DUI vs. OWI

What is the difference between DUI and OWI? Primarily the name but there are also little nuances that justify the different acronyms.

DUI stands for "Driving Under the Influence." OWI stands for "Operating While Under the Influence." In the State of Iowa, it is illegal to operate a motor vehicle while under the influence of alcohol and thus, Iowa uses the acronym OWI. Other states only prohibit driving while under the influence and thus use the acronym DUI. "Operating" under most state laws has a broader definition than "driving" and thus, casts a much wider net. In fact, Iowa defines "Operating" as "being in physical control of a motor vehicle that is in motion or has its engine running." That being the case, one is always "operating" when "driving" but not always "driving" when "operating." Other acronyms such as OMVUI and OUI and DWI which have their own definitions that are much the same but with similar subtle but important distinctions.

Aside from those distinctions, in normal everyday conversations DUI and OWI really mean about the same thing. They are acronyms for drunk driving charges. DUI is the most commonly used because most States prohibit "driving" and not necessarily "operating." As a consequence DUI is the most common acronym used for drunk driving charges.

On an important side note the offense of Operating While Intoxicated in Iowa is Iowa's drunk driving charge. It can be committed in three different ways but the offense is still drunk driving as it is commonly referred to. Whether the person is accused of having an alcohol concentration over .08, being "under the influence of alcohol", having any amount of controlled substances in their system, or a combination of alcohol and controlled substance, the charge is still OWI and the consequences are the same regardless of how it is defined. These charges cary some of the most severe penalties of any misdemeanor offense in this State and must be taken very seriously.

Know your rights; Exercise your rights; Preserve your freedom

Internet: A Client's Worst or Best Enemy

In todays modern world, it is hard to imagine how society would function without the internet. With the ease of posting pictures and text to forums such as Twitter, MySpace, and Facebook, it is becoming increasingly easy to obtain information on people. In fact, I would venture that running a simple Google search on about anyone would provide an interested party with some information. However, the ease and benefits that the internet has created for information seekers does not come without consequences, especially for those who are parties to litigation.


For example, take the individual who was charged with hitting and killing a motorcylist when she was drunk. Despite her attorney's hard work to get her out of jail pending trial on the condition that she abstain from alcohol, she decided that it would be a good idea to have pictures taken of her consuming alcohol at a fraternity party. Unfortunatley for this individual, these pictures were posted on the internet and fell into the hands of the prosecutor on her case who quickly asked for a bond review hearing because of the obvious violations to her release.


Or how about the judge who was recently reprimanded in North Carolina for "friending" an attorney on Facebook who was involved in pending litigation before him and who also actively sought out one of the litigants websites and comented at the trial about a poem posted on that litigant's website. The judge was reprimanded for ex parte communications and independent information gathering which indicated a disregard for the principles of judicial conduct. http://www.abajournal.com/weekly/judge_reprimanded_for_friending_lawyer_and_googling_litigant


The interent makes it much easier to break down the walls of privacy and engage in activites that may be detrimental to a person's pending litigation, their personal lives, and even their careers. I have often times sat at home at night after picking a jury wondering what a juror would be able to find out about my client, myself, or the judge, if they decided to break their oath and actively seek out information, and how that information would be beneficial or detrimental to my client's case. Our firm has also actively sought discovery from opposing parties concerning their MySpace or Facebook pages and have been provided with text from MySpace pages which has allowed criminal charges to be dismissed in some cases. In todays technologically advancing world it may even be bordering on malpractice for an attorney to forgoe seeking out information about an opposing party by way of photos, text, or other information that may be useful in impeaching or attacking the credibility of an opposing party.


Suffice it to say that if you are the party to litigation, an attorney representing a client, or even a judge, it would be wise to know what information is available to the general public via the internet about you personally and professionally and then judge how that information may impact a pending case.

June Traffic Enforcement Crackdown

The Iowa State Patrol announced on June 4th, a campaign to step up enforcement of traffic violations during the month of June. http://www.dps.state.ia.us/commis/pib/Releases/2009/06-03-2009_SafeSaturdays.htm. According to the State Patrol's press release "statistics indicate the month of June is one of the deadlier months for traffic fatalities in Iowa." The majority of these fatalities occur on Saturday nights so the special enforcement effort is being dubbed "Safe Saturdays."

The stepped up enforcement will focus on cracking down on speeding, seat belt usage, and drunk driving. Each Saturday during June a different District will activate its entire work force between the hours of 5:30 p.m. and 2:00 a.m. with all uniformed members of the patrol participating in these projects, regardless of rank. Bottom line is that the highways will be crawling with State Troopers looking for the slightest possible traffic infraction to "justify" stopping vehicles to investigate them for OWI/DUI. Aggressive enforcement of traffic laws will likely be an understatement. If you have not already, now is the time to ensure that all of the equipment on your vehicle is in proper working order because the smallest infraction will give law enforcement sufficient reason to pull you over. (Top 10 Ways to Avoid a DUI). Now is also a good time to refresh your understanding of your rights (OWI and Your Rights) and request an Iowa Driver's Rights Card. In the unfortunate event that you are stopped and investigated for Operating While Intoxicated what you do and say from the moment you are stopped can make all the difference.

The Department of Public Safety has released a schedule for the stepped up enforcement but you can be certain that all law enforcement agencies will be increasing patrols and enforcement at all times through out the summer months and especially during the month of June. A word of warning, it is a pattern of Iowa law enforcement agencies and specifically the Department of Public Safety to announce a formal crack down on one weekend but actually step up enforcement on other dates that are not advertised. Govern yourself accordingly. The "published" schedule is as follows:

June 6th:
District 1: Includes Des Moines, Ames, Marshalltown, Boone and Newton
District 6: Spencer, Estherville, Orange city, Sibley, and the Lakes area
District 7: Fort Dodge, Webster City, Algona, Rockwell City, Clarion and Pocahontas
District 12: Davenport, Muscatine, Clinton, Anamosa and Maquoketa

June 13th:
District 3: Council Bluffs, Red Oak, Shenandoah, Atlantic, and Corning
District 8: Mason City, Charles City, Clear Lake, Forest City and Cresco
District 13: Fairfield, Mount Pleasant, Burlington, Washington, Keokuk and Fort Madison

June 20th:
District 2: Osceola, Creston, Chariton, Indianola and Lamoni
District 5: Sioux City, Cherokee, Storm Lake and Ida Grove
District 9: Cedar Falls, Waterloo, Waverly, Iowa Falls and Grundy Center

June 27th:
District 4: Carroll, Denison, Jefferson, Audubon and Harlan
District 10: Dubuque, Oelwein, Decorah and Independence

New Law Gives CDL Holders Hope

Much litigation and debate has centered around how/why the Department of Transportation is able to disqualify a persons' commercial driving privileges following an arrest for operating while intoxicated. As of May 22, 2009, it appears that much of that ligation and debate may be over. Back in 2005, the Iowa legislature amended Iowa Code Section 321.208 to allow for the disqualification of a person's commercial driving privileges following an arrest for operating while intoxicated even if they were driving their personal vehicle. The disqualification would be for one year in the event the person refused to submit to chemical testing or was found or plead guilty to operating while under the influence and it was a first offense. The disqualification would be for life if the person's commercial driving privileges had previously been disqualified.


The unfriendly part about the legislation back in 2005, is that although the statute allowing for disqualification of a commercial driver's license was amended to allow for disqualification of a commercial driver's license even if the person was driving their non-commercial vehicle, Iowa Code Section 321J.8, which is the code section dealing with what warnings a motorist is to be given prior to being asked to submit to chemical testing, was not. Thus, a situation was created whereby motorists holding commercial driver's licenses were not being advised about the disqualification consequences to their CDL licenses and were only being told about the consequences to their non-commercial driving privileges which were for different periods of time. Thankfully, the Iowa Supreme Court addressed this issue in State v. Massengale, 745 N.W.2d 499 (Iowa 2008), and determined that it was a violation of due process for failing to adequately inform motorists holding a commercial driver's license how their CDL license could be disqualified following an arrest for operating while intoxicated.


Nevertheless, holders of commercial drivers licenses were still being treated different and were at a disadvantage. Iowa Code Section 321J.13(6)(c) allowed for a person who had successfully suppressed their breath test results or breath test refusal from being admissible in trial to petition the Department of Transportation to reinstate their non-commercial driving privileges. However, this code section did not apply to commercial driving privileges. See Wiebenga v. IDOT, 530 N.W.2d 732 (Iowa 1995). Thus, motorists who had either their statutory or constitutional rights violated which resulted in the suppression of their chemical test or chemical test refusal had an avenue to get their non-commercial driving privileges reinstated but no such avenue existed for reinstatement of a person's commercial driving privileges for the same statutory or constitutional violations.


This year the Iowa legislature wisely acknowledged the disadvantage that was being bestowed upon holders of commercial drivers licenses, and proposed Senate File 419. That file proposed changes to Iowa Code Section 321.208 to clarify how/when a persons commercial driving privileges can be disqualified following an arrest/conviction for operating while intoxicated but more importantly amended Iowa Code Section 321J.13(6)(c) to provide an avenue for the holders of commercial drivers licenses to petition the Department of Transportation to reinstate those privileges following a successful motion to suppress. Thus, if a motorist is able to get their chemical test result or test refusal suppressed and held inadmissible at trial on the criminal side of their case, they can petition the Department of Transportation to reinstate (or keep from disqualifying) their commercial driving privileges. Senate File 419 was signed by Governor Culver on May 22, 2009, and the portion of that bill amending Iowa Code Section 321J.13(6)(c) became effective immediately and is applied retroactively back to January 1, 2005.


Simply stated, if you or someone you know was arrested for operating while intoxicated dating back to January 1, 2005, and held a commercial drivers license but was able to reinstate their non-commercial driving privileges as a result of a successful motion to suppress on the criminal case, SF419 appears to allow reinstate of the commercial driving privileges or removal of the disqualification of the commercial driving privileges arising out of that event. It would be best for those individuals to contact an attorney who is competent on these issues.

Providing Alcohol To Minors . . . . It's NOT Worth It

In this season of high school graduation and the family celebrations and party's that follow, the issue inevitably arises over whether or not parents or other individuals over the age of 21 should be providing alcohol to minors. During these debates, without a doubt, one parent will always respond "they are going to do it anyway, I'd rather have them do it in my basement where I can keep them from driving." While this response is understandable, it is mislead and is the beginning of a recipe for disaster. The risk in these situations far outweighs any benefit that could conceivably be achieved.

Every year around this time the news is filled with stories of high school graduates that are tragically killed in car accidents in which alcohol was involved. Often times the alcohol turns out to be provided by a parent operating under the same theory as set forth above. Regardless of how watchful or vigilant a "supervising" parent may be, teenagers are that much more creative in ultimately doing their own thing and avoiding detection. The idea that a parent can successfully watch a group of teenagers who are drinking and prevent them all from driving, if that is indeed what they want to do, is nothing short of naive. The only responsible parenting is to not provide alcohol to minors, regardless of the setting, and to further keep an even more watchful eye on our own children, knowing that the potential consequences are tragic and permanent.

In case the distinct possibility of tragic premature loss of life is not enough to prevent "cool parents" from providing alcohol to minors, the laws criminalizing this behavior have recently been beefed up. Just the act of providing alcohol to a minor is a Serious Misdemeanor punishable by up to one year in jail, and a minimum fine of $500 which can be as high as $1,875. If serious injury results from the provision of alcohol to a minor, the offense becomes an Aggravated Misdemeanor punishable by imprisonment of up to 2 years and a fine of up to $6,250. Finally, if death occurs, the offense becomes a Class D Felony punishable by up to 5 years in prison and a fine of up to $7,500. Prison sentences are routinely handed out on these cases regardless of the Defendant's prior criminal history or status within the community.

Finally, if death or injury does result from providing alcohol to a minor, a costly civil suit will also likely follow the criminal prosecution. Bottom line is that it is not worth it! Lets have a safe and festive graduation season without putting our recent graduates in situations where tragedy is likely to follow.

When a drunk driving charge is reduced to a mere traffic ticket

Plan "A" is beat the case. . . . Plan "B" is minimize the damage and obtain the best possible resolution that has the least negative impact on a clients life. That is the plan of attack for the drunk driving defense lawyers at GRL Law.

Whether it is a 1st, 2nd or 3rd offense operating while intoxicated offense, the defendant is facing some of the most severe mandatory minimum penalties for misdemeanors of Class D felony offenses. A person charged with drunk driving in the State of Iowa is looking at mandatory minimum jail time and the highest mandatory minimum fines of any criminal offense in this state. See http://www.grllaw.com/CM/Custom/Criminal-Penalties.asp. That being the case, an aggressive defense from the outset of the case is paramount to obtaining the best possible result. The more holes that can be poked in the State's case the better the ultimate resolution will be for the Defendant. Prosecutors hate to take cases that are not sure victories to trial. The worse the case for the prosecution the more likely there is for a favorable resolution or all out dismissal.

Not every case results in an all out acquittal or dismissal and likewise not all cases end with a guilty plea or guilty verdict to the charged offense. This is because in the majority of cases, plea bargaining takes place. A reduction from Operating While Intoxicated to a traffic offense or simple misdemeanor is a victory regardless of the case. Reckless Driving or Public Intoxication http://www.grllaw.com/CM/Custom/Pulic-Intoxication-Iowa.asp is always better than a conviction for Operating While Intoxicated. Mandatory minimum jail time is avoided and the fines are much lower not to mention the fact that no Operating While Intoxicated conviction is on the person's criminal record for the rest of their life. Reduction of charges are not just given away because someone is a good person, has lots of money, knows the right people or any other reason than a factual or legal issue that weakens the prosecutions case. It is these weaknesses that drive a reduction of charges and nothing else.

While an aggressive drunk driving defense lawyer, such as the lawyers at GRL Law (http://www.grllaw.com/CM/Custom/Attorneys.asp), is an important piece in securing a favorable resolution such as a reduced charge, what the defendant does from the time he/she is pulled over to the time that an attorney gets involved is equally important. Even the best lawyer can't change the facts of a case once they are established. While facts can be developed in certain ways to benefit a client, the core facts will always remain unchanged. That being the case, it is important for people to know and understand their rights and responsibilities before getting in a position where they are faced with a drunk driving charge. For more information regarding avoiding a DUI please refer to our prior blog at http://grllaw.blogspot.com/2008/08/dui-prevention-top-ten-ways-to-avoid.html

Know your rights; Exercise your rights; Preserve your freedom

Right to Phone Calls

Conflict within the Court of Appeals (see http://grllaw.blogspot.com/2008/10/court-in-conflict-iowa-court-of-appeals.html) regarding an arrested persons right to phone calls and the extent of an officers duty when a request is made was resolved today with the Iowa Supreme Court's decision in State v. Garrity http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20090515/08-0330.pdf.

Today, Justice Baker writing for the Court made it clear that anytime an arrested individual requests to make a phone call, the phone call statute (Iowa Code Section 804.20) is implicated and the officer must then advise the arrested person who he may call and for what purpose and they must then provide the individual with the opportunity to place those calls. Contrary to many Department of Transportation decisions and decisions from District Associate Judges across the State of Iowa, the purpose of the phone call is not limited merely to obtaining advice regarding whether or not to submit to chemical testing. According to Justice Baker: "One purpose of Iowa Code section804.20 is to allow the arrestee to call an attorney before making the decision to submit to chemical testing. . . The statute, however, doe snot limit the phone calls to that purpose. As long as the purpose of the phone call is a good faith purpose (e.g., not for ordering a pizza), the arrestee may chose to contact family or a legal representative for advice, or to have them inform his employer that he is not likely to be at work, pick up children from school, or arrange to have the dog let out." If the officer declines the arrested person's phone call request because it does not fall within the scope of the statute, he must then explain the scope of who the person can call and for what purpose.

It has been a long time coming but finally the Iowa Supreme Court has made it abundantly clear that regardless of the purpose, if an arrested person asks to place a call, the officer cannot simply ignore the request because it did not fall within the rights set forth by section 804.20 rather it is incumbent upon the arresting officer to provide the person the opportunity to make the call or the officer must explain to the individual who he can call if he has requested to call someone other than an attorney or family member. It is clear that a request to place a call, regardless of the purpose, triggers the statute and puts the obligation on the officer to ensure compliance.

Supreme Court Limits Search Incident to Arrest

The United States Supreme Court has recognized that an individuals right to privacy in their vehicle still exists.

While it appeared that the appellate courts were on a path to completely eliminate an individuals right to privacy in their vehicle, the United States Supreme Court unexpectedly reaffirmed the concept of personal privacy and protection against governmental intrusion. In the decision of Arizona v. Grant, filed today, http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf, the United States Supreme Court condemned the practice of courts sanctioning law enforcement searches of vehicles after an occupant has been placed under arrest for an offense unrelated to the search. For years in Iowa, law enforcement would routinely arrest occupants of a vehicle on outstanding warrants or traffic violations and then search the entire passenger compartment of the vehicle, including any and all containers in that area, pursuant to that otherwise lawful arrest. Many times these subsequent searches would lead to additional charges included illegal possession of firearms or other weapons or drug offenses. This practice has long been criticized by defense lawyers, academics and even members of various appellate courts including the United States Supreme Court as not falling within the purpose of the search incident to arrest exception to the warrant requirement. The purpose behind the search incident to arrest exception to the warrant requirement has always been officer safety, to prevent an individual from arming themselves and injuring officers, and also to preserve evidence. Neither one of these purposes are served when a vehicle is searched after an occupant has been arrested, handcuffed, and secured either on the side of the road or in the rear of a squad car. Our Supreme Court has finally put an end to this practice.

The United States Supreme Court specifically held that the search incident to arrest rationale "authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." In a footnote, the Supreme Court then recognized that "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains." fn4. In reaching its ultimate conclusion however, the Court did clarify that it is the offense for which the person is being arrested that makes all the difference. They left it open that "circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thus, if the person is arrested for a traffic violation or outstanding warrant, the police may not search the vehicle incident to that arrest. However, if the person is arrested for a drug offense and the officers have reason to believe that additional evidence of the drug offense may be present in the vehicle, they may then search the interior of the vehicle without a warrant in order to "secure potential evidence."

The rule announced today makes perfect sense and prevents officers in abusing their authority to arrest for even minor violations as a facade or excuse to search the interior of the persons vehicle. As Justice Stevens pointed out: "A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals." While there are numerous other exceptions that law enforcement may attempt to rely upon to search a vehicle, one has been narrowed and the Court has taken a large step in realing in prior decisions that have severely limited an individuals reasonable expectation of privacy.

Traffic Safety Awards

On April 16, 2009 the Commissioner of the Iowa Department of Public Safety announced the recipients of the annual traffic safety awards. The awards were presented at the annual Governor's Highway Traffic Safety Conference. The Governor's Highway Traffic Safety Bureau is the designated state agency responsible for the administration of federally funded traffic safety initiatives including those emphasising increased alcohol offense enforcement. According to the Iowa Department of Public Safety, the State of Iowa Received $6 million from these programs in 2006. (http://www.dps.state.ia.us/commis/gtsb/)

Among the central Iowa recipients of this years Traffic Safety Awards, were Officer Stephen Becker of the West Des Moines Police Department. According to the Iowa Department of Public Safety press release, Officer Becker of the West Des Moines Police Department has been the highest citation and written warning ticket writer of the West Des Moines Police Deparment, Patrol Division, in addition to the most operating while intoxicated arrests. (http://www.dps.state.ia.us/commis/pib/Releases/2009/04-16-2009_Becker.pdf).

These most recent "awards" highlight what the attorneys at GRL Law have been telling clients, potential clients, and audiences at speaking engagements for years, the days of the local Sheriff calling you a cab or giving you a ride home if he determines you have had a little too much to drink, are over. State budgetary needs are met by funds raised by traffic enforcement with the vast percentage of those budgets are funded or supplemented by operating while intoxicated arrests. (http://grllaw.blogspot.com/2008/05/troubling-trend.html). Local law enforcement no longer takes a responsive approach but rather they are proactive in their efforts to sniff out, investigate, arrest and prosecute those suspected of violating the drunk driving laws. Their budget and federal funding depend upon that. For these reasons, in this day and age, it is even more important for people to know their rights, exercise their rights, and preserve their freedom. (http://www.grllaw.com/CM/Custom/Your-Rights-OWI.asp).

Friends don't let friends hire lazy lawyers

While it may seem inconsequential at the time, entering a plea of guilty to any criminal offense can and does have negative implications that can remain with the person for the rest of their lives. Once a conviction for a criminal offense is entered it is permanent. It will remain on the person's criminal record forever unless a pardon is granted by the Governor. There is no way to have a conviction expunged in the State of Iowa unless the conviction is for Public Intoxication. For this reason, a decision to plead guilty to any criminal offense should be made only after a careful and thorough evaluation by a competent lawyer.

Believe it or not, there are lawyers practicing in this State that do not take their constitutional duty to provide a thorough and zealous defense to those charged with criminal offenses, seriously. For these lawyers, guilty pleas are a quick and convenient way to dispose of a case and be paid for their "work." The facts do not get investigated, the law does not get researched, and the client's life can be forever marred by a conviction for a crime that should never have been permitted. A recent Iowa Court of Appeals decision highlights why having an attorney who will take his/her constitutional duty seriously is a must.

In State v. Quick, Mr. Quick pleaded guilty to the crime of Criminal Mischief that arose out of an OWI arrest where a scuffle ensued and the arresting officers patrol vehicle was dented. While represented by an attorney, Mr. Quick pleaded guilty to the charge stating that in essence, the dent to the vehicle was caused accidentally and that he did not hit the vehicle on purpose. The problem with this is that the crime of criminal mischief is a specific intent crime which requires a specific intent to cause the damage and cannot be committed "accidentally." There mere fact that Mr. Quick "caused" the dent was insufficient to sustain a conviction. Based on the undisputed facts of the case, Mr. Quick was not guilty of the charge and his lawyer was ineffective for allowing him to plead to the charge. The Court of Appeals found that Mr. Quick's lawyer did not perform his job up to constitutional standards and had he done his job, the charge should have been dismissed. Sometimes fighting a case is not only the preferred course of action, it is the constitutionally required course of action and if a lawyer is not willing to put up a fight on behalf of his/her client, a change in lawyers should always be requested.

While a guilty plea can often be looked at as a convenient way to resolve a case, especially if jail time is avoided, a lawyer still has the obligation to conduct a factual and legal investigation to ensure that the plea is appropriate. There is a time and a place for guilty pleas and for plea bargaining but the constitution and the law requires that the individual must have a factual basis for pleading guilty to the crime. Whether to fight or plead guilty is one of the most important decisions that a criminal defendant makes in a case and it should only be made after careful and thoughtful consultation with an attorney, an attorney that is willing to fight if necessary but is also able to analyze a case and provide accurate advise regarding whether a fight is in a clients best interest. The decision is final and the defendant must live with it for the rest of their lives. Remember, friends don't let friends hire lazy lawyers.

Iowa Supreme Court Determines That Your Blood Has Rights

On March 6, 2009, the Iowa Supreme Court affirmed the suppression of blood test results in the case of State v. Harris. At issue was whether the police officer was justified in taking a forced blood sample without the person's consent and without a warrant. The officer was acting at the direction of the County Attorney who believed that a warrant was not required. In affirming the district court ruling, the Iowa Supreme Court determined that the blood test was illegally obtained because the officer did not reasonably believe that he was "confronted with an emergency situation." The officer "never asserted the reason he ordered the warrantless blood sample was his belief that the time it would take to obtain the warrant would result in the destruction of evidence."

Iowa Code Section 321J.10A(1)determines that a warrantless non consesual blood draw may be done in certain limited circumstances. Those circumstances require all of the following before blood may be forcibly withdrawn without a warrant; (1) an arrest for operating while intoxicated, (2) which resulted in death or serious injury reasonably likely to cause death, (3) the peace officer reasonably believes that the blood drawn will produce evidence of intoxication, (4) the method used to obtain the blood is reasonable and performed in a reasonable manner by medical personnel, and (5) the peace officer reasonably believes the officer is confronted with an emergency situation in which the delay necessary to obtain a warrant threatens the destruction of evidence.

The Iowa Supreme Court reached a different conclusion in the case of State v. Johnson, 744 N.W. 2d 340 (Iowa 2008). In Johnson, it was determined that the forcible blood test results would be admissible because the prerequisites to Iowa Code Section 321J.10A(1) had been met. The Iowa Supreme Court distinguished Johnson on the grounds that "in Johnson, the officer testified he believed evidence of the blood-alcohol concentration would be destroyed if he waited to drawn blood until after a search warrant was obtained." In Harris, the officer was not able to testify that the time it would take to obtain the warrant would have resulted in the destruction of evidence, he could only testify that he was acting at the direction of the County Attorney.

There are several important aspects to be taken from this decision. First, the Court reiterated the holdings from Schmerber v. California and subsequent Iowa cases which, "requires more than the mere phenomenon of alcohol dissipation" in order to legally obtain a blood sample without a search warrant. Second, the court seemed to limit the holding in Johnson to the "special facts" of that case. Third, the court did not address whether obtaining the sample in the police department was an acceptable location for taking the blood. Fourth, the officer knowledged "that blood-alcohol levels dissipate over time and that this natural dissipation will result in he destruction of evidence" was insufficient to satify the requirements of Iowa Code Section 321J.10A(1)(c). Last and most important, is that County Attorneys are not peace officers and the peace officer must reasonably believe that he/she is confronted with a situation in which the time it would take to obtain the warrant would threaten the destruction of evidence.

A fully copy of this opinion can be viewed at http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090306/07-0045.pdf

The Right to Remain Silent and to an Attorney

When an arrested individual requests to speak to an attorney, all interrogation and questioning must cease. The Iowa Supreme Court reaffirmed this rule in its decision entered this morning in State v. Vincent Walls. (http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090220/07-0452.pdf). After being brought in for questioning, Mr. Walls made a specific request to talk to his attorney. The interrogating officer continued with the interrogation and the Iowa Supreme Court ruled that all statements obtained following Mr. Walls' request to speak to his lawyer, must be suppressed because they were obtained in violation of the 5th Amendment to the United States Constitution. In coming to this conclusion, the Iowa Supreme Court confirmed the already well-established rule that: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 444 (1966).

The rules surrounding Miranda warnings and custodial interrogations are some of the clearest and easiest to apply for the legal community. Unfortunately, they are also the most commonly misunderstood by the general public. The rules are as follows:

1. The burden is on the police to advise the arrested person of their constitutional rights under the 5th Amendment through what are commonly referred to as "Miranda warnings" (you have the right to remain silent, any thing you say can and will be used against you in a court of law, you have the right to an attorney, if you cannot afford an attorney one will be appointed to represent you during questioning) prior to the interrogation.

2. Miranda warnings only apply when the police want to interrogate/question a person of criminal activity after they have been taken into custody or "deprived of their freedom". If the person is not in custody or otherwise detained and elect to answer questions no violation takes place.

3. If no interrogation takes place, Miranda warnings need not be given.

4. The right to remain silent and to the services of an attorney during questioning only applies to questioning, it does not apply to securing physical evidence.

5. If an arrested person indicates that he/she wishes to remain silent and does not want to answer questions, all questioning must stop immediately.

6. If an arrested person indicates that he/she wants to speak with an attorney or wants the services of an attorney, all questioning must stop immediately.

7. If the arrested person elects to remain silent or talk to an attorney, the police can re-initiate questioning if the arrested person re-initiates the conversation or contact with the police.

8. The 5th Amendment only applies to statements obtained through questioning. If the arrested person speaks of their own free will, those statements are not suppressible.

9. A violation of the 5th Amendment or Miranda only results in suppression of statements NOT dismissal of the charges.

Juvenile's Right to Attorney or Family Member

In the State of Iowa, a juvenile (anyone under the age of 18) who has been taken into custody for an indictable offense, possesses more rights than an adult in a similar situation. Pursuant to Iowa Code section 232.11, any juvenile that has been taken into custody for a serious or aggravated misdemeanor or felony offense, has the absolute right to an attorney following being placed into custody and during any questioning or interrogation. "Custody" is given the same meaning as it has been given in adult cases which is: being formally arrested or "otherwise deprived of freedom of action in any significant way."

After being taken into custody, a juveniles right to an attorney is the same as an adults. However, additional rights come into play regarding a juveniles right to contact and consult with his/her parents immediately upon being placed into custody. Once placed in custody a child not only has the right to the services of an attorney, but law enforcement is legally obligated to make a good faith effort to notify the child's parent, guardian, or custodian. When the parent, guardian, or custodian is contacted, the officer must advise them of the following:

1. That the child has been taken into custody;

2. The nature and charge of the "delinquent act";

3. The child's location; and

4. That the parent, guardian, or custodian have the right to visit and confer with the child before anything further takes place.

A juveniles rights to an attorney and to contact and confer with parents, guardians, or custodians cannot be waived by any child under the age of 16. A juvenile 16 years or older can waive these rights, however, a waiver may ONLY be obtained after they are permitted to contact, visit or confer with their parents, guardian or custodian, or after a good faith effort has been made to contact the juveniles parents, guardian or custodian.

In addition to making sure that a juvenile has the immediate right to an attorney and to contact their parents, this law is protected by the exclusionary rule. In other words, if law enforcement does not comply with the requirements of Section 232.11, all evidence that they obtain following the violation is suppressed and thrown out of court. Likewise in zero tolerance (.02) violations or operating while intoxicated cases, the Department of Transportation may not suspend a juveniles driving privileges if a test result is obtained following the violation.

The protections of Iowa Code section 232.11 are important for all juveniles as well as parents to know, understand, and appreciate, because while we do not ever expect our children to find themselves on the wrong side of the law, these rights just might preserve their freedom at some point down the road. Know your rights, exercise your rights, preserve your freedom.

Defendant catches break . . . finally!

Finally, a criminal defendant has caught a break as a result of a judges mistake.

In it's decision released this morning, the Iowa Supreme Court affirmed the dismissal of an operating while intoxicated case in the case of State v. John Kramer. The case against Mr. Kramer was weak, to say the least, and at the close of the State's evidence, the defense attorney moved for Judgment of Acquittal contending that even if the court took the evidence in the light most favorable to the state, there was insufficient evidence to sustain a conviction in the case. (For more on judgment of acquittal, see http://www.grllaw.com/CM/Custom/Criminal-Procedure-Timeline.asp). The defenses primary argument appeared to be that there was insufficient evidence to establish that the defendant was actually operating the vehicle. The trial judge initially agreed and granted the Judgment of Acquittal. Following the Judge's initial ruling the prosecutor then pointed out where in the record it was at least arguably established that the defendant admitted to have been driving. The Judge then flip-flopped and reversed his prior ruling and denied the defendant's motion for Judgment of Acquittal. It didn't end there though because clever defense counsel then objected to the change in the ruling, arguing that once the Judgment of Acquittal was made, double jeopardy attached and it could not be undone. Again, the Judge changed his position and agreed with the defense attorney stating "Good. Take it up. It's directed. Goodbye. We're done." The Judge followed up his ruling stating "Well mark this one up for me. My mistake. But I'm going to say the ruling stands." The charges were then dismissed.

The Supreme Court held that the Judge did have the authority and ability to correct his initial entry of Judgment of Acquittal had he so desired without violating the principals of Double Jeopardy. They reasoned that a ruling on Judgment of Acquittal is not final until it is actually entered of record with the Clerk of Court. Prior to that, the courts are permitted to correct or modify their rulings as they seem fit. According to the Supreme Court: "To the extent we have not done so previously, we now hold that a judge may amend an erroneous directed verdict of acquittal where the ruling is corrected immediately and prior to any further proceedings."

The fun part about this case is that while the Supreme Court ruled against the defendant regarding the issue surrounding the Judgment of Acquittal, the defendant ultimately prevailed because the Supreme Court ultimately concluded that the dismissal of the charge following the initial erroneous ruling by the Judge did cause Double Jeopardy to attach because that Order of Dismissal was filed with the Clerk of Court. As a result the second dismissal was final and the defendant could not be retried. Chalk one of for the good guys!

The full opinion can be found at:(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090130/07-1202.pdf)

Work Permit for Second and Subsequent DUI Offenses?

Federal law now authorizes temporary restricted licneses ("work permits") for second or subsequent DUI offenders following a 45 day hard suspension and the installation of an ignition interlock device.

The single biggest problem with the current drunk driving laws in the State of Iowa is the fact that second and subsequent offenders are not eligible for temporary restricted licenses or "work permits" for a minimum of one year following their offense. This means that they are not permitted to drive for ANY purpose for that entire year. If caught, the individual faces a Serious Misdemeanor which carries up to 1 year in prison and a minimum fine of $1,000 in addition to another suspension that must be the same as the period of suspension they were serving when they were caught. This additional suspension runs consecutively, is tacked on to the end, to the current suspension period. Proponents of this current system blindly believe that an intoxicated driver should not drive at all, regardless of the purpose because they previously put everyone at risk by their actions. It is strictly a theoretical, abstract, retribution based argument for the punishment that ignores the practical everyday consequences.

Operating While Intoxicated offenses carry the most significant mandatory minimum financial penalties of any criminal offense in the State of Iowa. For this reason, getting to and from work is even more important than it otherwise would be. Payment of fines and maintaining employment are standard conditions of probation and failure to abide by those conditions can land an individual in jail. In addition to this, almost every drunk driving "offender" must provide for themselves, and in many occasions, their families as well. Because of this, there is an increased number of unlicensed drivers on the roads simply because they need to get to and from work, but the current law does not provide them with any relief from their suspension, whether for hardship or to merely get too and from work. The truth is that people continue to drive illegally if it is necessary to provide for themselves and their families.

The socioeconomic problem that arises in this situation is that when an individual is convicted of a second or subsequent drunk driving offense, not only do they lose their driving privileges, they also lose their ability to register a motor vehicle in the State of Iowa. An unregistered vehicle with an unlicensed driver, likewise will not be insured. What this results in is unlicensed drivers driving illegally and without any insurance. The costs of the accidents caused by these drivers ultimately is born by the general public by way of increased insurance costs because the insured driver's insurance company ultimately ends up footing the bill. This is not in anyone's best interest.

Until recently, the excuses used by the Iowa Legislature for maintaining the one year hard suspension for second or subsequent DUI convictions was that federal law required such a suspension. We all know how the federal government puts pressure on the states to ensure that they comply with their greater wishes. Road money and other financial assistance from the federal government depends upon the states complying with federal minimum standards. That is precisely how the minimum alcohol concentration was lowered from .10 to .08. The federal government lowered their legal limit and required states to likewise comply within a specified period of time if they desired to keep their federal road monies.

The good news is that effective June 6, 2008, the federal government has made it possible for second and subsequent offenders to obtain restricted licenses so long as certain requirements are met. Pursuant to 23 U.S.C. 164 (a)(5), the minimum penalty for second or subsequent offenders is, among other things: (1) a drivers license suspension for not less than 1 year; OR (2) a combination of suspension of all driving privileges for the first 45 days of the suspension period followed by a restatement of limited driving privileges for the purpose of getting to and from work, school, or an alcohol treatment program if an ignition interlock device is installed on each of the motor vehicles owned or operated, or both by the individual. Thus, a second or subsequent offender, under federal law is eligible for a "work permit" so long as they install an ignition interlock in any vehicle owned or operated by that person.

This recent amendment alleviates many of the concerns and problems associated with a one year hard suspension while still adequately punishing the individual offender. Since a restricted license can be obtained, the vehicle will be registered, SR-22 (high risk) insurance will be required by the State, and the required ignition interlock device will ensure that the individual driving the vehicle has not consumed any amount of alcohol prior to driving. It really is a win-win situation. Now, it is up to each State to implement the new federal legislation and amend the state requirements accordingly. Please contact your local representative to urge immediate action on this issue. Their contact information can be found at: http://www.legis.state.ia.us/index.html