.gov). In its mission statement, the BEA says that it “promotes a better understanding of the U.S. economy and its competitive position by providing the most accurate and relevant gross domestic product (GDP) and economic accounts data in a timely and cost effective manner.” (http://www.bea/ role.html (last visited May 28, 2003)) In view of the BEA’s interest in timely and accurate information, it is unlikely it would advocate the use of outdated information in calculations. This is the essence of the board’s ruling, affirmed by the district court, and we believe it was correct.

B. Application of cost reductions. Qwest reduced prices for selected communications services to effect the required 1.21% overall reduction, rather than reducing prices across the board to all Qwest services as argued by the OCA. The board approved this method, finding nothing in the Qwest plan or the applicable statutes that required the reductions to be made across the board. This was consistent with earlier board rulings and reflects a concern for costs in various Qwest services. To reduce prices across the board, rather than with regard to productivity, would mean in certain areas Qwest’s prices charged would be below its costs.

We believe the board acted within its authority on these issues, and we therefore affirm.

AFFIRMED.

      . The OCA is a division of the attorney general's office charged with the investigation "of all persons under the jurisdiction of the utilities board” and empowered to file civil proceedings to correct any illegality on the part of such persons. Iowa Code § 475A.2(1) (1999).


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Travis James JORDAN, Appellant.
    No. 02-0526.
    Supreme Court of Iowa.
    June 11, 2003.
    Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Ron Robertsen, County Attorney, and Timothy N. Schott, Assistant County Attorney, for appellee.
   CADY, Justice.

This appeal from a judgment and sentence for assault with a bodily fluid as a habitual offender and interference with official acts presents two issues. The first is whether a party may impeach the credibility of a hearsay declarant who does not testify at trial. The second issue concerns the sufficiency of evidence to support the habitual offender element of the crime. On our review, we conclude the credibility of a non-testifying hearsay declarant may be impeached. We also conclude the State produced sufficient evidence at trial to support the conviction. We affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Travis James Jordan was an inmate in one of Iowa’s correctional facilities on July 19, 2001. He was housed in a high-security, lock-down unit of the facility. A correctional officer opened the pass-through port to the cell occupied by Jordan to give him a roll of toilet paper. As he did, Jordan squirted liquid through the port onto the officer. The liquid hit the officer’s face, neck, shirt, and shoulder-mounted radio. Two other correctional officers who were present believed the liquid smelled like urine. Subsequent chemical tests identified the substance to contain known properties of urine. An administrative law judge (ALJ) later investigated the incident.

Jordan was charged in district court with the crimes of assault with a bodily fluid, as a habitual offender, in violation of Iowa Code sections 708.3B, 902.8, and 902.9(3) (2001), and interference with official acts, in violation of section 719.1(2). At trial, Jordan called the ALJ who investigated the incident as a witness. The ALJ testified on direct examination that, during her investigation of the incident at the prison, she heard Jordan yell from his cell that he “didn’t throw urine on the guy. It was water.”

On cross-examination of the ALJ, the prosecutor asked the witness if she was aware Jordan had been convicted of burglary in the past, and whether she knew he had been convicted twice in the past of theft. At an earlier hearing on a motion in limine, the district court held that questions concerning the prior convictions were admissible to impeach Jordan’s credibility as an out-of-court declarant.

The jury found Jordan guilty of assault with a bodily fluid and interference with official acts. The trial then proceeded to the habitual offender phase. The State produced certified copies of Iowa District Court files from Marshall, Poweshiek, and Grundy Counties showing an individual named “Travis James Jordan” had been convicted of burglary in the second degree in 1990, theft in the second degree in 1992, and theft in the second degree in 2000. An employee of the department of corrections testified that prisoners are assigned a unique seven-digit number the first time they enter the correctional system, and keep the number if they enter the system again after discharge. All records maintained by the department utilize the seven-digit number. The officer made an in-court identification of Jordan and further testified that the prison records maintained on Jordan under his prison number corresponded to the three prior convictions set forth in the court records.

The jury found Jordan a habitual offender based on the three prior felony convictions. The district court sentenced him to a term not to exceed fifteen years for assault with a bodily fluid. This sentence was ordered to run consecutively with the sentence he was serving at the time of the incident. The district court also sentenced Jordan to a term not to exceed two years for interference with official acts, to run concurrently with the sentence for assault with a bodily fluid.

Jordan appeals. He claims the district court erred by permitting the State to impeach his credibility with evidence of his past convictions when he did not testify at trial. He also claims there was insufficient evidence to support his identity as a habitual offender.

II. Standard of Review.

Generally, questions involving the admissibility of evidence are reviewed for an abuse of discretion. Kurth v. Iowa Dep’t of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Except in cases of hearsay rulings, trial courts have discretion to admit evidence under a rule of evidence. See State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). However, to the extent a challenge to a trial court ruling on the admissibility of evidence implicates the interpretation of a rule of evidence, our review is for errors at law. See State v. Birth, 604 N.W.2d 664, 665 (Iowa 2000). Our review of challenges to the sufficiency of evidence is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).

III. Impeachment of Hearsay Declar-ants.

We first address the claim by Jordan that the district court erred in permitting the State to cross-examine the ALJ about his prior convictions. The dispute over the impeachment of a hearsay declar-ant arises largely because the traditional approach to hearsay followed in our legal system has focused almost exclusively on the rules regulating the exclusion of hearsay. See John G. Douglass, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 George Wash. L.Rev. 191, 194-97, 252 (1999). Consequently, courtroom battles over hearsay have nearly always centered on the admission of hearsay, with little consideration given to mounting a further challenge to the hearsay after it has been admitted. Id. at 252. Likewise, there are few cases and legal articles illuminating the subject of attacking the credibility of a hearsay declarant. Id.

Consistent with this background, Jordan premises his claim of error on the widely held view that a person who does not testify as a witness in court may not be impeached. See State v. Jones, 471 N.W.2d 833, 836 (Iowa 1991) (past crimes to impeach a witness must be those of the witness). He then mounts a two-pronged attack. Using a theoretical analysis based on the approach followed in determining whether admission of hearsay statements at trial conflicts with the Confrontation Clause, Jordan argues that once hearsay has been admitted into a trial pursuant to an exception to the rule against hearsay, it may not be subject to further challenge because, by its admission, the court has determined it to be reliable. See White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859 (1992) (“[Wlhere proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.”)- Additionally, Jordan points out that the rule of evidence governing impeachment by evidence of a conviction of a crime applies by its language only to the “credibility of a witness.” See Iowa R. Evid. 5.609. Accordingly, Jordan concludes the prosecutor improperly used the evidence of his prior convictions because he never testified as a witness in the case.

We acknowledge the historical role of the Confrontation Clause in regulating the admission of hearsay. See White, 502 U.S. at 352-53, 112 S.Ct. at 740-41, 116 L.Ed.2d at 856-57. Yet, the test of reliability utilized under the clause does not broadly restrict the traditional role of cross-examination once hearsay has been admitted. Additionally, not only is the right to challenge the credibility of the declarant consistent with the Confrontation Clause, our rules of evidence specifically provide for a process to impeach a hearsay declarant. This little recognized provision is Iowa Rule of Evidence 5.806, which provides as follows:

When a hearsay statement, or a statement defined in rule 5.801(d )(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declar-ant had testified as a witness. Evidence of a statement or conduct by the declar-ant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the de-clarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Rule 5.806 is nearly identical to federal rule 806. It essentially permits impeachment of a hearsay declarant, whose hearsay is admitted at trial, by any method of impeachment available to impeach a witness. The advisory committee notes to the federal rule explain:

The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified. See rules 608 and 609.

Fed.R.Evid. 806 advisory committee’s note. Thus, the rule primarily exists to even the playing field when a party attempts to present hearsay evidence through a witness other than the declarant in an effort to prevent the other party from challenging the declarant’s credibility or to capitalize on the good credibility of the witness. See David Sonenshein, Impeaching the Hearsay Declarant, 74 Temple L.Rev. 163, 164 (2001).

The rule essentially treats out-of-court declarants as if they testified in the courtroom, and utilizes the other rules of evidence governing in-court witnesses and testimony to determine the manner in which the declarant’s credibility can be attacked or impeached. See United States v. Saada, 212 F.3d 210, 221 (3d Cir.2000). Generally, this means evidence of prior statements, character and conduct, and impeachable prior convictions may be utilized. See Douglass, 67 George Wash. L.Rev. at 252-53; Saada, 212 F.3d at 221. Because the rule allows for the cross-examination of a declarant to take place as if the declarant testified, the process set out in rule 5.806 has been described as “virtual cross-examination.” Douglass, 67 George Wash. L.Rev. at 252-53.

It is unnecessary for us to detail the full scope and application of rule 5.806. In this case, Jordan offered his hearsay statement as proof that the substance squirted on the correctional officer was water, and the State attempted only to impeach Jordan with evidence of Jordan’s prior convictions pertaining to untruthfulness. Rule 5.609 permits a witness to be impeached by a prior conviction, and rule 5.608 permits the prior convictions to be inquired into on cross-examination.

We conclude the district court did not err by permitting the State to attempt to impeach the declarant after the witness testified on direct examination to a hearsay statement made by Jordan and offered for the truth of the matter asserted. The procedure followed by the State was permitted under rule 5.806 and, contrary to Jordan’s claim, was not inconsistent with our holding in State v. Jones. In Jones, we indicated prior convictions used for impeachment purposes must be prior convictions of the witness. Jones, 471 N.W.2d at 836. However, the witnesses sought to be impeached in Jones provided only character testimony about the defendant, and did not testify to any hearsay statements. Id. at 834-35. This is a critical 'factor and serves to distinguish the case from this case. Jones did not implicate rule 5.806.

IV. Substantial Evidence of Habitual Offender Status.

Under Iowa law, the identity of names between the defendant and a defendant named in a judgment of conviction, by itself, is insufficient to establish the defendant as a habitual offender. See State v. Sanborn, 564 N.W.2d 813, 815 (Iowa 1997). There must be additional evidence showing the defendant is the same person named in the judgment of conviction. See id. at 815-16.

In Sanborn, we indicated that other evidence to support the necessary match between the defendant and a defendant named in a judgment of conviction included a social security number and a birth date. Id. at 816. The uniqueness of the full name is also a factor. Id. The evidence, as a whole, must be such “as could convince a rational trier of fact that defendant is guilty beyond a reasonable doubt.” State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).

In this case, substantial evidence exists to show Jordan was the same “Travis James Jordan” named in the prior judgments of conviction. Not only is the full name relatively unique, but each judgment of conviction matched the convictions listed in Jordan’s prison records, which were identified by Jordan’s personal inmate identification number. The crimes and dates of the court judgments were consistent with the prison records. We conclude the trial record contained sufficient proof to support a finding by the jury that Jordan was previously convicted of three felony offenses.

V. Conclusion.

We affirm the judgment and sentence of the district court.

AFFIRMED.

      . At the hearing on the motion in limine, counsel for Jordan argued the hearsay statement by Jordan was admissible as a statement against interest (an admission to the interference with official acts charge) and an excited utterance (there was evidence Jordan made a statement in an angry manner in response to statements made by correctional officers, and after he accused the officers of "lying”). Jordan argued the grounds supporting the admission of the hearsay statement established that the evidence had sufficient guarantees of reliability. Ultimately, the State did not object to the admissibility of the statement at trial.

      . The very strength of cross-examination comes, in large measure, from the ability of lawyers to engage in hostile questioning, the process of " 'testing the recollection and sifting the conscience of the witness.’ ” John G. Douglass, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 George Wash. L.Rev. 191, 249 (1999) (quoting Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895)). Cross-examination not only seeks to elicit details omitted during direct examination to show inconsistencies or qualifications in the testimony, but also to draw out facts to demonstrate the witness is mistaken or untruthful. Id. at 241.

      . We acknowledge a variety of issues have surfaced concerning the application of the rule under circumstances not implicated in this case that may confine its scope. See, e.g., State v. Martisko, 211 W.Va. 387, 566 S.E.2d 274, 279-82 (W.Va.2002) (discussing the intersection of rule 806 with the bar on use of extrinsic evidence of prior bad conduct under rule 608(a)); David Sonenshein, Impeaching the Hearsay Declarant, 74 Temple L.Rev. 163, 164-70 (2001) (generally discussing various issues in the application of rule 806); Margaret Meriwether Cordray, Evidence Rule 806 and the Problem of Impeaching the Nontestify-ing Declarant, 56 Ohio State LJ. 495 (1995) (same).

      . While rules 5.608 and 5.609 permit a witness to be impeached with a prior conviction on cross-examination, the witness in this case denied any knowledge of Jordan’s prior convictions. Consequently, the State's effort to impeach was incomplete because the record revealed that the extrinsic evidence of the prior convictions subsequently introduced at trial was only admitted during the habitual offender phase of the trial. Nevertheless, the questions propounded by the prosecutor clearly suggested to the jury that Jordan had been convicted of the crimes.
      An in-court witness who testifies to a hearsay statement may be questioned on cross-examination about any knowledge of the de-clarant’s prior convictions concerning dishonesty. See United States v. Saada, 212 F.3d 210, 221 (3d Cir.2000); United States v. Bovain, 708 F.2d 606, 613 (11th Cir.1983); Douglass, 67 George Wash. L.Rev. at 252-53. However, if the in-court witness has no knowledge of the declarant’s prior convictions, then the party seeking to impeach must resort to extrinsic evidence to complete the impeachment. See Rule 5.608; Saada, 212 F.3d at 221.