Operating While Intoxicated (OWI)
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.
Powers of Attorney
144B.1 DEFINITIONS.
For purposes of this chapter, unless the context otherwise
requires:
1. "Attorney in fact" means an individual who is designated
by a durable power of attorney for health care as an agent to make
health care decisions on behalf of a principal and has consented to
act in that capacity.
2. "Durable power of attorney for health care" means a
document authorizing an attorney in fact to make health care
decisions for the principal if the principal is unable, in the
judgment of the attending physician, to make health care decisions.
3. "Health care" means any care, treatment, service, or
procedure to maintain, diagnose, or treat an individual's physical or
mental condition. "Health care" does not include the provision
of nutrition or hydration except when they are required to be
provided parenterally or through intubation.
4. "Health care decision" means the consent, refusal of
consent, or withdrawal of consent to health care.
5. "Health care provider" means a person who is licensed,
certified, or otherwise authorized or permitted by the law of this
state to administer health care in the ordinary course of business or
in the practice of a profession.
6. "Principal" means a person age eighteen or older who has
executed a durable power of attorney for health care.
Section History: Recent Form
91 Acts, ch 140, §1
Referred to in § 141A.1, 231E.3, 321.189
144B.2 DURABLE POWER OF ATTORNEY FOR HEALTH CARE.
A durable power of attorney for health care authorizes the
attorney in fact to make health care decisions for the principal if
the durable power of attorney for health care substantially complies
with the requirements of this chapter. A document executed prior to
May 8, 1991, purporting to create a durable power of attorney for
health care shall be deemed valid if the document specifically
authorizes the attorney in fact to make health care decisions and is
signed by the principal.
Section History: Recent Form
91 Acts, ch 140, §2
144B.3 REQUIREMENTS.
1. An attorney in fact shall make health care decisions only if
the following requirements are satisfied:
a. The durable power of attorney for health care explicitly
authorizes the attorney in fact to make health care decisions.
b. The durable power of attorney for health care contains the
date of its execution and is witnessed or acknowledged by one of the
following methods:
(1) Is signed by at least two individuals who, in the presence of
each other and the principal, witnessed the signing of the instrument
by the principal or by another person acting on behalf of the
principal at the principal's direction.
(2) Is acknowledged before a notarial officer within this state.
2. The following individuals shall not be witnesses for a durable
power of attorney for health care:
a. A health care provider attending the principal on the date
of execution.
b. An employee of a health care provider attending the
principal on the date of execution.
c. The individual designated in the durable power of attorney
for health care as the attorney in fact.
d. An individual who is less than eighteen years of age.
3. At least one of the witnesses for a durable power of attorney
for health care shall be an individual who is not a relative of the
principal by blood, marriage, or adoption within the third degree of
consanguinity.
4. A durable power of attorney for health care or similar
document executed in another state or jurisdiction in compliance with
the law of that state or jurisdiction shall be deemed valid and
enforceable in this state, to the extent the document is consistent
with the laws of this state. A durable power of attorney or similar
document executed by a veteran of the armed forces which is in
compliance with the federal department of veterans affairs advance
directive requirements shall be deemed valid and enforceable.
Section History: Recent Form
91 Acts, ch 140, §3; 98 Acts, ch 1083, §2
144B.4 INDIVIDUALS INELIGIBLE TO BE ATTORNEY IN
FACT.
The following individuals shall not be designated as the attorney
in fact to make health care decisions under a durable power of
attorney for health care:
1. A health care provider attending the principal on the date of
execution.
2. An employee of a health care provider attending the principal
on the date of execution unless the individual to be designated is
related to the principal by blood, marriage, or adoption within the
third degree of consanguinity.
Section History: Recent Form
91 Acts, ch 140, §4
144B.5 DURABLE POWER OF ATTORNEY FOR HEALTH CARE --
FORM.
1. A durable power of attorney for health care executed pursuant
to this chapter may, but need not, be in the following form:
I hereby designate ........ as my attorney in fact (my agent) and
give to my agent the power to make health care decisions for me.
This power exists only when I am unable, in the judgment of my
attending physician, to make those health care decisions. The
attorney in fact must act consistently with my desires as stated in
this document or otherwise made known.
Except as otherwise specified in this document, this document
gives my agent the power, where otherwise consistent with the law of
this state, to consent to my physician not giving health care or
stopping health care which is necessary to keep me alive.
This document gives my agent power to make health care decisions
on my behalf, including to consent, to refuse to consent, or to
withdraw consent to the provision of any care, treatment, service, or
procedure to maintain, diagnose, or treat a physical or mental
condition. This power is subject to any statement of my desires and
any limitations included in this document.
My agent has the right to examine my medical records and to
consent to disclosure of such records.
2. In addition to the foregoing, the principal may provide
specific instructions in the document conferring the durable power of
attorney for health care, consistent with the provisions of this
chapter.
3. The principal may include a statement indicating that the
designated attorney in fact has been notified of and consented to the
designation.
4. A durable power of attorney for health care may designate one
or more alternative attorneys in fact.
Section History: Recent Form
91 Acts, ch 140, §5
144B.6 ATTORNEY IN FACT -- PRIORITY TO MAKE
DECISIONS.
1. Unless the district court sitting in equity specifically finds
that the attorney in fact is acting in a manner contrary to the
wishes of the principal or the durable power of attorney for health
care provides otherwise, an attorney in fact who is known to the
health care provider to be available and willing to make health care
decisions has priority over any other person, including a guardian
appointed pursuant to chapter 633, to act for the principal in all
matters of health care decisions. The attorney in fact has authority
to make a particular health care decision only if the principal is
unable, in the judgment of the attending physician, to make the
health care decision. If the principal objects to a decision to
withhold or withdraw health care, the principal shall be presumed to
be able to make a decision.
2. In exercising the authority under the durable power of
attorney for health care, the attorney in fact has a duty to act in
accordance with the desires of the principal as expressed in the
durable power of attorney for health care or otherwise made known to
the attorney in fact at any time. A declaration executed by the
principal pursuant to the life- sustaining procedures Act, chapter
144A, shall not be interpreted as expressing an intent to prohibit
the withdrawal of hydration or nutrition when required to be provided
parenterally or through intubation and shall not otherwise restrict
the authority of the attorney in fact unless either the declaration
or the durable power of attorney for health care expressly provides
otherwise. If the principal's desires are unknown, the attorney in
fact has a duty to act in the best interests of the principal, taking
into account the principal's overall medical condition and prognosis.
Section History: Recent Form
91 Acts, ch 140, §6
144B.7 AUTHORITY TO REVIEW MEDICAL RECORDS.
Except as limited by the durable power of attorney for health
care, an attorney in fact has the same right as the principal to
receive and review medical records of the principal, and to consent
to the disclosure of medical records of the principal when acting
pursuant to the durable power of attorney for health care.
Section History: Recent Form
91 Acts, ch 140, §7
144B.8 REVOCATION OF DURABLE POWER OF ATTORNEY.
1. A durable power of attorney for health care may be revoked at
any time and in any manner by which the principal is able to
communicate the intent to revoke, without regard to mental or
physical condition. Revocation may be by notifying the attorney in
fact orally or in writing. Revocation may also be made by notifying
a health care provider orally or in writing while that provider is
engaged in providing health care to the principal. A revocation is
only effective as to a health care provider upon its communication to
the provider by the principal or by another to whom the principal has
communicated revocation. The health care provider shall document the
revocation in the treatment records of the principal.
2. The principal is presumed to have the capacity to revoke a
durable power of attorney for health care.
3. Unless it provides otherwise, a valid durable power of
attorney for health care revokes any prior durable power of attorney
for health care.
4. If authority granted by a durable power of attorney for health
care is revoked under this section, an individual is not subject to
criminal prosecution or civil liability for acting in good faith
reliance upon the durable power of attorney for health care unless
the individual has actual knowledge of the revocation.
5. The fact of execution and subsequent revocation of a durable
power of attorney shall have no effect upon subsequent health care
decisions made in accordance with accepted principles of law and
standards of medical care governing those decisions.
Section History: Recent Form
91 Acts, ch 140, §8
144B.9 IMMUNITIES AND RESPONSIBILITIES.
1. A health care provider is not subject to criminal prosecution,
civil liability, or professional disciplinary action if the health
care provider relies on a health care decision and both of the
following requirements are satisfied:
a. The decision is made by an attorney in fact who the health
care provider believes in good faith is authorized to make the
decision.
b. The health care provider believes in good faith that the
decision is not inconsistent with the desires of the principal as
expressed in the durable power of attorney for health care or
otherwise made known to the health care provider, and, if the
decision is to withhold or withdraw health care necessary to keep the
principal alive, the health care provider has provided an opportunity
for the principal to object to the decision.
2. Notwithstanding a contrary health care decision of the
attorney in fact, the health care provider is not subject to criminal
prosecution, civil liability, or professional disciplinary action for
failing to withhold or withdraw health care necessary to keep the
principal alive. However, the attorney in fact may make provisions
to transfer the responsibility for the care of the principal to
another health care provider.
3. An attorney in fact is not subject to criminal prosecution or
civil liability for any health care decision made in good faith
pursuant to a durable power of attorney for health care.
4. It shall be presumed that an attorney in fact, and a health
care provider acting pursuant to the direction of an attorney in
fact, are acting in good faith and in the best interests of the
principal absent clear and convincing evidence to the contrary.
5. For purposes of this section, acting in "good faith" means
acting consistent with the desires of the principal as expressed in
the durable power of attorney for health care or otherwise made known
to the attorney in fact, or where those desires are unknown, acting
in the best interests of the principal, taking into account the
principal's overall medical condition and prognosis.
6. A health care provider or attorney in fact may presume that a
durable power of attorney for health care is valid absent actual
knowledge to the contrary.
Section History: Recent Form
91 Acts, ch 140, §9
144B.10 EMERGENCY TREATMENT.
This chapter does not affect the law governing health care
treatment in an emergency.
Section History: Recent Form
91 Acts, ch 140, §10
144B.11 PROHIBITED PRACTICES.
1. A health care provider, health care service plan, insurer,
self-insured employee welfare benefit plan, or nonprofit hospital
plan shall not condition admission to a facility, or the providing of
treatment, or insurance, on the requirement that an individual
execute a durable power of attorney for health care.
2. A policy of life insurance shall not be legally impaired or
invalidated in any manner by the withholding or withdrawing of health
care pursuant to the direction of an attorney in fact appointed
pursuant to this chapter.
Section History: Recent Form
91 Acts, ch 140, §11
144B.12 GENERAL PROVISIONS.
1. This chapter does not create a presumption concerning the
intention of an individual who has not executed a durable power of
attorney for health care and does not impair or supersede any right
or responsibility of an individual to consent, refuse to consent, or
withdraw consent to health care on behalf of another in the absence
of a durable power of attorney for health care.
2. This chapter shall not be construed to condone, authorize, or
approve any affirmative or deliberate act or omission which would
constitute mercy killing or euthanasia.
3. If after executing a durable power of attorney for health care
designating a spouse as attorney in fact, the marriage between the
principal and the attorney in fact is dissolved, the power is thereby
revoked. In the event of remarriage to each other, the power is
reinstated unless otherwise revoked by the principal.
4. It is the responsibility of the principal to provide for
notification of a health care provider of the terms of the
principal's durable power of attorney for health care.