author: GORS, Acting Justice. GILBERTSON, Chief Justice SABERS, Justice

text:
    2002 SD 62
    ESTATE OF Florence FISHER, Deceased, Plaintiff, v. Dean FISHER and Norma Fisher Husband and Wife, Defendants. Donald Fisher, Plaintiff and Appellant, v. Estate of Florence Fisher, Deceased, Defendant and Appellee. Donald O. Fisher, Plaintiff and Appellant, v. Dean Fisher, Defendant and Appellee, v. Joanita Kant-Montieth, Third-Party Defendant.
    No. 21958.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2002.
    Decided May 22, 2002.

      James M. Cremer of Bantz, Gosch <& Cremer, L.L.C., Aberdeen, South Dakota, for appellant Donald 0. Fisher.
    Lonald L. Gellhaus, Jay R. Gellhaus of Gellhaus, Gerdes & Gellhaus, P.C., Aberdeen, South Dakota, for appellee Dean Fisher.
   GORS, Acting Justice.

[¶ 1.] Donald Fisher (Donald) sued his brother Dean Fisher (Dean) alleging that Donald had a first-chance-to-buy land sold to Dean by John (Father) and Florence (Mother) Fisher (Parents) on a contract for deed. The trial court held that Dean fulfilled the contract and that he was entitled to the land free and clear of any claims by Donald. We affirm.

FACTS AND PROCEDURE

[¶ 2.] This is a land dispute between two brothers. On January 15, 1976, Dean entered into a contract for deed with Parents to purchase four quarters of land near Britton, South Dakota. Payments covered twenty years. The contract stated the following:

It is understood by the parties that [Dean] is purchasing the real estate in question for the purpose of farming it; however, if [Dean] subsequently decides to quit farming, is incapacitated so he cannot farm said land, or becomes incompetent or predeceases [Parents] during the life of this contract, then it is agreed between the parties that Donald ... shall have the first chance to buy the above-described property_

The contract also stated that the land was to be conveyed to Dean by warranty deed, “free and clear of all liens and encumbrances” upon payment. Parents es-crowed a warranty deed to be delivered to Dean upon payment of the contract. The deed contained no restrictions.

[¶ 3.] In 1977, Dean married Joanita Kant Fisher (Joanita). The contract for deed was modified to add Joanita as a party. Father died in 1978 and his interest in the contract for deed passed to Mother. In 1982, Dean and Joanita moved to Watertown. Dean sold his machinery and cattle and rented the tillable land to Dalton Docter (Docter) and the pastureland to Hubert Dinger (Dinger). Dean made payments to Mother until 1987.

[¶ 4.] In the summer of 1985, Dean returned to Britton to work for Jarrett Farms. Dean and Joanita divorced in 1986. As part of the divorce, Joanita received one of the four quarters of land (Joanita Quarter) that was part of the contract for deed. The divorce decree gave Dean the first right to purchase the Joanita Quarter if she decided to sell it. Two years later, Joanita brought a quiet title action against Dean, Florence and Donald. The quiet title was resolved by stipulation. Joanita received clear title to her quarter of land. Dean’s first right to purchase the Joanita Quarter continued in the event Joanita sold the land, and further provided that if Dean repurchased the land, Donald’s first-chance-to-buy under the contract would also reattach.

[¶ 5.] Joanita rented her quarter until she decided to sell it to Donald in 1997. Dean sued Joanita and Donald to exercise his first right to purchase. The trial court entered a judgment giving Dean the right to purchase the Joanita Quarter by paying $88,000 by March 30, 1998. Dean borrowed $90,000 from the Landreths, who are his neighbors, and paid Joanita. Joa-nita executed a warranty deed conveying the land to Dean, free and clear of all encumbrances. The deed was recorded. Even though Dean now owned the land, Donald had leased it from Joanita for the 1998 crop-year and Dean was effectively excluded from the Joanita Quarter for the first year that he owned it. Dean had the Joanita Quarter custom farmed by Peter Bremmon in 1999 and 2000.

[¶ 6.] Dean’s lease agreements with Docter and Dinger on the other three quarters of land expired in 1987. Thereafter, Dean personally farmed the other three quarters of land. In 1994, Dean began certifying these three quarters of land for organic farming. The tillable acres of these three quarters became fully certified “organic” in 1998. The organic certification was still in effect at the time of trial.

[¶ 7J Mother died in 1996. The contract provided:

[I]f [Parents] die during the life of this Contract, then upon the demise of the latter of the two, [Dean] is to pay, or enter into a Contract to pay, [Donald] one-half of the remaining unpaid balance of this Contract for Deed due and owing at that time, after which this Contract will terminate and cease to exist and [Dean] will be entitled to have the Warranty Deed ... delivered to him and to thereafter have clear and merchantable title....

Shortly after Mother’s death, Donald learned that Dean had been in default on the contract since 1987. Donald began foreclosure on behalf of Mother’s estate in 1998. In 1999, a judgment in the foreclosure action determined that the principal and interest due from Dean to redeem the contract totaled $188,025.20. Therefore, under the terms of the contract, Dean owed Donald one half, which was $94,012.60. Dean borrowed $186,500 from Mark Hartinger, the stepson of one of the Landreths, and tendered the full payment of $190,322.70 into escrow on November 27, 1999, to payoff the contract. Donald refused to authorize delivery of the warranty deed from escrow.

[¶ 8.] The case was tried March 7-8, 2001. The trial court found that Dean had fulfilled his part of the contract in November, 1999, when he had $190,322.70 placed in escrow to pay Donald. The trial court also found that Dean’s payment of the contract terminated Donald’s first-chance-to-buy the real estate. The trial court held that Dean was entitled to receive the warranty deed held in escrow. The trial court further found that Dean had not quit farming and did not sell the land during the life of the contract.

[¶ 9.] Donald appeals on the following issues:

1. Whether Dean’s payoff of the contract terminated Donald’s first-chance-to-buy.
2. Whether Dean quit farming within the life of the contract.
3. Whether the tender of payments stopped the interest from accruing.

STANDARD OF REVIEW

[¶ 10.] Our standard of review is well settled. ‘We will not set aside a trial court’s findings of fact unless they are clearly erroneous. A trial court’s finding is clearly erroneous if, ‘after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been made[.]’ ” In re Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490 (internal citations omitted). We review a trial court’s conclusions of law under the de novo standard, giving no deference to the trial court’s conclusions of law. Osloond v. Os-bond, 2000 SD 46, ¶ 6, 609 N.W.2d 118, 121.

ANALYSIS

[¶ 11.] 1. Whether Dean’s payoff of the contract terminated Donald’s first-chance-to-buy.

[¶ 12.] The dispute between Donald (age 71 in 2000) and Dean (age 60 in 2001) centers on the following provision in the contract:

If [Dean] subsequently decides to quit farming, is incapacitated so he cannot farm said land, or becomes incompetent or predeceases [Parents] during the life of this contract, then it is agreed between the parties that Donald ... shall have the first chance to buy the above-described property....

(emphasis added). The contract is unambiguous. The contract is not rendered ambiguous just because the parties do not agree on what it means.

A contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when' viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

Divich v. Divich, 2002 SD 24, ¶ 10, 640 N.W.2d 758; (citing Singpiel v. Morris, 1998 SD 86, ¶ 16, 582 N.W.2d 715, 719). The contract provides that if Dean decides to quit farming, becomes incapacitated, incompetent, or predeceases his parents, then Donald shall have the first-chance-to-buy the property. Donald argues that the phrase “during the life of this contract” only applies if Dean “predeceases [Parents].” Donald claims that even if Dean pays off the contract and then “subsequently decides to quit farming,” Donald has the right to purchase the land. Under this theory, Dean could never sell the property to anyone but Donald as long as Donald is alive. We disagree.

Doctrine of the Last Antecedent

[¶ 13.] In support of his position, Donald advances the “Doctrine of Last Antecedent,” which provides the following:

It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.

Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 617 (S.D.1994). Donald urges us to construe the words “during the life of this contract” to modify only “predeceases [Parents].” Under Donald’s argument, the phrase “decides to quit farming” survives payoff of the contract and prevents delivery of the deed to Dean. If the phrase “decides to quit farming” survives payoff, Donald would continue to have a first-ehance-to-buy the property as long as Donald lives. To secure his first-chance-to-buy, Donald then makes the quantum leap in logic that he can order the escrow agent to retain possession of the warranty deed.

[¶ 14.] Essentially Donald argues that “during the life of the contract” would have to appear after each phrase in the list to modify anything more than the phrase “predeceases [Parents].” Carrying Donald’s argument to its logical extreme, the paragraph would have to read as follows:

[I]f [Dean] subsequently decides to quit farming during the life of this contract, is incapacitated so he cannot farm said land during the life of this contract, or becomes incompetent during the life of this contract or predeceases [Parents ] during the life of this contract, then it is agreed between the parties that Donald ... shall have the first chance to buy the above-described property....

(emphasis added). Donald’s argument is wrong. If Donald is correct, then the phrase “predeceases [Parents] during the life of this contact” would be meaningless because Dean predeceasing Parents is contained within each of the prior contingencies in the list. For example, if Dean died, he would most certainly quit farming. If Dean died, he would most certainly be incapacitated so he could not farm the land. Finally, if Dean died, he would also become incompetent. A contract should not be interpreted in a manner that renders a portion of it meaningless. Bowen v. Monroe Guar. Ins. Co., 758 N.E.2d 976, 980 (Ind.App.2001). A more logical and less strained reading of the contract is that if any of the four conditions occur “during the life of the contract,” then the first-chance-to-buy would be triggered.

Doctrine of Merger

[¶ 15.] The doctrine of merger provides “that upon delivery and acceptance of an unambiguous deed, all prior negotiations and agreements are deemed merged within.” Nelson v. Gregory County, 323 N.W.2d 139, 141 (S.D.1982). In Urquhart v. Teller, 288 Mont. 497, 958 P.2d 714, 719 (1998), the Montana Supreme Court noted that, “[i]t is a general tenet of contract law that all provisions in a contract for sale of real property are merged into the deed. Thus, when a deed has been executed, the purchaser’s rights are generally found in the deed covenants, not the executed contract.” (internal citations omitted). In this case the contract for deed was unambiguous, expressly stating that Dean was entitled to the escrowed warranty deed with “clear and merchantable title” when the contract for deed was paid. The contract called for delivery of an unrestricted deed and the deed placed in escrow contained no restrictions. Under the doctrine of merger, Donald’s first-chance-to-buy under the contract did not survive Dean’s payoff of the contract.

[¶ 16.] We also note that in general, “title to property under a deed deposited into escrow transfers when the escrow delivers the deed or when the conditions placed upon its delivery have been met.” Hartman v. Wood, 436 N.W.2d 854, 856 (S.D.1989) (citing 28 Am.Jur.2d Escrow 29 (1966)). A warranty deed, as required by law, is a conveyance in fee simple, free from all encumbrances. SDCL 43-25-6. Parents’ warranty deed is a standard warranty deed, without any restrictions. Dean met the conditions of the contract and therefore Dean should have complete ownership of the property without any liens or encumbrances.

[¶ 17.] If the doctrine of merger is not applied, once the contract is paid and the unrestricted warranty deed is recorded, a subsequent purchaser would not have adequate notice of the first-chance-to-buy lurking in the contract for deed. Under Donald’s view that the contract is not merged into the deed, purchasers and ab-stractors would be required to examine every contract for deed in every chain of title — even if it was followed by an unrestricted warranty deed. A search disclosing vague conditions would then require speculation whether the conditions survive payoff of the contract and recording of the warranty deed. If Donald’s argument is correct, Donald’s first-chance-to-buy could only be cleared from the title by obtaining a quit claim deed from Donald that expressly relinquished his first-chance-to-buy, or, in the event of Donald’s death, by filing proof that Donald was dead to establish that his first-chance-to-buy had expired with him.

Agreement to Agree

[¶ 18.] Donald’s first-chance-to-buy provided in the contract for deed reads as follows:

Donald 0. Fisher ... shall have the first chance to buy the above-described property, at a price to be agreed upon between the said Dean D. Fisher and Donald Fisher [.]

(emphasis added). This provision is an agreement for one of the parties to agree with someone who is not a party to the contract. “[A]n agreement to agree does not fix an enforceable obligation. It is indefinite, vague, and uncertain. An agreement must be sufficiently definite to enable a court to give it an exact meaning.” Deadwood Lodge No. 508, Etc. v. Albert, 319 N.W.2d 823, 826 (S.D.1982). Therefore, even if the first-chance-to-buy applied forever, as Donald would have us hold, it is unenforceable because the trial court could not force Donald and Dean to agree on a price and it is not the function of the trial court to fix the price for the parties. Engle v. Heier, 84 S.D. 535, 537, 173 N.W.2d 454, 456 (1970).

Drafting

[¶ 19.] If Parents had intended to give Donald a first-chance-to-buy after payoff of the contract for deed, careful drafting could have avoided this case. Donald conceded at oral argument that the unrestricted warranty deed is not consistent with his position that the first-chance-to-buy survives payoff of the contract for deed. If Parents wanted Donald’s first-chance-to-buy to survive payoff of the contract for deed, then the warranty deed could simply have stated that the conveyance was subject to Donald’s first-chance-to-buy as set forth in the contract for deed dated January 15, 1976, and recorded in the office of the Marshall County Register of Deeds, followed by the recording information.

[¶ 20.] 2. Whether Dean quit farming within the life of the contract.

[¶ 21.] Donald argues that even if Dean’s payoff of the contract extinguished Donald’s first-chance-to-buy, Dean quit farming prior to the payoff of the contract, thereby triggering Donald’s first-chance-to-buy.

[¶ 22.] Dean moved to Watertown and rented his land to his neighbors from 1982-1987. During those years, Mother made no objections and continued to accept Dean’s payments. The trial court found that Mother’s conduct condoned a broad interpretation of the word “farming.” We agree. Black’s Law Dictionary defines “farm” as “[t]o lease or let; to demise or grant for a limited term and at a stated rental. To carry on business or occupation of farming.” Black’s Law Dictionary 606 (6th ed 1990). In this case, renting the land is sufficient to constitute farming. Donald conceded at oral argument that Dean’s rental of the land to Docter and Dinger from 1982 to 1987 is not the basis for his argument that Dean quit farming.

[¶ 23.] Instead, Donald claims that Dean quit farming the Joanita Quarter when he hired Peter Bremmon to custom farm the Joanita Quarter in 1999 and 2000. Bremmon also custom farmed the Lan-dreths’ land for them. Dean signed over the proceeds from the crops grown on the Joanita Quarter directly to the Landreths. Donald claims that Dean had actually sold the Joanita Quarter to the Landreths and thereby quit farming it. Donald points out that the Landreths told their bank that they were buying the Joanita Quarter. However, Dean borrowed $90,000 at 9% interest by signing a note to the Landreths when he bought back the Joanita Quarter from his ex-wife. Dean testified he was simply repaying part of the loan by turning the proceeds from the crops grown on the land directly over to the Landreths.

[¶ 24.] Dean had a valid reason to have the Joanita Quarter custom farmed. Dean’s other three quarters of land were certified organic. The Joanita Quarter was not. If Dean used his machinery to farm the Joanita Quarter, then his machinery would be contaminated and he would lose his organic certification. Faced with the choice of contaminating his equipment and losing his organic certification on three quarters of land or hiring a custom farmer, Dean’s decision to hire someone to work the Joanita Quarter seems prudent. We agree with the trial court that Dean did not “quit farming” by hiring Peter Bremmon to farm the Joanita Quarter.

[¶ 25.] While it is undisputed that Dean personally farmed the other three quarters organically in both 1999 and 2000, Donald still argues that Dean quit farming these three quarters when he borrowed the money from Mark Hartinger to redeem them. Hartinger is a stepson of one of the Lan-dreth’s. Donald claims that the loan from Hartinger to redeem the land is really a purchase because Hartinger also told his banker he was buying the land.

While Dean signed a note and a mortgage to secure the loan from Hartinger and the Landreths, there is no conveyance, only innuendo. What the Landreths intended, anticipated or said to their bankers is irrelevant. While there is an implication that Dean might sell the land to the Lan-dreths in the future, the trial court found that there was no evidence that Dean actually sold the property to Landreths and also found that Dean was not bound by representations that the Landreths made to other people. We agree.

[¶ 26.] Part of the reason Dean resorted to the Landreths for help was Donald’s conduct. First, Donald tried to buy the Joanita Quarter out from under Dean. Second, Donald’s 1998 crop-year lease from Joanita excluded Dean from the Joanita Quarter after he bought and paid for it in 1998. Third, through litigation, Donald has cast a cloud on Dean’s title to the Joanita Quarter, which prevented him from obtaining conventional financing to payoff the Landreths. Fourth, Donald has persistently refused to deliver the warranty deed for the other three quarters of land in spite of Dean’s payment of the entire amount owing on the contract, which has also prevented Dean from obtaining conventional financing. Dean turned to the Landreths because of Donald’s litigation and delays.

[¶ 27.] 3. Whether the tender of payment stops the interest from accruing.

[¶ 28.] Donald argues that Dean’s payoff of the contract was conditioned on obtaining a deed from Donald, and that this condition does not stop the accrual of interest. We disagree. SDCL 20-5-18 provides in pertinent part:

An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of the interest on the obligation....

(emphasis added). Donald argues that he had a right to test the validity of his claim and that interest should continue to accrue during this time. This argument fails. The trial court held, and we agree that upon Dean’s tender of the full payment he was entitled to a warranty deed free and clear of any claims or conditions. Pursuant to SDCL 20-5-18, even if title is not immediately transferred, tender of payment stops the accrual of interest. Dean is not required to pay interest on the contract for deed while Donald takes him to court. We agree with the trial court and hold that no further interest is owing.

CONCLUSION

[¶ 29.] Dean fulfilled the contract for deed on November 7, 1999, by paying $190,322.70 into escrow. Further, Dean did not quit farming and he did not sell the land. Dean owes no further interest on the contract for deed. The warranty deed should be delivered to Dean.

[¶ 30.] Affirmed.

[¶ 31.] AMUNDSON and KONENKAMP, Justices, concur..

[¶ 32.] GILBERTSON, Chief Justice, and SABERS, Justice, dissent.

[¶ 33.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

GILBERTSON, Chief Justice

(dissenting).

[¶ 34.] I respectfully dissent. In doing so, I take at face value the description in Dean’s own brief of his occupational endeavors from 1982 to 1987:

In 1982, Dean and Joanita M. Kant Fisher decided to move to Watertown, South Dakota. Dean sold his machinery and cattle and rented the real estate that is the subject of the Contract for Deed and Supplemental Agreement concerning Contract for Deed. The tillable land was rented to Dalton Docter and the pastureland was rented to Hubert Dinger for approximately six years, during 1982 through 1987.

Thereafter, as the majority opinion acknowledges, Donald hired Peter Bremmon to farm the Joanita Quarter in 1999 and 2000 and the Landreths apparently controlled the balance of the land that Brem-mon also custom farmed. Thus, a history is clearly established as to Dean’s lack of direct contact with the farm after 1982.

[¶ 35.] In 1974, two years prior to the signing of the contract for deed, the Legislature enacted a statutory definition of “farming.” See 1974 SD Sess.L. ch. 294, § 3(4). Although the provision deals with corporate farming, it establishes a clear legislative determination that farming and ownership of farmland are not synonymous. SDCL 47-9A-2(4) defines “farming” in relevant part to be: “the cultivation of land for the production of agricultural crops; livestock or livestock products; poultry or poultry products; milk or dairy products; or fruit or other horticultural products.” See also SDCL 47-9A-3 (distinguishing between farming and the ownership of farmland).

[¶ 36.] This statutory definition is in line with prior case law that defines farming as the tillage of soil or the cultivation of land. Sohner v. Mason, 136 Cal.App.2d 449, 288 P.2d 616, 617 (1955). “[T]he dominant and distinguishing characteristic of [farming] in both the popular and the legal sense of the term, is the cultivation of the soil for the production of crops therefrom.” Chudnov v. Bd. of Appeals of Town of Bloomfield, 113 Conn. 49, 154 A. 161, 162 (1931).

[¶ 37.] The overly expansive definition of farming from Black’s Law Dictionary, relied upon by the majority, is at odds with the above authority. Under that definition, anyone other than Dean who owned the property from 1982 to 1987 and rented it out to the same tenants would have been classified as a “farmer.” This Black’s definition converting landowners into farmers has been specifically rejected by the United States Court of Appeals for the Eighth Circuit. See In re Easton, 883 F.2d 630, 634 (8thCir.l989) (stating “we reject the proposition ... that the renting out of land simpliciter constitutes ‘farming[.]’ ”).

[¶ 38.] Definitions aside, the language of the contract for deed itself provides ample support for the view that, to fulfill its terms, Dean was required to personally farm the property. “In determining the proper interpretation of a contract, a court is to seek to ascertain and give effect to the intention of the parties.” Kimball Inv. Land, Ltd. v. Chmela, 2000 SD 6, ¶ 14, 604 N.W.2d 289, 293. In that endeavor, a court, “ ‘must consider the entire contract.’” Hayes v. N. Hills Gen. Hosp., 1999 SD 28, ¶ 62, 590 N.W.2d 243, 254 (quoting S & S Trucking v. Whitewood Motors, Inc., 346 N.W.2d 297, 299 (S.D. 1984)). “A contract is to be examined and read in its entirety with all provisions being read together to construe its meaning.” Friesz ex rel Friesz v. Farm & City Ins., 2000 SD 152, ¶ 10, 619 N.W.2d 677, 680. Here, in the very same sentence, of the contract stating its purpose was for Dean to farm the property, was a clause providing that if he became incapacitated to a degree “he” (i.e., Dean) could not farm the land, then Donald would have the first chance to buy it. The obvious intention of these two clauses when read together was that Dean would personally farm the property. Were the intention that Dean could fulfill the contract by renting or leasing the property, there would be no need for a clause addressing his incapacity, because an incapacitated person can rent or lease property just as easily as a healthy person. Clearly the provision 'was not intended to deal with Dean’s mental incapacity, as there is a separate clause addressing that eventuality.

[¶ 39.] In conclusion, I would hold that Dean quit farming in 1982. There is no provision in the contract that permitted Dean to “unring the bell” and cut off Donald’s rights by restarting farming thereafter. The intention of the contract was to keep the farm in the family as a family farm, not as an investment for an absentee landlord in Watertown. There is no basis in the contract from which we can conclude that Donald’s rights should indefinitely be put on hold as long as Dean retains ownership of the land and mulls over his future options, which may or may not ever include personally farming the land.

[¶ 40.] I respectfully dissent and further join the dissent of Justice SABERS.

SABERS, Justice

(dissenting).

[¶ 41.] I dissent. The majority opinion goes out of its way to frustrate the intent of the parents to keep the farm in the family.

[¶ 42.] The contract for deed (CFD) provided in part:

It is understood by the parties that [Dean] is purchasing the real estate in question for the purpose of farming it; however, if [Dean] subsequently decides to quit farming, is incapacitated so he cannot farm said land, or becomes incompetent or predeceases [parents] during the life of this contract, then it is agreed between the parties that [Donald] ... shall have the first chance to buy the above-described property[.]

(emphasis added).

[¶ 43.] The majority opinion unduly exaggerates Donald’s alleged admission at oral argument. Donald’s counsel simply stated at oral argument that the provisions of

the warranty deed [were not] consistent with the contract for deed ... although that’s what was intended by the parties. And now there’s a judge saying that the warranty deed trumps the contract for deed and I think that is wrong.

The intent of the parents was to keep the farm in the family and not allow it to be sold by Dean to anyone other than Donald or another family member.

[¶ 44.] John and Florence Fisher’s conduct expressed their intent to keep the farm in the family. John’s will provided that “it is also my wish and I so direct that if Dean desires to sell the real estate that is the subject of the Contract for Deed, that my son, Donald 0. Fisher, have the first right to purchase^]” Florence’s will provided that “if my son, Dean D. Fisher ... ever desires to sell the farm real property ... my elder son, Donald 0. Fisher, shall have the first right to purchase the property[.]” The will also provided that the right of purchase would extend to Donald’s children.

[¶ 45.] Because the parents intended for the farm to stay in the family, Dean’s purported payoff of the balance due under the CFD did not extinguish Donald’s right to purchase. This is especially so because Dean’s payoff of the CFD resulted from the violation of the provision providing Donald the first right of purchase. In other words, the majority opinion is allowing Dean to violate the CFD provisions and Donald’s first right of purchase as long as he pays off the CFD with the proceeds of the purchase. Nonsense. The CFD does not give Dean the right to sell the land to a stranger to finance the payoff because the sale is in violation of Donald’s first right of purchase. One should not get the benefit of ending “the life of the contract” by violating it.

[¶ 46.] In addition, Donald should have had the opportunity to buy the land when Dean quit farming. The majority opinion states that “renting the land is sufficient to constitute farming.” While this statement may be true under some circumstances, it is not true under these circumstances. Dean moved to Watertown in 1982, sold all of his farming equipment, and “rented” the land to his neighbors from 1982-1987. Clearly, he decided to quit farming. Even-after he returned to Marshall County, he continued to “rent” the land to others.

[¶ 47.] In fact, Dean did more than rent the land to others, he sold it to others. Here, Dean quit farming, quit paying on the CFD and sold the land to Landreths in violation of his parents’ intent and condition. Because of financial difficulties, he was delinquent in his payments on the contract for deed. To avoid a foreclosure action on his interest in the CFD, Dean essentially sold the land to his neighbors, the Landreths, who arranged for or did all of the farming and received all the profits. Dean’s actions are inconsistent with an intent to farm the land. Therefore, Donald’s right to purchase the land was triggered when Dean quit farming and upon the sale of the land to the Landreths.

[¶ 48.] The trial court erred in its determination that, once Dean paid Donald the balance due under the CFD, Donald had “no further rights, title, encumbrance, or interest [in] the real estate set forth in the Contract for Deed whatsoever[.]” As stated: One should not get the benefit of ending “the life of the contract” by violating it.

[¶ 49.] I would reverse and remand for further proceedings consistent with this writing.

      . Dean paid the full amount to redeem the contract but would later receive one half back as his share of Mother's estate.

      . This Court has previously held that we will apply the doctrine of merger subject to exceptions. Nelson, 323 N.W.2d at 142. The exceptions are fraud or mistake or the existence of collateral contractual provisions or agreements that are not intended to be merged into the deed. Id. None of the exceptions apply in this case.

      . In any event, selling the land is a red herring. Dean could sell some or all of the land without deciding to "quit farming.” Farming does not require ownership of this land or any land. Sharecroppers and renters are still farmers. All Dean has to do to avoid the contractual trigger of Donald's first-chance-to-buy, is to never decide to quit farming. Stated in the positive, Dean would only need to decide to continue farming, even if he farmed some other land, to satisfy the contract. Donald wants the court to read terms into the contract that are not present. Donald wants the contract to say "if [Dean] subsequently decides to quit farming this land," then Donald has the first-chance-to-buy.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    William Eugene LUDTKE, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant.
    No. 00-1805.
    Supreme Court of Iowa.
    May 8, 2002.
    Rehearing Denied July 1, 2002.
    Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attro-ney General, and Mark Hunacek, Assistant Attorney General, for appellant.
    John O. Moeller, Davenport, for appel-lee.
   LAVORATO, Chief Justice.

The Iowa Department of Transportation (IDOT) appeals from a district court ruling on judicial review reversing an IDOT order revoking the driver’s license of William Eugene Ludtke. The sole issue on appeal is whether under the circumstances the arresting officer could lawfully request a second breath test sample. The IDOT held he could, but the district court reversed. Because we disagree with the district court’s ruling, we reverse and remand with directions.

I. Background Facts and Proceedings.

On January 27, 2000, Iowa state trooper Robert Turpin observed Ludtke driving erratically and stopped him. Suspecting that Ludtke was under the influence of alcohol, Turpin proceeded to administer a series of field sobriety tests. A preliminary breath test (PBT) resulted in a .13 reading. Turpin arrested Ludtke for violation of Iowa Code section 321J.2 (1999) (operating a vehicle with an alcohol concentration of .10 or more) and transported him to a law enforcement center. At the station, the trooper invoked the implied consent law, see Iowa Code section 321J.6, and proceeded to administer a breath test using the Model 4011A Intoxilyzer.

The trooper had been certified to use the intoxilyzer for approximately four years. He had performed the test “at least” dozens of times.

The intoxilyzer gauges both the pressure and volume of air a subject blows into the machine. It records the alcohol content of deep lung air and purges the sample into the atmosphere at the completion of a three-stage testing cycle. The intoxilyzer performs a calculation based on a fixed ratio of alcohol in lung air to alcohol in the blood and reports the result as a blood alcohol reading. See State v. Steadman, 350 N.W.2d 172, 173 (Iowa 1984).

The intoxilyzer’s green light indicates when there is sufficient pressure into the machine. If the green light turns off, indicating insufficient pressure, the test aborts and the device does not produce a hardco-py printout. Thus, the machine will not produce a hardcopy printout until the test is complete.

According to the trooper’s testimony, sometimes a subject puffs lightly into the machine for ten seconds, and the machine locks in and accepts that as a satisfactory test. The operator of the machine has no control over the machine once a test begins as to what sample it takes. The operational checklist indicates the operator should instruct a subject “to blow into [the] mouthpiece for as long as possible.” The checklist does not leave a blank space for the officer to record the length of time a subject blows into the machine.

The trooper prepared an operational checklist and followed the procedures necessary to obtain a valid reading from the machine. The first test the trooper administered showed a result of .083 breath alcohol concentration. The machine printed out a hardcopy of the results. According to the trooper, the machine worked properly for the first test and gave him no indication that the test was a failure.

The trooper testified that Ludtke only blew in the intoxilyzer for seven or eight seconds on the first test. For this test, the trooper counted out loud to determine the length of time Ludtke blew into the machine. Because Ludtke blew “for at least ten seconds” for the PBT the trooper administered in the field, the trooper knew Ludtke could blow longer. According to the trooper, Ludtke took the tube out of his mouth before he was through blowing as long and hard as he could. For this reason, the trooper did not consider the first test to be a proper valid breath test, and administered a second test using the intoxilyzer. On the second try, the trooper again prepared an operational checklist. Ludtke blew for twenty seconds on the second test. The test resulted in a .120 reading. The trooper considered the second test a valid test and the more accurate of the two tests. The trooper attributed the difference in results of the two tests to the fact that “the second test was the result of deep lung air ... which is more accurate!,] and the test result of the first one was not.”

The trooper further testified that the intoxilyzer worked properly that day for both tests and that he operated it properly for both tests.

Ludtke did not testify, but he did submit an affidavit after the hearing, in which he stated that when he blew into the intoxi-lyzer the first time, the trooper took the hose away from him after the machine registered a satisfactory test. Ludtke also stated in the affidavit that he did not stop blowing by his own decision. The IDOT did not object to the admission of the affidavit, and the administrative law judge (ALJ), who heard the case, admitted it into evidence.

The ALJ filed a proposed decision in which he found that the first test was a valid one because no error was indicated and Ludtke “blew enough breath to lock-in a printed reading on the evidence card.” Therefore, the ALJ concluded, Ludtke met his burden of proving that he complied with the implied consent law and that the peace officer did not satisfy the procedural requirements of that law. The ALJ rescinded the revocation of Ludtke’s driver’s license.

The IDOT appealed. The reviewing officer reversed, finding there was no statutory, administrative, or case law that prohibits a peace officer from requesting a second bodily specimen for testing. Here, the trooper believed Ludtke had not provided the proper specimen for the first test. Therefore, the reviewing officer concluded, “[t]o not allow a second breath test when a peace officer believes an ar-restee has not provided a proper breath specimen would encourage an arrestee to thwart the test result by not following the instructions and providfing] only a partial breath specimen.” The reviewing officer then reinstated the revocation of Ludtke’s driver’s license.

Ludtke petitioned for judicial review in the district court. The district court concluded Iowa Code chapter 321J provided no authority for the second test. The court further found that Ludtke met his burden of proof by showing the first test was a valid one under the statute and accompanying administrative rules. The court reversed the IDOT’s ruling and rescinded the revocation of Ludtke’s driver’s license. It is from this ruling that the IDOT appeals.

II. Issue.

The issue is whether under the circumstances the trooper could lawfully request a second breath test sample.

III. Scope of Review.

Iowa Code chapter 17A governs review of license revocation decisions under Iowa Code chapter 321J. See Iowa Code § 321J.14; Reed v. Iowa Dep’t of Transp., 478 N.W.2d 844, 845-46 (Iowa 1991). The district court acts in an appellate capacity to correct errors of law on the part of an agency when the court exercises its power óf judicial review under Iowa Code section 17A.19(8). Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001). The court may affirm the agency action or remand to the agency for further proceedings. Iowa Code § 17A.19(8). The court shall reverse, modify, or grant any other appropriate relief from the agency action if substantial rights of the petitioner have been prejudiced because of such action. Id.

In reviewing the district court’s decision, we apply the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Heartland Express, 631 N.W.2d at 265. If they are, we affirm; otherwise, we reverse. Id. An agency’s factual findings are binding on appeal if supported by “substantial evidence in the record made before the agency when the record is viewed as a whole.” Iowa Code § 17A.19(8)(f); accord Reed, 478 N.W.2d at 846. Evidence is substantial when a reasonable person could accept it as adequate to reach the same findings. Reed, 478 N.W.2d at 846. Conversely, evidence is not insubstantial merely because it would have supported contrary inferences, or because two inconsistent conclusions could be drawn from it. Id. Therefore “[t]he ultimate question is not whether the evidence supports a different finding but whether the evidence supports the findings actually made” by the agency. Id.

“In short, the findings of an agency are binding on appeal unless a contrary result is demanded as a matter of law. This limited scope of factual review is warranted by the presumably greater expertise an agency has over matters within its purview.” CMC Real Estate Corp. v. Iowa Dep’t of Transp., 475 N.W.2d 166, 174 (Iowa 1991) (citation omitted).

IV. Applicable Law.

Iowa’s implied consent statute provides in relevant part:

■ A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 [operating while under the influence of alcohol or a drug or while having an alcohol concentration of .10 or more (OWI)] ... is deemed to have given consent to the withdrawal of specimens of the person’s blood, ¡breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 ... and if any of the following conditions exist:
a. A peace officer has lawfully , placed the person under arrest for violation of section 321J.2.

Iowa Code § 321J.6(1) (emphasis added).

The peace officer determines which of the three substances' — breath, blood, or urine — shall be tested. Iowa Code § 321J.6(2). If the officer has “reasonable grounds to believe that the person was under the influence of a controlled substance, a drug other than alcohol, or a combination of alcohol and another drug, a blood or uriñe test shall be required- even after another type of test has been administered.” Iowa Code § 321J.6(3).

One of the consequences of OWI is revocation of one’s driver’s license. See Iowa Code § 321J.4(1). The same consequence flows from an unlawful refusal to submit to one of the three proscribed tests. See Iowa Code § 321J.9.

The, general purpose of chapter 321J “is to reduce the holocaust on our highways part of which is due to the driver who imbibes too freely of intoxicating liquor.” State v. Palmer, 554 N.W.2d 859, 860 (Iowa 1996) (citation omitted). The statutory restrictions on the applicability of the implied consent law serve three purposes: (1) to protect the health of the person submitting to the statutory tests — • breath, blood, or urine; (2) to guarantee the accuracy of the test for use in judicial proceedings; and (3) to protect citizens from indiscriminate testing or harassment. Id. at 861. “These purposes are consistent with a sensitivity to the fact such tests invade the bodily integrity of citizens without the protection of a search warrant.” Id. Because of that sensitivity, the legislature has placed limitations on the circumstances under which section 321J.6 applies. Id. Only when the requirements of section 321J.6 have been met may the State make a suspected drunk driver choose between chemical testing for the presence of alcohol or the loss of the person’s driver’s license. Id.

In Palmer, we quoted with approval this admonition from Schmerber v. California, the case in which the United States Supreme Court first validated the withdrawal of blood from a suspected drunk driver absent a search warrant:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Palmer, 554 N.W.2d at 862 (quoting Schmerber, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908, 920 (1966) (emphasis added)).

V. The Parties’ Contentions.

A. The IDOT. The IDOT contends that the applicable statutes do not require an officer to stop after one test of alcohol concentration. According to the IDOT, an arresting officer may require a licensee to provide what the officer reasonably believes to be a “viable” sample, notwithstanding the fact that the intoxilyzer displays a green light, which would otherwise signify a valid test.

In addition, the IDOT contends substantial record evidence supports the conclusion that Ludtke refused to cooperate, which is equivalent to a refusal. See Buda v. Fulton, 261 Iowa 981, 991, 157 N.W.2d 336, 342 (1968) (failure to cooperate tantamount to refusal). The IDOT argues that if an officer can revoke a noncooperating licensee’s driver’s license for refusing to submit to a chemical test, see Iowa Code section 321J.9, “then surely that officer would be justified in taking the more generous approach of giving the licensee a second chance at compliance.”

The IDOT points to the following evidence to support its conclusion that Ludtke refused to cooperate. First, the trooper testified Ludtke failed to follow instructions to blow as long as possible. Second, Ludtke did not deny these allegations at the hearing through testimony, rather he gave an affidavit after he was no longer subject to cross-examination. This is not the kind of evidence sufficiently compelling to defeat the officer’s testimony. Last, the disparity in test results corroborates the officer’s testimony. Because, nothing in the record indicates the machine was malfunctioning, “the only logical conclusion is that the giving of an adequate sample resulted in a more accurate test measurement.”

Finally, the IDOT contends the district court’s conclusion that the first test result would have been admissible in trial because it met the terms of Iowa Code section 321J.15 (test admissible if performed by certified operator using device intended to determine alcohol concentration and methods approved by the commissioner of public safety), “misses the point.” In support of its contention, the IDOT argues that any presumption that the first test results were reliable “has been clearly rebutted when a second test, conducted moments later on the same machine, using a better breath specimen, reveals a [breath] alcohol concentration approximately fifty percent higher.”

B. Ludtke. Ludtke’s arguments mirror the district court’s analysis. First, he argues there is no implied consent authority to require repetitive samples when the first sample requested was submitted and satisfactorily tested. Iowa Code sections 321J.6(2) and (3) clarify the use of the terms “specimens” and “test or tests” in section 321J.6(1). An officer determines which test to administer — breath, blood or urine. Iowa Code § 321J.6(2). The law allows a second test only under one circumstance — when the officer believes the suspect is under the influence of a drug other than alcohol. See Iowa Code § 321 J.6(3). In that case, the test is of blood or urine. Id.

Ludtke also argues that there was no factual basis for the trooper to conclude that Ludtke did not blow long enough and no factual or legal basis for us to conclude that the second test was not only legally requested but is the only valid test.

VI. Analysis.

The IDOT correctly notes we have recognized that under certain circumstances, a police officer could lawfully request more than one test. See State v. Nelson, 394 N.W.2d 346, 348 (Iowa 1986). In Nelson, the arresting officer requested a blood test after a breath-testing machine malfunctioned. Id. at 346. The driver consented. Id. The issue was whether the officer had a right to request the second test. We held that under the circumstances the officer had such right even though there was no express statutory authority for the second test. Id. at 348. In so holding we said: “[W]hile the express language of [the implied consent statute] does not authorize an officer to first request a breath test and then request a blood test, the purpose of the statute is fostered rather than thwarted by approval of the officer’s request for a second test under these circumstances.” Id. Later, the court reiterated, “we believe that it is a reasonable construction of [the implied consent statute] to allow a peace officer to make a second request of a suspect for a different bodily specimen, when the first test attempt is thwarted by an equipment malfunction.” Id. We rejected the contention that the statutory language — “test or tests” — precluded an officer from administering more than one test. Id.

The issue in this case narrows to whether we should apply the Nelson ruling to a factual scenario in which the arrestee does not cooperate by not providing an adequate breath specimen. We agree with the IDOT that “it would be contrary to common sense to allow an arresting officer to administer a second test based on circumstances that were beyond the control of the licensee, but not allow the officer to request a second test when the licensee deliberately attempts to sabotage the process.” In our view, by allowing a second test, we are furthering the purpose of the statute.

We reject Ludtke’s assumption that an adequate breath sample is always obtained when the machine locks in and produces a hardcopy printout. In Powell v. Cox, the Utah Supreme Court addressed a similar issue and posed it this way:

The single issue raised therefore relates to the discretion an officer has in administering a chemical test. Specifically, the question is, can an officer reasonably require a defendant to do more than merely activate the green light of a breathalyzer, which indicates that he has furnished a given volume of air?

608 P.2d 239, 241 (Utah 1980). In Powell, the defendant refused to follow the officer’s instructions, but did provide a sufficient quantity of air to activate the breathalyzer’s green light. Id. at 240. The appellate court affirmed the trial court’s finding that the defendant unreasonably refused to submit to a reasonable request by the officer for a more complete sample. Id. at 241.

The appellate court’s reason for permitting an officer to take an additional sample “is because the result of the test is dependent not upon the volume of the sample, but the quality.” Id. (emphasis added). To support its conclusion, the court quoted with approval the following passage from a text on drunk driving:

A fresh mouth piece, or saliva trap, is then attached to the heated Sample Tube and the subject is instructed on how the sample is to be delivered. The subject should be told to blow as long as possible in order to be sure that the sample is from the deep lung area of the subject and thus an Alveolar air sample. Regardless of the amount of air blown into the machine, the vent system disposes of all but the last section of the predetermined sample chamber volume of 52.5 cc. If the subject does not, or cannot, produce a deep lung Alveolar air sample, and in reality only passes mouth air into the machine, then a false reading will be obtained. This reading may be falsely high or low depending upon the contents of residual hydrocarbon material present in the mouth of the subject at the time of the test.

Id. (quoting 2 Richard E. Erwin, Defense of Drunk Driving Cases § 22.02, at 22-15 (3d ed.1979)) (emphasis added).

The court then concluded:

It is therefore in the best interest of the state as well as an arrested person to obtain a deep lung sample. As long as the officer administering the test is not unreasonable in his request he has considerable discretion in obtaining a satisfactory sample.

Id. The court cautioned, however, that an officer could not obtain a second sample after an analysis had been done on the first sample merely because the officer was dissatisfied with the results. Id. at 241 n. 4.

We agree with this analysis and adopt the rule that when an officer reasonably believes that an arrestee is not cooperating to produce an adequate sample for testing, the officer may lawfully request a second sample. We think our implied consent statute should be interpreted in a way “to make its application practicable and to enable an officer to deal realistically with arrested drivers who may be uncooperative.” Id. at 241 (citation omitted). Like the Utah court, however, we caution that an officer cannot lawfully request a second sample merely because the officer is dissatisfied with the results of the first test. The evidence must support an officer’s reasonable belief that the arrestee did not cooperate. Otherwise, the intrusion would be unreasonable as condemned by the Supreme Court in Schmerber. See Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836, 16 L.Ed.2d at 920.

Here, the trooper testified that sometimes a subject puffs lightly into the machine for ten seconds, and the machine locks in and accepts that as a satisfactory test. The trooper further testified that he attributed the difference in the test results to the fact that the second test was the result of deep lung air and the first test was not. To support his conclusion, the trooper testified that on the first attempt (1) Ludtke did not comply with his instructions to blow as long and hard as he could into the machine and (2) he took the tube out of his mouth before he was through blowing as long and hard as he could. The disparity in the test results bore out and gave credence to the trooper’s testimony. Additional support for the trooper’s testimony is found in the results of the PBT, which indicated an alcohol concentration of .13, as compared to the second breath test, which indicated an alcohol concentration of .120. In short, there was substantial evidence to support the agency’s finding that the trooper had adequate reason to request a second breath test.

Ludtke had the burden of proving by a preponderance of the evidence that he had complied with the implied consent law and that the officer had not satisfied the procedural requirements of that law. See Mary v. Iowa Dep’t of Transp., 382 N.W.2d 128, 132 (Iowa 1986). Under the record before us, we conclude Ludtke failed to meet his burden of proof.

VII. Disposition.

We conclude the trooper’s second request for a breath test was lawful. Accordingly, we reverse the district court’s contrary ruling. We remand for an order affirming the agency’s decision reinstating revocation of Ludtke’s driver’s license.

REVERSED AND REMANDED WITH DIRECTIONS.


author: LARSON, Justice.

text:
    Robert M. SCHILLING, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, Appellant.
    No. 00-0815.
    Supreme Court of Iowa.
    June 12, 2002.

      Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Mark A. Hunacek, Assistant Attorney General, for appellant.
    Joseph J. Bitter of Bitter Law Offices, Dubuque, for appellee.
   LARSON, Justice.

The Iowa Department of Transportation (DOT) appealed from a district court order vacating its revocation of Robert Schilling’s driver’s license. The court of appeals affirmed, and we granted further review. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

Robert Schilling pled guilty to eluding a law enforcement vehicle in violation of Iowa Code section 321.279 (1999). The district court accepted the plea, and on February 28, 2000, the court entered an order granting Schilling a deferred judgment. On March 23, the DOT sent Schilling a notice under Iowa Code section 321.209 that, as of thirty days from the notice, his driver’s license would be revoked for one year, based on his eluding conviction. On April 14, 2000, Schilling petitioned for judicial review, contending a deferred judgment did not constitute a “final” conviction, as required by Iowa Code section 321.209. The district court agreed and ruled the DOT was without authority to revoke his license. The DOT appealed, and the court of appeals affirmed. We granted the DOT’s application for further review.

II. The Applicable Statutes.

A. The revocation statute. Iowa Code section 321.209 provides:

The department, upon thirty days’ notice and without preliminary hearing, shall revoke the license or operating privilege of an operator upon receiving a record of the operator’s conviction for any of the following offenses, when such conviction has become final:
7. Eluding or attempting to elude a law enforcement vehicle as provided in section 321.279.

The critical language is “when such conviction has become final.” This case turns on whether Schilling’s deferred judgment is a final conviction.

B. The deferred-judgment statute. Iowa Code section 907.1 defines deferred judgments and deferred sentences:

As used in this chapter, unless the context otherwise requires:
1. “Deferred judgment” means a sentencing option whereby both the adjudication of guilt and the imposition of a sentence are deferred by the court. The court retains the power to pronounce judgment and impose sentence subject to the defendant’s compliance with conditions set by the court as a requirement of the deferred judgment.

III. Disposition.

An Ohio case explains the meaning of the terminology used in these cases:

The ordinary meaning of the word “offense” is “the doing that which a penal law forbids to be done or omitting to do what it commands.” On the other hand, a “conviction” is “that legal proceeding which ascertains the guilt of the party upon which the sentence or judgment is founded.” In other words, a conviction is a legal ascertainment that an offense has been committed. A conviction is not an essential element of an offense, although an offense is always a prerequisite to a conviction.

State v. Brantley, 1 Ohio St.2d 139, 205 N.E.2d 391, 393 (Ohio 1965) (quoting Bouvier’s Law Dictionary (Baldwin’s Century ed.1940)).

Schilling argues a deferred judgment is not a final judgment or final conviction, citing State v. Anderson, 246 N.W.2d 277, 279 (Iowa 1976) (deferred judgment cannot be appealed, as it is not a final judgment), and State v. Stessman, 460 N.W.2d 461, 462 (Iowa 1990) (same). The word “conviction” is subject to various interpretations. See, e.g., State v. Brodene, 493 N.W.2d 793, 796 (Iowa 1992).

“[Tjechnically the word means the final consummation of the prosecution against the accused including the judgment or sentence rendered pursuant to an ascertainment of his guilt.
In its general and popular sense and frequently in its ordinary legal sense, the word ‘conviction’ is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.”

State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986) (quoting State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970)). In Maguire v. Fulton, 179 N.W.2d 508 (Iowa 1970), we said:

The term “final conviction” cannot be given a hard and fast definition. Where that term or such a term as used in section 321.209 is found in a statute, its meaning depends upon the intention of the legislature.... It may be final for one purpose and not for another.
“... [F]inality depends somewhat on the purpose for which, and the standpoint from which, the judgment is being considered, and it may be final for one purpose and not for another.”

Maguire, 179 N.W.2d at 511 (quoting 49 C.J.S. Judgments § 11, at 35 (1947)); see also Brodene, 493 N.W.2d at 796 ([M]any of the authorities considering the meaning of “conviction” view it as a question of legislative intent.”).

We have distinguished between a conviction used to increase a criminal penalty and one used to protect the public.

While we have construed the word “conviction” to have a relatively narrow and technical meaning where it appears in statutes used to enhance punishment, we have accepted a broader definition when protection of the public has been at stake.

Kluesner, 389 N.W.2d at 372. Federal cases agree. See, e.g., United States v. Samson, 533 F.2d 721, 722 (1st Cir.1976) (applying broad definition of conviction because “the consequences of the deprivation are relatively slight compared with the gravity of the public interest sought to be protected”).

The DOT argues that revocations under section 321.209(7) are aimed at protecting the public from drivers who have demonstrated a threat to public safety by attempting to elude a law enforcement vehicle. It cites analogous cases such as State v. Blood, 360 N.W.2d 820 (1985), in which we held the purpose of an OWI revocation statute was

to protect the public by providing that drivers who have demonstrated a pattern of driving while intoxicated be removed from the highways. The peril created by a repeated violator is not lessened by the fact that one of the violations resulted in a deferred judgment.

Id. at 822; see also State v. Vogel, 548 N.W.2d 584, 586-87 (Iowa 1996) (license-revocation procedures in the implied-consent statute are remedial); State v. Moret, 486 N.W.2d 589, 591 (Iowa 1992) (license suspension of habitual offender is for public safety, not for punishment).

The DOT contends the cases relied on by Schilling are distinguishable. For example, Iowa Beer & Liquor Control Department v. McBlain, 263 N.W.2d 226, 226-27 (Iowa 1977), held a deferred judgment was not á conviction for purposes of a liquor license suspension; that case, however, did not involve a suspension for the protection of the public. See Kluesner, 389 N.W.2d at 372. Anderson, another case relied on by Schilling, is also distinguishable. Anderson merely held that a defendant cannot appeal a deferred judgment because there is no final judgment; that case did not consider whether a deferred judgment was a final conviction. 246 N.W.2d at 277.

Schilling argues that “[a] deferred judgment is not a final judgment,” and that is so, but the statute does not require a final judgment — only a final conviction. There is clearly a difference. See Brodene, 493 N.W.2d at 796-97 (holding accepted plea of guilty is a conviction, even without the entry of a judgment or sentencing). Schilling argues that if the DOT “feel[s] that the entry of a guilty plea is the act which triggers [its] right to revoke, [then] [w]hy not the mere filing of a charge?” We reject this argument; the statute requires more than a mere charge, but less than a final judgment. Iowa Code section 321.209 requires more than a plea of guilty, and it requires more than a conviction. It requires a conviction that “has become final.”

We have found no other Iowa statute referring to a “final conviction.” However, federal cases have required the finality of convictions in immigration and naturalization cases, and we find those cases to be instructive. Under federal law, aliens “convicted” of a felony may not be granted permanent residence. 8 U.S.C. § 1255a(b)(l)(C)(ii). Federal courts have applied this rule in immigration cases involving deferred judgments and equivalent procedures. See, e.g., White v. INS, 17 F.3d 475 (1st Cir.1994) (Massachusetts charge “filed” without determination of guilt); Yanez-Popp v. INS, 998 F.2d 231 (4th Cir.1993) (Maryland “probation before judgment”).

These cases have adopted a test first formulated by the Board of Immigration Appeals (BIA) for determining whether a “conviction” has been established. See White, 17 F.3d at 479 (citing In re Ozkok, 19 I. & N. Dec. 546 (BIA 1988); Yanez-Popp, 998 F.2d at 234 (same).

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed ...; and
(3) a judgment of adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court’s order, without availability of further proceedings regarding the person’s guilt or innocence of the original charge.

Ozkok, 19 I. & N. Dec. at 551-52.

Schilling does not argue he has not been convicted; he argues only that any conviction has not become final. Finality is also a significant factor in immigration cases. As the court in White stated, “Superimposed on the BIA’s three-part test is an additional requirement: the ‘conviction’ must have attained a sufficient degree of finality.” Id. at 479 (citing Pino v. London, 349 U.S. 901, 901, 75 S.Ct. 576, 576, 99 L.Ed. 1239, 1239 (1955)). Under White’s analysis, a conviction becomes final “if direct appellate review of the conviction has either been exhausted or waived.” 17 F.3d at 479.

We believe a similar test is appropriate in this case. The first question is whether the license revocation is aimed at the protection of the public or as a punishment measure. If it is the former, a conviction without judgment may be a sufficient basis for revocation. See Kluesner, 389 N.W.2d at 372. If the revocation statute is protective in nature, the establishment of the following elements will be sufficient to show that a conviction exists: (1) A judge or jury has found the defendant guilty, or the defendant has entered a plea of guilty; (2) the court has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed; (3) a judgment of guilty may be entered if the person violates the terms of probation or fails to comply with the requirements of the court’s order; and (4) the conviction has become final. A conviction is final if the defendant has exhausted or waived any postorder challenge.

We believe section 321.209(7) is designed for the protection of the public, not for punishment. Therefore, a broad definition of “conviction” is appropriate. See Kluesner, 389 N.W.2d at 372. Applying the test for conviction as set out above, it is undisputed that Schilling pled guilty, thereby satisfying the first element. As to the second element, the court imposed a restraint on Schilling’s liberty by requiring him to abide by the terms of his deferred judgment agreement, report any violations of law, attend a defensive-driving school, appear in court on a set date to show cause why his probation should not be revoked, and pay the court costs. As to the third element, under the deferred judgment order and Iowa Code section 907.1, a judgment of guilt or order of contempt may be entered if Schilling violates the terms of his probation. Under the fourth element, finality, it is clear Schilling’s conviction has become final because he is not entitled to appeal the order; there is no judgment from which to appeal. Anderson, 246 N.W.2d at 279.

We conclude that the deferred judgment constitutes a conviction, and the conviction became final prior to Schilling’s challenge in district court. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for dismissal of the judicial-review petition.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

      . It has been suggested that a remedy in certiorari might be available to challenge a deferred judgment order in the discretion of the court. See McKeever v. Gerard, 368 N.W.2d 116, 119-21 (Iowa 1985) (Carter, J., dissenting). In any event, certiorari is not available here because Schilling did not challenge the court’s order within the 30 days provided by Iowa Rule of Civil Procedure 1.1402(3).