Parole and Consent Searches in Iowa

      The Iowa Supreme Court recently handed down a 116 page opinion (including concurrence and dissent) in State v. Baldon, addressing whether a parole agreement which contains a provision requiring the parolee to agree and consent to searches of him and his property at anytime constituted valid consent to search under Article 1, Section 8 of the Iowa Constitution.  In the lengthy but logical and well reasoned opinion, the Court found that such an agreement cannot be voluntary under Article 1, Section 8 of the Iowa Constitution to create a valid exception to the warrant requirement.   In reaching this conclusion the Court went through an extremely thorough analysis of the history of the Fourth Amendment of the United States Constitution and the cases addressing consent in that regard, as well as the historical underpinnings of Article 1, Section 8 and the cases addressing that constitutional provision.  The Court then ultimately decided that the parole agreements were to coercive in nature and therefore could not be used to excuse the warrant requirements of Article 1, Section 8 of the Iowa Constitution.
      In this authors opinion, the most interesting part of this opinion was the concurrence authored by Justice Apple wherein he reviews at depth the right, power, and duty of the Iowa Supreme Court to apply their own interpretation of the Iowa Constitution and depart from the holdings of the United States Supreme Court.  Justice Apple's position as it relates to interpreting the Iowa Constitution is best summarized when he stated "the notion that member of the United States Supreme Court have some kind of superior wisdom that we must show deference to when interpreting provisions of the Iowa Constitution is doubtful at best." After reading this concurrence, one becomes hard pressed to argue that this is not the correct decision.
      The Iowa Supreme Court needs to be applauded for this well thought out, researched, and reasoned opinion.  This opinion is so well written and contains so much history surrounding State and Federal Constitutions that it should be required reading for all attorneys, law students, and citizens of Iowa.  To read the full opinion click here.

US Supreme Court Decides Warrantless Blood Draws Are Unconstitutional

         On April 17, 2013, the United States Supreme Court released their decision in Missouri v. McNeely and specifically held that "in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in very case sufficient to justify conducting a blood test without a warrant."  Mr. McNeely was stopped for speeding and eventually investigated and arrested for operating while intoxicated.  The officer had observed bloodshot watery eyes, the smell of alcohol, and he performed poorly on his field sobriety tests.  The officer arrested him and offered him a breath test which Mr. McNeely refused, so the arresting officer took him to a nearby hospital and had his blood withdrawn without obtaining a warrant.  Mr. McNeely sought suppression of the blood test evidence arguing that it was obtained in violation of his Fourth Amendment Rights.  The District Court agreed and so did the Missouri Supreme Court.  The U.S. Supreme Court granted certiorari to "resolve a split of authority on the question of whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk driving investigations."
       The majority opinion authored by Justice Sotomayor, reasoned that the warrant protections of the Fourth Amendment may not be ignored simply because alcohol naturally dissipates out of the body.  The Court required a totality of the circumstances approach be taken in each individual case to determine whether the facts and circumstances of may provide an emergency situation whereby relieving the government of the need for a warrant.  The majority opinion however did not discuss what factors may be relevant to this analysis but did caution that the natural dissipation of alcohol and the time needed to obtain a warrant would be important factors.
      The majority opinion also rejected a bright line approach suggested by the Chief Justice in which officers would be allowed to do a warrantless blood draw if the officer felt that he could not obtain a warrant in the time taken to get the person to the hospital.  The majority rationalized that this "modified per se rule" provided by the Chief Justice would "distort law enforcement incentives" by discouraging efforts to expedite the warrant process.  The majority also cautioned that this approach would make roadside blood draws done by police officers a more attractive approach.
     Additionally, the majority was quick to point out that advancements in technology have streamlined the warrant process and make them much easier and quicker to obtain.  The majority also suggested that States have other significant tools to obtain chemical test results other than warrantless blood draws and that those avenues should not be forgotten.
     Only time will tell how this ruling will be applied on a case by case basis but for the meantime, suffice it to say that the natural dissipation of alcohol from the human body will not allow a warrantless blood draw from a drunk driving suspect under the Fourth Amendment.  The case of State v. Harris, 763 N.W.2d 269 (Iowa 2009), provides a similar discussion of warrantless blood draws in the State of Iowa.

But It's Not Illegal, Or Is It? - Imitation Controlled Substances

It seems as if every time we turn on a news program these days we see and hear stories involving substances that are not "controlled substances" but have devastating effects on the user.  Whether it be national or world-wide publicized stories such as the "Florida Zombie Attack" or local stories documenting tragedies linked to substances such as synthetic marijuana or other types of drugs, law enforcement is struggling with how to address this new epidemic. 

Many of these new-fad drugs are synthetic, meaning they are artificially created using various chemicals and components. They are commonly packaged and referred to as non-drug substances such as bath salts, incense, plant food, or other seemingly benign products.  They are then sold in markets, liquor stores or other public locations and are easily accessible to teens and young people as they are not listed as controlled substances.  They can even be legally purchased online.

The synthetic nature of these substances makes it almost impossible for law makers to outlaw the substances because if the ingredients are not known or readily identifiable, it is impossible to pass a law outlawing an unknown substance.  Even if law makers and law enforcement can identify the chemical components and pass a law making that substance illegal, the chemists simply alter the recipe creating a new substance with a new chemical make-up that is not controlled.  The very nature of these substances leaves lawmakers and law enforcement chasing their tails.

Rather than undertake the impossible, attempting to determine the chemical components of every possible synthetic drug that is developed so as define it as a "controlled substance", Iowa does have laws prohibiting manufacture, distribution and sale of imitation controlled substances.  Interesting enough, these laws DO NOT yet prohibit the mere possession of these substances.   Iowa law defines "imitation controlled substance" as "a substance which is not a controlled substance but which by color, shape, size, markings, and other aspects of dosage unit appearance, and packaging or other factors, appears to be or resembles a controlled substance."  The law also sets out a number of factors that may be considered in determining if a substance qualifies as an imitation controlled substance.

1.  Whether the person in control of the substance expressly or impliedly represents that he substance has the effect of a controlled substance.

2.  The person in control of the substance express or impliedly represents that the substance because of its nature or appearance can be sold or delivered as a controlled substance or as a substitute for a controlled substance.

3.  The person in control of the substance either demands or receives money or other property having a value substantially greater than the actual value of the substance as consideration for delivery of the substance.

Currently, Iowa's imitation controlled substance laws are considerably less severe than the traditional controlled substance penalties.  Illegally manufacturing, selling or distributing an imitation controlled substance is only an aggravated misdemeanor.  The offense does not become a felony unless an individual over the age of 18 delivers an imitation controlled substance to a minor who is at least three years younger than the violator.

However, due to the dangerous effects of these substances, there is currently a push in the Iowa Legislature to increase the penalties for these offenses and expand the scope of the imitation controlled substance prohibitions.  Given recent developments and public education on the issues, it is reasonable to expect harsher penalties on these cases in the near future. 

For educational information produced by the State of Iowa on synthetic drugs click here.

So Pot is Legal in Your State

But officer, pot is legal in my State….

This election day, two states are reported to have legalized recreational use of marijuana – Colorado and Washington.  Oregon voters were also presented with the issue on their ballots but voted against recreational legalization.  In addition to the legalized recreational use, according to the National Organization for the Reform of Marijuana Laws or NORML, another 18 states have authorized marijuana use for medicinal purposes.  Iowa is not one of them.  Marijuana cultivation, possession, and distribution is still illegal under Federal law.

The question that has started to rise and will most likely arise with greater frequency is, what happens if an individual from a state where marijuana is legal for recreational or medicinal use is caught in possession of pot in a state where it is illegal.  The first answer to the question is relatively straight forward – that person will most certainly be arrested and prosecuted for the offense.  The State of Iowa still has some of the toughest marijuana laws in the nation.

After the individual is arrested and charged however, there are two likely defenses, in addition to the traditional defenses such as illegal search and seizure, which could be attempted.

First, one might be tempted to argue that one state must give another state’s laws full faith and credit under the Federal Constitution.  Unfortunately that argument does not ordinarily apply to criminal statutes.  For example, just because it is legal for a 21 year old to have sex with a 14 year old in one state, does not make it legal for that same activity to occur in a state where the age of consent is 16.  That might be an extreme example but think about it; just because you can drive 70 mph on Interstate 35 or Interstate 80 in your state does not mean that you can drive 70 in a state where the posted speed limit is 65 on the same interstate.  The same argument will be made regarding marijuana possession.  If it is illegal in the state you are in at the time you possess it, chances are you can still be found guilty.  Ones efforts are probably better focused on other more legitimate defenses.

The second and more promising potential argument, at least in the State of Iowa, relates to the possession of medicinal marijuana.  Iowa Code §124.401(5) prohibits the possession of controlled substances, including marijuana.  However, it specifically states: “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner….  Consequently, an arguable defense to the charge is built right into the statute IF the person possessed the pot pursuant to a valid prescription or order of a practitioner.

This exception would NOT apply to felony possession offenses such as Possession with Intent to Deliver, or Manufacturing. NOTE: Sharing pot qualifies as “delivery” in the State of Iowa!  Furthermore, if the prescription has expired or the amount possessed exceeds the amount authorized under that prescription, this defense will not have a chance.

Obviously, it should go without saying that the best defense to any crime is not to place oneself in a position where they are at risk of getting arrested and charged in the first place.  That is never a pleasant experience.  That being said however, some of us are willing to take greater risks than others.  If you happen to be a risk-taker driving through the State of Iowa, understand that there is a good chance of having to endure the unpleasant experience of Iowa’s drug interdiction efforts which are certain to increase with other states legalizing recreational use of marijuana.  If you find yourself in such a position, you will wish that you had first educated yourself on your constitutional rights that apply to a traffic stop/interdiction situation.  Effectively exercising your rights can make all of the difference.  Remember GRL Law’s tag line: Shut up; Wise up; Lawyer up.

1.    Shut up – anything and everything you say can and will be used against you.  If you admit to the officer that you only intended on “sharing” your pot with your friends – you just admitted to a Felony in the State of Iowa.  Shut up!

2.    Wise up – You do not have to consent to a search of your person or vehicle.  If you or your friends may be in possession of something illegal, exercise that right.  The more obstacles a law enforcement officer must jump over, the greater chance there is of him making a mistake on your case.

3.    Lawyer up – Don’t go at it alone.  The consequences in the State of Iowa are still severe and a conviction remains on your record in this state for life.

Don’t let a fun recreational trip cross country turn into an eye-opening encounter with another state’s criminal justice system.  At the very least educate yourself before you leave home.

Know your rights; Exercise your rights; Preserve your freedom.

Look Twice for Bikes - Bicycles and the Rules of the Road

Bicycles on roadways tend to strike up a spirited debate in Iowa these days.  The arguments can best be summarized as “Share the Road” vs. “Get off the Road.”

There are really three primary attitudes that surface in this debate.  Some members of the motoring public do not believe they should have to share the road with bicyclists, especially given central Iowa’s extensive bike trail system.  Others argue that bicyclists have just as much right to use the roadway as motorized vehicles and the motoring public should understand and respect that fact.  Finally, another group understands that bicycles will use the roadways but get annoyed and upset when cyclists appear to disregard the rules of the road.

Recently, this debate was fueled when a Polk County Sheriff’s Deputy ticketed a Boone High School teacher for allegedly failing to stop at a stop sign on a bike path.  So who is right?

The answer is surprisingly straight forward.  Iowa Code Section 321.234 addresses the rights and responsibilities of cyclists (in addition to persons riding a horse or driving an animal drawn vehicle) on the roads.  It provides that person’s riding a bicycle on a roadway are subject to the same rules of the road as are applicable to the driver of a vehicle, except of course, those rules that by their nature can’t be applicable to bicycle riding.  In other words, bicycles have the same right to use roadways as a motor vehicle but must also obey the same rules as a motor vehicle.  They must stop at stop signs, yield at yields signs, stop at stop signals, and signal their intentions to turn.  When riding on designated bike paths, they must similarly comply with the posted regulatory signs.

Absent a police officer stopping a cyclist and giving them a ticket for failing to obey a rule of the road, what practical impact does this have?  The answer can be found in accidents involving cyclists.  The fact that bicyclists are required to obey the rules of the road when riding on Iowa’s roadways means that the rules of the road will determine who is at fault in a car vs. bike accident.  If the bicyclist was complying with the rules of the road when struck by a car, the driver of the car will be legally responsible for the damages caused by the injuries to the cyclist.  The flip side is also true. A cyclists can also be legally responsible in an accident with a vehicle if the accident is caused by the cyclists failing to comply with a rule of the road.  It all depends upon who broke the rule of the road and caused the accident.  Comparative fault, as it is referred to in court, is applicable to accidents involving bicyclists. 

According to the Iowa Bicycle Coalition there were 5 bicycle fatalities resulting from crashes with motor vehicles last year in the State of Iowa.  There have been two reported so far this year.  Anytime a bicycle collides with a vehicle, the consequences are usually severe. In a State that is becoming increasingly bicycle friendly with events like RAGBRAI and DOT issued “Share the Road” license plates in support of the Iowa Bicycle Coalition, cycling traffic is a way of life and should be expected.  Both the drivers of vehicles and bicyclists should remain vigilant to keep a proper lookout and ensure that the rules of the road are obeyed.  It doesn’t hurt to share the phrase used by motorcyclists: “Look twice for bikes.”  It just may save a life.

Doctor "Certified" Blood Draw

Under Iowa law a person is presumed to have given consent to have their blood, breath, or urine tested when suspected of driving under the influence of alcohol in exchange for using the roads and highways.  However, a person does have a statutory right to withdraw that consent and refuse to submit any bodily susbstances for chemcial testing.  The tradeoff for exercising that right however is the loss of driving privileges for a longer period of time.  What happens though to the person who is involved in an accident who is either dead, unconscious, or otherwise in a position rendering him or her incapble of consenting to the test or refusing the test?  The answer to that question lies in Iowa Code Section 321J.7 which provides that a person who is not in a position rendering him or her capble of consenting to chemical testing is deemed to have consented to the test so long as a medical professional "certifies" that the person is incapble of consenting or refusing the test.

In State v. Scott, the Iowa Court of Appeals addressed the issue of what is required for "certification" by a medical professional before a blood test can be withdrawn from a person who is incapble of consenting or refusing.  The Court held that a "certification form" that was completed but unsigned by the treating physician was insufficient to satisfy the certification requirements of Iowa Code Section 321J.7.  The Court ultimately found that the blood test results obtained were therefore inadmissible at trial.  The State unsuccessfully attempted to argue that since the certification was completed by the doctor but was unsigned, this was good enough.  In rejecting this argument, the Iowa Court of Appeals succintly stated, "we don't believe we can lightly excuse non-compliance with the law", and determined that the certification is essential in order to protect the rights of individuals from indistriminate testing and harrassment.

This opinion by the Iowa Court of Appeals reasserts that the State cannot and should not get by with trampling the rights of Iowan's by disregarding the law.  The laws have a place and purpose in our society and apply to the citizens of Iowa as well as the Government equally.  Although many may disagree with this opinion and/or other opinions from our Appellate Courts, they play a vital role in interpreting and upholding the laws of our State.

Judicial Retention – The Only Bad Vote is an Uninformed Vote

With just over three months left until November’s general elections, the debate over retention of Iowa Supreme Court Justices is heating back up.  This year, four Justices are up for retention, but only one is being targeted in the retention vote: Justice David Wiggins

On August 1, 2012, Republican Party of Iowa Chairman A.J. Spiker issued a press release urging Iowa voters to vote “no” on the retention of Justice Wiggins.  Spiker’s press release alleged that Justice Wiggins and his fellow Justices in 2009 “disregarded years of legal precedent on the status of marriage and how it was to be defined.”  Spiker continued: “Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values.”  Current Justices Waterman, Mansfield and Zager are not drawing the fire of Mr. Spiker as they replaced unseated Justices Streit, Ternus and Baker in 2011.

While not specifically mentioned in his press release, Spiker’s campaign against the retention of Justice Wiggins clearly centers around the 2009 Iowa Supreme Court’s landmark decision in Varnum v. Brien.  The “Twitter” version of the ruling is that the equal protection clause of the Iowa Constitution prohibited the enforcement of a law that granted a privilege or right (civil marriage) to one group of citizens (opposite-sex partners) while specifically making it unavailable to another group of citizens (same-sex partners).  For a more thorough explanation of please see our prior article.

The Varnum decision has polarized many within the community.  While there are a number of positions and arguments that have arisen throughout this intense debate, the spotlight is now squarely focused on the retention of Justice Wiggins.  This article does not seek to take any particular position on same-sex marriage.  The purpose of this article is to explain the court system, the process by which the judiciary renders decisions and the role that Iowa citizens play in judicial retention.  An individual’s vote is personal based upon their beliefs and convictions but should also be informed because the only bad vote is an uninformed vote.

Role of Iowa Courts

The government of the State of Iowa, just like that of the United States of America is divided into three separate branches, each one having a distinct and vital role.  This is commonly referred to as “separation of powers.”  The purpose behind the separation of powers is to ensure that one branch of government does not overreach and ultimately violate the rights of the citizens of the state.  The three branches are: legislative, executive and judicial.  The legislative branch creates the laws; the executive branch enforces the laws; and the judicial branch is charged with the task of interpreting the laws.  When interpreting the laws, the judicial branch is governed by the rule that the constitution is the supreme law of the land and no law may be passed that infringes upon the individual rights set forth in the Constitution.  Any law which is inconsistent or contrary to the Iowa Constitution is considered void and unenforceable. 

All members of the judicial branch are charged with interpreting the laws and ultimately protecting the constitutional rights of all individuals in our state.  Conflicts in opinions and interpretations of the laws and constitution are resolved in a court of law, presided over by members of the judicial branch.  There is no other place for these issues to be legally resolved once and for all.  The issue or conflict must be raised at the earliest possible opportunity, and the first judge to hear the issue must rule and decide the case by applying the legal principles and precedent available to that judge at that time.  This means that the issues which often times ignite debate must always be first presented to a lower level judge, be it a magistrate, district associate judge or district court judge.  That judge, when presented with the conflict has a legal obligation to make a final ruling on the issue so that if desired, the losing party may appeal that decision to a higher court.  If the judge does not make a decision, the judge actually violates his/her constitutional role and our judicial system fails. 

Example:  The general assembly (legislative branch) passes a law saying that it was illegal to practice or to be a member of a particular religion.  A person affected by this law could raise the issue in court and request a judge to rule that the law violates freedom of religion as protected by Article 1 Section 3 of the Iowa Constitution.  The first judge to hear the case would have to make a ruling and the losing party would then have the right to appeal it to a higher court.  Ultimately the case would come before the Iowa Supreme Court who would then be required to decide the issue, one way or the other.  Their ruling would be final if the case involved an interpretation of the Iowa Constitution.  The perfect example of this is the Iowa Supreme Court’s 2012 decision in Mitchell County v. Zimmerman where the Iowa Supreme Court concluded that a Mitchell County Ordinance unconstitutionally interfered with the Mennonite communities’ free exercise of religion and was therefore unenforceable.

“Let the People Vote”

A popular complaint accompanying the Iowa Supreme Court’s decision in Varnum is that the Iowa Supreme Court should have let the people of Iowa vote on the issue.  In fact, Mr. Spiker appears to be of that opinion when he states in his press release: “Instead of allowing the people of Iowa to decide this issue at the polls, these judges instead chose to impose their will upon the state and re-write history without weighing the merits of our laws and values.”

It is imperative to understand that once a controversy is presented to a judge or appellate court such as the Iowa Supreme Court, the Court must resolve the conflict and enter a decision one way or another.  Contrary to the suggestion of Mr. Spiker, there is no mechanism for a judge or the Iowa Supreme Court to let the issue be “decided at the polls.” 

For the same-sex marriage issue to be “decided at the polls,” a constitutional amendment would have to be drafted, approved and then presented to the people of Iowa for a popular vote.  According to Article 10 of the Iowa Constitution, this process is controlled by the legislative branch: (Without Iowa the House and Senate approval, no constitutional amendment can even be presented to the public for a popular vote.  For a great explanation of this process, review the Des Moines Register article by Jason Clayworth.)  A court does not have the constitutional authority to submit a constitutional amendment nor is it involved in the process.  To say that the Iowa Supreme Court should have let the people decide this issue through a popular vote is to suggest that the Iowa Supreme Court exceed its constitutionally permitted authority.

Politics and the Courts

While some politicians are characterizing the Iowa Supreme Court’s decisions as political issues, politics and the courts must be kept separate for our system of government to be effective.  Our judicial branch is set up with the specific goal of minimizing political influence on judges.  Back in 1857, the people of the State of Iowa created and approved our system of government, including our judicial appointment and retention system, because they experience first-hand what happens when politics invade the judiciary.

Members of the judicial branch in the State of Iowa are not elected, but instead are appointed by the executive branch after being recommended by a selection committee.  When a position is open, a nonpartisan commission reviews the qualifications of applicants for the vacancy, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor.  The governor, the head of the executive department, makes the final decision appoints the new judge.  The judge then serves out his or her term on the bench and is subject to a “retention” vote at the end of the term.  The judge must receive a majority of the popular vote to be retained (“yes”) in order to serve another term.

The reasoning behind appointment of judges as opposed to popular elections is to prevent “popular opinion” (prevailing opinion of the majority) from determining the outcome of judicial decisions.  Popular opinion many times can lead to a mob mentality where governmental action is taken without due consideration being given to the individual constitutional rights that are being affected.  Members of the legislative branch are popularly elected.  It is a legislators’ job to listen to the pulse of the community opinion over all else.  Judges on the other hand, must not listen to community opinion but must respect and abide by prior legal decisions, constitutional principles and most importantly, the articulated individual rights set forth in the Constitution.  The law must dictate their decision, not popular opinion or even their own individual beliefs.  It is the judiciary’s role to protect citizens from laws or governmental action that might be popular at the time, but nonetheless violate constitutional principles of this state.

Example:  The community becomes outraged at the recent number of shootings and the legislature voted to prohibit anyone within the city limits of major Iowa cities from owning or possessing hand guns.  The legislative branch would be listening to the popular opinion but obviously those responsible citizens that owned hand guns would not agree with the law.  When presented with the case, the Iowa Supreme Court would have to disregard popular opinion and even their own individual beliefs and would have to strike down the law because it violates the Second Amendment right to bear arms.

The judicial branch must remain free from outside influences to ensure that decisions are based upon the law and the constitution without regard for public approval or popular opinion.  One does not need to look far in history to see how following popular opinion violated constitutional rights bestowed upon all citizens.  Listening to popular opinion, our country enslaved millions, prohibited women from voting, withheld fundamental basic human rights and privileges simply because of the color of a person’s skin, and even detained thousands of U.S. citizens only on account of their ethnicity during a time of war.  Many, if not all of these actions were initially sanctioned by the Courts of the day only to be determined to have been incorrect years later.  This is why an independent judiciary must remain free from influence by popular opinion so that the correct legal decisions can be made at the earliest possible opportunity to remedy and prevent violations of individual constitutional rights.

Conclusion

In conclusion, the Iowa Supreme Court was presented with a very specific dispute over individual constitutional rights in the context of same-sex marriage.  There are strong opinions on both sides of the subject, all with legitimate points and arguments.  However, the bottom line is that the courts in Iowa were required to resolve the legal conflict before them, not a political dispute.  It is understandable that many may be dissatisfied with the decision but it was the Iowa Supreme Court Justice’s duty to resolve the conflict based on the Constitution of the State of Iowa. 

When you go to vote this November, cast your vote according to your own personal beliefs and interests.  However, when it comes to the retention of judges, please make sure that you cast your vote after becoming informed to the fullest extent possible.  A valuable resource is the Iowa Bar Association Judicial Plebesite Report which contains feedback from attorneys who appear before the respective judges.  Also, don’t hesitate to ask those who may have more experience with Iowa’s judicial system to give you their thoughts on the various judges that are up for retention. 

Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage or any other decision by the court.  Rather, it is a vote to keep or replace a judge based upon his or her overall performance.  If the same-sex marriage decision is important to your vote, I would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien.  If you feel you should have been allowed to vote on the issue, I would strongly encourage you to contact your representatives in the Iowa House and Senate and let them known your opinion.  Remember, they are elected to serve you but judges are appointed to interpret and enforce the Constitution.  This election, vote your conscience, but vote informed.  The only bad vote is an uninformed vote.

By: Robert G. Rehkemper, Attorney at Law, Gourley, Rehkemper & Lindholm, PLC, Des Moines, Iowa.  www.GRLLAW.com

Criminal Charges in Death Accidents

There is nothing more tragic then when a life meets its untimely death in a traffic accident.  The sudden loss of a loved one who was otherwise healthy and vivacious is almost impossible to comprehend and is even more difficult for friends and family to bear.  Consequently, theses accidents often spark public outcry and a demand for the criminal prosecution of the responsible party.  More times than not though, a simple traffic violation citation is all that is issued leaving many to wonder "why?"

The primary potential criminal charge that could be filed in a death accident, when drugs or alcohol are not involved, is Involuntary Manslaughter.  While Vehicular Homicide charges can, and often are filed in drug and alcohol related accidents or accidents involving other outrageous conduct such as drag racing, Involuntary Manslaughter is the most likely candidate when a driver's conduct does not rise to such an outrageous level.

Involuntary manslaughter is committed when a person "unintentionally causes the death of another" by recklessly committing either "a public offense, other than a forcible felony (i.e. rape, assault, willful injury) or escape," or an act "likely to cause death or serious injury.  In traffic related fatalities, the "public offense" alternative is the most likely since any traffic violation is considered a "public offense."   If a traffic infraction qualifies as a "public offense" the logical question is "why aren't Involuntary Manslaughter charges filed in every accident fatality case?"  The answer lies in the "recklessness" requirement.

It is not enough for a driver to commit a public offense which unintentionally results in the death of another.  The public offense must be committed "recklessly."  The legal definition of "reckless" is conduct that shows a willful and wanton disregard for the safety of others."  In other words, "recklessness" is ordinarily a conscious and intentional decision by a driver and involves an unreasonable risk of harm to others which is or should be known to the individual.  It is knowing that there is a significant chance that the driver's conduct will place others in danger and going ahead and doing it anyways.

Examples of "recklessness" could be texting and driving, speeding excessively through a high pedestrian traffic area such as a school zone,  or driving a vehicle when a person's vision is obscured due to snow or ice still remaining on the windows.  The possible examples of "reckless" conduct are many, but they all require a showing that the driver knows (or should know) and appreciates the risk associated with the act and does it anyway.  Obviously this is a fairly difficult burden for the prosecution to meet, especially beyond a reasonable doubt, which is why many traffic fatality investigations end with merely a citation for a traffic offense being issued to the offending party.

Involuntary Manslaughter is a Class D Felony punishable by up to 5 years in prison.

No You Can't Take My Money!

The Iowa Highway Patrol pulled me over, took my money, but never charged me with a crime! What can I do?

Law enforcement is becoming increasingly aggressive in pursuing forfeiture of cash seized in traffic stops along Iowa’s interstate system. According to law enforcement Interstate 80 and Interstate 35 are pipelines for drug trafficking between the cities like Chicago, Minneapolis, Kansas City, Omaha, and “source” states such as Arizona, California, Texas and Washington.  Consequently the Iowa State Patrol and local law enforcement agencies, especially Poweshiek County, Dallas County and Pottawattamie County, are focusing “interdiction” efforts on Iowa’s interstates.

One purpose of Iowa’s interdiction efforts is to make “drug busts,” in which they seize large quantities of marijuana, cocaine, methamphetamine or other illegal drugs and consequently charge the individual’s in the vehicles with narcotic trafficking offenses.  The other purpose is to discover, seize and attempt to forfeit cash that is being transported in vehicles that they believe is connected with narcotics trafficking and drug sales.  Law enforcement is known to seize large quantities of cash even when no evidence of drug dealing is available or is discovered.  Sometimes they will simply ask the individuals in the vehicle to sign paperwork saying that the cash is not theirs and when no one claims it within the specified time period, the money is automatically forfeited.  Other times, when the cash is claimed, they serve forfeiture paperwork just based upon their belief that all large quantities of cash must be the result of a drug deal despite the fact that it is completely legal to carry cash.

This begs the question: What is actually required to forfeit cash seized by law enforcement?

The Iowa Code defines property that is subject to forfeiture as follows:

1.     All controlled substances that are manufactured, distributed, dispensed, possessed or acquired in violation of Iowa law;

2.    All property that is either:

a.     Exchanged in a transaction that constitutes conduct giving rise to forfeiture;

b.    Used or intended to be used to facilitate conduct giving rise to forfeiture.

3.     Proceeds of any conduct giving rise to forfeiture;

4.    Weapons used to facilitate conduct giving rise to forfeiture.

“Conduct giving rise to forfeiture” is any “public offense” (criminal act) which is a serious misdemeanor, aggravated misdemeanor, or felony.  This includes, among other things, possession of controlled substances and related offenses as well.

Under Iowa law, a presumption of forfeiture arises if the State can prove any of the following;

1.     The claimant has engaged in conduct giving rise to forfeiture;

2.    The property was acquired by the person during the period of the conduct giving rise to forfeiture or within a reasonable time after that period; or

3.    No likely source for acquisition of the property exists other than the conduct giving rise to forfeiture.

If any of those three factors are proven, the burden then shifts to the claimant to prove that the seized cash or other property was not involved in illegal activity and is not subject to forfeiture.  A claimant can also assert an innocent owner defense if they had no knowledge that any of the seized property was involved in criminal activity.  Also, if evidence is illegally obtained or the money is illegally seized, an additional defense to its forfeiture can be asserted.

It is important to understand that in every forfeiture action, there are strictly enforced time deadlines within which to file answers to seizure notices and to assert affirmative defenses to a forfeiture action.  If one is to succeed in defending the State’s attempt to take their cash or property, immediate action is necessary.