The Iowa City city council has approved a new measure in their assault against underage drinking. On Februrary 3, 2009, they approved a new ordinance that will punish bar owners for PAULA's issued on their premises.
Currently, the Iowa City Police Deparment keeps statistics on PAULA's per police visit in all of the downtown bars. Now, this information will be considered when bar owners seek to renew their liquor licenses. If a bar has more than 1 PAULA issued per police visit, their liquor license "could" be denied. And, of course, a downtown bar without a liquor license would quickly go out of business.
Therefore, one can expect greater control by bar owners of underage patrons in their establishments.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Thursday, February 12, 2009
Friday, January 16, 2009
Intent to Deliver Drugs - Iowa Criminal Law
When controlled substances are discovered, the police and the county attorneys have a decision to make: Should the crime be charged as “possession” or “intent to distribute?” Absent an admission from the suspect that he is a drug dealer, what do the charging authorities look at before they make their decision? And more importantly, what will a Court use to determine whether this crime has occurred?
In general, the following will be taken into strong consideration:
· Amount of drugs· Way drugs are packaged· Quality of drugs (e.g., stems and seeds usually removed by users but included by sellers to increase weight)
· Amount of cash (particularly if suspect is also unemployed)
· Paraphernalia, scales, notebook of sales/contacts, etc· Whether there are drugs in suspect’s system (if no, points to seller not user)
· Location of arrest (high-crime/area known for drug sales)
Testimony from a police officer of the way the drugs were packaged fits the mode of operation of someone who sells drugs, or that the actions of the defendant conform to that of a drug dealer, appears to take these cases over the edge into guilty territory.
Intent to deliver can be found when joint funds were used to buy the drugs and they were later shared, particularly if the defendant can be seen as a “link in the chain of distribution.” Drugs also don’t need to actually be found on the person, if they can be held in constructive possession of them.
However, there are a few cases when the defendant has been successful in arguing insufficient evidence of intent to deliver. In State v. Thomas (Iowa, 1997), the defendant was one of 5 people arrested at an apartment where crack was found hidden outside the kitchen window. The state produced no evidence the defendant lived in the apartment (he was from California), he didn’t have drugs or paraphernalia on him and only $5.30 in cash; the court found the evidence he constructively possessed the drugs outside the window fell considerably short of the mark. In Fullenwider v State (Iowa, 2004), the defendant was found in bed with the occupant of the apartment they were in, in which the police also found cocaine and a scale. The court found no evidence the defendant lived in or was tied in any way to the apartment, and there were no personal items of his there (other than clothes by his side of the bed).
Certainly it is more than just the amount of drugs that a court will look at in examining the sufficiency of evidence on a distribution charge. If there is a combination of drugs, along with one or two of the other factors (perhaps a scale, or if the drugs appear packaged for selling), along with officer testimony that the defendant’s actions/possessions are in line with that of a drug dealer.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
In general, the following will be taken into strong consideration:
· Amount of drugs· Way drugs are packaged· Quality of drugs (e.g., stems and seeds usually removed by users but included by sellers to increase weight)
· Amount of cash (particularly if suspect is also unemployed)
· Paraphernalia, scales, notebook of sales/contacts, etc· Whether there are drugs in suspect’s system (if no, points to seller not user)
· Location of arrest (high-crime/area known for drug sales)
Testimony from a police officer of the way the drugs were packaged fits the mode of operation of someone who sells drugs, or that the actions of the defendant conform to that of a drug dealer, appears to take these cases over the edge into guilty territory.
Intent to deliver can be found when joint funds were used to buy the drugs and they were later shared, particularly if the defendant can be seen as a “link in the chain of distribution.” Drugs also don’t need to actually be found on the person, if they can be held in constructive possession of them.
However, there are a few cases when the defendant has been successful in arguing insufficient evidence of intent to deliver. In State v. Thomas (Iowa, 1997), the defendant was one of 5 people arrested at an apartment where crack was found hidden outside the kitchen window. The state produced no evidence the defendant lived in the apartment (he was from California), he didn’t have drugs or paraphernalia on him and only $5.30 in cash; the court found the evidence he constructively possessed the drugs outside the window fell considerably short of the mark. In Fullenwider v State (Iowa, 2004), the defendant was found in bed with the occupant of the apartment they were in, in which the police also found cocaine and a scale. The court found no evidence the defendant lived in or was tied in any way to the apartment, and there were no personal items of his there (other than clothes by his side of the bed).
Certainly it is more than just the amount of drugs that a court will look at in examining the sufficiency of evidence on a distribution charge. If there is a combination of drugs, along with one or two of the other factors (perhaps a scale, or if the drugs appear packaged for selling), along with officer testimony that the defendant’s actions/possessions are in line with that of a drug dealer.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Possession of Drugs - Check the Car before you Drive It!
Many drug-related charges involve traffic stops. During the stop, the officer will be looking for any evidence of any additional crimes, including drug offenses. Drug paraphernalia in plain view, the smell of used drugs (particularly burnt marijuana), or signs of intoxication or drug use by the driver or passengers will all be used to further an investigation and an eventual request to search the vehicle.
If the request to consent to search is denied, the officer can threaten (bluffing or not) that K-9 unit is available and the dog will discover the contraband regardless. If consent is not reached at this point, the officer may be able to proceed with a search if he smells marijuana. He can also hold the suspect for a reasonable amount of time for K-9 unit to arrive.
There are many ways in which the officer can search the vehicle, with or without consent. So where does this put us…Check the car before you drive it!
When the request to search the vehicle is made, the first thought that goes through any suspect’s head is, “Is there anything in this car that I wouldn’t want the officer to see?” If the car does not belong to the suspect, he will often think that there is nothing to worry about because he is not aware of anything illegal in the vehicle. At this point, the suspect consents to the search.
Then, to the suspect’s surprise, drugs or drug paraphernalia is discovered. (Or as a prosecutor would say “surprise”). In this case, we have an innocent suspect who is caught holding the bag. For cases like these, they are most likely going to be taken to trial, because what prosecutor is going to believe the “it wasn’t mine” defense?
I write this because a number of cases have come into my office where someone has been driving a car that does not belong to them, they consented to search and were surprised to find marijuana or marijuana paraphernalia left in the car. What makes it worse is when these items have been found right under the driver’s seat. All of this could be avoided if prior to driving the car, the suspect (now defendant) would have checked the seat or asked the owner to remove any contraband.
So please, when you know that your friends use marijuana, just check the car real quick before you drive down to the gas station to buy some more beer.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
If the request to consent to search is denied, the officer can threaten (bluffing or not) that K-9 unit is available and the dog will discover the contraband regardless. If consent is not reached at this point, the officer may be able to proceed with a search if he smells marijuana. He can also hold the suspect for a reasonable amount of time for K-9 unit to arrive.
There are many ways in which the officer can search the vehicle, with or without consent. So where does this put us…Check the car before you drive it!
When the request to search the vehicle is made, the first thought that goes through any suspect’s head is, “Is there anything in this car that I wouldn’t want the officer to see?” If the car does not belong to the suspect, he will often think that there is nothing to worry about because he is not aware of anything illegal in the vehicle. At this point, the suspect consents to the search.
Then, to the suspect’s surprise, drugs or drug paraphernalia is discovered. (Or as a prosecutor would say “surprise”). In this case, we have an innocent suspect who is caught holding the bag. For cases like these, they are most likely going to be taken to trial, because what prosecutor is going to believe the “it wasn’t mine” defense?
I write this because a number of cases have come into my office where someone has been driving a car that does not belong to them, they consented to search and were surprised to find marijuana or marijuana paraphernalia left in the car. What makes it worse is when these items have been found right under the driver’s seat. All of this could be avoided if prior to driving the car, the suspect (now defendant) would have checked the seat or asked the owner to remove any contraband.
So please, when you know that your friends use marijuana, just check the car real quick before you drive down to the gas station to buy some more beer.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Truck Drivers in Iowa and Search and Seizure
An “expectation of privacy” is what protects citizens from searches and seizures from the State. Generally, if a citizen has a reasonable expectation of privacy, there must be some additional fact which would allow an officer to conduct a search or seizure upon that person.
One of such reasons may be that the person is operating a commercial vehicle.
A key U.S. Supreme Court decision on this subject is New York v. Burger (U.S. 1987). The court held that warrantless searches of closely regulated industries are constitutional if the rules governing the searches offer an adequate substitute for the 4th Amendment warrant requirement. To do that, the rules must do two things: Provide notice to owners that their property may be searched for a specific purpose and to “limit the discretion of the inspecting officers.”
Iowa courts have applied this thinking to searches without cause of commercial vehicles, noting that motor vehicles are pervasively regulated by statute, and that commercial vehicle drivers are on notice they could be stopped for inspection.
US v. Knight, (8th Cir. App. 2002) provides a little insight into how far searches of commercial vehicles can go. There, the defendant’s commercial vehicle was stopped and searched under the North American Standard Inspection Program, which allows officers to randomly stoop commercial vehicles for specific types of searches. The officer conducted an inspection which included rummaging through the defendant’s personal briefcase. This search was determined to be unconstitutional.
Therefore, commercial drivers have a lowered expectation of privacy because they are in a highly regulated industry. The State has the right to determine if the drivers are in compliance with all regulations. But, as Knight points out, the right to search commercial vehicles is not without limits.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
One of such reasons may be that the person is operating a commercial vehicle.
A key U.S. Supreme Court decision on this subject is New York v. Burger (U.S. 1987). The court held that warrantless searches of closely regulated industries are constitutional if the rules governing the searches offer an adequate substitute for the 4th Amendment warrant requirement. To do that, the rules must do two things: Provide notice to owners that their property may be searched for a specific purpose and to “limit the discretion of the inspecting officers.”
Iowa courts have applied this thinking to searches without cause of commercial vehicles, noting that motor vehicles are pervasively regulated by statute, and that commercial vehicle drivers are on notice they could be stopped for inspection.
US v. Knight, (8th Cir. App. 2002) provides a little insight into how far searches of commercial vehicles can go. There, the defendant’s commercial vehicle was stopped and searched under the North American Standard Inspection Program, which allows officers to randomly stoop commercial vehicles for specific types of searches. The officer conducted an inspection which included rummaging through the defendant’s personal briefcase. This search was determined to be unconstitutional.
Therefore, commercial drivers have a lowered expectation of privacy because they are in a highly regulated industry. The State has the right to determine if the drivers are in compliance with all regulations. But, as Knight points out, the right to search commercial vehicles is not without limits.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Pleading Not Guilty in Iowa Criminal Cases
Imagine a dartboard where the bull’s eye is “guilty.” Everything else on the board is “not guilty.” Not guilty does not necessarily mean that a defendant actually did not commit the crime. It can mean that, but it also means everything else, aside from “guilty.”
For low-level misdemeanors (simple misdemeanors in Iowa) guilty pleas can be taken at the initial appearance, often times while the defendant is still in jail. Not guilty can mean “I’m not sure, judge, I need time to speak with a lawyer.” Or it could mean “Well I was there, but I don’t think I was actually intoxicated.” Or it could mean, “I’m not sure what ‘interference with official acts’ means, but I’d like to find out before I say ‘guilty.’ ”
Will a judge be upset or give the defendant a greater sentence because the defendant pleaded not guilty then decided to change his plea? Usually not. Judges understand that defendants can be confused at the time of an initial appearance. Also, they would much rather have a not guilty plea be withdrawn to enter a guilty plea, than a guilty plea attempted to be withdrawn.
For a guilty plea to be withdrawn, the Defendant must show that the plea was not made knowingly, intelligently and voluntarily. It is the judge’s job to make sure these conditions are met. So if a Motion to Withdraw Guilty Plea is filed, it is an attack on the judge’s ability to determine if the defendant knew what was going on. And it is possible, of course, to have the same judge rule upon the Motion as the one that took the guilty plea.
Pleading not guilty is a good idea even if the defendant knows and understands he is guilty of some, but not all of the offenses that have been charged. Many times I have taken a case where a defendant pleaded guilty to one or two of the charged misdemeanors, and not guilty to the others hoping to have them dismissed as part of a plea bargain. Well, the essence of a plea bargain is giving something to the State in exchange for the State giving something to the defendant. Usually all the defendant has to give are his guilty pleas. So why hand over all your pleas before a bargain is on the table?
When a defendant is at his initial appearance, the best idea is to plea not guilty, at least to take a few days to think it over and possibly contact an attorney for advice.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
For low-level misdemeanors (simple misdemeanors in Iowa) guilty pleas can be taken at the initial appearance, often times while the defendant is still in jail. Not guilty can mean “I’m not sure, judge, I need time to speak with a lawyer.” Or it could mean “Well I was there, but I don’t think I was actually intoxicated.” Or it could mean, “I’m not sure what ‘interference with official acts’ means, but I’d like to find out before I say ‘guilty.’ ”
Will a judge be upset or give the defendant a greater sentence because the defendant pleaded not guilty then decided to change his plea? Usually not. Judges understand that defendants can be confused at the time of an initial appearance. Also, they would much rather have a not guilty plea be withdrawn to enter a guilty plea, than a guilty plea attempted to be withdrawn.
For a guilty plea to be withdrawn, the Defendant must show that the plea was not made knowingly, intelligently and voluntarily. It is the judge’s job to make sure these conditions are met. So if a Motion to Withdraw Guilty Plea is filed, it is an attack on the judge’s ability to determine if the defendant knew what was going on. And it is possible, of course, to have the same judge rule upon the Motion as the one that took the guilty plea.
Pleading not guilty is a good idea even if the defendant knows and understands he is guilty of some, but not all of the offenses that have been charged. Many times I have taken a case where a defendant pleaded guilty to one or two of the charged misdemeanors, and not guilty to the others hoping to have them dismissed as part of a plea bargain. Well, the essence of a plea bargain is giving something to the State in exchange for the State giving something to the defendant. Usually all the defendant has to give are his guilty pleas. So why hand over all your pleas before a bargain is on the table?
When a defendant is at his initial appearance, the best idea is to plea not guilty, at least to take a few days to think it over and possibly contact an attorney for advice.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Iowa OWI / DUI FST's - The Walk and Turn
The Walk and Turn test is probably the most difficult test for a completely sober person to perform. It has the most complicated instructions, and points are taken off for more than just swaying side-to-side or missing heel-toe contact. Therefore, it would benefit a suspect to review these rules prior to being in the position of being asked to perform the test.
The officer will attempt to find a level, safe area to perform this test. Unfortunately for the defense attorney, this safe, level area is not often in front of the police vehicle in view of their squad car camera. Mainly due to traffic concerns, the officer will ask the suspect to perform this test on a nearby sidewalk or other hard surface.
The test actually begins as soon as the instructions are being given. The suspect is asked to remain in a heel-to-toe position while instructions are being read. A point will be removed if the suspect starts prior to the full completion of the instructions, or if the suspect sways.
The suspect will be given the instructions for the test while in this heel-toe position. The left foot must be placed in front, right foot behind, making heel-to-toe contact, and the arms must be down at the suspect’s side.
The officer will tell the suspect to take nine heel-to-toe steps, on the line. The line can either be a section break in the pavement, a painted roadway or sidewalk path line, or possibly a chalk line drawn by the officer. The officer will demonstrate the steps and instruct the suspect to maintain heel-toe contact on each step, keep their hands at their sides and not step off the line.
Next, the suspect will be told how to make the “turn.” The instructions are very specific as to how this turn must be completed. The suspect must make a series of small steps, turning around, turning the same way the officer indicates. Then the suspect must begin another series of return steps with the correct foot forward.
The turn is the most commonly botched part of the test. Suspects lose a point for going the wrong way, taking too big of steps, or pivoting from the wrong foot.
Like the first set of steps, nine steps are required for the return. The suspect should stop immediately upon the ninth step, as a point will be taken off for a tenth step.
In general, points will be taken off for failing to keep balance during instruction, starting too soon, stopping while walking, missing heel-to-toe, stepping off the line, using arms to balance, improperly turning and taking the incorrect number of steps.
As I hope the above article indicates, the Walk and Turn test is a difficult test when sober, and very difficult when intoxicated.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
The officer will attempt to find a level, safe area to perform this test. Unfortunately for the defense attorney, this safe, level area is not often in front of the police vehicle in view of their squad car camera. Mainly due to traffic concerns, the officer will ask the suspect to perform this test on a nearby sidewalk or other hard surface.
The test actually begins as soon as the instructions are being given. The suspect is asked to remain in a heel-to-toe position while instructions are being read. A point will be removed if the suspect starts prior to the full completion of the instructions, or if the suspect sways.
The suspect will be given the instructions for the test while in this heel-toe position. The left foot must be placed in front, right foot behind, making heel-to-toe contact, and the arms must be down at the suspect’s side.
The officer will tell the suspect to take nine heel-to-toe steps, on the line. The line can either be a section break in the pavement, a painted roadway or sidewalk path line, or possibly a chalk line drawn by the officer. The officer will demonstrate the steps and instruct the suspect to maintain heel-toe contact on each step, keep their hands at their sides and not step off the line.
Next, the suspect will be told how to make the “turn.” The instructions are very specific as to how this turn must be completed. The suspect must make a series of small steps, turning around, turning the same way the officer indicates. Then the suspect must begin another series of return steps with the correct foot forward.
The turn is the most commonly botched part of the test. Suspects lose a point for going the wrong way, taking too big of steps, or pivoting from the wrong foot.
Like the first set of steps, nine steps are required for the return. The suspect should stop immediately upon the ninth step, as a point will be taken off for a tenth step.
In general, points will be taken off for failing to keep balance during instruction, starting too soon, stopping while walking, missing heel-to-toe, stepping off the line, using arms to balance, improperly turning and taking the incorrect number of steps.
As I hope the above article indicates, the Walk and Turn test is a difficult test when sober, and very difficult when intoxicated.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Jury Instructions for Iowa OWI / DUI Test Refusal
If a defendant goes to trial on an OWI charge in Iowa, where no BAC was given, the jury will decide whether the driver is “under the influence.” This is commonly called a “refusal” trial, based on the defendant’s refusal to providing a sample. Remember that the PBT, or preliminary breath test results are not admissible, this “refusal” is referring to the blood, urine or Datamaster/Breathalyzer breath results.
A trial of this nature has a better chance of acquittal than a trial with a BAC result which is over the legal limit. For a result-based trial, all the State must prove the that the defendant was operating the vehicle and that he provided a test at or over 0.08. With a refusal trial, the jury must base their decision on whether the driver was “under the influence” based on the following jury instruction.
As you can see, this is a rather broad and subjective definition of “under the influence.” Nonetheless, these are the criteria that a juror must use to decide the case. I will examine each of these variables in turn. And please note that the State must only prove one of the above, not all four.
Reason or mental ability has been affected: Prosecutors will argue that failure to follow the directions of the field sobriety tests is evidence of failure on this point. They can also argue that the defendant’s decision to refuse the test is evidence of affected reason.
Impaired judgment can be argued similarly to the above point. Another argument I have heard was that when a defendant was not wearing warm clothing in the dead of winter, her judgment was off. This would be more understandable if the defendant was out walking, instead of driving in her heated car.
Visibly excited emotions due to drinking beer and/or liquor is probably the most liberal definition of “under the influence” that the jury will consider. Some people get excited quite easily with or without the use of alcohol, and thus would be convicted of OWI more easily.
Finally, the prosecutor will argue that any evidence of failure on the FST’s is evidence of loss of control of bodily actions or motions. Stepping off the line on the walk-and-turn, or losing balance during the one leg stand are examples.
As you can see, these criteria are broad and difficult to objectively define. That is why they are questions left for the jurors.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
A trial of this nature has a better chance of acquittal than a trial with a BAC result which is over the legal limit. For a result-based trial, all the State must prove the that the defendant was operating the vehicle and that he provided a test at or over 0.08. With a refusal trial, the jury must base their decision on whether the driver was “under the influence” based on the following jury instruction.
2500.5 OWI - Definition - Under The Influence. A person is “under the influence”
when, by drinking liquor and/or beer, one or more of the following is
true:
1. Her reason or mental ability has been affected.
2. Her judgment
is impaired.
3. Her emotions are visibly excited.
4. She has, to any
extent, lost control of bodily actions or motions.
As you can see, this is a rather broad and subjective definition of “under the influence.” Nonetheless, these are the criteria that a juror must use to decide the case. I will examine each of these variables in turn. And please note that the State must only prove one of the above, not all four.
Reason or mental ability has been affected: Prosecutors will argue that failure to follow the directions of the field sobriety tests is evidence of failure on this point. They can also argue that the defendant’s decision to refuse the test is evidence of affected reason.
Impaired judgment can be argued similarly to the above point. Another argument I have heard was that when a defendant was not wearing warm clothing in the dead of winter, her judgment was off. This would be more understandable if the defendant was out walking, instead of driving in her heated car.
Visibly excited emotions due to drinking beer and/or liquor is probably the most liberal definition of “under the influence” that the jury will consider. Some people get excited quite easily with or without the use of alcohol, and thus would be convicted of OWI more easily.
Finally, the prosecutor will argue that any evidence of failure on the FST’s is evidence of loss of control of bodily actions or motions. Stepping off the line on the walk-and-turn, or losing balance during the one leg stand are examples.
As you can see, these criteria are broad and difficult to objectively define. That is why they are questions left for the jurors.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
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