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Mr. Darrel Rensink

Office of the Attorney GeneralDecember 28, 1990

1990 Iowa Op. Atty. Gen. 100 (Iowa A.G.), 1990 WL 484921
Office of the Attorney General
State of Iowa
*1 Opinion No. 90-12-8
*1 December 28, 1990

DEPARTMENT OF TRANSPORTATION; LAW ENFORCEMENT; CRIMINAL LAW: Authority of DOT Officers. Iowa Code §§ 4.7, 80.22, 80B.3(3), 321.1(45), 321.477, 321.492, 321J.1(7)(e), 321J.6, 804.9, 804.17, 804.24, 801.4(7)(h), 804.7 (1989). Iowa Code section 321.477 limits the authority of Department of Transportation (DOT) peace officers to “arrests for violations of the motor vehicle laws relating to the operating authority, registration, size, weight, and load of motor vehicles and trailers and registration of a motor carrier's interstate transportation service with the department.” Nonetheless, DOT peace officers may make arrests for Operating While Intoxicated (OWI) if, in the performance of their regular duties, the offense is committed or attempted in the officer's presence. Iowa Code § 804.9 (1989) (arrest by private persons). If properly qualified, DOT peace officers have authority to enforce the OWI laws under Iowa Code chapter 321J, so long as the officer has satisfactorily completed an approved course relating to motor vehicle operators under the influence of alcoholic beverages. Despite these limitations on their authority, DOT peace officers must respond to assistance requests from other law enforcement officers involved in law enforcement activities not related to DOT functions. (Zbieroski to Rensink, Director of the Iowa Department of Transportation, 12–28-90)

 
*1 Mr. Darrel Rensink
*1 Director
*1 Iowa Department of Transportation
*1 800 Lincoln Way
*1 Ames, Iowa 50010
*1 The Attorney General's office issues the following opinion, in response to a series of questions you pose regarding the scope of the enforcement power of Department of Transportation (DOT) peace officers.
*1 First you ask whether DOT peace officers are empowered by the general arrest provisions of Iowa Code section 804.7 or limited by the arrest powers enumerated under Iowa Code section 321.477. Compare Iowa Code §§ 321.477, 321.492, 801.4(7)(h), 804.7 (1989).
*1 DOT peace officers are defined as “every officer authorized to direct or regulate traffic or to make arrests for violations of traffic regulations in addition to its meaning in section 801.4.” Iowa Code § 321.1(45) (1989). Section 321.477 empowers DOT peace officers with the limited authority:
*1 to control and direct traffic and weigh vehicles, and to make arrests for violations of the motor vehicle laws relating to the operating authority, registration, size, weight, and load of motor vehicles and trailers and registration of a motor carrier's interstate transportation service with the department.
*1 Iowa Code § 321.477 (1989). In addition, section 321.492 provides that:
*1 Any peace officer is authorized to stop any vehicle to require exhibition of the driver's motor vehicle license, to serve a summons or memorandum of traffic violation, to inspect the condition of the vehicle, to inspect the vehicle with reference to size weight, cargo, log book, bills of lading or other manifest of employment, tires and safety equipment, or to inspect the registration certificate, the compensation certificate, travel order, or permit of the vehicle.
*2 Iowa Code § 321.492 (1989).
*2 We opine that DOT peace officers are limited to the arrest powers enumerated under sections 321.477 and 321.492.1 Although DOT peace officers are defined as “peace officers” under Iowa Code section 801.4(7)(h), we read section 321.477 as specifically limiting the arrest authority of DOT peace officers to “arrests for violations of the motor vehicle laws relating to the operating authority, registration, size, weight, and load of motor vehicles and trailers and registration of a motor carrier's interstate transportation service with the department.” Iowa Code § 321.477 (1989); State v. A–1 Disposal, 415 N.W.2d 595, 598 (Iowa 1987); Merchants Motor Freight v. State Hwy. Com'n, 239 Iowa 888, 32 N.W.2d 773 (1948).
*2 In resolving this apparent statutory conflict, we employ several rules of statutory construction and reached the following consistent results: (1) that sections 321.477 and 321.492 are special provisions that prevail as exceptions to the general provisions, (2) that the express mention of certain conditions of entitlement under sections 321.477 and 321.492 implies the exclusion of others, and (3) that such a reading gives effect to sections 321.477, 321.492, and 804.7. See Iowa Code § 4.7 (1989) (conflicts between general and special statutes); Barnes v. Iowa Dep't of Transp., 385 N.W.2d 260, 262–63 (Iowa 1986) (implied exclusion by express mention of certain conditions).
*2 We also believe this result is consistent with prior case law and a previous opinion issued by our office, all of which have construed section 321.477 as limiting the enforcement authority of peace officers empowered by the department. State v. A–1 Disposal, 415 N.W.2d 595, 597 (Iowa 1987); Merchants Motor Freight v. State Hwy. Com'n, 239 Iowa 888, 32 N.W.2d 773 (1948);2 1982 Op.Att'yGen. 451, 456 n. 2. Moreover, unless otherwise provided by statute, the DOT is prohibited from further empowering peace officers with general law enforcement authority, as that authority has been specifically reserved in the Department of Public Safety. Iowa Code § 80.22 (1989).
*2 Although the scope of the arrest powers are limited, we believe the above provisions empower DOT peace officers with criminal as well as civil enforcement powers. See 61A C.J.S. Motor Vehicles § 588(a), at 255 (1970) (“The motor vehicle regulatory statutes and ordinances have been construed to be penal or quasi-criminal in nature, . . . .”).
*2 Next you ask whether DOT peace officers have authority to enforce the Operating While Intoxicated (OWI) laws found in Iowa Code chapter 321J (1989). The definition of “peace officer” under the OWI chapter includes, in pertinent part,
*2 Any other law enforcement officer who has satisfactorily completed an approved course relating to motor vehicle operators under the influence of alcoholic beverages at the Iowa law enforcement academy or a law enforcement training program approved by the department of public safety.
*3 Iowa Code § 321J.1(7)(e) (1989) (emphasis added). Cf. State v. Wright, 441 N.W.2d 364 (Iowa 1989) (reserve peace officers may qualify as peace officer under Iowa Code section 321J.1(7)(e)).
*3 Iowa Code section 80B.3(3) identifies three categories of personnel who qualify as “law enforcement officers.” See State v. Driscoll, 455 N.W.2d 570 (1990) (identifying three categories of law enforcement officers who are peace officers who can invoke implied consent under 321J.6). The section provides:
*3 “Law enforcement officer” means an officer appointed by the director of the department of natural resources, a member of a police force, or other agency or department of the state, county or city regularly employed as such and who is responsible for the prevention and detection of crime and the enforcement of the criminal laws of this state . . . .
*3 Iowa Code § 80B.3(3) (1989).
*3 We opine that DOT peace officers fit the definition of “law enforcement officer” under section 321J.1(7)(e) and, if properly trained and qualified pursuant to that section, have authority to enforce OWI violations under Iowa Code chapter 321J.
*3 Notwithstanding the arrest limitation of section 321.477, the propriety of the implied consent procedures under chapter 321J do not necessarily depend on the law enforcement officer's authority to arrest an individual. State v. Wagner, 359 N.W.2d 487, 489 (Iowa 1984); Iowa Code § 321J.6 (1989). When a law enforcement officer initiates the implied consent procedures under chapter 321J, they act as a statutory agent of the DOT for purposes of administering the laws of this state pertaining to revocation of a drivers license. Id. at 490.
*3 Moreover, DOT peace officers may make arrests for OWI if, in the performance of their regular duties, the offense is committed or attempted in the officer's presence, pursuant to the citizen arrest powers of Iowa Code section 804.9 (1989). See also Iowa Code § 804.24 (1989) (arrests by private persons and disposition of prisoner); State v. O'Kelly, 211 N.W.2d 589, 595 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974) (arrest by Nebraska police officer of a person in Iowa treated as an arrest by private person); Merchants Motor Freight v. State Hwy. Com'n, 239 Iowa 888, 893, 32 N.W.2d 773, 776 (1948); 1988 Op.Att'yGen. 66 (L) (an arrest by municipal police officer, outside of jurisdiction, treated as an arrest by private person).
*3 Finally, you ask whether DOT peace officers “have authority to respond to requests for assistance from city, county, federal or other State law enforcement officers involved in law enforcement activities not directly related to highways or highway traffic?”
*3 Although the arrest power is limited, it does not act to limit a DOT peace officer's capacity to respond to assistance requests from other law enforcement officers. Iowa Code section 804.17 provides that “[a]ny peace officer making a legal arrest may orally summon as many persons as the officer reasonably finds necessary to aid the officer in making the arrest.” Iowa Code § 804.17 (1989). The inability of another assisting in the arrest is of no consequence, so long as one officer at the scene has authority to effect the arrest. State v. O'Kelly, 211 N.W.2d 589, 595 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). Of no less importance is Iowa Code section 719.2 (1989). Section 719.2 makes it a simple misdemeanor for any person (public or private) to refuse or neglect to render such assistance, without good reason or lawful cause. Iowa Code § 719.2 (1989).
*4 In summary, we conclude that Iowa Code section 321.477 limits the authority of DOT peace officers to “arrests for violations of the motor vehicle laws relating to the operating authority, registration, size, weight, and load of motor vehicles and trailers and registration of a motor carrier's interstate transportation service with the department.” Notwithstanding the limitation of section 321.477, we opine that DOT peace officers may make arrests for OWI if, in the performance of their regular duties, the offense is committed or attempted in the officer's presence. Iowa Code § 804.9 (1989) (arrest by private persons). A DOT peace officer has authority to enforce the OWI laws under Iowa Code chapter 321J, so long as the officer has satisfactorily completed an approved course relating to motor vehicle operators under the influence of alcoholic beverages. Finally, we conclude that DOT peace officers must respond to assistance requests from other law enforcement officers involved in law enforcement activities not related to DOT functions.
Sincerely,
*4 MARK J. ZBIEROSKI
*4 Assistant Attorney General

Footnotes

This limitation on the power of arrest also, of course, would apply to other aspects of the enforcement power of DOT peace officers, i.e., the issuance of citations, the execution of warrants, and the seizure of evidence. See Iowa Code ch. 804 & 805 (1989).
In Merchants Motor Freight v. State Hwy. Com'n, the Iowa Supreme Court interpreted section 321.477 as a limitation on the enforcement authority of DOT officers. Merchants Motor Freight v. State Hwy. Com'n, 239 Iowa 888, 891–93, 32 N.W.2d 773, 775–76 (1948). See 61A C.J.S. Motor Vehicles § 593(1)(c), at 276–77 (1970) (“[A] statute may limit the authority of certain peace officers to arrest a violator of motor vehicle laws.”). Although section 321.477 has been amended since its enactment, see Iowa Code Ann. section 321.477 (West 1985), the amendments have not changed the limiting nature of the section and nothing indicates that the Court would today interpret this section differently.
1990 Iowa Op. Atty. Gen. 100 (Iowa A.G.), 1990 WL 484921
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