This article develops the Iowa laws concerning the criminal charge of Operating While Intoxicated (OWI), the procedures, and defensive tactics relevant in Iowa. This article cannot be construed as comprehensive or definitive, as every case varies and facts in the cases are crucial. A criminal defense attorney is crucial in analyzing the facts of the case and developing a proper strategy in an OWI case. While most OWI cases are pleaded or the defendant is found guilty, there are usually significant problems with most cases that could provide a possible defense.
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OWI in Iowa
In Iowa it is unlawful to operate a motor vehicle under any of the following conditions:
q While under the influence of alcohol, drugs, or a combination (Note: There can be any amount, not just blood alcohol concentration (BAC) of .08 or above)
q While having an alcohol concentration of .08 or more
q While having any amount of a controlled substance in your body
Motor Vehicle
A motor vehicle is defined in the code as a self-propelled vehicle. The definition includes golf carts and snow mobiles. Boats are covered under another code section.
Intent
OWI in Iowa is a general intent crime. Only a general intent to drive is required, not a specific intent to drive knowingly under the influence. It is not a strict liability crime, so defenses are allowed.
Under the Influence
Under the Influence is defined by case law and jury instructions. It is defined as:
“A person’s reason or mental ability has been affected; or judgment is impaired; or emotions are visibly excited; or has, to any extent, lost control of bodily actions or motions by consuming liquor or beer.” State v. Conner, 377 N.W. 2d 664, 667 (Iowa Ct. App. 1985) (citing People v. Lujan, 192 Cal. Rptr. 109, 116-17 (1983).
State must prove
(If No test)
q Defendant was operating a motor vehicle
q At the time of operation the defendant was under the influence of alcohol, drugs, or a combination
(If Test failure)
q Defendant was operating a motor vehicle
q At the time, the defendant had an alcohol concentration of .08 or more
(If Drugged)
q Defendant was operating a motor vehicle
q At the time, defendant had any amount of a controlled substance in his system as measured by a blood or urine test
Implied Consent
Operating a motor vehicle implies consent to have a blood, breath, and/or urine test for the presence of drugs, if a peace officer has reasonable grounds to believe the operator is under the influence. This is a probable cause standard if the person is arrested. However, if an arrest is not conducted, the Iowa Supreme Court has held that:
“An individual’s detention by an officer for the purpose of performing field sobriety tests does not rise to the level of custody, but is merely detention for investigative purposes.” State v. Krebs, 562 N.W.2d 423, 426 (Iowa 1997).
Implied consent is triggered by conditions in I.C.A. §§ 321J.6(1)(c)-(f). Who may invoke implied consent is given in I.C.A. §§ 321J.1(8)(a)-(d). The procedure for invoking implied consent is given in IC.A. §§ 321J.8(1)-(3). If a person eighteen (18) years or older refuses the test, his license is suspended for one (1) year if he has not had a revocation for the past twelve (12) years for implied consent or drunk driving laws or two (2) years if he had one or more revocations for the past twelve (12) years. If the driver is under eighteen (18), his license is revoked for the above periods or until he is eighteen (18), whichever is later.
If the driver submits to the test and the results are .08 or higher or indicates any controlled substance, his license is suspended for 180 days if there are no revocations within the past twelve (12) years or one (1) year if one or more revocations. If the driver is under age eighteen (18), his license is revoked for the above periods or until he is age eighteen (18), whichever is later. If the driver is under age twenty-one (21) and the level is between .02 and .08, the license is revoked for sixty (60) days if there is no previous revocation within twelve (12) years or ninety (90) days if there is a previous revocation within twelve (12) years.
If he is operating a commercial vehicle and either refuses the test or the test results are .04 or greater, he is disqualified from operating a commercial vehicle for one (1) year. The revocation is for three (3) years if the driver was driving a commercial vehicle carrying hazardous materials or required placarding. The disqualification is for life if the driver previously committed any of the following acts while operating a commercial vehicle after June 30, 1990: operating under influence of alcohol or other drugs or a combination, operating commercial vehicle with BAC of .04 or higher, refusal to submit to chemical testing, failure to stop and render aid following an accident involving your vehicle, or felony or aggravated misdemeanor. The lifetime revocation may be reduced to ten (10) years under federal law.
If an officer invokes implied consent and the driver refuses to submit to the test, a form must be provided to the driver notifying them of their right to contest the revocation or request a temporary permit. I.C.A. § 321J.13(1). If the driver desires to contest the revocation a hearing will be set by the department within forty-five (45) days. The issue in a hearing is whether the officer had reasonable ground to believe the person was operating while intoxicated. The department must also establish that the driver refused to submit to a test, the driver submitted and the test exceeded the limit, or the driver tested positive for a controlled substance. A driver may appeal to the director of the department within ten (10) days of the revocation. If this appeal is unsuccessful, the driver is entitled to judicial review.
OWI First Offense and Age Eighteen (18) or older
Administrative Action or upon court conviction: Revocation of Driver’s License for 180 days due to chemical failure test.
Reinstatement of License
q Driver must pay a $200.00 civil penalty
q Present proof of drinking driver’s course (12 hour course) (see below)
q Complete substance abuse evaluation and treatment or rehabilitation services
q Comply with financial responsibility laws, if applicable (usually requiring SR-22 High Risk Insurance)
q Driver must send or deliver the above to Office of Drivers Services, Park Fair Mall, 100 Euclid, PO Box 9204, Des Moines, IA 50306-9204 to be eligible for reinstatement of the license
q Upon receipt of the above, DOT will send a notice ending the revocation. The driver must then present the notice ending the revocation to the Drivers License Examiner, re-take driving tests, pay a reinstatement fee, and pay the required license fee to obtain a new license
q The new license will be probationary for twelve (12) months. If the driver commits a moving violation during the probationary period, driving privileges will be suspended for a like additional period, not to exceed one (1) year
* If a chemical test indicates an alcohol level of .08 or higher or any level of a controlled substance, and there have been no OWI-related revocations in the past twelve (12) years, the driver may apply for a temporary restricted license.
*If a blood alcohol content (BAC) test indicates an alcohol level of greater than .15 or an accident occurred, the driver must wait thirty (30) days from sanction date to apply for a temporary restricted license.
*If the BAC test indicates an alcohol level greater than .10 or an accident occurred, the driver must install an ignition interlock device, which involves paying for the rental of a device.
*If the driver is under age twenty-one (21), the driver must wait sixty (60) days from the sanction date to be eligible for a temporary restricted license.
Criminal Penalties for OWI
OWI First Offense
q A first offense is a serious misdemeanor with mandatory incarceration. In Iowa, a serious misdemeanor provides for an imprisonment term of not greater than one (1) year and a fine of at least $315.00 to a maximum of $1,875.00 (updated annually see I.C.A. § 903.1).
q If the sentence is not suspended or deferred, the defendant is required to serve a minimum of forty-eight (48) hours confinement with credit for time served. This forty-eight (48) hour sentence may be served by a residential weekend class at Des Moines Area Community College (DMACC) if recommended by the County Attorney and space is available. Cost for the class is currently $325.00. Registration Packets are available at the Polk County Courthouse, Room 110, for the Des Moines location.
Additional Consequences:
q A mandatory fine of $1,250.00 (of which $650.00 may be suspended) is allowed, if there was no personal injury or property damage as a result of an accident, and the defendant presents the court with a temporary restricted license, the court may order community service if the defendant cannot pay the fine, surcharges of 32% are added to all fines
q The minimum period of ineligibility for a temporary permit is thirty (30) days to one (1) year, a request for a temporary work permit can be utilized as evidence in a criminal or civil proceeding, only your full name, address, and date of birth are required on the form
q Substance abuse evaluation (around $95.00) and if warranted, a treatment program
q Restitution must be ordered even for a deferred judgment, restitution may include restitution to a public agency for the costs of emergency response
q Surcharge of $10.00 for drug education
q Court costs of around $50.00
q Probation supervision fees (varying but around $250.00 - $300.00)
Deferred Sentence
A deferred sentence is often a good recommendation to a judge for a first offense OWI. However, a person is only entitled to two (2) deferred sentences during his/her lifetime. A deferred sentence allows a judge to "defer" the actual sentence pending completion of conditions. If the conditions are completed and no further criminal activity has taken place, the judge may expunge the conviction from the person's record. A judge cannot defer judgment if the BAC was above .15, the defendant has a previous conviction, the defendant has previous received a deferred judgment for OWI, the defendant refused the test, or bodily injury occurred to someone other than the defendant. I.C.A. § 321J.2(3)(a)(1)-(5).
Additionally, the Court may not consider the preliminary breath test or ignore the third digit of the police officer’s intoxilizer machine to give a defendant a deferred judgment. State v. Iowa District Court, 630 N.W.2d 838 (Iowa 2001). Civil penalties must still be enforced even if a deferred sentence is given.
Deferred Judgment
If the license has not otherwise been revoked, the driver may apply for a temporary restricted license. Revocation of the driver’s license is for ninety (90) days.
q If the BAC test level is greater than .15 or an accident occurred, the driver must wait thirty (30) days from the sanction date to apply for a temporary restricted license
q If BAC level greater than .10 or an accident occurred, the driver must install an ignition interlock device, the driver must wait ninety (90) days from the sanction date if the driver refused to take the test
q If the driver is under the age of twenty (21), the driver must wait sixty (60) days after the sanction date to obtain a temporary restricted license
OWI Second Offense or One or More Revocations in the Previous Twelve (12) Years and Age Eighteen (18) or older
q A second offense is an aggravated misdemeanor with a mandatory seven (7) day incarceration, in Iowa, an aggravated misdemeanor provides for maximum imprisonment term of two (2) years, if the sentence is for more than one year, it is an indeterminate sentence, the code also provides for a fine of a minimum of $625.00 and a maximum of $6,250.00 (updated annually, see I.C.A. § 903.1)
q Driver is not eligible for a temporary restricted license for one (1) year
q License Reinstatement, see above under OWI First Offense
q Vehicle Impoundment- The vehicle being operated may be seized and impounded immediately upon arrest for a second or subsequent OWI offense or driving while license is revoked for an OWI, the vehicle may be impounded for at least 180 days or until the license revocation is completed, whichever is longer, if the vehicle is not impounded upon arrest, it must be impounded or immobilized upon conviction for the second or subsequent OWI offense, if the vehicle is operated in violation of the impoundment or immobilization order, it shall be seized and forfeited to the state, and the operation of the vehicle is considered a serious misdemeanor
q Fine of $1,875.00 – 6,250.00, with a surcharge of 32%.
q Substance abuse evaluation- see First Offense
q Restitution- see First Offense
q Surcharge- see First Offense
q Court costs- see First Offense
*The court may enhance a sentence for OWI if the jury finds, or defendant agrees, that he/she had a prior conviction within twelve (12) years. However, convictions entered on the same day may not be used to enhance a sentence for OWI. Deferred sentences, however, can be used to enhance a sentence. The State must prove the first OWI conviction for enhancement beyond a reasonable doubt. The defendant can challenge prior convictions by filing motion to strike priors or alleging defendant was not represented by an attorney and did not waive an attorney. The motion must be filed within forty (40) days after arraignment. If the prior conviction was out-of-state, it is wise to file motion to strike, as it could prove difficult for the prosecution to prove the prior.
OWI Third Offense and over Age 18
q A third offense is a Class D felony with mandatory thirty (30) days in jail if court suspends sentence, in Iowa a Class D felony provides for confinement of not more than five (5) years, and a fine of at least $750.00 - $7,500.00
q Driver’s license is revoked for six (6) years, driver may apply for a temporary restricted license after one (1) year if all vehicles are equipped with an ignition interlock device
q License reinstatement- see First Offense
q Vehicle Impoundment- see Second Offense
q Habitual offender- if the Class C or D offender has been convicted of two (2) or more previous felonies in Iowa or another state or, he can be classified as a habitual offender and must serve the minimum term of three (3) years
q If the Court sentences a defendant to five (5) years incarceration or a substance abuse evaluation recommends it, the person shall be assigned to a treatment facility if the court suspends the sentence, the defendant could be ordered to a treatment facility as a condition of probation pursuant to section 907.6
q If the court determines that the full term of the mandatory jail sentence is an undue hardship on the defendant or not sufficient jail space, it may order the defendant to serve the minimum sentence in segments of at least forty-eight (48) hours and a specified number of community service hours
q Surcharge of 32%
q Restitution- see First Offense
q Surcharge- see First Offense
q Substance abuse evaluation- see First Offense
q Court Costs- see First Offense
q Probation Fees- see First Offense
OWI with resulting personal injury caused by OWI
An additional one (1) year revocation of the driver’s license is required in addition to any other revocation. The driver may apply for a temporary restricted license when allowed by the other categories. All vehicles must be equipped with Ignition interlock devices.
OWI with resulting death caused by OWI
Driver’s license is revoked for six (6) years. Driver is not eligible for a temporary restricted license for two (2) years.
Initial Traffic Stop and Investigation
An officer must have reasonable belief that a traffic law or other law has been violated before stopping a vehicle. Often this reasonable belief is based upon a license plate light being inoperative or some other minor violation. This is sufficient to sustain a reasonable belief to stop the vehicle. However, at this point, the officer usually doesn’t have a reasonable and articulate basis to believe that an OWI has occurred. Often the driver provides the crucial evidence to sustain an OWI conviction.
At this stage, the driver must remember his Fifth Amendment Rights. Under the Fifth Amendment, the driver does not have to answer any of the officer’s questions that could incriminate you. A refusal to answer an incriminating question cannot be used against the driver. Driver admissions are a key part of the officer’s expansion into an OWI Investigation. However, the driver must tell the officer his name and provide documents such as his driver’s license, registration, and insurance.
The officer’s observations are key to expanding into an OWI investigation from the traffic stop. The officer will consider the driver’s driving, his appearance, driver admission of having a drink or going to a bar, or alcohol containers in the car. One of the first observations that the officer makes is the driver’s choice of location to pull the vehicle over and how well the driver stops. The driver should drive to a safe, well-lit location, signal, and slow to a stop, before pulling over. Listen carefully to the officer over the loudspeaker as to where to pull over. Do not get the registration and driver’s license until the officer instructs you to do so.
If the officer believes from the above indications that you are operating while intoxicated, then the investigation expands. The officer will ask the driver to exit the vehicle to conduct field sobriety tests. The three major field sobriety tests utilized in Iowa are: Horizontal Gaze Nystagmus, Walk and Turn, the One Leg Stand. A driver does not have to perform any field sobriety tests. These tests are subjective tests conducted by the officer and since the officer already suspects the driver of OWI, it is unlikely that the driver will ever pass these tests. These tests will usually hurt an OWI case.
If the officer believes that the driver failed the field sobriety tests, the officer will ask the driver to provide a sample in the PBT (Preliminary Breath Test). Regardless of the results of the PBT, the driver will probably be arrested for OWI. The driver does not have to take the PBT. It is unreliable and is not admissible in court, and a refusal will not lead to suspension of the driver’s license. At this point, the officer will usually read the driver’s Miranda Rights, but unless an interrogation is occurring, is not necessarily required to do so. Miranda is triggered by custody and interrogation.
Once the driver is arrested and taken to the station. The officer will read an Implied Consent Advisory, and after reading the consent advisory asks the driver to breathe into a testing device. The device results will be used in court and effects the driver’s sentence, revocation period, and eligibility for a temporary restricted license. Prior to taking the test, the driver has a right to consult an attorney and should do so. Once the driver arrives at the station, he must be given a chance to call an attorney or family member if requested. The driver must ask to exercise this right, and the officer may not necessarily tell the driver about this right. The officer however, must be able to complete the test within a two (2) hour period of time.
If the driver refuses to take the breath test, his license will be suspended for one (1) year for a first offense (versus taking the test and failing it by blowing over .08 for adults leading to a 6 month suspension.) However, taking the test provides evidence that can be utilized at a criminal or civil trial. Officers have the tests prior to writing their reports and can tailor their report to fit the test results. Refusal to take the test can also lead to a jury instruction that allows the jury to consider the refusal to take the test. However, the state must show compliance with statutes regarding implied consent. State v. Jensen, 216 N.W.2d 369 (Iowa 1974).
If the driver fails the breath test, the driver has a right to have an independent chemical test conducted at his own expense. The officer must take the driver to a hospital or clinic of the driver’s reasonable choosing to conduct a blood or urine test. The officer does not have to inform the driver of this right. The driver must specifically request the test. The chemical tests are usually produced after the officer writes his report, and can contradict the report.
After taking the breath test, the officer will then interview the driver. The officer may re-read the driver’s Miranda Rights. Depending upon the circumstances and evidence, the officer will then cite and release or return the driver to jail.