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.
Use of PBT Results in Iowa OWI / DUI Trials
When a subject is questioned regarding an OWI, he is often offered a preliminary breath test (PBT) by the officer. Based in part on the results of this test, the officer will make his decision to whether charge the subject with OWI.
As mentioned in other posts, the PBT cannot be used at trial for evidence of intoxication. But what about when the results are favorable, and what happens when the information comes into trial “on accident?”
The basis for excluding the PBT from trial is based on statute. Iowa Code §321J.5 provides in part,
“The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to provide that a chemical test was properly requested pursuant to this chapter.”
To gain further understanding of the specifics of this law we must look to the caselaw. State v. Massick, 511 N.W.2d 384, 388 (Iowa 1994) solidifies the fact that the results are not admissible. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987) holds that it is reversible error for the officer to testify to the results while on the stand. However, evidence that a defendant submitted to the test is admissible, so long as no reference is made to the results, as outlined in Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa App. 1992).
Now, what happens when the defendant agrees to give up his right to keep this information out of trial, and instead wishes to enter the evidence to prove his innocence? Well, the caselaw proves that the results cannot be used for any purpose. In State v. Iowa Dist. Court for Johnson County, 630 N.W.2d 838 (Iowa 2001), Iowa City’s hometown court was overruled when the judge considered the results of the PBT when granting a deferred judgment. The Iowa Supreme Court stated, “It is apparent here that the district court was partialy persuaded by the lower PBT to grant a deferred judgment…clearly this decision is contrary to section 321J.5.”
Therefore, do not rely on the results of the PBT to haunt you or save you in court. Its only purpose is to help the officer determine if an arrest needs to be made.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
As mentioned in other posts, the PBT cannot be used at trial for evidence of intoxication. But what about when the results are favorable, and what happens when the information comes into trial “on accident?”
The basis for excluding the PBT from trial is based on statute. Iowa Code §321J.5 provides in part,
“The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to provide that a chemical test was properly requested pursuant to this chapter.”
To gain further understanding of the specifics of this law we must look to the caselaw. State v. Massick, 511 N.W.2d 384, 388 (Iowa 1994) solidifies the fact that the results are not admissible. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987) holds that it is reversible error for the officer to testify to the results while on the stand. However, evidence that a defendant submitted to the test is admissible, so long as no reference is made to the results, as outlined in Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa App. 1992).
Now, what happens when the defendant agrees to give up his right to keep this information out of trial, and instead wishes to enter the evidence to prove his innocence? Well, the caselaw proves that the results cannot be used for any purpose. In State v. Iowa Dist. Court for Johnson County, 630 N.W.2d 838 (Iowa 2001), Iowa City’s hometown court was overruled when the judge considered the results of the PBT when granting a deferred judgment. The Iowa Supreme Court stated, “It is apparent here that the district court was partialy persuaded by the lower PBT to grant a deferred judgment…clearly this decision is contrary to section 321J.5.”
Therefore, do not rely on the results of the PBT to haunt you or save you in court. Its only purpose is to help the officer determine if an arrest needs to be made.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Iowa's Right to Counsel in Criminal Law
The United States Constitution guarantees the right to counsel for the accused. The State of Iowa has taken this right and written it into our state statutes. Iowa Code §804.20 states:
A person arrested for OWI has a limited right to contact an attorney under this code section. A person cannot, however, use this section to interfere with the two hour time limit for blood alcohol testing as required under Iowa Code §321J.6(2). This means that the right to consult with counsel is limited to circumstances that do not materially interfere with the time limit.
Generally speaking, the right to counsel is satisfied by allowing the accused to make a telephone call. There is no duty on the officer to inform the accused of their right to consult an attorney, and any request must be made in good faith.
Therefore, much of the freedom to consult with an attorney is at the discretion of the officer making the arrest. After reviewing scores of OWI arrest videos, I have seen officers exercise a wide discretion on this question. Many times, the officer will allow the accused to make many phone calls, now that cell phones are generally available and present. I have seen officers allow five or six separate attempts to contact an attorney, and time frames from a few minutes to fifteen or more.
An officer will likely allow the accused enough time to reasonably contact an attorney, but the officer will end these attempts as soon as he sees that no genuine effort is being made. The accused can contact a family member for help in finding an attorney, but as soon as the conversation goes from ’searching for an attorney’ to ‘what’s for supper, honey?’ the officer may end the phone call immediately.
Another important point to stress is that there is no right in Iowa for these phone communications to be private. This may contrast with the language of the statute above, but our Supreme Court has stated “the telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian. They are for the purpose of enabling the person to arrange for a legal consultation and assistance.” State v. Craney, 347, N.W.2d 668, 677 (Iowa 1984).
To summarize, if a person is accused of an OWI offense and taken down to the police station, he will be given the right to call an attorney and speak with that attorney with the officer listening. As soon as the attempts to reach an attorney become futile, non-genuine, or threaten the two hour time limit, the officer will continue with the implied consent proceedings and demand that the accused either takes or refuses the Datamaster/Breathalyzer test.
This article was prepared by Attorney Mark Thompson and law student Cody Farrens.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Any peace officer or other person having custody of any person arrested orNot only does our state code require the right to counsel be honored, but they have made it a crime for an officer to deny this right. But where does this law stand in practice? And, more specifically, what is the impact of this law on the ‘implied consent’ law that is invoked in OWI cases?
restrained of the person’s liberty for any reason whatever, shall permit that
person, without unnecessary delay after arrival at the place of detention, to
call, consult, and see a member of the person’s family or an attorney of the
person’s choice, or both. Such person shall be permitted to make a reasonable
number of telephone calls as may be required to secure an attorney. If a call is
made, it shall be made in the presence of the person having custody of the one
arrested or restrained. If such person is intoxicated, or a person under
eighteen years of age, the call may be made by the person having custody. An
attorney shall be permitted to see and consult confidentially with such person
alone and in private at the jail or other place of custody without unreasonable
delay. A violation of this section shall constitute a simple misdemeanor.
A person arrested for OWI has a limited right to contact an attorney under this code section. A person cannot, however, use this section to interfere with the two hour time limit for blood alcohol testing as required under Iowa Code §321J.6(2). This means that the right to consult with counsel is limited to circumstances that do not materially interfere with the time limit.
Generally speaking, the right to counsel is satisfied by allowing the accused to make a telephone call. There is no duty on the officer to inform the accused of their right to consult an attorney, and any request must be made in good faith.
Therefore, much of the freedom to consult with an attorney is at the discretion of the officer making the arrest. After reviewing scores of OWI arrest videos, I have seen officers exercise a wide discretion on this question. Many times, the officer will allow the accused to make many phone calls, now that cell phones are generally available and present. I have seen officers allow five or six separate attempts to contact an attorney, and time frames from a few minutes to fifteen or more.
An officer will likely allow the accused enough time to reasonably contact an attorney, but the officer will end these attempts as soon as he sees that no genuine effort is being made. The accused can contact a family member for help in finding an attorney, but as soon as the conversation goes from ’searching for an attorney’ to ‘what’s for supper, honey?’ the officer may end the phone call immediately.
Another important point to stress is that there is no right in Iowa for these phone communications to be private. This may contrast with the language of the statute above, but our Supreme Court has stated “the telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian. They are for the purpose of enabling the person to arrange for a legal consultation and assistance.” State v. Craney, 347, N.W.2d 668, 677 (Iowa 1984).
To summarize, if a person is accused of an OWI offense and taken down to the police station, he will be given the right to call an attorney and speak with that attorney with the officer listening. As soon as the attempts to reach an attorney become futile, non-genuine, or threaten the two hour time limit, the officer will continue with the implied consent proceedings and demand that the accused either takes or refuses the Datamaster/Breathalyzer test.
This article was prepared by Attorney Mark Thompson and law student Cody Farrens.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Fake ID's in Iowa Criminal Law
There are several different ways underage students obtain alcohol in Iowa City. And although all of the methods I have listed below are a means to the same end, choosing one of them can get you a ticket, whereas another can make you a felon.
Let me tell you how NOT to obtain alcohol underage.
1. The absolute worst thing you can do is alter an existing form of identification to display false information.
This would include replacing the picture in an ID (although with new ID’s this is almost impossible), or more commonly, scratching out the name or birth date or other information and replacing it with other information. (I recall students in my dorm scratching out the edges of the “8″ in 1978 to appear as a “3″ for a false birth date of 1973). This is a crime of forgery, a class D felony. You can go to prison for up to five years on this offense, just because you wanted to join your older buddies for a night out.
Whatever you do, never tamper with official government documents, such as identification cards or driver’s licenses.
2. Another bad idea is to possess a falsely manufactured ID card. These are becoming much more common, as computer software and printers become cheaper and more advanced. This can land you a Possession of Fictitious Identification charge, which is a serious misdemeanor. A serious misdemeanor is nowhere near as serious as a forgery charge, but it is something serious nonetheless. This level of charge carries a maximum penalty of one year in jail.
The chances of a bouncer or bar employee of discovering a Fictitious ID are low, but a police officer will “run” the ID and expose it as a fake almost certainly. If you are questioned by a police officer, you certainly do not want to have one of these in your possession. It is a crime to keep it in your pocket, even if you do not intend to use it for any purpose.
3. The method that carries the lightest punishment is Possession/Use of Another’s Driver’s License to Obtain Alcohol. This is a simple misdemeanor, and usually carries only a fine and no jail time. This would be the charge if you were to use a sibling’s or friend’s non-altered ID and you obtained or attempted to obtain alcohol.
Not only does this charge carry the lightest sentence, but it is also the hardest for the State to prove. With the above offenses, possession is all that is required for a conviction. For this charge, the State must also prove that it has been used or attempted to have been used to obtain alcohol. Carrying around your friend’s ID, without intent to use it for obtaining alcohol is not a crime.
So, students, please be smart when you are out at the bars and do not obtain alcohol under age. But if you find that you must, never forge an ID or obtain a fictitious one.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Let me tell you how NOT to obtain alcohol underage.
1. The absolute worst thing you can do is alter an existing form of identification to display false information.
This would include replacing the picture in an ID (although with new ID’s this is almost impossible), or more commonly, scratching out the name or birth date or other information and replacing it with other information. (I recall students in my dorm scratching out the edges of the “8″ in 1978 to appear as a “3″ for a false birth date of 1973). This is a crime of forgery, a class D felony. You can go to prison for up to five years on this offense, just because you wanted to join your older buddies for a night out.
Whatever you do, never tamper with official government documents, such as identification cards or driver’s licenses.
2. Another bad idea is to possess a falsely manufactured ID card. These are becoming much more common, as computer software and printers become cheaper and more advanced. This can land you a Possession of Fictitious Identification charge, which is a serious misdemeanor. A serious misdemeanor is nowhere near as serious as a forgery charge, but it is something serious nonetheless. This level of charge carries a maximum penalty of one year in jail.
The chances of a bouncer or bar employee of discovering a Fictitious ID are low, but a police officer will “run” the ID and expose it as a fake almost certainly. If you are questioned by a police officer, you certainly do not want to have one of these in your possession. It is a crime to keep it in your pocket, even if you do not intend to use it for any purpose.
3. The method that carries the lightest punishment is Possession/Use of Another’s Driver’s License to Obtain Alcohol. This is a simple misdemeanor, and usually carries only a fine and no jail time. This would be the charge if you were to use a sibling’s or friend’s non-altered ID and you obtained or attempted to obtain alcohol.
Not only does this charge carry the lightest sentence, but it is also the hardest for the State to prove. With the above offenses, possession is all that is required for a conviction. For this charge, the State must also prove that it has been used or attempted to have been used to obtain alcohol. Carrying around your friend’s ID, without intent to use it for obtaining alcohol is not a crime.
So, students, please be smart when you are out at the bars and do not obtain alcohol under age. But if you find that you must, never forge an ID or obtain a fictitious one.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
OWI / DUI Iowa FST's - The Eye Test
One of the standardized field sobriety tests that today’s officers employ is the Horizontal Gaze Nystagmus test (HGN) also called the “eye test.”
The HGN is one of the most tricky and generally most damaging pieces of evidence a prosecutor can present in a borderline OWI trial. It is also a very powerful tool used by the police to gain “reasonable suspicion” to bring a suspect down to the station for the final breath test.
The biggest problem with the HGN is that it is based totally on the officer’s subjective observations, and that it is completely unverifiable by neutral means. By the nature of the test itself, the eye movements cannot be recorded by a video camera, and thus the officer’s word is the only verification that is needed to secure a breath test and ultimately, a conviction.
The HGN consists of three separate stages. All of these stages are performed as the officer asks the suspect to follow his finger (or a small “stimulus” such as a pen) with his eyes from side to side, without moving his head.
The first thing the officer is looking for is “lack of smooth pursuit.” There is scientific evidence that an intoxicated person will develop a nystagmus (meaning a ‘bounce’ or ’skip’) of the eyes, from side to side, while that person is intoxicated. The problem with this test is that there are various other sources that can cause a nystagmus, including nicotine and aspirin. The science says that all eyes offer some sort of horizontal nystagmus, but with intoxication by alcohol, this nystagmus is more distinct.
The officer will also look for “nystagmus prior to 45 degrees.” The science states that eyes will also offer a nystagmus (again, a “bouncing”) at around a 45 degree deviation. When a person is intoxicated, this nystagmus can occur prior to a 45 degree angle. This angle is measured as the lateral degrees from a straight-forward view. As a rule of thumb, for every degree prior to 45 degrees that the officer observes a nystagmus, that indicates (X*0.01) + 0.05 BAC where X = degrees prior to 45. The problem with this is that officers do not use any sort of tool to estimate the 45 degree angle. Again, the State alleges that these officers are trained to detect the 45 degree angle accurately, but an error of only 5 degrees is the difference between a 0.05 and a 0.10 BAC! It is truly a ridiculous proposition that an officer could accurately determine were the 45 degree angle begins.
Finally, the officer is looking for a “distinct nystagmus at maximum deviation.” This would be a very large bounce when the suspect is looking to the side as far as he possibly can.
The HGN is dangerous because it requires careful administration to be accurate, and those conditions simply do not exist in the field.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
The HGN is one of the most tricky and generally most damaging pieces of evidence a prosecutor can present in a borderline OWI trial. It is also a very powerful tool used by the police to gain “reasonable suspicion” to bring a suspect down to the station for the final breath test.
The biggest problem with the HGN is that it is based totally on the officer’s subjective observations, and that it is completely unverifiable by neutral means. By the nature of the test itself, the eye movements cannot be recorded by a video camera, and thus the officer’s word is the only verification that is needed to secure a breath test and ultimately, a conviction.
The HGN consists of three separate stages. All of these stages are performed as the officer asks the suspect to follow his finger (or a small “stimulus” such as a pen) with his eyes from side to side, without moving his head.
The first thing the officer is looking for is “lack of smooth pursuit.” There is scientific evidence that an intoxicated person will develop a nystagmus (meaning a ‘bounce’ or ’skip’) of the eyes, from side to side, while that person is intoxicated. The problem with this test is that there are various other sources that can cause a nystagmus, including nicotine and aspirin. The science says that all eyes offer some sort of horizontal nystagmus, but with intoxication by alcohol, this nystagmus is more distinct.
The officer will also look for “nystagmus prior to 45 degrees.” The science states that eyes will also offer a nystagmus (again, a “bouncing”) at around a 45 degree deviation. When a person is intoxicated, this nystagmus can occur prior to a 45 degree angle. This angle is measured as the lateral degrees from a straight-forward view. As a rule of thumb, for every degree prior to 45 degrees that the officer observes a nystagmus, that indicates (X*0.01) + 0.05 BAC where X = degrees prior to 45. The problem with this is that officers do not use any sort of tool to estimate the 45 degree angle. Again, the State alleges that these officers are trained to detect the 45 degree angle accurately, but an error of only 5 degrees is the difference between a 0.05 and a 0.10 BAC! It is truly a ridiculous proposition that an officer could accurately determine were the 45 degree angle begins.
Finally, the officer is looking for a “distinct nystagmus at maximum deviation.” This would be a very large bounce when the suspect is looking to the side as far as he possibly can.
The HGN is dangerous because it requires careful administration to be accurate, and those conditions simply do not exist in the field.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Crossing the Roadway Edge = OWI Stop in Iowa?
One of the positive cases to surface in Iowa regarding OWI stops is State v. Tague, 2004. When a motion to suppress is filed in regard to whether a car was stopped for weaving, Tague is usually cited.
In this case, the defendant was traveling on a four lane highway, with a painted median dividing the north and south bound traffic. He was followed for a short distance by an officer. The officer noticed the defendant’s wheel briefly cross the roadway edge line, on the left side of the left lane. At this point the officer conducted a traffic stop.
The defendant was rather intoxicated, and could not win his case on the merits. But that is where a motion to suppress can come in.
The police need to have probable cause that a traffic violation has occurred, or have reasonable suspicion that criminal activity is afoot before they can conduct a warrantless traffic stop. Of course, most stops occur because the officer obtained probable cause by witnessing a violation. In many OWI cases, however, the officer makes a stop due to erratic driving that is an indicator of intoxicated driving, but not necessarily an actual traffic offense.
Tague helps draw the line as to what the officer must observe before he can conduct the traffic stop. In Tague’s case, a single, brief crossing of a roadway edge line was insufficient. Tague’s case was dismissed and the charges were thrown out.
When I review an OWI case, I look specifically for any aspects which would equate to the reasoning in Tague. A slight weave or touching of a roadway line is explained by the Court in Tague:
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
In this case, the defendant was traveling on a four lane highway, with a painted median dividing the north and south bound traffic. He was followed for a short distance by an officer. The officer noticed the defendant’s wheel briefly cross the roadway edge line, on the left side of the left lane. At this point the officer conducted a traffic stop.
The defendant was rather intoxicated, and could not win his case on the merits. But that is where a motion to suppress can come in.
The police need to have probable cause that a traffic violation has occurred, or have reasonable suspicion that criminal activity is afoot before they can conduct a warrantless traffic stop. Of course, most stops occur because the officer obtained probable cause by witnessing a violation. In many OWI cases, however, the officer makes a stop due to erratic driving that is an indicator of intoxicated driving, but not necessarily an actual traffic offense.
Tague helps draw the line as to what the officer must observe before he can conduct the traffic stop. In Tague’s case, a single, brief crossing of a roadway edge line was insufficient. Tague’s case was dismissed and the charges were thrown out.
When I review an OWI case, I look specifically for any aspects which would equate to the reasoning in Tague. A slight weave or touching of a roadway line is explained by the Court in Tague:
Drivers talking on their cell phone, looking at a map, adjusting the radio,To answer the question in the title of this post, briefly crossing the roadway edge is not sufficient evidence to conduct the OWI stop. For questions regarding your specific case, please give me a call at (319) 354-1630.
adjusting the heater, defroster or air conditioner, or check on a child
restrained in a back seat can lead a driver to momentarily cross and edge line,
without giving rise to a reasonable suspicion of intoxication or fatigue.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Public Intoxication - Iowa City Criminal Law
The first place to look to find the defining law for a criminal charge is to the Iowa State Bar Association’s approved jury instructions. For (almost) every charge in Iowa, there exists a standard jury instruction which defines what elements the jury must determine have been met for a guilty verdict to occur.
And in searching these instructions for public intoxication you will find…nothing.
So what exactly does it take for a jury to find a defendant guilty of public intoxication?
The first myth to debunk is that a certain BAC on the portable breath test (PBT) will determine whether a person is intoxicated for purposes of the statute. The BAC limit for determining intoxication or being “under the influence” for an OWI is currently 0.08%. My other blog entries will inform you that the 0.08% for an OWI cannot be gathered from the PBT (it must be the police station’s large, non-portable machine), and also that you can still be guilty of OWI and blow under 0.08%.
But regarding public intoxication, the PBT is fair game for use in Court, and there is no BAC cut off for guilty or not guilty. Someone could blow a 0.05% on the PBT and still be found guilty of public intoxication. Also, someone could blow above 0.08% and be found not guilty. There is no BAC bright line; the PBT is just another piece of evidence that would add to the officer’s observations.
Many times the Court will adopt the OWI “under the influence” jury instruction for a public intoxication trial. That jury instruction reads:
Under The Influence. A person is “under the influence” when, by drinking liquor and/or beer, one or more of the following is true:
The Supreme Court of Iowa, however, has not officially ruled on what the public intoxication instruction should be. They have said what it is not, based on a few different lawyers’ attempts to draft more conservative instructions.
Obviously, the public has a greater interest in keeping “intoxicated” drivers off the street compared to keeping “intoxicated” persons off the sidewalks and out of the bars. Certainly an “intoxicated” person is less of a threat sitting at a booth at a bar, than behind the wheel of an automobile on a public street. Therefore, one could assume that these two persons would be held to different standards.
(And in case you were wondering public intoxication can occur inside a bar.)
For the time being, there is no clear answer as to how they are treated. And until we get a clear jury instruction for the definition of public intoxication, the Court will continue to piggyback public intoxication instructions on the liberally-drawn OWI instructions.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
And in searching these instructions for public intoxication you will find…nothing.
So what exactly does it take for a jury to find a defendant guilty of public intoxication?
The first myth to debunk is that a certain BAC on the portable breath test (PBT) will determine whether a person is intoxicated for purposes of the statute. The BAC limit for determining intoxication or being “under the influence” for an OWI is currently 0.08%. My other blog entries will inform you that the 0.08% for an OWI cannot be gathered from the PBT (it must be the police station’s large, non-portable machine), and also that you can still be guilty of OWI and blow under 0.08%.
But regarding public intoxication, the PBT is fair game for use in Court, and there is no BAC cut off for guilty or not guilty. Someone could blow a 0.05% on the PBT and still be found guilty of public intoxication. Also, someone could blow above 0.08% and be found not guilty. There is no BAC bright line; the PBT is just another piece of evidence that would add to the officer’s observations.
Many times the Court will adopt the OWI “under the influence” jury instruction for a public intoxication trial. That jury instruction reads:
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. [His] [Her] reason or mental ability has been affected.“visibly excited” simply due to interaction with law enforcement. Nonetheless, this jury instruction is commonly used and has been endorsed (although not required) by Iowa appellate case law.
2. [His] [Her]
judgment is impaired.
3. [His] [Her] emotions are visibly excited.
4. [He]
[She] has, to any extent, lost control of bodily actions or motions.
As you
can see, this is a very liberal definition. A defendant can have his emotions
The Supreme Court of Iowa, however, has not officially ruled on what the public intoxication instruction should be. They have said what it is not, based on a few different lawyers’ attempts to draft more conservative instructions.
Obviously, the public has a greater interest in keeping “intoxicated” drivers off the street compared to keeping “intoxicated” persons off the sidewalks and out of the bars. Certainly an “intoxicated” person is less of a threat sitting at a booth at a bar, than behind the wheel of an automobile on a public street. Therefore, one could assume that these two persons would be held to different standards.
(And in case you were wondering public intoxication can occur inside a bar.)
For the time being, there is no clear answer as to how they are treated. And until we get a clear jury instruction for the definition of public intoxication, the Court will continue to piggyback public intoxication instructions on the liberally-drawn OWI instructions.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Thursday, January 15, 2009
Public's Right to be on Public Streets? (Iowa Intox law)
…who may have consumed a small amount of alcohol…
That’s the issue in the Iowa Court of Appeals case State v. Bolden in 2005. Mr. Bolden was arrested for public intoxication, and he argued that the statute was unclear, vague and overbroad. He stated that the current public intoxication law results in:
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at http://www.thompsonjustice.com/.
That’s the issue in the Iowa Court of Appeals case State v. Bolden in 2005. Mr. Bolden was arrested for public intoxication, and he argued that the statute was unclear, vague and overbroad. He stated that the current public intoxication law results in:
“Iowa Citizens, of a majority age, who may have consumed a small amount ofI think he brings up a good point. Many people arrested for public intoxication in Iowa City’s downtown environment can point to the other people around them that were “more drunk that I was.” The vagueness of Iowa’s public intoxication law is was leads to these “arbitrary and capricious” situations.
alcohol are chilled from exercising their constitutional right to traverse and
associate on public streets for fear they may become targets of arbitrary and
capricious seizures.”
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at http://www.thompsonjustice.com/.
Sleeping in Car = OWI / DUI in Iowa?
Iowa case law is clear that if a person is behind the wheel of an automobile with the engine operating, and that person is intoxicated, they would be guilty of OWI. The vehicle does not have to be in motion, and the State does not have to prove any intent to drive. Mere “operation” of the engine is enough to satisfy the requirements for the statute.
As I have stated elsewhere on this website, if you are intoxicated, and need to “sleep it off” in a car, do not place the keys in the ignition, do not sit behind the wheel, and never start the engine.
But, let’s suppose a person is sleeping behind the wheel with the engine operating, in a legal parking space. What rights to the police have to knock on the window, open the door, or otherwise begin an OWI investigation?
This question can become very complex, and it will take us to the roots of search and seizure law. Foremost, the State needs a warrant before any search or seizure is conducted, unless there is an “exception.” And in some cases, the exceptions are starting to swallow the rule.
I will skip the element of “seizure” for this discussion, and we can assume that a seizure has taken place in this case. Whether or not a legal seizure has occurred is a deep question, one that could fill many pages of blog entries.
One exception to the warrant requirement is if the State has a reasonable suspicion that criminal activity is afoot. What would this be? If an officer comes across a person sleeping behind the wheel of an operating vehicle, and there are beer cans strewn about the compartment and the area around the car, this would likely be sufficient evidence for the officer to begin an OWI investigation.
Another exception to the warrant requirement is called the community caretaking exception (as discussed in State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003)). For the community caretaking exception to apply, a three-step analysis must be preformed. First, there must be a seizure within the meaning of the Fourth Amendment. Second, there must be evidence of a police officer engaging in a bona fide community caretaking activity. Third, the public need and interest must outweigh the intrusion upon the privacy of the citizen.
The most relevant community caretaking activities are when officers intend to act as public servants or intend offer emergency aid. Crawford, 659 N.W.2d at 543. An example of the public servant function would be when an officer stops to assist a stranded motorist with a flat tire. For the emergency aid function to apply, the officer must have an immediate, reasonable belief that a serious, dangerous event is occurring. In Crawford, the Court cites the example of “an officer providing first aid to a person slumped over the steering wheel with a bleeding gash on his head.
Where does that put us? Provided that no incriminating evidence was visible, and it was clear to the officer that the operator was merely sleeping, the case law seems to state that the officer cannot bother the person behind the wheel.
But this is a case where practice can differ slightly from the case law.
In a recent Iowa City OWI case, a person was discovered sleeping in his car with the engine running. An officer parked his car behind the person’s car, then approached the driver’s window. The officer knocked and shouted for about 15-20 seconds (according to his testimony). At this point, he opened the door to the vehicle. The officer admitted there was no evidence of criminal activity, and the driver did not appear to be in distress. As he was knocking, however, he began to wonder if the driver was okay. Furthermore, the car was parked in a hospital parking ramp.
The Judge determined that the community caretaking exception applied. Much weight was placed on the fact that this took place in a hospital ramp. Certainly the facts do not reach the example provided in the case law, requiring “an immediate, reasonable belief that a serious, dangerous event is occurring.” But nonetheless, this case was decided in favor of the State, sending a message that sleeping in your car with the engine running, while intoxicated, is always a bad idea.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
As I have stated elsewhere on this website, if you are intoxicated, and need to “sleep it off” in a car, do not place the keys in the ignition, do not sit behind the wheel, and never start the engine.
But, let’s suppose a person is sleeping behind the wheel with the engine operating, in a legal parking space. What rights to the police have to knock on the window, open the door, or otherwise begin an OWI investigation?
This question can become very complex, and it will take us to the roots of search and seizure law. Foremost, the State needs a warrant before any search or seizure is conducted, unless there is an “exception.” And in some cases, the exceptions are starting to swallow the rule.
I will skip the element of “seizure” for this discussion, and we can assume that a seizure has taken place in this case. Whether or not a legal seizure has occurred is a deep question, one that could fill many pages of blog entries.
One exception to the warrant requirement is if the State has a reasonable suspicion that criminal activity is afoot. What would this be? If an officer comes across a person sleeping behind the wheel of an operating vehicle, and there are beer cans strewn about the compartment and the area around the car, this would likely be sufficient evidence for the officer to begin an OWI investigation.
Another exception to the warrant requirement is called the community caretaking exception (as discussed in State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003)). For the community caretaking exception to apply, a three-step analysis must be preformed. First, there must be a seizure within the meaning of the Fourth Amendment. Second, there must be evidence of a police officer engaging in a bona fide community caretaking activity. Third, the public need and interest must outweigh the intrusion upon the privacy of the citizen.
The most relevant community caretaking activities are when officers intend to act as public servants or intend offer emergency aid. Crawford, 659 N.W.2d at 543. An example of the public servant function would be when an officer stops to assist a stranded motorist with a flat tire. For the emergency aid function to apply, the officer must have an immediate, reasonable belief that a serious, dangerous event is occurring. In Crawford, the Court cites the example of “an officer providing first aid to a person slumped over the steering wheel with a bleeding gash on his head.
Where does that put us? Provided that no incriminating evidence was visible, and it was clear to the officer that the operator was merely sleeping, the case law seems to state that the officer cannot bother the person behind the wheel.
But this is a case where practice can differ slightly from the case law.
In a recent Iowa City OWI case, a person was discovered sleeping in his car with the engine running. An officer parked his car behind the person’s car, then approached the driver’s window. The officer knocked and shouted for about 15-20 seconds (according to his testimony). At this point, he opened the door to the vehicle. The officer admitted there was no evidence of criminal activity, and the driver did not appear to be in distress. As he was knocking, however, he began to wonder if the driver was okay. Furthermore, the car was parked in a hospital parking ramp.
The Judge determined that the community caretaking exception applied. Much weight was placed on the fact that this took place in a hospital ramp. Certainly the facts do not reach the example provided in the case law, requiring “an immediate, reasonable belief that a serious, dangerous event is occurring.” But nonetheless, this case was decided in favor of the State, sending a message that sleeping in your car with the engine running, while intoxicated, is always a bad idea.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Deferred Judgments for OWI / DUI in Iowa City
A few legislative terms ago, a deferred judgment would allow a defendant to plead guilty to a crime without being assessed any fines. In an OWI, a defendant could be granted a deferred judgment, and instead of the (then $1000.00 + 30% surcharge) minimum fine, the defendant would pay only a supervision fee of $250.00-300.00.
Then, the new “civil penalty” law was passed. This required judges to impose a civil penalty in all OWI cases at an amount equal to the minimum allowable fine if a conviction was entered. This law was vaguely drafted, and it did not allow defendants the opportunity to fully understand their rights and what the possible outcomes could be if they were to be granted a deferred judgment and then if they were to violate it.
So our good Johnson County judges declared this law unconstitutional, and they refused to enforce it. Things were back to normal for a while here in Iowa City.
The rulings were appealed, and our Iowa Supreme Court heard the arguments.
In late December 2007, they announced their ruling. They determined the law was indeed constitutional and ordered the Johnson County judges to resume enforcement of this civil penalty law.
Now, for defendants who are granted deferred judgments in Johnson County, a civil penalty must be imposed.
For a conviction on an OWI charge, the minimum fine is $1,250.00. However, if the defendant obtains a temporary restricted license from the Iowa Department of Transportation, that fine is cut down to $625.00. And with this rule, the Johnson County judges have hence determined that $625.00 is the minimum allowable fine, and therefore this is the amount they are currently requesting for a civil penalty for an OWI in Johnson County.
Therefore, if you are granted a deferred judgment for an OWI in Johnson County, expect to pay $625.00 for the civil penalty, $100.00 for court costs, and $300.00 for the “self supervised probation” fee. That total may be high, but it is still (roughly) $625.00 cheaper than a regular OWI conviction.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Then, the new “civil penalty” law was passed. This required judges to impose a civil penalty in all OWI cases at an amount equal to the minimum allowable fine if a conviction was entered. This law was vaguely drafted, and it did not allow defendants the opportunity to fully understand their rights and what the possible outcomes could be if they were to be granted a deferred judgment and then if they were to violate it.
So our good Johnson County judges declared this law unconstitutional, and they refused to enforce it. Things were back to normal for a while here in Iowa City.
The rulings were appealed, and our Iowa Supreme Court heard the arguments.
In late December 2007, they announced their ruling. They determined the law was indeed constitutional and ordered the Johnson County judges to resume enforcement of this civil penalty law.
Now, for defendants who are granted deferred judgments in Johnson County, a civil penalty must be imposed.
For a conviction on an OWI charge, the minimum fine is $1,250.00. However, if the defendant obtains a temporary restricted license from the Iowa Department of Transportation, that fine is cut down to $625.00. And with this rule, the Johnson County judges have hence determined that $625.00 is the minimum allowable fine, and therefore this is the amount they are currently requesting for a civil penalty for an OWI in Johnson County.
Therefore, if you are granted a deferred judgment for an OWI in Johnson County, expect to pay $625.00 for the civil penalty, $100.00 for court costs, and $300.00 for the “self supervised probation” fee. That total may be high, but it is still (roughly) $625.00 cheaper than a regular OWI conviction.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Substance Abuse Evaluation for Iowa OWI / DUI
When an arrest is made for OWI in the State of Iowa, a substance abuse evaluation must be ordered to be completed.
In Johnson County (Iowa City) the judge will order that this substance abuse evaluation be completed within 10 days. This is one of the most immediate deadlines that will occur with an OWI arrest. Therefore, as soon as a defendant is released from jail for an OWI, they should contact a substance abuse evaluator and schedule an appointment.
Also in Johnson County, the defendant will be given a list of local clinics that offer substance abuse evaluations. Many of these centers will charge around $100 for the evaluation. A defendant can expect to spend about one hour discussing their history of substance abuse with the evaluator. Questions will be asked regarding all forms of substance abuse, ranging from alcohol to illegal drugs and prescription drugs.
At the conclusion of the evaluation, the counselor will make a recommendation. This recommendation could state that the defendant has no substance abuse problems and therefore requires no treatment. The evaluator could also request outpatient sessions, or even inpatient committal. For most young people involved in a solitary OWI event, outpatient is the most restrictive treatment that is recommended.
The evaluation is confidential. That means the defendant must sign a written release for the Court or county attorney to have access to the evaluation. Since the Court is ordering that these evaluations be completed, it is generally a good idea to release the reports to the Court and to the County Attorney.
In almost all cases, the Court will require that the Defendant complete the recommended treatment as part of their case.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
In Johnson County (Iowa City) the judge will order that this substance abuse evaluation be completed within 10 days. This is one of the most immediate deadlines that will occur with an OWI arrest. Therefore, as soon as a defendant is released from jail for an OWI, they should contact a substance abuse evaluator and schedule an appointment.
Also in Johnson County, the defendant will be given a list of local clinics that offer substance abuse evaluations. Many of these centers will charge around $100 for the evaluation. A defendant can expect to spend about one hour discussing their history of substance abuse with the evaluator. Questions will be asked regarding all forms of substance abuse, ranging from alcohol to illegal drugs and prescription drugs.
At the conclusion of the evaluation, the counselor will make a recommendation. This recommendation could state that the defendant has no substance abuse problems and therefore requires no treatment. The evaluator could also request outpatient sessions, or even inpatient committal. For most young people involved in a solitary OWI event, outpatient is the most restrictive treatment that is recommended.
The evaluation is confidential. That means the defendant must sign a written release for the Court or county attorney to have access to the evaluation. Since the Court is ordering that these evaluations be completed, it is generally a good idea to release the reports to the Court and to the County Attorney.
In almost all cases, the Court will require that the Defendant complete the recommended treatment as part of their case.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
To "Blow" During an Iowa OWI / DUI Arrest?
During most police stops on suspicion for OWI, the officer will request a breath sample. What happens if a defendant refuses?
There are two different breath samples which the officer may request. The first is the preliminary breath test or “PBT” or field test. This is the small box which officers carry with them in the field.
The PBT is not fully accurate. For an OWI, it is used only to help officers determine if they have probable cause to make an arrest. The results will not be used in Court as evidence of intoxication. (They can be used for a public intoxication charge, though).
A refusal on the PBT is not a “refusal” in regard to any additional penalties which may fall on the defendant regarding their driver’s license. Refusing the PBT only denies the officer an additional piece of evidence prior to making an arrest. If a PBT is given and the results indicate intoxication, an arrest will almost certainly occur. If an officer suspects intoxication and the PBT is refused, an arrest will likely occur anyway. The important test is not the PBT, but the breath test given at the police station.
At the police station a second breath test can be requested. This can be called the “Intoxilyzer” or the “Breathalyzer.” This device is much larger, connected to a computer and much more accurate. A refusal of this test can have serious consequences for a defendant, especially regarding their license.
While requesting the Breathalyzer, the officer must read the implied consent laws to the defendant. The implied consent laws will give the defendant a general idea of the consequences of taking the test and failing, or refusing to take the test.
After a quick review of the probable penalties, it is rarely a good idea to refuse the Breathalyzer for a first offense OWI.
Obviously, if the results indicate no intoxication and the officer no longer feels the defendant is intoxicated and does not file a complaint, then there would be no license restrictions.
If the test is administered and the defendant fails, and it is their first offense, their license will be revoked for a period of 180 days. And depending on the indicated BAC, the defendant may have to wait a period of 30 days prior to receiving a temporary restricted license. If the defendant blows less than 0.10, but more than 0.08, there is no waiting period for the temporary restricted license.
For a refusal on a first offense, the defendant’s license must be revoked for a period of one year, and no temporary license can be received for 90 days.
(One exception to the above situation is if a personal injury occurred due to an accident in which the driver was involved. Then their license can be revoked for one year.)
Therefore, if you are facing the decision “to blow or not to blow” on a first offense OWI, my advice in general is that you should blow. Certainly there are other variables which can be involved, but in most situations taking the test will get your license back to you more quickly.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
There are two different breath samples which the officer may request. The first is the preliminary breath test or “PBT” or field test. This is the small box which officers carry with them in the field.
The PBT is not fully accurate. For an OWI, it is used only to help officers determine if they have probable cause to make an arrest. The results will not be used in Court as evidence of intoxication. (They can be used for a public intoxication charge, though).
A refusal on the PBT is not a “refusal” in regard to any additional penalties which may fall on the defendant regarding their driver’s license. Refusing the PBT only denies the officer an additional piece of evidence prior to making an arrest. If a PBT is given and the results indicate intoxication, an arrest will almost certainly occur. If an officer suspects intoxication and the PBT is refused, an arrest will likely occur anyway. The important test is not the PBT, but the breath test given at the police station.
At the police station a second breath test can be requested. This can be called the “Intoxilyzer” or the “Breathalyzer.” This device is much larger, connected to a computer and much more accurate. A refusal of this test can have serious consequences for a defendant, especially regarding their license.
While requesting the Breathalyzer, the officer must read the implied consent laws to the defendant. The implied consent laws will give the defendant a general idea of the consequences of taking the test and failing, or refusing to take the test.
After a quick review of the probable penalties, it is rarely a good idea to refuse the Breathalyzer for a first offense OWI.
Obviously, if the results indicate no intoxication and the officer no longer feels the defendant is intoxicated and does not file a complaint, then there would be no license restrictions.
If the test is administered and the defendant fails, and it is their first offense, their license will be revoked for a period of 180 days. And depending on the indicated BAC, the defendant may have to wait a period of 30 days prior to receiving a temporary restricted license. If the defendant blows less than 0.10, but more than 0.08, there is no waiting period for the temporary restricted license.
For a refusal on a first offense, the defendant’s license must be revoked for a period of one year, and no temporary license can be received for 90 days.
(One exception to the above situation is if a personal injury occurred due to an accident in which the driver was involved. Then their license can be revoked for one year.)
Therefore, if you are facing the decision “to blow or not to blow” on a first offense OWI, my advice in general is that you should blow. Certainly there are other variables which can be involved, but in most situations taking the test will get your license back to you more quickly.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Iowa Criminal Law - Search and Seizure
One of the biggest mistakes defendants make during an encounter with the police is failing to exercise their right to remain silent.
The Miranda warnings have been read so many times on television that the general public has forgotten to actually listen to and understand these rights before they continue an interview with the police.
Many times I have reviewed police interviews and heard the following exchange take place:
Officer, “Having been informed of your rights do you fully understand them?”
Defendant, “Yes.”
Officer, “Ok, now tell me, was the pot we found yours?”
Defendant, “Yes.”
In the above situation, a defendant would be wise to state, “I’m sorry officer but I do not wish to answer that question.” Or better, if the defendant were to ask for an attorney, the interview must immediately cease.
When the Miranda rights were first established, it must have been such a surprise to defendants, “Wait, you mean I don’t have to answer these questions? Great!” Now the meaning of the rights has been eroded by television and popular culture that defendants space out and ignore the substance of what the officer is saying.
So please, remember, you actually do have the right to remain silent.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
The Miranda warnings have been read so many times on television that the general public has forgotten to actually listen to and understand these rights before they continue an interview with the police.
Many times I have reviewed police interviews and heard the following exchange take place:
Officer, “Having been informed of your rights do you fully understand them?”
Defendant, “Yes.”
Officer, “Ok, now tell me, was the pot we found yours?”
Defendant, “Yes.”
In the above situation, a defendant would be wise to state, “I’m sorry officer but I do not wish to answer that question.” Or better, if the defendant were to ask for an attorney, the interview must immediately cease.
When the Miranda rights were first established, it must have been such a surprise to defendants, “Wait, you mean I don’t have to answer these questions? Great!” Now the meaning of the rights has been eroded by television and popular culture that defendants space out and ignore the substance of what the officer is saying.
So please, remember, you actually do have the right to remain silent.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Kirkwood OWI Treatment Program for Iowa OWI / DUI
Sometimes the Court will allow a person convicted of OWI to complete their mandatory 48 hours in jail by attending the Kirkwood OWI Weekend Program. When a deferred judgment is granted, the Court will often require this course as part of the probation. Either way, the OWI program is a great alternative to spending 48 hours in the county jail.
Not only will this program often fulfill the mandatory jail requirements for an OWI conviction, but it will satisfy the Iowa Department of Transportation requirements for a 12-hour class which is required to get your license back after a OWI conviction.
The program is a 48-hour lock-down class. It is offered at various dates at both the Heartland Inn in Coralville and the Country Inn and Suites in Cedar Rapids. The fee is (as of Jan 2008) $320.00 payable at the time of sign-up. Participants must arrive between 4:30 p.m. and 5:30 p.m. on the Friday of the program, and will be locked-down from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. Meals are provided.
Expect to spend about 28 hours of the weekend attending the required classes. The remainder of the time will be spent on meals, breaks and sleep.
Rooms are generally double-booked, sometimes triple, based on gender and smoking preference. No cell phones or outside communication is allowed. A breath test will be administered to the participants, and any positive readings will lead to removal from that weekend’s program and possible criminal charges.
Certainly, the weekend program is not a fun experience, but many people agree that it is a far better alternative than jail.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Not only will this program often fulfill the mandatory jail requirements for an OWI conviction, but it will satisfy the Iowa Department of Transportation requirements for a 12-hour class which is required to get your license back after a OWI conviction.
The program is a 48-hour lock-down class. It is offered at various dates at both the Heartland Inn in Coralville and the Country Inn and Suites in Cedar Rapids. The fee is (as of Jan 2008) $320.00 payable at the time of sign-up. Participants must arrive between 4:30 p.m. and 5:30 p.m. on the Friday of the program, and will be locked-down from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. Meals are provided.
Expect to spend about 28 hours of the weekend attending the required classes. The remainder of the time will be spent on meals, breaks and sleep.
Rooms are generally double-booked, sometimes triple, based on gender and smoking preference. No cell phones or outside communication is allowed. A breath test will be administered to the participants, and any positive readings will lead to removal from that weekend’s program and possible criminal charges.
Certainly, the weekend program is not a fun experience, but many people agree that it is a far better alternative than jail.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
Does Pleading Not Guilty Anger the Court?
I have been asked this question many times in one form or another. The short answer is “No.”
What does anger the Court is when a defendant rushes into a guilty plea, then wishes to withdraw the guilty plea claiming they did not know what was going on.
For simple misdemeanors, the judge will generally ask a defendant how they wish to plead while the defendant is still sitting in jail during his initial appearance. If that defendant is unsure in any way as to whether he should plead guilty or not guilty, the correct answer is, plead NOT guilty.
A not guilty plea is not an insult to the Court. It can mean a variety of things, including, the defendant needs more time to think about it, the defendant wishes to negotiate a plea bargain, or the defendant simply wishes to discuss their case with an attorney.
If the charge is not a simple misdemeanor, the judge will not ask for a plea until the county attorney files their Trial Information. Once the Trial Information is filed, a written plea can be submitted generally at any time, except for felony offenses.
Felony offense guilty pleas must be made in open court, so the judge can have an opportunity to go on the record and inform the defendant of all the rights he is waving.
Whether the charge is a simple misdemeanor, non-simple misdemeanor, or a felony offense, a not guilty plea is not an insult to the Court or the prosecution. It is simply a statement to the Court that the defendant has not yet made up his mind as to entering a guilty plea at that time.
All guilty pleas should be made as if they were final decisions. Whereas a not guilty plea is often an intermediary step to a guilty plea. The only way a defendant can upset or bother the Court in this situation, is to plead guilty, then demand that the guilty plea be withdrawn because he was not aware of his rights.
In summary, when in doubt, plead not guilty.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
What does anger the Court is when a defendant rushes into a guilty plea, then wishes to withdraw the guilty plea claiming they did not know what was going on.
For simple misdemeanors, the judge will generally ask a defendant how they wish to plead while the defendant is still sitting in jail during his initial appearance. If that defendant is unsure in any way as to whether he should plead guilty or not guilty, the correct answer is, plead NOT guilty.
A not guilty plea is not an insult to the Court. It can mean a variety of things, including, the defendant needs more time to think about it, the defendant wishes to negotiate a plea bargain, or the defendant simply wishes to discuss their case with an attorney.
If the charge is not a simple misdemeanor, the judge will not ask for a plea until the county attorney files their Trial Information. Once the Trial Information is filed, a written plea can be submitted generally at any time, except for felony offenses.
Felony offense guilty pleas must be made in open court, so the judge can have an opportunity to go on the record and inform the defendant of all the rights he is waving.
Whether the charge is a simple misdemeanor, non-simple misdemeanor, or a felony offense, a not guilty plea is not an insult to the Court or the prosecution. It is simply a statement to the Court that the defendant has not yet made up his mind as to entering a guilty plea at that time.
All guilty pleas should be made as if they were final decisions. Whereas a not guilty plea is often an intermediary step to a guilty plea. The only way a defendant can upset or bother the Court in this situation, is to plead guilty, then demand that the guilty plea be withdrawn because he was not aware of his rights.
In summary, when in doubt, plead not guilty.
This was authored by Iowa City Criminal Lawyer Mark Thompson. Please contact him for more information at www.thompsonjustice.com.
"Operating" for an OWI / DUI Criminal Offense
As I have stated elsewhere on my website, the Iowa legislature has decided to call our drunk driving offense “OWI” for Operating While Intoxicated, (also called Operating While under the Influence) as opposed to many other jurisdictions which use the term “DUI” for Driving Under the Influence.
Part of the reason for the “Operating” distinction is that a defendant does not have to actually be driving anything to be found guilty of this offense.
With this terribly cold winter there have been more and more cases of people operating motor vehicles as opposed to driving them. What does this mean?
Essentially, if a person has placed the keys in the ignition of a motor vehicle, then he is “operating” it. The car can be parked in a parking ramp, a street spot or even a private residence. The intention of placing the keys in the ignition is not relevant to the offense. If the defendant proves that he did not drive the vehicle, and only placed the key in the ignition to operate the heater to stay warm, he would still be operating the vehicle. Again, the intention is not relevant.
Of course, the other factor that must be present to be guilty of the OWI offense is that the defendant must be intoxicated. Many people are more familiar with what the State must prove to show intoxication.
This winter has caught many citizens off-guard with their choices to operate a car’s heater and “sleep it off” before driving home.
So what should you do in this situation? Obviously the best choice is to find another place to sleep it off. However, if you are stuck and must sleep in your car, do not place the keys in the ignition if you wish to avoid an OWI charge. Certainly with this terrible winter weather sleeping in a car without the heater on could be deadly, so at this time of the year there are no good results once you enter that automobile while intoxicated.
Plan ahead and if you plan on becoming intoxicated, arrange for a cab or a DD to take you back home. Sleeping it off with the key in the ignition is a quick way for a 3:00 a.m. prowling cop to bust you for an easy OWI.
Please contact Iowa Criminal Lawyer Mark Thompson for more info.
Part of the reason for the “Operating” distinction is that a defendant does not have to actually be driving anything to be found guilty of this offense.
With this terribly cold winter there have been more and more cases of people operating motor vehicles as opposed to driving them. What does this mean?
Essentially, if a person has placed the keys in the ignition of a motor vehicle, then he is “operating” it. The car can be parked in a parking ramp, a street spot or even a private residence. The intention of placing the keys in the ignition is not relevant to the offense. If the defendant proves that he did not drive the vehicle, and only placed the key in the ignition to operate the heater to stay warm, he would still be operating the vehicle. Again, the intention is not relevant.
Of course, the other factor that must be present to be guilty of the OWI offense is that the defendant must be intoxicated. Many people are more familiar with what the State must prove to show intoxication.
This winter has caught many citizens off-guard with their choices to operate a car’s heater and “sleep it off” before driving home.
So what should you do in this situation? Obviously the best choice is to find another place to sleep it off. However, if you are stuck and must sleep in your car, do not place the keys in the ignition if you wish to avoid an OWI charge. Certainly with this terrible winter weather sleeping in a car without the heater on could be deadly, so at this time of the year there are no good results once you enter that automobile while intoxicated.
Plan ahead and if you plan on becoming intoxicated, arrange for a cab or a DD to take you back home. Sleeping it off with the key in the ignition is a quick way for a 3:00 a.m. prowling cop to bust you for an easy OWI.
Please contact Iowa Criminal Lawyer Mark Thompson for more info.
Iowa City Criminal Law - "Intoxication" for OWI/DUI
There are three ways to be “intoxicated” or “under the influence” as defined by the Iowa Code for the offense of Operating While Intoxicated.
Let’s start with what the actual law (Iowa Code §321J.2) says:
1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:
a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.
This means that a person is guilty if they are “under the influence,” as determined by the officer’s various field sobriety tests and the officer’s judgment. This is generally caused by drinking too much alcohol, but the law states that the “under the influence” can arise from any combination of legal or illegal drugs and/or alcohol.
So if a person drinks alcohol so that the alcohol has influenced their driving, then they would be guilty. If a person ingests illegal drugs to the point of allowing the drug to influence their operation, that person is guilty. (More on that point below). But surprisingly, if a person consumes a legally prescribed (or even a non-prescribed, over-the-counter) drug and that drug influences that person’s operation of a motor vehicle, that person can be found guilty.
There is an exception for when a person consumes the legally prescribed amount of a drug, and the drug contains no warnings regarding operating a vehicle. But this is rare. Those over-the-counter sleeping pills all contain warnings. As does the doctor’s prescription for Ambien. If you consume these over-the-counter, or legally prescribed drugs, even without one drink of alcohol, you could be found guilty of OWI if you sit behind the wheel.
The second method for being found “intoxicated” for this offense is:
b. While having an alcohol concentration of .08 or more.
The most commonly known method. This measurement can be gathered by breath, blood or urine. The police have the right to demand either breath or urine, but they cannot force a blood test (unless that person is incapacitated).
As far as the first method, a defendant might think that as long as they test under .08, then they would be not guilty. That is not the case. The .08 limit only works one way. If a defendant tests at or above .08, then that person would be guilty, despite the showing of any level of being under the influence. If a defendant tests under .08, but still shows signs of intoxication, he still can be found guilty!
The .08 is a catch-all, all those above this limit are “under the influence,” but all those under the limit are not off the hook.
Method three:
c. While any amount of a controlled substance is present in the person, as measured in the person’s blood or urine.
For this method, a person does not even have to be under the influence. The mere fact that any detectable amount of an illegal drug (controlled substance) is present would make that person “intoxicated” for purposes of OWI.
That means that during the roughly month-long period that it takes for THC to be removed from a user’s system, if at any point that person were to get behind the wheel of a motor vehicle in Iowa, that person would be guilty of OWI.
Now the truth of these three rules is that a police officer will not have any reason to investigate a OWI unless he suspects driving under the influence. This post is just meant as a warning that driving with any illegal drug in a person’s system, or driving while being influenced by a legal drug, or driving under the influence of alcohol but blowing under .08, all these situations can lead to a conviction for OWI.
Obviously, though, a vast majority of all OWI cases deal with alcohol, and BAC levels at or above .08, but please take care not to get caught up in some of the other lesser-known “intoxicated” states under Iowa’s OWI laws.
Contact Iowa City Criminal Lawyer Mark Thompson with any questions.
Let’s start with what the actual law (Iowa Code §321J.2) says:
1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:
a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.
This means that a person is guilty if they are “under the influence,” as determined by the officer’s various field sobriety tests and the officer’s judgment. This is generally caused by drinking too much alcohol, but the law states that the “under the influence” can arise from any combination of legal or illegal drugs and/or alcohol.
So if a person drinks alcohol so that the alcohol has influenced their driving, then they would be guilty. If a person ingests illegal drugs to the point of allowing the drug to influence their operation, that person is guilty. (More on that point below). But surprisingly, if a person consumes a legally prescribed (or even a non-prescribed, over-the-counter) drug and that drug influences that person’s operation of a motor vehicle, that person can be found guilty.
There is an exception for when a person consumes the legally prescribed amount of a drug, and the drug contains no warnings regarding operating a vehicle. But this is rare. Those over-the-counter sleeping pills all contain warnings. As does the doctor’s prescription for Ambien. If you consume these over-the-counter, or legally prescribed drugs, even without one drink of alcohol, you could be found guilty of OWI if you sit behind the wheel.
The second method for being found “intoxicated” for this offense is:
b. While having an alcohol concentration of .08 or more.
The most commonly known method. This measurement can be gathered by breath, blood or urine. The police have the right to demand either breath or urine, but they cannot force a blood test (unless that person is incapacitated).
As far as the first method, a defendant might think that as long as they test under .08, then they would be not guilty. That is not the case. The .08 limit only works one way. If a defendant tests at or above .08, then that person would be guilty, despite the showing of any level of being under the influence. If a defendant tests under .08, but still shows signs of intoxication, he still can be found guilty!
The .08 is a catch-all, all those above this limit are “under the influence,” but all those under the limit are not off the hook.
Method three:
c. While any amount of a controlled substance is present in the person, as measured in the person’s blood or urine.
For this method, a person does not even have to be under the influence. The mere fact that any detectable amount of an illegal drug (controlled substance) is present would make that person “intoxicated” for purposes of OWI.
That means that during the roughly month-long period that it takes for THC to be removed from a user’s system, if at any point that person were to get behind the wheel of a motor vehicle in Iowa, that person would be guilty of OWI.
Now the truth of these three rules is that a police officer will not have any reason to investigate a OWI unless he suspects driving under the influence. This post is just meant as a warning that driving with any illegal drug in a person’s system, or driving while being influenced by a legal drug, or driving under the influence of alcohol but blowing under .08, all these situations can lead to a conviction for OWI.
Obviously, though, a vast majority of all OWI cases deal with alcohol, and BAC levels at or above .08, but please take care not to get caught up in some of the other lesser-known “intoxicated” states under Iowa’s OWI laws.
Contact Iowa City Criminal Lawyer Mark Thompson with any questions.
Wednesday, January 14, 2009
PAULA in Iowa City
Paula - or Possession of Alcohol under the Legal Age, is a very common offense in Iowa City. A short time ago the fine was small, even for multiple offenses. Now the fines are staggering.
A first offense Paula will cost a defendant $314.00. That includes $200.00 for the fine, a 32% “surcharge” and the new court costs of $50.00.
A second offense will run you $500.00, plus the 32% and the $50.00, for a grand total of $710.00, plus you are required to obtain a substance abuse evaluation or lose your license to drive for thirty days. For a third and all subsequent offenses, the fine is the same as the second offense, but the loss of license is required.
Obviously your best move is to avoid getting the ticket in the first place. And the best way to do that is not to possess alcohol until you are 21. (Unless you are at home with your parents, in which case the law makes a small exception for you).
Many Paula charges happen in downtown Iowa City bars. But the following scenario happens weekly:“It wasn’t my beer I was just holding it.”
Let’s say that is the truth. Guess what? You are still guilty. It does not matter if you never had a drink in your life, as soon as you admit to “holding” (i.e., possessing) the drink, the you will be found guilty. So if some guy tells you to hold his drink as he goes into the bathroom, and you are under 21, then decline. The most important lesson when it comes to Paulas is, the law is “possessing” alcohol, not drinking, or being intoxicated by it.
This is another very common situation:
“This beer in front of me isn’t mine.”
Now that argument has a little more teeth to it. The State will have to prove that the drink in front of you is or was at some point actually in your possession.
“Possession” does not always need to be in your hand. Your coat across the back of your chair is in your possession, as are many of the contents of your car and apartment, even when you are not there. Beer in the hand is the easiest way for the State to prove that you possessed the alcohol, but drink on the table is only a few facts away from being possession as well.
For example, let’s say there are four of you at the table and four drinks. Just on the basis of that it doesn’t prove that the drink is yours, at least, not to all magistrates. But add on the facts that you smell like alcohol, that the officer saw you take a drink, or most importantly, you admit that it is your drink, those facts will secure a conviction for the State.
That does not mean that you should keep three drinks on the table and shift the blame to protect the fourth person. The State still secures Paula convictions even when the people outnumber the drinks.
If you are questioned by an officer regarding a Paula, remember, you do not have to answer any questions about the alcohol. If you are asked about the drink, always be very polite and state that you are not comfortable talking about it. This usually will not prevent a ticket from being written, but admitting to the possession is a surefire way to lose your case.
People hear “you have the right to remain silent” so often that the words lose all meaning when uttered by a police officer. So remember, you do actually have the right not to answer the questions of the police officers. And when investigating a Paula, they usually will not remind you of this right until the ticket is already being written, or until you have been arrested.
In Iowa City, the police officers conduct “routine bar sweeps” to check for underage drinking, but Paula tickets can be given out at any public event (like Hawkeye football games) or at private parties. In all of these situations, police officers will usually approach you if you draw the attention to yourself, by acting drunk or pushing a drink away when an officer approaches. So, it goes without saying, that you should never draw attention to yourself if you are breaking the Paula laws.
So to summarize:
1. Remember what “possession” means.
2. You actually do have the right to remain silent.
3. Don’t draw attention to yourself.
4. Always be polite to any law enforcement agents.
If you have questions or have been charged with Paula, please consult my website or contact me.
A first offense Paula will cost a defendant $314.00. That includes $200.00 for the fine, a 32% “surcharge” and the new court costs of $50.00.
A second offense will run you $500.00, plus the 32% and the $50.00, for a grand total of $710.00, plus you are required to obtain a substance abuse evaluation or lose your license to drive for thirty days. For a third and all subsequent offenses, the fine is the same as the second offense, but the loss of license is required.
Obviously your best move is to avoid getting the ticket in the first place. And the best way to do that is not to possess alcohol until you are 21. (Unless you are at home with your parents, in which case the law makes a small exception for you).
Many Paula charges happen in downtown Iowa City bars. But the following scenario happens weekly:“It wasn’t my beer I was just holding it.”
Let’s say that is the truth. Guess what? You are still guilty. It does not matter if you never had a drink in your life, as soon as you admit to “holding” (i.e., possessing) the drink, the you will be found guilty. So if some guy tells you to hold his drink as he goes into the bathroom, and you are under 21, then decline. The most important lesson when it comes to Paulas is, the law is “possessing” alcohol, not drinking, or being intoxicated by it.
This is another very common situation:
“This beer in front of me isn’t mine.”
Now that argument has a little more teeth to it. The State will have to prove that the drink in front of you is or was at some point actually in your possession.
“Possession” does not always need to be in your hand. Your coat across the back of your chair is in your possession, as are many of the contents of your car and apartment, even when you are not there. Beer in the hand is the easiest way for the State to prove that you possessed the alcohol, but drink on the table is only a few facts away from being possession as well.
For example, let’s say there are four of you at the table and four drinks. Just on the basis of that it doesn’t prove that the drink is yours, at least, not to all magistrates. But add on the facts that you smell like alcohol, that the officer saw you take a drink, or most importantly, you admit that it is your drink, those facts will secure a conviction for the State.
That does not mean that you should keep three drinks on the table and shift the blame to protect the fourth person. The State still secures Paula convictions even when the people outnumber the drinks.
If you are questioned by an officer regarding a Paula, remember, you do not have to answer any questions about the alcohol. If you are asked about the drink, always be very polite and state that you are not comfortable talking about it. This usually will not prevent a ticket from being written, but admitting to the possession is a surefire way to lose your case.
People hear “you have the right to remain silent” so often that the words lose all meaning when uttered by a police officer. So remember, you do actually have the right not to answer the questions of the police officers. And when investigating a Paula, they usually will not remind you of this right until the ticket is already being written, or until you have been arrested.
In Iowa City, the police officers conduct “routine bar sweeps” to check for underage drinking, but Paula tickets can be given out at any public event (like Hawkeye football games) or at private parties. In all of these situations, police officers will usually approach you if you draw the attention to yourself, by acting drunk or pushing a drink away when an officer approaches. So, it goes without saying, that you should never draw attention to yourself if you are breaking the Paula laws.
So to summarize:
1. Remember what “possession” means.
2. You actually do have the right to remain silent.
3. Don’t draw attention to yourself.
4. Always be polite to any law enforcement agents.
If you have questions or have been charged with Paula, please consult my website or contact me.
Iowa City Criminal Law
This blog is used to convey information about Iowa criminal law, criminal procedure and my practice to the public. Hopefully you can find some important legal information in the posts that will come.
My main website, http://www.thompsonjustice.com/, already contains vast amounts of information on general topics of Iowa criminal law and procedure. However, this blog format allows me to continuously update my website without the formatting and formality of updating the main webpages.
Hopefully, in the months to come, you will find some interesting and helpful articles on this blog. If you have any questions regarding outstanding criminal charges in or around the Iowa City area, please review my main website or contact me at (319) 354-1630.
My main website, http://www.thompsonjustice.com/, already contains vast amounts of information on general topics of Iowa criminal law and procedure. However, this blog format allows me to continuously update my website without the formatting and formality of updating the main webpages.
Hopefully, in the months to come, you will find some interesting and helpful articles on this blog. If you have any questions regarding outstanding criminal charges in or around the Iowa City area, please review my main website or contact me at (319) 354-1630.
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