G R L LAW

"Big Brother" Reigned In

2012-01-23T15:32:00.007-06:00

The United States Supreme Court reigned in "Big Brother" today with its decision in United States v. Jones, holding that the Government must first obtain a search warrant before installing and monitoring a G.P.S. device on a suspects vehicle.

In a day where increased unmanned observation of citizens seems to be an all but accepted way of life with traffic cameras, invasive airport scanners and other similar technology, today's decision by the Supreme Court is a refreshing reminder of the importance of the Fourth Amendment. The Supreme Court's ruling can best be summarized as follows: The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their person's houses, papers, and effects, against unreasonable searches and seizures." The Government's physical intrusion (installation of a tracking device) on an individual's "effect" (vehicle) for the purposes of obtaining information constitutes a "search." Consequently a search warrant is required prior to the intrusion. (See Your Rights).

The Fourth Amendment to the United States Constitution has long protected citizens from governmental intrusion into their private affairs. Although not as commonly discussed, the Fourth Amendment also stands as a stout protector of private property from governmental interference or intrusion. Justice Scalia, delivering the opinion of the Court, emphasized and reiterated the proud and longstanding tradition that the protection of private property, made possible through the Fourth Amendment, has in our country. He emphasized: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Justice Scalia then quoted the historical explanation by Lord Camden: "Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law."

The Government argued that Jones it should not matter that they trespassed on Jone's private effects because he did not have a "reasonable expectation of privacy" in the area of the vehicle accessed by the Government agents (its underbody) and in the location of the vehicle on the public roads, and thus, no Fourth Amendment violation took place. They made this argument relying upon two prior cases decided by the Supreme Court where it held that placement of a "beeper" into a container that was subsequently transported by a defendant and tracked by law enforcement did not qualify as a "search." However, the Supreme Court rejected that argument, pointing out that those two cases (United States v. Knotts and United States v. Karo) involved placement of the tracking device on the property with the "then owner's" permission. Consequently, there was no "trespass" against the individual's property as was the case in Jones, where the agents installed the device on his private property, without his nor anyone else permission.

It is also notable that there was considerable debate between the Justices regarding what the proper approach should be for determining whether a "search occurs" in future cases not involving a physical trespass to a person's property. However, that debate is better left for the legal academics and future cases to ferret out. The key to this case is this: When the government physically invades personal property to gather information, a search occurs within the meaning of the Fourth Amendment to the United States Constitution. If no search warrant or exception to the warrant requirement exists at that time, then the search is illegal and all evidence obtained as a result of the illegal search must be suppressed (thrown out of court).

On an interesting side note, none of this would have been an issue had law enforcement did what they were supposed to do in the first place. Law enforcement initially obtained a search warrant to install the GPS unit on Jones' vehicle but did so a day late and a State short. The warrant required the installation of the device in the District of Columbia within 10 days from the date it was issued. Unfortunately, the agents installed the device in the State of Maryland on the 11th day. Consequently, the warrant did not authorize the installation and the Court had to analyze the case as if no warrant had been issued at all. This is a classic example of had law enforcement done their job correctly in the first place, we wouldn't even be talking about this.

OWI With Children In the Car

2011-11-23T11:03:00.005-06:00

Operating While Intoxicated charges are bad but when children are in the vehicle, the situation goes from bad to worse; feloniously worse.

Operating a motor vehicle under the influence of alcohol can be charged as a Class C felony in the State of Iowa, even if nobody is injured as a result of the incident.

Iowa law makes it illegal for a parent or other person having custody or control over a child to "knowingly act in a manner that creates a substantial risk to a child's physical, mental or emotional health or safety." See Iowa Code 726.6. This offense is entitled "Child Endangerment." The gravity of a Child Endangerment offense depends upon the resulting harm to the child. If a serious bodily injury results, it is a Class C, Forcible Felony, punishable by a mandatory 10 year term of imprisonment. If only bodily injury occurs, than it is a non-forcible Class D Felony, punishable by up to 5 years imprisonment. If no bodily injury occurs, it is an aggravated misdemeanor punishable by up to 2 years in prison.

Ordinarily prosecutors file OWI charges that involve children in the car under the Child Endangerment theory as it best fits the offense and has a graduated severity based upon the resulting harm. In ordinary OWI situations, where there is no accident, it is charged as the Aggravated Misdemeanor offense. However, there has been a recent trend in the State for some prosecutors to file the more serious charge of Neglect or Abandonment of a Dependent Person, in order to get a strategic advantage over the defendant.

Neglect of a Dependent Person is committed when a parent, or some other person having custody of a child, "knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person's self." See Iowa Code 726.3. While these are in essence the same elements as required for Child Endangerment, the Iowa Supreme Court has held that a person can be charged with either offense when operating a motor vehicle while intoxicated with a child present in the vehicle. Neglect of a Dependent Person is a Class C Felony, punishable by up to 10 years in prison.

As you can see the prosecution obtains a significant greater deal of leverage over a defendant by charging the offense in this manner. After facing a Class C felony, an Aggravated Misdemeanor resolution looks much more agreeable to a defendant who often times had no prior record and no previous involvement with the criminal justice system. Avoiding the felony is their primary concern at that point in time.

There are certainly defenses and arguments to be made in defense of the charges but
as you can see, a fun night of celebrating the holidays with friends and family, can quickly turn into a nightmare. Rather than find yourself in this position, it is wise to ask yourself if that next drink is really needed or at the very least, coordinate with friends and family to ensure that the person driving the children home has not had too much to drink. Please take this as a sobering reminder that a simple, seemingly innocent celebration, can quickly turn into a feloniously terrible nightmare. Feel free to pass this on and share it with friends and family. This is one area where "taking a chance" should not even be an option.

Right to Private Consultation with Attorney

2011-09-30T10:50:00.005-05:00

"Those holding custody of arrested persons should honor attorney requests for a private, barrier-free meeting room. Upon request, video and audio recordings should be turned off during the attorney consultation or the attorney should be allowed to temporarily block the camera. In any event, audio and video recording of the in-person attorney consultation shall not be admissible against the accused." Those are the words of Justice Waterman of the Iowa Supreme Court in their recent decision of State v. Walker.

Iowa law has long provided an arrested person the right to call, consult, or see a family member, an attorney, or both, upon arrival at the place of detention following their arrest. In the context of an arrest for operating while intoxicated, if a person requests such a consultation, the arresting officer must give them a "reasonable opportunity" to have such a consultation prior to making their decision regarding chemical testing. See "Your Rights." The question that arose recently, is what level of contact may an attorney have with an arrested person if they come down to the police station to have a personal consultation with the individual. In Walker, the attorney was forced to meet with his client over the phone with a glass partition separating them. The Iowa Supreme Court's answered the question by concluding that an attorney must be given face to face contact so long as there is no specific basis to believe there would be a safety concern. In other words, if the arrested person is behaving himself/herself, the attorney is allowed to meet with them face to face.

Face to face consultation with an attorney is an important right available to a person arrested for operating while intoxicated. Law enforcement has already subjected the individual to "standardized field sobriety tests" and has formed their own conclusion that the person is intoxicated. A competent and qualified attorney must be able to make their own independent evaluation of an individuals level of sobriety in order to provide proper legal advice. This is especially true since Iowa Court of Appeals cases have concluded that law enforcement is not required to share the results of their preliminary testing with the arrested individual. Thus, it is only fair that if an attorney asks, he must be given a "barrier-free" private meeting room to independently assess their client.

The next question that arises is what about video recording the consultation. Law enforcement has an interest in ensuring the safety of the attorney and is also required to keep the arrested person under observation for fifteen minutes prior to administering the breath sample. However, these interests must be balanced with the arrested individuals right to have a private and confidential consultation with his attorney where the attorney may wish to conduct an independent assessment of the persons intoxication prior to providing advice regarding chemical testing. Recognizing this as an important right, the Iowa Supreme Court also concluded that law enforcement may not video or audio record the private consultation. The recording devices must either be turned off or the attorney must be allowed to temporarily block the camera. Even if the consultation is somehow recorded, it cannot be used against the accused.

In conclusion, the Iowa Supreme Court continued in its long standing position in protecting arrested individuals statutory right pursuant to Iowa Code section 804.20 to consult with an attorney before making a decision regarding chemical testing. It is important to note however, that the private and confidential communication provision of section 804.20 does NOT apply to anyone but attorneys. Thus, it is imperative that non-attorneys consulting with an arrested person understand that everything they say or do is likely being recorded and may be admissible against the individual. This brings us back to the three keys to surviving an arrest for OWI: Shut up; Wise up; Lawyer up.

Multi-Million Dollar Verdict For Victims of Trucking Accident

2011-08-25T14:24:00.009-05:00

A federal jury in the Southern District of Iowa returned a verdict of over four million dollars for GRL Law's clients who were victims of a semi-truck accident. The accident took place just outside of Mount Pleasant, Iowa, on Highway 218 Southbound, at exit 45.

The multi-million dollar verdict was a result of an accident caused by a negligent truck driver who failed to comply with Iowa and Federal Commercial Trucking Regulations. The truck driver was shown to have falsified her driving logs and also to have violated the hours of service regulations the day prior to the accident. More importantly, plaintiffs established at trial that the driver of the semi-truck had illegally stopped her semi on the shoulder of the highway just minutes prior to the accident. As the truck driver pulled back out into traffic from the shoulder, her clearance lights were not illuminated as required by Iowa law and consequently the plaintiffs, who were just cresting a hill and rounding a curve, were unable to see and ultimately avoid the slow moving semi in time. A reconstruction of the accident established that the semi was traveling anywhere from 18 - 35 mph at the time of the collision on a highway with a speed limit of 65 mph. The trucking company who owned the truck at the time of the accident was also held liable because in the State of Iowa, the owner of a vehicle is liable for the negligent acts of a driver using the vehicle with their consent. See Iowa Code section 321.493. The jury found the defendant truck driver and trucking company to be jointly responsible and 90% at fault while the driver of the plaintiffs vehicle was only found to be 10% at fault under Iowa's comparative fault law.

The results of the accident were tragic. A two-year old boy suffered an open parietal skull fracture resulting in brain injury. The front seat passenger, a 22 year old male was killed on impact. Finally, the driver, an 18 year old female, suffered a fractured C-6 vertebrae. The child continues to suffer from the effects of his traumatic brain injury to this day.

The jury's verdict broke down as follows: $400,915.76 to the driver of the plaintiffs' vehicle with a substantial portion being awarded for past and future pain and suffering; $3,190,852.40 to the brain injured child including compensating for loss of bodily function and past and future pain and suffering; $71,371.59 to the estate of the deceased passenger for his wrongful death; $400,000 to the deceased passenger's mother for loss of her relationship with her son known as consortium; and $25,000 to the father of the injured child for his loss of consortium. With the 10% fault reduction pursuant to Iowa's comparative fault law, the total judgment entered against the defendants was $3,679,325.77

Some people may find it interesting that the trucking company's insurance carrier, National American Insurance Company's final offer to settle ALL claims prior to trial was $350,000. It turned out they were $3,329,325.77 too low.

Smell of Marijuana and Probable Cause

2011-08-19T09:41:00.004-05:00

It is not uncommon for police officers to claim that they "immediately detected a strong odor of marijuana" coming from the vehicle, apartment or house. They then use that in an attempt to justify a subsequent search of the car or residence. This begs the question: does the smell of marijuana, standing alone, create probable cause to search? The answer is "yes but ..."

According to the Iowa Supreme Court's recent decision in State v. Watts, the odor of marijuana, burnt or fresh, may create probable cause to search a particular location so long as a few requirements are met. First, the State is required to establish that the odor is sufficiently distinctive to identify a forbidden substance and second, the they must establish the training and qualifications supporting the officer's conclusion that the odor was indeed marijuana. In other words, they have to prove that the officer has sufficient training and knowledge to allow him to accurately and reliably detect and identify the odor as being from marijuana. Establishing prior experience in narcotics enforcement investigations is ordinarily sufficient.

These requirement are based upon the United States Supreme Court's decision from 1948 in Johnson v. United States where the Court stated: "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to known the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant." Johnson v. United States, 333 U.S. 10, 13 (1948). The Iowa Supreme Court has followed that reasoning and in State v. Watts, reconfirmed those requirements.

If the State can establish the required foundation pertaining to the odor of marijuana, probable cause is shown to exist. The next question then becomes was a warrant obtained or was the search conducted without a warrant. If a search warrant was obtained, the application for the search warrant must contain sworn information regarding the officers qualification and experience in detecting the odor or the search warrant will not be valid. The prosecution is not allowed to add to the warrant application or present additional evidence that is not contained in the warrant application once the warrant is approved. What's written in the application at the time it is submitted to the judge or magistrate will determine whether or not probable cause has been established.

If the officers proceed to search without a warrant, they must be able to prove that an exception to the search warrant requirement existed. The most common exceptions are: 1) exigent (emergency) circumstances, such as the immediate threat of evidence destruction; 2) consent; 3) search incident to arrest; or 4) plain view. In most cases law enforcement will attempt to rely upon either emergency circumstances or consent. Remember, a person is NEVER required to consent to a search of their person or property. For more information on your rights pertaining to searches, click here.

Emergency circumstances automatically exist when the smell is coming from a vehicle. Right or wrong, the Supreme Court has held that the inherent mobility of a vehicle creates the danger that the evidence will be destroyed or otherwise dissapear if the vehicle is not searched. For apartments, houses or other residences, the State must establish particular facts that reasonably lead them to conclude evidence is in imminent danger of being destroyed before they may proceed to enter a house without a search warrant. In Watts, the prosecution attempted to argue that the officer was justified in entering the apartment without a warrant "because he didn't know if there were any other individuals inside the residence" that could attempt to destroy evidence. The Iowa Supreme Court said that it is not enough "not to know." Rather, there must be specific information that reasonably leads the officers to believe there are individuals inside the residence that pose an immediate threat of destroying the evidence. Hearing movement and scurrying around within the residence may be sufficient to meet that burden.

In conclusion, the smell of marijuana detected by a trained and qualified individual who is shown to be familiar with the odor, can create probable cause to search. However, it is important to ensure that the proper foundation for that evidence is established. It is equally important to ensure that those facts are sufficiently set forth in the search warrant application or if no search warrant was obtained, that the State can meet its burden of proving that an exception to the warrant requirement existed at the time of the search. It is the seemingly little details that can make a huge difference in search and seizure cases.

KNOW YOUR RIGHTS, EXERCISE YOUR RIGHTS, PRESERVE YOUR FREEDOM.

Can't Unrefuse a Refusal

2011-08-16T07:23:00.000-05:00

You can't unrefuse a refusal the Iowa Supreme Court ruled.

Toby Welch was arrested for Operating While Intoxicated (OWI, DUI), in the early morning hours on August 1st, 2009. Following a relatively short investigation which included Mr. Welch consenting to a preliminary breath test, Mr. Welch was arrested for operating a motor vehicle while intoxicated. He was transported to the police station where implied consent proceedings were invoked and he was requested to submit to an evidentiary breath test. Being faced with the decision to consent or refuse the breath test, Mr. Welch requested to place phone calls in order to secure advice, as was his right. After unsuccessfully attempting to contact his attorney and a few family members, Mr. Welch advised the arresting officer that he did not want to take the breath test. Consequently, the arresting officer entered Mr. Welch's refusal into the computer and placed him in a temporary holding area. While in the holding area, Mr. Welch received a return call from this attorney and after speaking with his lawyer, requested an opportunity to take the breath test. The arresting officer most certainly could have permitted Mr. Welch to take the test at that time, however, he informed Mr. Welch that it was "too late" and he had already refused the breath test. As a result Mr. Welch's driving privileges were suspended for his test refusal instead of the lesser period for test failure, or not at all had he passed the test.

Mr. Welch appealed the suspension of his driving privileges for test refusal, alleging that he should be able to unrefuse his refusal. Unfortunately, the Iowa Supreme Court saw it differently. In Welch v. Iowa Department of Transportation, Justice Mansfield, writing for the Court, concluded that a person arrested for OWI is only entitled to "one refusal." This decision was reached based upon the plain language of Iowa's implied consent law which states if a person refuses to consent, a test shall not be given. The Court further justified this holding based upon the fact that a "clearcut 'one refusal' rule reduces the time and cost burdens on law enforcement."

Whether one agrees or disagrees with the Iowa Supreme Court's ruling on this case, there are a couple of important points that are worth repeating.

First, an individual arrested for operating while intoxicated has the legal right to contact an attorney, family member, or both before making a decision regarding chemical testing. While the individual does not have an absolute right to wait two-hours before making their decision, so long as the individual is making a good-faith effort to contact and attorney or family member for advice, the arresting officer cannot unreasonably interfere with those attempts. Don't make a decision without first obtaining the advice you need.

Second, anything less then an unqualified "consent" is a refusal. You have a "reasonable opportunity" to think about your decision and contact someone to assist with you but actions can amount to a refusal just as much as words. Saying "I consent" but not complying with the officer's instructions on how to take the test can still result in a refusal the same way saying "I refuse" will. If you consent, take the test correctly or run the risk of being marked as a "refusal" for non-compliance.

Finally, make sure you are comfortable with your decision to take or refuse testing before you make your decision. There are a number of important considerations to take into account before you make that decision. It never hurts to study up before you find yourself in that unfortunate predicament. Know your rights, exercise your rights, and preserve your freedom. Remember you can't unrefuse a refusal. You can however, refuse after con

Failure to Turn Over Evidence

2011-04-20T09:01:00.013-05:00

David Flores has finally won his 15 year battle for a new trial on his conviction for the 1996 high-profile murder of bank executive, Phyllis Davis. (Des Moines Register Story) Mr. Flores has consistently maintained that he was wrongfully convicted since the jury returned its verdict some 15 years ago. His fight has taken him to the Iowa Court of Appeals twice and the Eighth Circuit Court of Appeals in federal court as well. His second trip to the Iowa Court of Appeals was the charm.

On April 13, 2011, the Iowa Court of Appeals affirmed Polk County District Court Judge, Don Nickerson's ruling that Mr. Flores was entitled to a new trial as a result of the Polk County Attorney's Office failing to provide his defense lawyer with a crucial piece of evidence pointing to another individual as a top suspect. The Court of Appeals' full decision can be found here. According to Judge Nickerson and the Iowa Court of Appeals, the Polk County Attorney's office failed to provide the defense with a police report documenting an interview with a witness that suggested an individual by the name of Rafael Robinson was actually responsible for the shooting of Ms. Davis. Obviously, the court concluded that this was important information for the defense to know about and failure to disclose it violated Mr. Flores' right to a fair trial and the prosecutors duty to timely disclose exculpatory evidence to the defense. The Polk County Attorney's Office claimed that they produced the disputed report and even obtained a receipt verifying that fact. However, interestingly enough, that alleged receipt was shredded by the Polk County Attorney's Office pursuant to "standard procedure." The Court of Appeals made a point to question why, if such a receipt existed, would the County Attorney have destroyed it when Mr. Flores was sentenced to life and postconviction proceedings were inevitable.

Mr. Flores' case highlights a problem of significant concern in our criminal justice system; defendant's access to evidence and the State's duty to timely and fully produce evidence within its possession. GRL Law has previously blogged about the destruction of evidence by the prosecution and the Flores case further demonstrates the danger of a prosecutor not turning over evidence in its possession. The scary thought is what would have happened to Mr. Flores had his family not been adamant advocates on his behalf and had he not been able to secure an attorney that was willing to fight for him? What if that report was never discovered? The blunt answer is that a potentially innocent man dies in prison.

Preventing the prosecution from "forgetting," altering, hiding or destroying evidence pertinent to a criminal prosecution can be challenging at times but all efforts should be made to protect a defendant's right to a fair trial. Defendants and defense lawyers can, should routinely make written requests and demands to preserve and produce evidence. However, any requests made through the courts will ultimately fall back into the lap of the prosecutor's office to ensure compliance. If the prosecution does not adequately communicate with the investigating law enforcement agencies, does not have the file in order, or simply does not want certain evidence to be disclosed, there is no realistic way for a criminal defendant to know about its existence. Every so often we are reminded of this fact when a high profile case surfaces where a prosecutor gets caught. Whether its the Duke Lacrosse prosecution, the lesser known Terry Harrington wrongful conviction in Council Bluffs or even Mr. Flores' case, evidence is altered, withheld, or simply "forgotten" by prosecutors more often than news stories could ever report.

What about those instances where the prosecution is not caught? What then? That is a risk that GRL Law is not willing to take. For years GRL Law has made it a practice to make specific requests directly to the investigating law enforcement agencies for the information important to the defense. Their goal is to ensure that ALL evidence relevant to a defense is not only preserved but produced in a timely manner. Experience has taught them that even in routine prosecutions, if they wait for a prosecutor to produce evidence or investigative materials, certain items will be missing or no longer available for one reason or another. This is simply not acceptable. Recently, GRL's "unconventional" approach to the problem has resulted in a heated legal battle with the Polk County Attorney's Office; the same prosecutor's office that was just found to not have turned over vital evidence of a defendant's possible innocence in Mr. Flores' murder prosecution.

Bottom line is that the only way to truly protect the rights of an accused and ensure that all evidence is properly disclosed and produced, is to hold publicly elected prosecutors accountable. A responsible prosecutor must ensure that their conduct and dealings with defendants is beyond reproach and that they always put justice first, even if it means that a case remains open or a conviction is delayed. They wear the "white hat" and should do everything possible to ensure it remains unblemished. Prosecutors have all taken an oath to abide by the prosecutorial standards which are above and beyond those of normal attorneys on opposite sides of litigation. Their role, which is often forgotten by some prosecutors eager to win the admiration of their superiors and peers, is best described by the Iowa Supreme Court in its decision in State v. Graves: "A prosecutor 'is not an advocate in the ordinary meaning of the term.' That is because a prosecutor owes a duty to the defendant as well as to the public. ... [W]hile a prosecutor is properly an advocate for the State within the bounds of the law, the prosecutor's primary interest should be to see that justice is done, not to obtain a conviction."

When prosecutor's forget their duty, it is the public's job to remind them of their oath and responsibilities. Accountability is key. As elected officials, prosecutors are sensitive to public opinion. This can be used for good just as much as it can be used for bad. Sometimes public outcry leads to over zealousness and a win at all costs approach because that is what the public demands. Consequently the duty falls both on the public and prosecutors to ensure that justice is done. Justice delayed is still justice, so long as the right person is convicted after receiving a fair trial. Justice is never accomplished by convicting the wrong person or even possibly the right person without a fair trial. When prosecutors forget this it is the public's duty to remind them that such actions will not be tolerated. Without such a reminder there is a chance that the next illegal conviction is a friend or family member, or worse yet, yours.

Know your rights; exercise your rights; preserve your freedom.

Effective Use of Driver's Rights Card

2011-04-11T09:26:00.003-05:00

GRL Law has created the original Iowa Driver's Rights Card which is a tool that allows drivers in the State of Iowa to effectively and efficiently invoke their legal rights.

The Iowa Driver's Rights Card is a written notice to the officer that the individual under investigation is invoking the following rights: 1) Right to remain silent; 2) Right to withhold consent to a search of ones person, property or affects; 3) Right to refuse field sobriety exercises; and 4) Right to phone calls and to consult with an attorney before the breath test at the station. It is simple and succinct and all that needs to be done to invoke these rights is to hand the card to the officer.

Not everyone understands or appreciates the true purpose of GRL Law's Iowa Driver's Rights Card. Some criticize it as encouraging drunk drivers while others look at it as some sort of magic "get out of jail free" card. It is neither. The single most important thing to comprehend with regards to the driver's rights card is that it cannot and does not save someone from themselves. If the individual under investigation is visibly intoxicated and does not have their faculties about them, the card is useless. If the person cannot walk to their car without staggering; starts berating the officer with slurred speech and talks in a non sensible manner; elects to do field sobriety exercises and looks visibly intoxicated; or if the officer gives the person the opportunity to place calls and the person elects not to, the card is useless.

Here are a few tips to ensure that if you are in the unfortunate position where you need to invoke your rights under Iowa law, you will know exactly what to do. First, read the card and understand the rights you are invoking BEFORE you need it. Second, DO NOT hand the card to an officer until it is clear that you are being investigated. Third, remember the rights that are being invoked so if the officer asks if you still want to do what is clearly requested on the card, you can reaffirm the invocation of your legal rights. Finally, say as little as possible. Prisons and jails are full of people that could not hold their tongue. The less you say the better.

Hopefully you are never in the position to use GRL's Iowa Driver's Rights card but if you are, these tips will help you effectively invoke your legal rights in Iowa. Remember though, the only absolute defense to drunk driving is not to operate a motor vehicle while under the influence of alcohol. For more information regarding your rights, log onto www.IOWAOWIDEFENDERS.com.

Deferred Judgment and Gun Rights

2011-04-08T08:52:00.006-05:00

If I receive a deferred judgment on a felony charge, does that take away my gun rights? The short answer is "yes."

Iowa Code section 724.26 prohibits a person convicted of certain offenses from possessing a firearm or ammunition. These individuals include convicted felons and individuals convicted of misdemeanor domestic assaults that are subject to a no contact order. Federal law has a similar prohibition which means these offenses can be charged in both State and Federal court. In State court, Felon in Possession of a Firearm is a Class D Felony, punishable by up to 5 years in prison.

The question that inevitably arises in these cases is what qualifies as a conviction? Iowa law gives individuals who have little or no prior criminal history an opportunity to receive a deferred judgment in certain circumstances. A deferred judgment is not a formal conviction, rather, judgment is withheld and the individual is placed on probation for a specified period of time and if probation is successfully completed no conviction is entered on their criminal record. This is a common resolution for a first offense domestic assault or even most first time felony crimes that do not involve violence. Are individuals with deferred judgments on these cases "convicted" for purposes of Iowa and the federal prohibition against felons being in possession of firearms and ammunition?

The answer provided recently by the Iowa Court of Appeals is, "yes." In it's recent decision of State v. Tong, the Court of Appeals concluded that an individual still on probation for a deferred judgment on a felony does qualify as a convicted felon under Iowa's Possession of a Firearm as a Felon statute. According to the Court, the purpose of Iowa's Felon in Possession of a Firearm statute is to protect the public at large which required it to apply the "broad definition of 'conviction.'" Under the "broad definition of 'conviction'" a person who has entered a plea of guilty qualifies as a "convicted person." In order to receive a deferred judgment, the individual must first enter a plea of guilty so according to the Court, they qualify as a "convicted person" even though judgment has technically not been entered against them. As of the date of this article being written, the Court of Appeals decision in Tong is not yet final as Further Review may be requested by the Iowa Supreme Court.

Federal courts in Iowa have adopted a similar approach to the Iowa Court of Appeals. In 2007, Judge Linda Reade of the Northern District of Iowa, concluded that an individual still on probation for a deferred judgment qualified as a convicted felon under 18 U.S. C. 922, the federal Felon in Possession of a Firearm statute. Judge Reade applied a similar approach as the Iowa Court of Appeals and used the broad definition of "conviction" to conclude that it included anyone who had entered a guilty plea to a felony charge. The 8th Circuit Court of Appeals, in its published case of United States v. Reth, accepted Judge Reade's reasoning and concluded that a person on probation for a deferred judgment did indeed qualify as a "convicted person."

What these cases do not address however, is what about an individual who has successfully completed probation on a deferred judgment? When a person successfully completes probation on a deferred judgment they are "discharged without entry of judgment." Under the four factors used by the court to determine if a conviction exists, there is an argument that one who has successfully completed a deferred judgment is not a "convicted person." A conviction under Iowa law exists if the following four factors are established: 1) a judge or jury has found the defendant guilty, or the defendant has entered a plea of guilty; 2) the court has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed; 3) a judgment of guilty may be entered if the person violates the terms of probation or fails to comply with the requirements of the court's order; and 4) the conviction has become final. A conviction is final if the defendant has exhausted or waived any postorder challenge.

Arguably factor number 3 is no longer satisfied if the person has successfully completed the probationary term on the deferred judgment. Likewise factor number 4 would not be met since the person is discharged without entry of judgment upon successful completion of probation. Needless to say, the question is not entirely clear. Unless one wishes to be the test subject for this issue on appeal after being convicted of being a felon in possession of a firearm, a person with a deferred judgment on a felony charge may be better advised to take up bow hunting instead of using firearms. This area of the law provides no certain answer and with what is at stake, the best approach would be better safe than sorry.

Dismissals - With or Without Prejudice

2011-04-06T09:21:00.004-05:00

When a criminal charge is dismissed, an important question that should be asked is; is it with or without prejudice? The reason being is that a dismissal does not always end a prosecution for good. It depends upon the nature of the charge and the nature of the dismissal as well.

For simple and serious misdemeanors such as possession of controlled substances, operating while intoxicated, first offense, and other similar charges, once a charge is dismissed it is done. The defendant is forever discharged and can never be re-prosecuted for that specific charge. The same is not true for aggravated misdemeanors such as operating while intoxicated second offenses, possession of controlled substance, second offenses. In those cases, the nature of the dismissal determines whether or not the charge can be refiled by the prosecutor even after it has been dismissed.

A dismissal with prejudice means that a charge cannot and will not be refiled. This is obviously the best type of dismissal a criminal defendant could hope for. A dismissal without prejudice, however means that the charge can be refiled if the proper procedures are followed, so long as the charge is filed within the applicable statute of limitations. This is far and away the most common form of dismissal.

Just because a dismissal order says "without prejudice", does not mean that the case can be refiled. There are certain procedures that a prosecutor and judge must follow in order to be able to re-file a charge even if the dismissal order states that the charge is dismissed "without prejudice." In a recent Court of Appeals case of State v. Preston, argued by GRL Law attorney, Scott Michels, the Court of Appeals explained that a dismissal without prejudice must specifically state the reason why the dismissal is being requested and why a dismissal "without prejudice" would be in the "furtherance of justice." If the motion to dismiss filed by the prosecutor provides a legally sufficient basis for a dismissal, the trial court must still make a record and a specific finding that the dismissal without prejudice at that point in time is "in the furtherance of justice." If these procedures are not followed then any case that is dismissed is actually dismissed with prejudice and cannot be refiled. This is precisely what the court ruled in State v. Preston and concluded that the operating while intoxicated, second offense, charge should have been dismissed with prejudice.

Dismissals without prejudice are also not allowed to be made by prosecutors in order to gain a tactical advantage or to get around a defendant's exercise of its right to speedy trial. If a defendant can make a showing of an improper basis for a dismissal, the judge can order it dismissed with prejudice even if the prosecutor is asking to be allowed to refile the charge.

Reporting an Accident

2011-01-31T14:26:00.007-06:00

Accidents are not uncommon but a person's legal responsibilities following an accident are not always clear. In Iowa, any accident involving property damage in excess of $1,500.00 must be reported to the Iowa Department of Transportation within 72 hours from the accident. A person's legal duty following an accident depends upon the results of the accident.

Injury or Death
If the accident results in injury or death to any person, the driver of a vehicle involved in the accident must, "by the quickest means of communication," provide notice of the accident to the sheriff of the county in which the accident occurred, or the nearest office of the state patrol or other local law enforcement agency. This duty is fulfilled usually by simply calling 9-1-1, to report the accident. The driver of the vehicle must also stop the vehicle at the scene or as close as possible and shall remain on the scene or return to it until law enforcement has had an opportunity to obtain the information necessary to complete an accident report. Failing to comply with these requirements in a death accident is a Class D Felony and failing to comply when injury results is an Aggravated Misdemeanor. In a Vehicular Homicide charge, leaving the scene of the accident can result in the the person being required to serve 70% of their sentence before being eligible for parole.

Property Damage to Another Vehicle
If another vehicle is involved in the accident and that vehicle is either being driven or is "attended" at the time of the collision, the driver must stop and remain on the scene until an accident report can be completed or the required driver information is exchanged. If the other vehicle involved in the accident is not attended and parked, the driver is required to immediately stop and shall either locate and notify the owner of the struck vehicle or must leave a written notice providing the name and address of the driver and owner of the vehicle that struck their car as well as a statement explaining what happened.

Single Vehicle Accident - No Injury or Death
A common occurrence in Iowa, especially during the winter, is a single vehicle accident where nobody is injured or killed and no property damage is done to another vehicle. These types of accidents are not uncommon, whether due to weather, deer or other circumstances. If a person is involved in a single vehicle accident that does not result in injury or death to another person, there is no requirement that they remain on the scene of the accident or even report the accident that same night. It must only be reported if the accident resulted in more than $1,500.00 in damage and in that event, it must be done within 72 hours. If law enforcement investigates the accident, they will file the report. However, the driver of the vehicle, may on their own, report the accident as well. (DOT Form)

A question that is frequently raised in single vehicle accidents is "What if I do not want to incriminate myself?" That is an excellent question to be asking following an accident and something that should be at the forefront of a person's mind especially if alcohol was consumed prior to the accident. A driver, NEVER has to admit to conduct that may result in criminal liability. In fact, Iowa law, in addition to the 5th Amendment to the United States Constitution, specifically states that a driver and/or owner of a vehicle involved in an accident is not required to supply information to a police officer if the owner believes the information may be self incriminating. Also, accident reports and the contents of those reports are by law, confidential and may not be used as evidence in any civil or criminal case arising out of the facts on which the report is based. Thus, a person may report an accident truthfully by submitting the required report and any statements made in that report cannot be used to prosecute them for a crime.

A common practice by law enforcement agencies that is being used more and more, is to impound a persons vehicle until the "driver comes in and claims the vehicle." This is merely a ploy by law enforcement to determine who was driving the vehicle when they have no other evidence to establish that fact. In these situations, the driver, or other concerned individual, is well-advised to involve an attorney to ensure that their legal rights are properly respected. A knowledgeable attorney can assist the individual in complying with the reporting requirements while still preventing them from incriminating themselves.

KNOW YOUR RIGHTS; EXERCISE YOUR RIGHTS; PRESERVE YOUR FREEDOM.

From Covert to Controversy: Committing a Crime for the Greater Good?

2011-01-28T09:05:00.008-06:00

Long time conservative Republican representative, Clel Baudler, from Greenfield, has found himself in a bit of hot water recently surrounding his "covert" purchase of medical marijuana in California this past October.

Representative Baudler, a former State Trooper and staunch "law and order" presence in the Iowa House of Representatives, decided to take it upon himself to demonstrate the potential dangers of legalizing medicinal marijuana in the State of Iowa. In doing so, he may have broken the law. According to the Des Moines Register story, Representative Baudler, who understandably "hates illegal drugs" went to California and lied about having hemorrhoids and depression, to obtain a prescription. His purpose was to "prove how asinine it would be to legalize medical marijuana."

While it can be argued to be a noble endeavor by Representative Baudler, the problem arises due to the fact that under California law, it is illegal for a person to fraudulently represent a medical condition to a doctor. Likewise, Iowa law prohibits a person from engaging in "fraud, deceit, misrepresentation, or subterfuge" to "obtain or attempt to obtain a prescription drug." See Iowa Code 155A.23. A violation of this law as it pertains to marijuana would be a Class D Felony in the State of Iowa, punishable by up to 5 years in prison. There is no legal defense for "lying to obtain a controlled substance to prove a point" either.

Since Representative Baudler has for all intents and purposes, proudly admitted to committing a crime (in the event that the doctor was indeed a doctor, which Mr. Baudler doubts), there are some that believe he should be impeached. The irony over all of this debate really has two layers. First, there has been a concerted effort to impeach the remaining Iowa Supreme Court Justices over the "gay marriage" ruling when that faction is unable to point to an alleged crime that the justices committed (a prerequisite to impeachment) but we have a conservative Republican member of the House of Representatives that openly admits to potentially committing a criminal offense without similar repercussions. Second, the face of "law and order" in the House of Representatives now finds himself potentially on the others side of the law for allegedly illegally purchasing the drugs he "hates" so much.

A shot in the dark: Expansion of gun rights and civil liability

2011-01-24T08:08:00.005-06:00

As you may have read, a Florida State Student was recently injured and another killed when a friend accidentally discharged a firearm in his apartment. According to Lindsay Peterson from the Tampa Tribune in Florida, Ashley Cownie of Orange Park, Florida died as a result of a rifle shot to the chest. The bullet passed through her completely and then struck fellow Florida State student Keith Savino, injuring him as well, although not critically. The shooting was purely accidental and resulted from a fellow student showing off his new flashlight attached to his rifle while he believed the gun to be unloaded.

Across the country, two students were injured when a gun that a classmate had brought to school accidentally discharged. According to the Associated Press article, the boy had the gun in his backpack. When he reached in to get something to eat, the gun accidentally fired. The bullet passed through a boy’s neck and struck a girl in the head. The girl remains in critical condition as of January 21, while the boy had been released from the hospital and is recovering from home.

While these unfortunate accidents took place in Florida and California, accidental shootings have become of much more interest to Iowans, especially in light of the new law regulating how gun permits will be issued. See the Des Moines Register article Gun law Q & A. Regardless of you position on the issue, most will agree that the new law has sparked a new and recently unrivaled surge in applications to carry and acquire. Approximately 1,500 applications have already been made this year for permits to carry and permits to acquire in Polk County alone, requiring the Sheriff's office to extend their hours. (1473 weapons permits received in 1 county)

Given the new interest in owning and carrying firearms, many Iowans are concerned about what responsibility a gun owner may have towards someone they harm while in possession of that firearm. The answer is relatively straight forward: an individual in possession of a gun, whether legally or not, must at least use ordinary care in handling the weapon. If he or she does not, that person can be held liable for injuries or damages caused to another person. The legal term for failure to use ordinary care is negligence. The "negligence standard" applies in civil causes of action regardless of whether the individual that hurts someone by his negligent actions is charged or convicted of a crime.

Under the United States and Iowa Constitutions and laws, citizens certainly have a right to possess and carry a firearm, subject to certain limitations. This does not however absolve them of their responsibility to handle those guns in a safe and appropriate manner. In fact, it can be argued that one in possession of a gun has a heightened responsibility to be careful and vigilant in its handling so as to ensure the safety of those around them. This is especially true in public where more people are present and could be potentially harmed or if an individual has been consuming alcohol.

While gun laws have not directly been expanded, the new law providing uniformity to the application process has certainly given rise to a surge in ownership. A citizen’s right to own and carry a weapon comes with a corresponding responsibility to ensure the safety of those around them. While the majority of gun owners are responsible and safe, those that aren’t may well find themselves responsible for any harm they cause by their lack of diligence.

Everson Found Not Guilty

2011-01-21T11:23:00.005-06:00

At approximately 1:00 p.m. on Thursday afternoon, a Johnson County jury returned its verdict in the sexual abuse trial of Cedric Everson, a former University of Iowa football player. Mr. Everson was acquitted of the sexual abuse allegations but was convicted of simple assault, a simple misdemeanor. The verdict left many wondering how the case starts out as felony sexual assault but ends up simple assault.

Mr. Everson was initially charged with sexual abuse in the 2nd degree, a Class B forcible felony requiring 25 years in prison if he were convicted. After the State's evidence was concluded, the defense moved for Judgment of Acquittal on all charges but focused its attack on the most serious charge, sexual abuse in the 2nd degree. Sexual abuse in the second degree can occur in a number of different situations but the allegation against Mr. Everson was that he aided and abetted Abe Satterfield in the commission of a sex act on the victim using force against her will. The allegation in essence was one of "gang rape." The "aiding and abetting" allegation was the focus of the defense's request for that charge to be dismissed. Ultimately the judge concluded that even taking the evidence in the light most favorable to the prosecution as he is required to do at that stage of the proceeding, the evidence failed to establish the essential elements of sexual abuse in the 2nd degree. That being the case he was required to dismiss that charge.

The dismissal of the most serious charge was not the end of the case however. Anytime a defendant is charged with an offense such as sexual assault, there are multiple levels of that charge (1st, 2nd, 3rd degree). Charging a person with a higher level of an offense also charges them with all of what are called, lesser included offenses. In Mr. Everson's case the "lesser included" charges included sexual abuse in the third degree, assault with intent to commit sexual abuse and simple assault. With the sexual abuse in the second degree dismissed the case was then argued to the jury on the remaining sexual abuse in the third degree and lesser offenses of that. The allegation for this charge was then that Mr. Everson committed a sex act against the victim by force or against her will or that she was in a condition rendering her incapable of consenting, i.e. drunk.

The allegation that a defendant had sex with an intoxicated person who was incapable of consenting due to intoxication is a difficult one to disprove. See prior blog, "An Allegation Impossible to Disprove." However, Mr. Everson's defense attorney did an excellent job of reminding the jury and emphasizing the fact that just because someone claims not to remember, does not mean that they were incapable of consenting at the time. The jury obviously found the evidence insufficient to convict Mr. Everson of this charge as well.

Ultimately the jury concluded that the State proved that Mr. Everson committed simple assault. Simple assault is defined as: "Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act." Given the allegations against Mr. Everson one is curious how the jury could return a verdict of guilty on an offense that did not include a sexual element to it but their verdict stands as given. Mr. Everson is now facing sentencing on a simple misdemeanor which carries the possibility of up to 30 days in jail and a fine of up to $625. Because the conviction was for a non-sexual offense, Mr. Everson will not be required to be placed on the sexual abuse registry.

Judicial Retention and Same-Sex Marriage: An Informed Vote on the Issue

2010-10-21T12:38:00.010-05:00

Last year’s Iowa Supreme Court decision in Varnum v. Brien, sparked one of the most intense political storms that the State of Iowa has ever seen. 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).

The 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 focused squarely on the Iowa Supreme Court Justices that are up for retention. This election, Chief Justice Ternus, Justice Baker and Justice Streit are the members of the Iowa Supreme Court up for a retention vote. Groups have been formed with the sole purpose of campaigning to unseat the Justices, claiming that the decision amounted to “judicial activism” impeding on religious and moral values (See Iowa for Freedom). Other groups have been formed urging the retention of the Justices stressing that in order to be effective the courts must be free from political influence and must rule based upon the law and constitution of the State of Iowa and United States of America. (See Iowans for Fair and Impartial Courts).

The purpose of this article is not to take a position one way or the other on same-sex marriage. It is simply to explain the role of the courts in our system of government and to further clarify what the Iowa Supreme Court ruling said and did not say. An individual’s vote is personal based upon their beliefs and convictions but should also be informed. The purpose of this article is to inform.

Role of the 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 specific 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 violates the constitution by infringing upon individual rights that are set forth in the constitution. Any law 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 the constitution and our system of government fails under those circumstances.

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 prohibiting their practice of that religion violates the Iowa Constitution. Arguably, the constitutional provision violated in this example would be 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 Opinion
In Varnum v. Brien, the Iowa Supreme Court was squarely presented with the question of whether or not the Iowa law denying marriage licenses to same-sex couples, violated the equal protection clause of the Iowa Constitution. The lawsuit was brought by a group of same-sex couples who were denied a marriage license by the Polk County Recorder and Registrar’s Office. Due to the law in existence at the time, Iowa Code section 592.2(1), Polk County was prohibited from issuing the licenses. The same-sex couples argued that the law prohibiting them from obtaining a marriage license solely based upon the sex of the person they sought to marry violated the equal protection clause of the Iowa Constitution.

The case was assigned to Iowa District Court Judge Robert Hanson, who after being presented with all of the facts and legal arguments on both sides, ruled that the law’s denial of same-sex couples from obtaining a marriage license violated the Iowa Constitution. At that stage in the proceeding Polk County then had the right to appeal Judge Hanson’s ruling, which it did. The case was presented to the Iowa Supreme Court. Being squarely presented with the issue, the Iowa Supreme Court had no choice but to decide the issue presented which was: Does a law limiting civil marriage only to a man and woman violate the equal protection clause of the Iowa Constitution.

In an extensive (51 pages) opinion issued on April 3, 2009, the Iowa Supreme Court unanimously agreed that the law violated the Iowa Constitution. Iowa’s equal protection clause states in its entirety: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

The Court explained in detail what the equal protection clause of the Iowa Constitution means and the history behind it. It explained: “Iowa’s constitutional promise of equal protection is essentially a direction that all persons similarly situated should be treated alike.” Polk County argued that heterosexual and homosexual couples were not legally “similarly situated” because homosexual couples could not naturally procreate. However, the law dating back decades and even centuries required that the court not look to the categorization but rather to the purpose of the law to determine whether the people affected by the law were “similarly situated.” The reasoning for this is that no two people or groups of people are the same in every way; so if the Court were to merely look at the categorization there could never be an equal protection violation. Prior case law established that the purpose behind Iowa’s marriage laws was, and is, to bring a sense of order to the legal relationships of committed couples and their families in a number of different ways. In this sense, heterosexual and homosexual couples were “similarly situated” under the law according to the Supreme Court.

The next inquiry that the Court had to undertake was whether or not there was a sufficient reason to treat homosexual and heterosexual individuals differently under the law. The County argued that it was justified in treating same-sex couples differently for five different reasons: 1) Maintaining traditional marriage; 2) Promotion of optimal environment to raise children; 3) Promotion of procreation; 4) Promoting stability in opposite-sex relationships; and 5) Conservation of resources.

The Court quickly dispatched the first argument finding that while straightforward, it only had superficial appeal because when one really looked at it the County was attempting to use a “tradition” to justify the classification. The Court concluded that such an approach would “permit a classification to be maintained for its own sake.” It would be like arguing women could not vote because they traditionally have not been permitted to vote. Addressing the second argument, the Court concluded that the vast majority of available scientific research actually supported the conclusion that the best interests of children are served just as equally by same-sex parents as with opposite-sex parents. According to the Supreme Court, the County’s arguments to the contrary were “largely unsupported by reliable scientific studies.” For the “procreation” argument, the Court found that the true purpose behind the statute was not to promote procreation or it would have excluded civil marriage of other groups that do not procreate for reasons such as age, physical disability, or choice. The Court also found that prohibiting same sex civil marriages really did nothing to promote the stability of opposite-sex relationships and it further noted that the County offered no reason why it would do so. Finally, the Court addressed the argument that it was a legitimate government interest to ban same-sex civil marriages to conserve governmental resources. In essence, the County argued that the State would reap less tax benefits because an increasing number of people would be subject to the financial tax benefits of marriage. The Court also rejected this argument concluding that there was no evidence that same-sex couples would use more state resources than opposite-sex couples if given the opportunity. This was especially true considering that the estimated number of same-sex couples anticipated to take advantage of civil-marriage were significantly lower than other groups such as people marrying for a second or subsequent time.

While not argued by the County, the Iowa Supreme Court also addressed the religious opposition to same-sex marriage. The Court recognized that it was understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for the majority of legal opposition to same-sex marriage. The Court stated: “Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief.” However, the Court recognized that other groups had equally sincere, strong religious views yielding the opposite conclusion. According to the Court: “This contrast of opinion in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to the courts the task of ensuring government avoids them.” Bottom line was that it would be a violation of Iowa’s freedom of religion clause for the Court to make a legal decision based upon a religious belief or view. To do so would be, in essence, to take one religious view over another which is what Article 1 Section 3 of the Iowa Constitution specifically prohibits. The Court concluded: “In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage-religious or otherwise-by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views.”

The Iowa Supreme Court ultimately concluded that because the law treated “similarly situated” individuals (opposite-sex vs. same-sex couples) differently, and the government could not provide a valid justification for doing so, it violated the equal protection clause of the Iowa Constitution and was consequently void and unenforceable.

Politics and the Courts
Members of the judicial branch in the State of Iowa are not elected. They are appointed to their position by the executive branch after a selection committee makes its recommendation. When a position is open, a nonpartisan commission reviews the qualifications of applicants for the opening, conducts thorough background checks, interviews candidates and ultimately makes a recommendation to the governor. The governor, the head of the executive department, has the final say on which applicant receives the nomination and ultimately appoints the new judge. The judge then serves out his or her term on the bench and is put up for “retention” at the end of the term. The judge must receive a majority of the popular vote to be retained (“yes”) in order to keep the position for another term.

The reasoning behind appointment of judges as opposed to popular elections is to prevent “popular opinion” from determining the outcome of judicial decisions. 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 and Country. “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 and are thus, much more susceptible to being influenced by the wants and desires of the vocal “popular opinion.” In fact, it is the legislature’s job to listen to the pulse of the community opinion over all else. Judges on the other hand, when making their decision, must not listen to community opinion but must first and foremost respect and pay close attention to prior legal decisions, and most importantly, the individual rights set forth in the Iowa and United States Constitution. The law must dictate their decision not “popular opinion” or even their own individual beliefs.

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 turn a deaf ear to the “popular opinion” and even their own individual beliefs and would have to strike down the “popular” law because it violates those individual’s Second Amendment right to bear arms.

Whether the community necessarily agrees with a judicial decision or not, the judicial branch must remain free from outside influences and must always ensure that their decisions are based upon the law and the constitution. One does not need to look far in history to see how individual rights are violated when the judiciary heeds popular opinion over the inalienable rights bestowed upon all citizens through the Constitution. 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 race during a time of war. Many, if not all of these actions were 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’s constitutional rights at the earliest possible opportunity.

Conclusion
In conclusion, the Iowa Supreme Court was presented with a very specific dispute. There are strong opinions and views 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. It is understandable that many may be dissatisfied with the decision, but it was the Iowa Supreme Court’s constitutional duty to make a decision one way or the other. The Justices applied the law and the Constitution of the State of Iowa which is the supreme law of the land, and rendered their decision accordingly.

When you go to vote this November, cast your vote according to your own personal beliefs and interests. That is the purpose of popular elections and even our retention system for judges. When it comes to the retention of judges however, please make sure that you cast your vote after becoming informed to the fullest extent possible. If the same-sex marriage decision is important to your vote, we would encourage you to take the time to read the full decision which can be found by clicking this link, Varnum v. Brien. Remember, a vote for or against retention of a judge is not a vote for or against same-sex marriage. Rather it is vote to keep or replace a judge based upon the overall job he or she has done in interpreting the law and the constitution, in every case he or she has presided in up to this point. A valuable resource can also be found by accessing the Judicial Plebesite Results which are the results of a survey answered by attorneys who consistently practice in front of the respective judges. This election, vote your conscience, but vote informed.

Roadblocks

2010-09-21T11:11:00.003-05:00

There has been quite the buzz recently about roadblocks in the State of Iowa. Just this past weekend there was one on Merle Hay Road in Des Moines, and the previous weekend attendees of the Iowa vs. Iowa State game were greeted with one as they left the game on Melrose Avenue in Iowa City.

Roadblocks, or “safety checkpoints”, tend to strike up considerable controversy, primarily because they are seen as interfering with the motoring public’s freedom to be free from unreasonable government searches and seizures. Anytime a vehicle is pulled over or stopped by the police, the occupants of that vehicle have been “seized,” meaning they are not free to go on about their normal activities. Ordinarily a “seizure” by law enforcement must be supported by a sufficient basis for the officer to believe the individual has committed a crime. If there is not a sufficient suspicion than the “seizure” violates the Fourth Amendment to the United States Constitution and any evidence obtained as a result of that violation is thrown out of court.

Roadblocks, on the other-hand, result in people being “seized” without any suspicion whatsoever. They may be completely innocent, or in some circumstances, evidence may surface showing that they had committed some sort of criminal offense. Nonetheless the constitutional requirement of suspicion is set aside in favor of the “public's” interest in ensuring compliance with traffic safety regulations. This practice has been approved by both the United States Supreme Court (See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990)) as has the Iowa Supreme Court (See State v. Hilleshiem, 291 N.W.2d 314 (Iowa 1980). However, roadblocks are not without limitations. It is important for the general public to know what is required for a roadblock to be legal in the State of Iowa.

Iowa Code section 321K.1 governs roadblocks conducted by law enforcement agencies. It authorizes roadblocks for emergency situations in response to immediate threats to the health, safety and welfare of the public (murder suspect on the lose, escaped convict, etc.) and also routine roadblocks to “enforce compliance with the law regarding:” (a) Licensing of operators of motor vehicles; (b) registration of motor vehicles; (c) safety equipment required on motor vehicles; and (d) trucking regulations. All “routine” roadblocks must meet the following requirements:

1. The location, the time and the procedure to be used must be determined by policymaking administrative officers of the law enforcement agency;
2. The location must be selected for its safety and visibility to oncoming motorists, and adequate advance warning sings, that must be illuminated at night or other poor visibility conditions are required;
3. There must be uniformed officers and marked official vehicles of the law enforcement agency or agencies involved;
4. The selection of motor vehicles to be stopped may not be arbitrary. There must be a set determination as to what vehicles will be stopped, for example, every 5th vehicle.
5. It must minimize inconvenience to the motoring public.

If any of the requirements are not met, the roadblock is illegal and anybody charged with a criminal offense as a result of the roadblock may be able to successfully have their case dismissed. Thus, it is important to be as attentive as possible when entering a roadblock because what is, and more importantly, what is not, present may be the difference between ones liberty and freedom.

It is important to remember that even if you find yourself caught in a roadblock web, you still have rights under the law. While no doubt and intimidating environment surrounded by a multitude of law enforcement officers, calmly and politely exercising ones rights in this situation can often times be the best defense.

The Details of Iowa's Texting Ban

2010-06-22T10:12:00.004-05:00

Effective July 1, 2010, Iowa's "texting ban" will be in full force and effect. There are some things that Iowan's and people traveling through Iowa should be aware of regarding Iowa's texting ban.

First, this new offense is not categorized as a moving violation.

Second, law enforcement may only issue warnings for the first year.

Third, what precisely is prohibited varies depending on whether the driver is over or under the age of 18.

Under 18 Years Old: Prohibited from using ANY electronic communication device (cell phone) or electronic entertainment device (i-pod) while driving a motor vehicle. This means no talking on the phone, texting, or using an auxiliary plugged in i-pod or similar device. The requirement that officers have probable cause to stop the vehicle for a primary traffic offense does not apply to minors. However, the officer must still have probable cause to believe the driver is under the age of 18 which is often times difficult to determine.

Over 18 Years Old: Only prohibited from writing, sending or reading a text message while driving. Does not prohibit talking on the phone, looking up phone numbers, or reading safety-related information including emergency, traffic or weather alerts. It could also be argued that the new law does not prohibit reading or retrieving websites or other information via mobile internet connections. Drivers are also specifically permitted to use GPS systems while driving. A police officer may not stop or detain a person solely for a suspected violation of this law. They must first have probable cause to stop the individual for another suspected traffic offense.

Finally, everyone should understand that if an officer asks if you were texting or asks to view your hand held device, you have the constitutional right not to incriminate yourself and you also have a constitutionally protected right to privacy in your personal property. If you voluntarily answer questions or allow law enforcement to view your device, what you say and what they find is admissible. However, if you remain silent and do not consent to law enforcement looking at your phone or other device, how do they obtain the proof necessary to prove that you were violating the law?

Texting and driving is never a good idea but it is important to remember that you still have rights if you are being investigated for violating the law, regardless of how minor the infraction may be.

Legislature Changes Work Permit Suspension Periods

2010-06-15T16:07:00.005-05:00

In March, the Iowa General Assembly passed a new piece of legislation that changes the existing law regarding a person's ability to obtain a temporary restricted license following an arrest or conviction for operating while intoxicated (OWI). The most significant change involves a persons ability to get a temporary restricted license or work permit following and arrest and/or conviction for a second offense. Under the old law, a defendant who was arrested or convicted of OWI, 2nd offense, was required to surrender their license for a period of ONE FULL YEAR before they could apply for a temporary restricted license regardless of whether they took the breath, blood, or urine test and failed or refused the test.
As we all know, OWIs carry a heavy mandatory financial penalty, especially for a conviction of a second offense. Forbidding a person convicted of OWI not to drive for such a long time makes it difficult to get to work, which is even more important when you consider that a convicted drunk driver has hefty fines to pay off. In addition, maintaining employment is often a standard condition of probation. That means that failing to have a job because you have no means to get to work can also get you thrown in jail.
Thankfully, the new legislation passed by the Iowa Legislature (House File 2452) changes this situation. Under the new law, a person convicted of OWI, second offense, can become eligible for a work permit 45 days after their initial revocation has begun, as opposed to a full year under the old law. This 45 day "hard suspension" however only applies to those persons who provided a breath, urine, or blood test. A person who refused a breath or urine test is eligible for a work permit after a 90 day hard suspension. The bill goes into effect on July 1, 2010. The best news for those that are currently serving their one year revocation period for an OWI 2nd offense is that this law applies retroactively to you as well. So if you have already served 45 days of your revocation (90 days if you refused the test), you can apply to get a work permit immediately.
The Iowa Department of Transportation will require that following items be completed and on file before you can get this work permit:
1. Proof of SR22 Insurance
2. Proof of installation of an ignition interlock device
3. Payment of the $200 civil penalty
4. A signed application by the employer or school.

A person is able to get a temporary restricted license under the new law for the following purposes:
1. Full or part-time employment
2. continuing health care or the continuing health care of another
3. continuing eduation while enrolled full or part-time
4. substance abuse treatment
5. court-ordered community service

Dismissal to Thwart License Reinstatement

2010-04-30T09:33:00.004-05:00

For many years, prosecutors in the State of Iowa have recognized that if a suspected drunk driver was able to successfully challenge the admissibility of their breath test or breath test refusal through a motion to suppress, their driving privileges would be reinstated pursuant to Iowa Code Section 321J.13(6). Therefore, savy prosecutors would recognize cases where the Defendant was likely to succeed on a motion to suppress and would simply dismiss the case "in the furtherance of justice" prior to the court ruling on the motion to suppress. The thought pattern of the prosecutors appeared to be, "well I know I will loose the motion to suppress so I just as well dismiss the case to preclude the Defendant from reinstating their driving privileges." This manuever by the prosecutors did effectively remove the possibility of reinstating driving privileges of Defendants who would have likely prevailed on their motion to suppress.

Today the Iowa Supreme Court disapproved of this procedure and held that "to allow prosecutors to dismiss criminal cases while motions to suppress are pending in order to ensure that section 321J.13(6) is not triggered would be to sanction a manipulation that is not 'in the furtherance of justice' in light of the clear legislative direction." State v. Tageger, (08-0861)filed April 30, 2010. In other words, where the defense has a pending motion to suppress, the prosecutor cannot simply dismiss the case to preclude the Defendant from reigning the benefits of reinstating his license following a successful motion to suppress as provided by Iowa Code Section 321J.13(6). The Court concluded that "once a motion to suppress has been filed, dismissal under [Iowa Rule of Criminal Procedure] 2.33(1) will only be 'in the furtherance of justice' when the State articulates grounds for dismissal independant of those raised in the motion to suppress."

This ruling is profound in the sense that prosecutors are no longer able to block reinstatement of driving privileges of those accused of drunk driving when the accused has suffered a violation of one of their constitutional or statutory rights. As it stood before, a police officer could unlawfully stop your vehicle, arrest you for drunk driving which would trigger the loss of your driving privileges, then the State would simply dismiss the criminal charges and you were left without any recourse to reinstate your driving privileges.

For the full opinion click here: State v. Taeger

Expunging Minor In Possession of Alcohol (PAULA)

2010-04-07T07:55:00.005-05:00

A new Iowa law will provide for the expungement of Minor in Possession of Alcohol (PAULA) conviction.

Effective July 1, 2010, Iowa Code section 123.47 will be amended to include an addition subsection that will require courts to expunge a prior conviction for Minor in Possession of Alcohol, commonly known as PAULA (possession of alcohol under legal age) after two years from the conviction if the person has not been convicted of any other offenses. This is similar to the provision that allows public intoxication convictions to be expunged. The new law REQUIRES the court to expunge the conviction if all of the following are shown:

1. Two years have expired since the conviction; and
2. The convicted person demonstrates that they have had no other criminal convictions, other than traffic violations or simple misdemeanor violations of chapter 321 (traffic and related offenses), during that two year period.

Once those two requirements are met, the court is required to expunge the conviction upon receiving the proper petition from the convicted person. When expunging the conviction, the Court is enters an order to that effect and the clerk of court is required to completely remove the conviction from the individuals criminal history data files as well as the files maintained by the department of public safety. That means it will not appear anywhere on a criminal background check and it cannot serve as a prior offense if the individual is charged with a similar offense in the future. The slate truly is wiped clean.

Many people do not get through their high school or college years without being charged with PAULA at some point or another. This new law is a wonderful opportunity for individuals who have made mistakes in the past due to their youth, prevent youthful indiscretions from impacting their future career opportunities.

If you or someone you know has a Minor in Possession of Alcohol (PAULA) conviction muddying up their record feel free to contact Attorney, Scott Michels, of GRL Law to start the process of wiping your slate clean. (515) 226-0500 or 1-877-GRL-LAWS

Iowa's Texting Ban

2010-03-24T08:25:00.005-05:00

Both the Iowa House and Senate have approved a compromise bill regarding texting and driving on Tuesday, March 23rd. It still must be signed into law by the Governor who is expected to approve the bill. If signed into law, it will not be effective until July 1, 2010.

The new compromise bill completely bans the use of cell phones or "electronic entertainment devices" such as i-pods, for teenagers with restricted licenses, instruction permits or intermediate driver's licenses. The only exception is if the vehicle has pulled over to the side of the road and is completely stopped off of the traveled portion.

For all other individuals, the new law will only prohibit texting or emailing while driving. This includes both sending and reading incoming written communications. It will have no impact on the ability to make or receive phone calls. It specifically states: "A person shall not use a hand-held electronic communication device to write, send, or read a text message while driving a motor vehicle unless the motor vehicle is at a complete stop off the traveled portion of the roadway." There are clear exceptions for hands free devices and use of GPS systems. The bill also has a specific exception allowing drivers to receive "safety-related information including emergency, traffic, or weather alerts." Thus, new services such as Route Scouter will not be affected by this measure.

The enforcement provisions of this proposed new bill are what make one wonder why the tax payers money was spent haggling over the measure in the first place. Law enforcement is to only issue warnings for violations for the first year that the new law is in effect. It is not a moving violation but is a simply misdemeanor punishable as a scheduled fine of only $30.00. Additionally, law enforcement is specifically prohibited from stopping or detaining a person soley for a suspected violation of the texting ban. Enforcement may only be a secondary action following a stop for another traffic violation. The one area where the law will have some teeth is in those situations where it is determined that the individual was violating the texting ban and was in an accident causing serious injury or death. In those situations, the punishment increases to a potential $1,000 fine and a possible license suspension of 180 days. More importantly, a violation of the texting ban qualifies as a public offense which may lay the foundation for Involuntary Manslaughter by Public Offense charges in certain circumstances.

All in all, there was considerable public pressure to pass a texting ban in Iowa this year and it was doubtful that the Legislative session was going to end without such a bill being passed. If a texting ban was going to be passed this is probably the best the citizens of Iowa could hope for. Some may say it goes to far and some may say it does not go far enough. However, the sign of a good compromise is that neither party is completely happy. This may be such a compromise. It is not overly restrictive; it allows time for people to adapt to the ban; and it also provides a mechanism for tough enforcement in the appropriate case. Only time will tell.

Cost of an OWI Conviction In Iowa

2010-02-26T09:40:00.008-06:00

One word can describe the cost of an OWI conviction in the State of Iowa: "Expensive"

Operating While Intoxicated convictions in Iowa have the single highest mandatory minimum financial obligations of any crime in the State. Simply put, they are a cash cow for the State of Iowa with a significant portion of the fines generated going to fund the Judicial Branch budget. See prior post, A Troubling Trend.

The financial consequences of a First Offense, OWI conviction in Iowa, not including attorney fees area as follows:

Criminal Court Imposed Financial Obligations

$1,250.00 Fine
$437.50 Surcharge on fine (35%)
$325.00 Probation fee (varies from county to county)
$125.00 Substance abuse evaluation
$325.00 OWI 48 hour weekend program (county dependent) Minimum $125 for 12 hour course.
$10.00 D.A.R.E. Surcharge
$100.00 Court Costs (if only charge filed is OWI)

DOT Imposed Financial Obligations

$200.00 Civil penalty to obtain Restricted License or to reinstate

DOT also requires the substance abuse evaluation and a minimum 12 hour drinking drivers course ($125) which are often taken care of with the court imposed requirements.

$2,772.50 Total

This does not include the increased cost for SR 22 Insurance that is required for an additional two years nor does it include the $60/month (approximate) cost for an ignition interlock device. Obviously these costs go up considerably with Second and Third Offenses since the mandatory minimum fines also increase dramatically.

Finally, attorneys fees for a 1st Offense can range anywhere from $1,000 to $6,000, depending upon the experience, abilities, reputation of the attorney and the location of the jurisdiction where the offense is charged. It is imperative to consult with a qualified and knowledgeable attorney about all of your rights and all of the potential consequences that can accompany an OWI conviction before it is too late. Once a conviction is entered it remains on your record for ever because Iowa does not permit expungement of criminal convictions other than public intoxication.

A Doggone Shame

2010-02-17T10:21:00.003-06:00

Mans best friends have been used for decades in an effort to detect the odors of narcotics in drug interdiction operations. This time however, "mans best friend" played a different role, landing their owner in jail on a pot charge. In the case of State vs. Pals, a decision recently handed down by the Iowa Court of Appeals, a couple of mischievous canine’s landed their owner in jail for possession of marijuana.

Court of Appeals decision started with the quote: “This case began with the question, ‘Who let the dogs out?’” In a story that could only happen in a small Midwest town, the Worth County Sheriff’s office responded to a call that two dogs, a tan and brown Brittany Spaniel and a Chocolate Labrador, were running loose and “knocking stuff down” in the City of Joice. This was a violation of the city ordinance prohibiting dogs from “running at large.” Dutiful to his oath to “protect and serve,” Worth County Sheriff Deputy Mark Wubben (hereafter “The Dutiful Deputy”) responded to the call and saw the dogs running loose but noticed that they did not have tags or collars. Upon talking to the town people, The Dutiful Deputy still could not determine who the owned the rambunctious canines but he observed a white pickup truck with a red topper that appeared to be looking for the dogs as well. A short time later, The Dutiful Deputy’s sharp vision allowed him to see that the Brittany Spaniel was in the back of the truck but the Labrador was nowhere to be found. Unable to find the Labrador, The Dutiful Deputy continued with his investigation and learned that the dogs had escaped from a fenced-in area behind a bar where their owner, Mr. Pals was playing pool.

Finally, unable to locate the long lost Labrador, The Dutiful Deputy headed back out of town. However, on his way out of town he encountered Mr. Pal’s vehicle, the white pickup truck with a red topper, going the other way. According to The Dutiful Deputy, he pulled Mr. Pals over “because he wanted to talk to him about the dogs and advise him that the dogs needed tags and collars.” Being pulled over Mr. Pals was polite and cooperative and informed The Dutiful Deputy that both dogs had been recovered and that the Labrador was likely hiding in the kennel under the topper. Unfortunately for Mr. Pals, he was unable to produce his insurance card when requested and The Dutiful Deputy then asked that he accompany him to his car. After approximately 6 minutes of “friendly” conversation The Dutiful Deputy asked Mr. Pals whether he could search his vehicle. At the time he made this request, he had no basis to believe that Mr. Pals was in possession of anything illegal or was engaged in illegal activity. However, Mr. Pals consented and the Dutiful Deputy discovered the “green leafy substance” that ultimately landed Mr. Pals in jail.

While this case has some considerable legal issues that were discussed by the Court of Appeals, including a well-reasoned dissent written by Judge Doyle which would be a great subject of another blog topic at a later date, the story of the Dutiful Deputy and the “dogs at large” serves as a very good object lesson. Citizens in this State can never be required to consent to a search of their person, vehicle or home. Law enforcement will routinely ask for permission even if they do not suspect any criminal wrong doing for precisely the reason illustrated in this case. Sometimes they stumble across things. It never makes sense for a citizen to consent to a search of their person, vehicle or home, if they know they are in possession of contraband. Likewise, we never know what others have place or left in our vehicle but you can be certain if you consent to a search and contraband is found in or on your property, you will be the one charged. An important object lesson learned the hard way by Mr. Pals thanks to his rambunctious canine friends.

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

Iowa Speedy Trial

2010-01-05T10:08:00.003-06:00

In Iowa, a person arrested for an indictable offense (serious misdemeanor on up to Class A Felony) has the right to a speedy trial. The Iowa right to speedy trial is even more stringent than the constitutional right to speedy trial that would otherwise apply. The Iowa right to speedy trial is set out in Iowa Rule of Criminal Procedure 2.33(2)(b). It states: "If a defendant indicted for a public offense has not waived the defendant's right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown." Iowa also has a 1 year right to speedy trial above and beyond the 90 day rule.

The 90 day speedy trial time starts running from the date that the trial information is filed formally charging the defendant with the offense. The State's only way around the speedy trial requirement is a knowing and voluntary waiver of the right by the defendant or "good cause." Good cause is difficult for the State to establish and in this day and age of budget cuts and court furloughs, court congestion is NOT a basis for a finding of "good cause." It is also important to note that the Defendant's actions can result in a delay in speedy trial being attributed to the defendant and no speedy trial violation occurring.

Just recently, the Iowa Court of Appeals had the opportunity to address a defendant's right to speedy trial in the case of State v. Mosely. In Mosely, the defendant was initially convicted but his conviction was reversed and set aside on appeal and the case was sent back for a new trial. While he had previously waived his right to speedy trial before his first trial, he did not waive speedy trial after the case was remanded. He was brought to trial more than 90 days after Court of Appeals sent the case back down to the district court. The Court of Appeals held that when a conviction is reversed and a case is remanded for a new trial, the 90 day time period starts running from the date of procedendo (the date the case is formally transferred back to district court jurisdiction). Because Mr. Mosley did not waive speedy trial after remand and because there was no additional good cause, the charge against him had to be dismissed.

Tis the Season

2009-12-02T09:54:00.005-06:00

Tis the season to be jolly but a word of warning, law enforcement will be out in full force this holiday season. The Iowa Department of Public Safety has issued a press release warning people of the dangers of impaired driving and warning them of increasing law enforcement efforts to prevent and deter drunk driving tragedies. December has been proclaimed Drunk and Drugged Driving Prevention Month. According to the Iowa Department of Public Safety, six people died in traffic collisions over Christmas and New Years of 2008. Interestingly enough though, the Department of Public Safety did not specify how many of those deaths were related to "impaired driving." Chances are a small percentage of those deaths, if any, were related to impaired driving otherwise those statistics would have been emphasized. However, it is important to remember that the chances taken by driving after having a little too much holiday cheer are simply not worth it.

The considerable decrease and/or lack of impaired driving related deaths in 2008 can probably be attributed to the stepped up enforcement, public education and prevention
efforts by the Iowa Department of Public Safety. Credit can also be given to programs like KGGO's Holiday Safe Ride which provides free cab rides from participating establishments for patrons who believe they have had too much to drink during the holiday season. This year marks GRL Law's 5th year of participating in and sponsoring KGGO's Holiday Safe Ride. Bottom line is that prevention efforts from all different angles have a positive impact on decreasing drunk driving deaths. It would be refreshing to see organizations such as MADD and other agencies get involved in similar programs that continue throughout the year instead of merely focusing on the holiday season.

A word of warning though to those who elect not to take advantage of programs such as Safe Ride and chose instead to take the risks associated with driving home; law enforcement routinely steps up enforcement efforts on dates and times in which enforcement efforts are not advertised. They have shown a consistent pattern of cracking down the weekend and week PRIOR to a holiday weekend. Govern yourself accordingly and remember: know your rights; exercise your rights; preserve your freedom.

Drunk Driving Conviction Reversed - Video Saves the Day

2009-11-17T08:09:00.005-06:00

The Iowa Court of Appeals reversed the conviction of Abdoulaye Tangara on Thursday morning finding that the trial court erred in denying his motion to suppress evidence that alleged the stopping officer lacked reasonable suspicion to pull him over and further that she violated his right to phone calls pursuant to Iowa Code section 804.20. The Court found that both the stop of the vehicle and the officers refusal to allow Mr. Tangara to place calls upon his arrival at the police department, were illegal.

The stopping officer, Officer Karla Altenbaumer of the Cedar Falls Police Department, claimed to have followed Mr. Tangara's vehicle for two miles and observed Mr. Tangaras vehicle noticeably weaving within or between two lanes of traffic. She further claimed that when she turned on her traffic lights the vehicle continued "approximately two blocks, and then it made a right-hand turn onto Main and then stopped in the middle of the road." Officer Altenbaumer also testified that she was absolutely positive that at no time did Mr. Tangara request to place a telephone call.

Thankfully for Mr. Tangara there was a video of the stop of his vehicle and his subsequent interaction with Officer Altenbaumer. The video completely contradicted Officer Altenbaumer's testimony. The video showed no discernible weaving and in fact showed that Mr. Tangara pulled over in a timely and appropriate manner when instructed to do so by the officer. More importantly, the video documented Mr. Tangaras repeated requests to place a phone call after he was arrested and the officers response of "we're kind of past that." The fact that Officer Altenbaumer testified repeatedly that she was positive Mr. Tangara never made a request to place a call, but that the video clearly showed he did make such a request and in fact she heard that request and responded, is what sealed victory for Mr. Tangara. At the hearing, Officer Altenbaumer even went so far as to testify that she was as certain that Mr. Tangara did not ask to place a call as she was that he was weaving and driving erratically. Video doesn't lie but law enforcement officers are human.

Mr. Tangara's case is a classic example of law enforcement's imperfect memory of events or willingness to take a position and testify to something that is inconsistent with the truth and the value of video and audio recordings in justice being served. Had there not been a video and audio recording of Officer Altembaumer's interaction with Mr. Tangara, both the trial court and the appellate court would have most certainly taken the officer at her word and Mr. Tangara's conviction would have been affirmed. It is not whether law enforcement intentionally lied or misstated the facts. While that is obviously important if it did indeed take place, what is more important is that an objective, unbiased tool was available to ensure that the correct decision was made and justice was served. Much like instant replay in a sporting event, the most important thing is to get it right. While the trial court did not take the time to get it right, thankfully the Iowa Court of Appeals did. Justice was served, although a little delayed. Mr. Tangara's convictionw as reversed and will be taken off his record and because the chemical breath test was also suppressed, he will be able to have his driving privileges reinstated with the Iowa Department of Transportation.

Sex Abuse Sentence Cruel and Unusual

2009-10-02T09:22:00.004-05:00

Defendant's second offense sexual abuse conviction vacated and declared unconstitutionally cruel and unusual under Article 1 Section 17 of the Iowa Constitution.

Jordan Bruegger was sentenced to a mandatory minimum sentence of 25 years with a mandatory minimum of 85% of the sentence to be served before being eligible for parole after he was convicted of statutory rape for having sex with his 15 year old girlfriend when he was 21 years old. The sentence which normally requires 10 years in prison was enhanced to the 25 year 85% sentence because he had a prior juvenile sexual offense conviction. In what will likely be considered a landmark decision by the Iowa Supreme Court in State v. Bruegger, the Iowa Supreme Court elected to vary from the stricter and harsher interpretation of the Federal Constitution on the issue of Cruel and Unusual Punishment, and opted instead to use the federal approach as a guideline while adopting a much more equitable and individualized framework for courts to analyze a cruel and unusual punishment challenge under the Iowa Constitution. Justice Appel, writing for the majority, concluded 1) that a defendant may challenge a sentence as being cruel and unusual for the first time on appeal as a cruel and usual sentence is illegal and can be raised at any time; 2) that a defendant may challenge a sentence imposed as being cruel and unusual "as applied" as opposed to being required to challenge the validity of the underlying statute; and 3)an individualized, case by case approach is appropriate to determine whether or not a sentence is cruel and unusual under the Iowa Constitution.

The Court identified a number of factors that must be considered when determining whether or not a sentence is cruel and unusual. First, the breadth of the crime is important. For example, in the words of Justice Appel: "The crime of statutory rape covers a wide variety of circumstances, from Romeo and Juliet relationships to much more objectionable situations involving the luring of youngsters by older individuals using manipulative techniques, positions of authority, threats of violence, and other aggravating factors." Second, the age of the offender, and in Bruegger's case, the age of the offender at the time of the predicate offense. The Court cited scientific and sociological studies that show that juveniles tend to have immature judgment and act impulsively and without a full appreciation of the consequences of their actions. In Bruegger's case he was 12 years old at the time of his prior juvenile conviction and the Court placed considerable emphasis on that fact. Third, the geometric nature of the mandatory enhancement that drastically increased the amount of time the defendant would actually serve in prison upon a conviction.

While the majority of the Court concluded that the sentence imposed under the record provided was cruel and unusual, the case did not end there. The sentence was vacated or set aside but the case was remanded back to the district court for a determination, following an evidentiary hearing whether or not the statutorily mandated mandatory minimum sentence is actually cruel and unusual after a full development of the record at the district court level. According to the Court, "the State may wish to develop evidence regarding the impact of Bruegger's conduct on K.S. and her family, his lack of remorse, the nature of services provided in Minnesota and his inability to respond to such services, the need to incapacitate him through long-term incarceration, and any other potential factors that tend to aggravate the gravity of the offense and magnify the consequences on K.S."

The importance of this case is that it has opened the doors for defendants in special circumstance cases to present evidence and convince a sentencing judge that they should not be sentenced to the mandatory minimum sentence because it is disproportionate to the individual characteristics of the defendant and the circumstances surrounding the actual offense. A teenager being prosecuted by an overzealous prosecutor for Robbery 1st because he attempted to steal a bottle of liquor from a liquor store and ended up shoving a store clerk, will be able to legitimately argue and have a judge seriously consider that the mandatory sentence for "technically" committing the offense should not be imposed.

Sexting

2009-09-28T10:00:00.004-05:00

"Sexting" - the practice of sending nude photographs via text message.

Technological advances lead to increased convenience but can also generate new challenges to parenting and law enforcement. The advances in cell phone technology which include ready access to cameras (still and video), increased digital storage capabilities and quicker Internet access through smart phones, have allowed the practice of "sexting" to reach unfathomable popularity, especially among teenagers. Recently, this surprisingly common phenomenon has garnered nationwide attention and concern, especially by parents of middle and highschool aged teens. According to a survey by the National Campaign to Prevent Teen and Unplanned Pregnancy, roughly 20% of teens surveyed admit to having sent nude or semi-nude photographs via text messaging.

Recent events involving celebrities both young and old, have demonstrated one of the practical dangers of "sexting," the publication of the photographs. More importantly though, what many don't stop and consider before "sexting", is the fact that they may be committing a serious crime. More and more cases are being reported where "sexting" is landing unsuspecting teenagers in jail or at the very least facing a serious criminal charges. Nude photographs of anyone under the age of 18 years old can be considered child pornography. Sending of those nude photographs constitutes distribution of child pornography. These offenses can be, and at times are, charged in federal court, the last place that a young adult wants to be.

The act of "sexting" can also qualify as a criminal offense in the state courts of Iowa. Just recently, the Iowa Supreme Court, in the case of State v. Canal weighed in on the topic, explaining how "sexting" can amount to dissemination and exhibition of obscene material to a minor. Iowa Code section 728.2, makes it a serious misdemeanor for anyone, regardless of age, to knowingly disseminate or exhibit obscene material to a minor. "Obscene material" is defined as: "Any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value." In other words, if its "dirty" or "sexually explicit" it's likely considered "obscene materials." While there are defenses based upon the content of the photographs and intentions behind the sending and receipt of the pictures, the jury has considerable discretion in making the ultimate determination of whether or not the materials are "obscene." While the Canal case involved an 18 year old defendant, who's conviction was upheld, the prohibition of disseminating obscene materials to minors does not have a minimum age. Thus, teenagers that are "sexting" each other, even though both are under the age of 18, are still technically violating Iowa law, in addition to possible federal statutes.

Teenage friendships and romantic relationships tend to be the most unpredictable and volatile of all. Factor in immature teenage judgment and what may start out as mere "fun and games" or natural curiosity, can quickly become devastatingly destructive. It is also worth noting, that publication or dissemination of the photographs, even to the general public, can also result in criminal and most definitely civil liability. Life-long embarrassment, criminal prosecution and jail time are just a start to the possible negative life lessons that could be learned from this practice. A little preventative education and common sense could go a long way to avoid unnecessary life-altering consequences.

OWI Conviction Reversed

2009-09-18T09:40:00.005-05:00

Another OWI conviction was reversed yesterday by the Iowa Court of Appeals after they found that the defendant's right to phone calls under Iowa Code section 804.20 was violated when the arresting officer prematurely terminated the defendant's phone call with her father.

On September 17th, the Iowa Court of Appeals, in an unusual en banc opinion ruled 4-3in favor of GRL client in State of Iowa vs. Brandee Pettengill. The operative facts of the case were that the arresting officer terminated Ms. Pettengill's telephone call to her father after only 15 minutes of conversation, claiming that she was talking about something other than whether or not to take or refuse the chemical breath test. The majority in the Court of Appeals concluded that: "Ultimately, we believe that, under a fair reading of section 804.20 and the supreme court's precedents, it was inappropriate to terminate the defendant's middle-of-the-night phone call to her father involuntarily after fifteen minutes where the defendant was not stalling and the overall purpose of the call was to obtain relevant information and advice, where forty-seven minutes still remained to conduct the breath test, and where the defendant was not advised of the right to make any other calls."

In Iowa, an arrested or detained individual has the statutory right to place phone calls and to see and consult with an attorney or family member or both, upon arriving at the place of detention. The arresting officer is not required to advise the person of this right, but when a request is made, it cannot be denied and an officer must advise the person to whom calls may be placed and for what purpose. Contrary to popular opinion, an individual arrested for OWI does not have the legal right to wait two hours before taking the test but they must be allowed a reasonable opportunity to contact and consult with an attorney or family member before making a decision regarding chemical testing. These attempts must be made in good faith and may not jeopardize the officer's two hour window within which he is required to offer the chemical breath test.

When a person, such as Ms. Pettengill requests the place a call and to contact an attorney or family member, the question inevitably arises as to how long the officer must wait or what is a "reasonable opportunity." Here, the facts were very clear. She made one phone call immediately upon being given the opportunity and that phone call was to her father. It was early in the morning and obviously an arrested person must be given some leeway as to what they may discuss with the person on the other end of the line above and beyond whether or not to take the test. A father or concerned parent will obviously first and foremost want to make sure the arrested person is physically ok and get a general reference point as to what happened. That being said, the implied consent advisory that is read to the person advising them of the consequences to their driving privileges takes a minimum of three minutes to read at a quick pace. Then discussion will obviously need to be had regarding sorting out whether the current offense qualifies as a first, second or subsequent offense, and license suspension periods naturally would need to be discussed. There would also need to be discussion regarding work and general life consequences stemming from refusing the test, passing the test or taking the test and failing. The persons decision at this point in time is extremely important and will have enduring if not permanent consequences from that point forward. This all being considered it is simple to see how the majority in the Court of Appeals concluded that the officer's termination of a 15 minute conversation with ones father in the middle of the night, was unreasonable when there was more than ample time remaining in the officers two-hour window.

Interestingly enough and not included in the court's opinion, is that the officer, when pressed as to the nature of the alleged off-topic conversation, the arresting officer could not articulate what inappropriate topics were being discussed. Also, not included in the opinion was the fact that Ms. Pettengill was arrested in the City of Marion. The officer chose, for no specific reason to transport Ms. Pettengill and her friend who was also arrested to Linn County as opposed to taking them to the much closer and more accessible Marion Police Department. This in-turn limited the time with which Ms. Pettengill would have had to place calls.

In conclusion, more litigation is likely immanent not only in this case but other cases relating to Iowa Code section 804.20. The Iowa Court of Appeals issued a rare en banc decision and was split 4-3 on the issue. The Iowa Attorney General's Office will likely request Further Review by the Iowa Supreme Court and it would not be a surprise if the Iowa Supreme Court accepted the case and addressed the issue in further detail, providing a clear and concise ruling clarifying any ambiguity that may exist on this issue.

An interesting discussion revealing at least the vocal general publics opinion on this case and operating while intoxicated cases in general can be found on the Des Moines Register's website.

Suspension of Fine - OWI 1st

2009-08-31T08:03:00.004-05:00

The Iowa Court of Appeals has confirmed that the "minimum fine" on an Operating While Intoxicated, first offense, may be suspended in certain circumstances.

The attorneys at GRL Law first presented this scenario at the Iowa Judges Conference back in 2007, but it was met with scepticism. Arguments for suspension of civil penalties and fines were likewise subject to a luke-warm reception by sentencing judges although some were indeed granted.

Now with the Iowa Court of Appeals decision in State v. Kramer, it is official. What was commonly considered a mandatory minimum fine on OWI first offense, may indeed be suspended in certain circumstances. The defendant must meet the following 5 prerequisites: (1) BAC does not exceed .15; (2) no prior convictions for OWI; (3) no prior deferred judgment for OWI; (4) did not refuse chemical testing; and (5) no bodily injury to a person other than the defendant. In a nutshell, if the person qualifies for a deferred judgment on an OWI 1st offense, they also qualify to have the "mandatory minimum fine" suspended if a conviction is nonetheless imposed. This decision also opens up the doors for judges to suspend civil penalties when granting deferred judgments because pursuant to State v. Nail, when a fine can be suspended, so too may the applicable civil penalty.

Proposed Amendment to Treatment of Crack Cocaine Offenses in Federal Criminal Prosecutions

2009-08-24T07:21:00.005-05:00

The long awaited amendment to the United States Code removing the disparity between cocaine and crack cocaine offenses has finally been proposed. For decades crack cocaine offenses have been treated significantly harsher in the federal system than identical offenses involving only powder cocaine. The sentencing guidelines, until recently, resulted in a 100 to 1 disparity when it came to sentences handed down for those offenses. In other words, an individual involved in an crack cocaine offense involving 1 gram would be treated the same as an individual involved in a powder cocaine offense involving 100 grams. The laws made this provision even though the substances are all but identical and crack cocaine has not been scientifically proven to be inherently more addictive or dangerous.

The unequal treatment of powder vs. crack has also resulted in a concern that the laws themselves had a racially disparate effect on African Americans. Crack cocaine is much more common and prevalent in areas with higher African American populations and thus a larger percentage of that population has been subjected to increasingly longer sentences as a result of the disparity. According to the United States Sentencing Commission's 2007 report, although African Americans comprise only 27 percent of federal cocaine powder offenders, they comprise a staggering 81.8 percent of the federal crack cocaine offenders.

According to a memorandum released by the Administrative Office of the United States Courts, on Wednesday, July 29th, the United States House of Representatives Judiciary Committee approved H.R. 3245 entitled, "Fairness in Cocaine Sentencing Act of 2009" on a party-line vote of 16-9. The proposed legislation would completely eliminate all references to the crack form of cocaine in the federal criminal code. In effect, crack cocaine would be treated identical to powder cocaine. An example of the result if the legislation would pass would be that an individual charged with a crack cocaine drug offense involving 550 grams of crack cocaine would face a potential sentence of 5 - 40 years imprisonment as opposed to 10 - life which would have previously been required for merely 50 grams of crack cocaine. The proposed legislation is an incredible step in the right direction and would go a long way in minimizing the sentencing disparity that has for too long had a racially disparate impact in the federal criminal "justice" system.

However, the proposed legislation is just that; proposed. It will be some time before anything can reasonably be expected to come to fruition. According to the Administrative Office of the United States Courts memorandum, "the next step for this legislation would be action by the full House of Representatives" which would not occur before, at the earliest, September. It is also unclear whether the proposed legislation would also have any retroactively provisions allowing it to apply to individuals that have already been sentenced and are serving considerably longer sentences than they otherwise would be under the proposed amendments. More information can be found online at the Families Against Mandatory Minimums website. Interested individuals are encouraged to contact their representatives in both the House and Senate in support of the proposed legislation.

Is asleep behind the wheel operating?

2009-07-30T16:11:00.005-05:00

The legal definition of "operating" in operating while intoxicated cases is being in "immediate actual physical control of a motor vehicle that is in motion or has its engine running." The question that arises from time to time is what about the individual is fast asleep behind the wheel when law enforcement comes into contact with them? Is that individual in "immediate actual physical control?"

The common sense answer to this question is "no." A basic reading of the definition reveals that it requires action or the immediate ability to act as it pertains to controlling or manipulating the vehicle. An individual that is asleep has no immediate or actual ability to do anything other than continue sleeping. The Iowa Supreme Court has agreed with this statement in the unpublished decision of State v. Worrall. In Worrall, the Iowa Supreme Court concluded that "we are unable to conclude that a person is in 'actual phsyical control' of a motor vehicle while engaged in a deep sleep."

The Iowa Supreme Court's decision in Worrall makes sense given the stated purpose behind Iowa's drunk driving laws which is the prevention of the death and destruction of life that often times unfortunately accompanies drunk driving. Why would the legislature want to punish an individual who has made the correct decision of not driving merely because they are sleeping behind the wheel of a vehicle that has its engine running. The alternative of racing law enforcement home hoping that one does not get caught is simply not acceptable. It would be ludicrous to punish a person for doing the right thing. It is one thing for the individual to be passed out behind the wheel of a car that is running in the middle of traffic on a public highway or road it is quite another thing for the individual to have the wherewithall to either remain parked or pull off and park safely keeping the general public's best interest and safety in mind. This is especially so in areas with extreme climates such as Iowa where the engine must be running in order to keep the vehicle warm or cool enough so that sleeeping person does not befall additional peril.

Some states have adpoted and actually legislated something called the "shelter doctrine" which is an affirmative defense wherein if an individual voluntarily pulls off the road upon realizing that they are not in the proper condition to drive, they have an affirmative defense to any drunk driving charge that may be brought. Iowa has not adopted any such law but does not necessarily need to since "immediate actual phsyical control" does not encompass an individual that is fast asleep behind the wheel of a vehicle even if the engine is running.

Court of Appeals Says Jogging While Black is Enough

2009-07-24T09:17:00.004-05:00

Jogging while black, 4 1/2 blocks away from the scene of a bank robbery justifies the violation of an individuals privacy. Say it isn't so!

On July 22, 2009, the Iowa Court of Appeals decided the case of State of Iowa vs. Antony Sherrod. In doing so the Court held that a black man "wearing dark clothing and jogging, walking real fast" 4 1/2 blocks away from where a credit union was robbed by a black man wearing "a light blue coat, baggy blue jeans" was sufficient to justify the police officer to stop him and order him to the ground.

The Court of Appeals decision creates legal authority for law enforcement to stop an individual with the same skin pigmentation as a suspect within a 4 block radius of where a crime took place. This simply cannot jive with the mandates of the 4th Amendment that before an officer may intrude upon an individual’s freedom and expectation of privacy, he must first have specific and articulable facts that justify that intrusion and a mere suspicion or hunch is not sufficient. It has also long been established that merely being in close proximity to where a crime has occurred is insufficient to justify such an intrusion. Finally, the constitution requires that the government take the steps that result in the least intrusion into an individuals privacy when investigating suspected criminal activity.

The purpose behind these constitutional requirements is to maximize citizens’ privacy and require officer’s to engage in effective and thorough police work. Privacy trumps law enforcement interests unless the proper investigation is undertaken that reveals the necessary evidence providing probable cause. In the classic admonition by United States Supreme Court Justice Bradley: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635 (1886). Unfortunately, trial courts and evidently appellate courts appear to be more and more, disregarding the fundamental principals of our constitution and are sanctioning law enforcement taking “easy street” in their investigations. They are allowing law enforcement to cut corners because they believe that they got the right guy and it is much more “efficient” to jump to conclusions than to do a thorough, objective and unbiased investigation that requires patience and time. This is the same attitude that has resulted in countless wrongful convictions based upon shoddy police and forensic work throughout the nation. More importantly this ruling in essence, sanctions seizure of individual's persons based upon skin color and location to criminal activity, opening up an entirely different can of worms that is only magnified by the recent arrest of distinguished Harvard Professor, Henry Louis Gates, Jr.

It would be easy in Mr. Sherrod’s case to argue “well they got the right guy” which may well have been the court’s mindset; however the constitution requires that the courts focus be on the information available to the officer at the time of the search. A search or seizure cannot be validated merely because it turned out that the officer was correct. To do so would be to create a body of law that utterly disregards what must be present prior to the invasion of privacy and utterly undermine the spirit and purpose of the 4th Amendment. Innocent people would be searched without justification but because evidence was not discovered, they would never be charged and the matter would likely never come up before the court to tell law enforcement that what they did was illegal. The danger that arises from the Sherrod ruling is that subsequent law enforcement actions are based upon prior appellate court decisions. Thus, law enforcement is not armed with legal authority to stop and detain individuals of the same color in the general vicinity of a crime. This opens the door to wholesale abuse by law enforcement.

One may ask, what should the officer had done? The answer is quite simple; wait, watch and conduct a legitimate investigation. The description of the suspect that was given by the victims of the robbery was very specific. The individual was wearing a light blue coat and baggy blue jeans. The robbery took place at 12:02 p.m., in broad daylight. The officer could have followed the suspect, determined whether the specifics of what he observed, i.e. height, weight, build, clothing, matched the specific description provided by the victims as opposed to taking immediate action based upon his observation of “dark clothing.” The officer could also have made his presence known and watched the suspect’s reaction. If suspect appeared nervous, began running or acted in an otherwise suspicious manner, the specific and articulable facts creating probable cause would have obviously increased. A little bit of time and patience by the officer would have alleviated any question as to the legality of the intrusion into Mr. Sherrod’s privacy. What many members of the public and even law enforcement officers do not understand is that law enforcement itself is often times a criminal’s best friend. In their haste to “collar the bad guy” officers jump the gun creating arguments and issues for the defendant when a patient, well executed, investigation could easily eliminate any legitimate argument that a defendant may have once the case gets to court.

Mr. Sherrod still has the opportunity to ask the Iowa Supreme Court to review the Court of Appeals decision, and hopefully, the Iowa Supreme Court will recognize the gravity of the ruling in this case and exercise its corrective function and accept and correct this controversial and potentially dangerous decision.

DUI vs. OWI

2009-06-09T18:12:00.004-05:00

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

2009-06-08T16:10:00.003-05:00

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

2009-06-05T10:12:00.007-05:00

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

2009-05-27T12:20:00.008-05:00

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

2009-05-22T08:49:00.004-05:00

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

2009-05-22T08:20:00.006-05:00

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

2009-05-15T09:12:00.003-05:00

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

2009-04-21T14:18:00.004-05:00

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

2009-04-20T11:12:00.003-05:00

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

2009-03-13T10:24:00.000-05:00

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

2009-03-09T17:03:00.002-05:00

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

2009-02-20T08:43:00.000-06:00

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

2009-02-05T08:07:00.000-06:00

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!

2009-01-30T10:16:00.000-06:00

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?

2009-01-26T07:13:00.000-06:00

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

Public Health Department Asleep Behind the Wheel?

2009-01-20T12:39:00.000-06:00

What good is an administrative agency if it does not perform one of the primary functions that it is created to perform?

In just the past couple of years, the Des Moines metro area has seen a number of fatal or serious injury accidents involving emergency medical response services. They have included police officers, fire departments and ambulance services. Some have garnered more attention than others and blame has been cast in a bevy of different directions. One agency up until now however, has avoided any such blame. The Iowa Department of Public Health.

Since its creation, the Iowa Department of Public Health has been granted the authority to develop and implement rules and regulations regarding the creation, licensing, certification, and regulation of emergency medical services throughout the State of Iowa. Among these responsibilities has always been the promulgation of rules and regulations surrounding the training and certification of emergency response personnel that will be operating emergency response vehicles. These vehicles, which weigh more than any normal civilian non-commercial vehicle on the road (fully loaded ambulance can weigh over 5 tons and a fire truck can weigh much more than that), are driven at high rates of speed with the legal authority to disregard traffic control devices and other rules of the road. It would seem logical that as a consequence of the potentially dangerous conditions under which these vehicles are operated, extensive training and grueling certification procedures would be in required, much like those required for individuals that operate commercial vehicles. One would think that to be the case but unfortunately it is not. As it currently stands, from a strictly legal standpoint, the operator of an emergency vehicle must only be a licensed driver in the State of Iowa and received some type of emergency driving techniques training.

Just this past year, the lawyers here at GRL Law made a public records request to the Iowa Department of Public Health, Bureau of Emergency Medical Services for "all written rules and regulations promulgated by either the Iowa Department of Public Health or the Bureau of Emergency Medical Services," relating to the safe operation of an ambulance. In response, the Regulation Manager provided us with a copy of the applicable Administrative Code chapters with specific reference to Iowa Administrative Code section 641-132.8(1)(c)(2) and 132.8(6)(b). We found the contents of these “regulations” to be disturbingly vague and impotent.
Section 132.8(1)(c)(2) simply requires that an ambulance be staffed with "one currently licensed driver" and that the service provider must document each driver's training in "emergency driving techniques." Section 132.8(6)(b) merely required the reporting of any accidents involving an emergency response vehicle. There were and currently are no specific requirements for training, proficiency testing prior or other qualifications for an individual to operate an emergency vehicle in the State of Iowa.

As the law is written currently, there are no legally enforceable requirements for an individual to operate an emergency response vehicle other than that they be a licensed driver in the State and have receive some unspecified sort of "emergency driving techniques" training. The one government administrative agency that was and is charged with the authority and duty to set forth those standards has been asleep at the wheel for decades in this regard. Only recently has the Bureau awoke and decided to adopt and implement training and certification requirements for emergency response vehicle drivers. Just recently, the Public Health Department issued a Notice of Intended Action in which they propose to specify the requirements of emergency driving technique training. Under the proposed rule, the new training requirements must include the following:

1. Review of Iowa laws regarding emergency vehicle operations.

2. A review of the service program's driving policy for first response vehicles, ambulances, rescue vehicles or personal vehicles of an emergency medical care provider responding as a member of the service. The policy shall include, as a minimum:

* Frequency and content of driver's training requirements.
* Criteria for response with lights or sirens or both.
* Speed limits when responding with lights or sirens or both.
* Procedure of approaching intersections with lights or sirens or both.
* Notification process in the event of a motor vehicle collision involving a first response vehicle, ambulance, rescue vehicle or personal vehicle of an emergency medical care provider responding as a member of the service.

AND

3. Behind the wheel driving of the service's first response vehicles, ambulances and rescue vehicles.

(ARC7170B)

If these new proposed rules go into effect there will be the long needed requirements and guidance to local agencies for the specific training requirements of their emergency response vehicle operators. While many may argue that these proposed guidelines do not go far enough and that an actual licensing endorsement such as found with commercial motor vehicles would be more appropriate, it is a start non-the-less. It is unfortunate that it took these recent tragedies to awaken the Public Health Department leaving the emergency response services that risk their lives on a daily basis to keep us all safe, in the dark as to what was and is expected of them. How can the emergency response providers be expected to comply with non-existent guidelines and protocols? While blame for some of these incidents may be cast about, let us not forget that there were bureaucrats in an administrative agency charged with the specific task of developing and enforcing safety requirements that very well may have prevented any one of these tragedies, who failed to comply with their legally required duties. While we are playing the blame game, how about a little administrative accountability for once?

BEFORE YOU PAY THAT TRAFFIC TICKET….

2008-12-19T11:23:00.000-06:00

Most individuals simply send in their check and pay their tickets for speeding or other traffic violations. However, there are certain situations where one should think twice before doing so. Depending upon the nature of the offense, the zone designation where the offense took place, and the persons prior driving record, there can be drastic consequences to ones driving privileges that result from the conviction that is registered as a result of paying the citation. For example, a guilty plea to a speeding infraction that is 25 miles an hour or more over the posted limit will result in an automatic suspension of your driver’s license. The Department of Transportation considers these to be “serious violations.” In these situations, the length of the impending suspension depends upon many miles an hour over the speed limit you were traveling. The table is set out below.

MPH OVER THE LIMIT = LENGTH OF SUSPENSION
25= 60 days
26 = 65 days
27 = 70 days
28 = 75 days
29 = 80 days
30 = 90 days
31 = 100 days
32 = 110 days
33 = 120 days
34 = 130 days
35 = 140 days
36 = 150 days
37 = 160 days
38 = 170 days
39 = 180 days
40 = 190 days
41 = 210 days
42 = 230 days
43 = 250 days
44 = 270 days
45 = 290 days
46 = 310 days
47 = 330 days
48 = 350 days
49 or more = One year

For example a person who is convicted of traveling 75 in a 45 would be facing a 90 day suspension. Because the DOT can only suspend your license upon a conviction of such an infraction, it may be possible to avoid the suspension if the citation can be resolved through a plea agreement whereby the prosecutor agrees to amend the charge to a speed of 24 mph or less over the limit.

In addition to “serious violation” suspensions, your driving privileges can be suspended for other reasons associated with convictions for less serious offenses. For example, your license may be subject to suspension if you have convicted of three or more moving violations within a twelve month period. There are a number of traffic violations that are considered moving violations, these are too numerous to name them all so an attorney should be consulted to determine whether it is a moving violation. The suspension periods are shown in the table below.

# OF CONVICTIONS IN 12 MONTHS = LENGTH OF SUSPENSION
3 = 90 days
4 = 120 days
5 = 150 days
6 = 180 days
7 or more = 1 year

If you already made the mistake of paying the ticket or pleading guilty, all is not lost. It still may be possible to avoid the suspension, or have the suspension lessened if you avail yourself to the appeal process. Contact a qualified attorney as soon as possible if you are in this situation.
If you have the unfortunate occasion to receive a traffic ticket, it is in your best interest to consult a qualified attorney to determine the possible effect it could have on your driving privileges before you pay the citation. Don’t be stuck wishing you would have looked into it more after you receive the notice of suspension for the Department of Transportation. A proactive approach is the only way to go.

Education and Prevention

2008-12-13T13:24:00.000-06:00

During this season of holiday cheer, it is important to remember that prevention is the best medicine when it comes to drinking and driving. While it is not illegal to drink and drive, caution and responsibility is the key. One seemingly innocent lapse in judgment can result in permanent and life altering consequences. We all know that drunk driving takes thousands of lives and leads to even more serious and permanent injuries every year. In addition to the victims of drunk driving, the individual who thought they were "ok" to drive but winds up stopped by the police, or worse yet, in an accident resulting in one of those serious injuries or death, is also faced with a permanent life altering consequences. Mandatory jail time, stiff fines and lengthy license suspensions are often times the least of your worries. If serious injury or death results, mandatory lengthy prison terms are required, regardless of how clean of a record you may have or how good of a person you may otherwise be. See http://www.grllaw.com/CM/Custom/Criminal-Penalties.asp.

A little prevention really does go a long ways. For this reason the attorneys at GRL Law are a participating sponsor for KGGO's holiday safe ride program for the third straight year. The program provides free cab rides home from participating establishments during the holiday season. Participating locations can be found at http://kggo.com/Article.asp?id=1010712&spid=21862.

In addition to holiday safe ride, GRL Law has and is continuing to offer free prevention and education presentations to the general public. The purpose of this presentation is to educate individuals of their constitutional and statutory rights and also the consequences of being arrested and charged with various criminal offenses. In this country, everyone thinks that they know their rights and know even better how to exercise their rights when faced with various situations. The truth however, is that while Americans may have more rights than anywhere else in the world, we are generally ignorant on what they are and how best to exercise them. These presentations are designed to eliminate that ignorance and also serve a preventative function by further educating the public as to the consequences of being arrested, charged, and potentially convicted of various offenses. If you have a group, whether a business, social organization, student organization or otherwise that you feel would benefit from such a presentation, do not hesitate to contact the attorneys at GRL Law to schedule you free education and prevention presentation. http://www.grllaw.com/CM/Custom/Contact.asp.

Iowa DUI/OWI Enforcement Updates and Resources

2008-12-05T16:42:00.000-06:00

The attorneys at GRL Law are using the new fad of online social networking to communicate with the general public who join the group regarding upcoming roadblocks and traffic enforcement efforts. The GRL Law attorneys have created a facebook group for Iowa DUI/OWI Enforcement Updates and Resources which is designed to provide updated information regarding increased DUI/OWI enforcement efforts by local law enforcement, including roadblock notifications. It is also designed to provide updates on recent developments and changes in the laws and recent news in the area of DUI/OWI defense and enforcement efforts. Membership to this group is free of charge and the group is open to the general public so long as they are members of the social networking site of facebook.com. The group can be found at http://www.facebook.com/home.php?#/group.php?gid=42151830795

Breeding Perjury - The Federal Snitch System

2008-10-31T07:58:00.001-05:00

Cooperation agreements have their place and are an important part of any law enforcement program. However, the federal "war on drugs" has taken the practice of “snitching” to an entirely different level; to a point where it is all but breeding and encouraging perjury.

The practice of snitching has been around since existence of crime. The old saying that "there is no honor among thieves" best describes this practice. When a person is caught committing a criminal offense and has no defense to the charge, the only option available is to beg for mercy and to "cooperate" with the authorities with the hopes of receiving a favorable recommendation by the government at sentencing. Sometimes, if the person "cooperates" significantly enough, they even achieve an outright dismissal of their criminal charges. If caught red-handed, the first to talk is the first to walk. While this is the case in any criminal justice system, the federal system has taken this practice to a whole new level. This is due partly because the federal government tends to be more proficient at catching criminals red-handed, partly because of mandatory minimum sentences, and partly because of the intentional structuring of federal criminal "justice" system in a way that encourages and rewards this practice. Federal law enforcement is far and away the best funded, best trained and most relentless law enforcement system in our nation. The Drug Enforcement Administration alone has an annual budget in excess of 2.4 billion dollars to track down, apprehend and prosecute individuals involved in the illegal drug trade. This results in more officers, better trained officers, more thorough investigations, and more readily accessible and superior technology than ordinary state agencies. It is an extremely rare occasion that a federal indictment for a drug offense does not involve recorded conversations, video surveillance and/or controlled purchases from at least one or two of the alleged members of a drug conspiracy. The majority of the time, at least one person is caught "red-handed."

Once arrested, the criminal that is caught red-handed is soon faced with the distinct reality that he/she has no legitimate defense to the offense charged. Soon, after consulting with an attorney, the criminal also realizes that there is a mandatory minimum sentence associated with the offense. Mandatory minimum sentences require that a judge impose at a minimum, a specific time period of imprisonment. In federal drug prosecutions, the mandatory minimum sentence that is applicable to the offense depends upon the individual’s prior criminal history, amount of drugs involved, and type of drugs involved. The majority of federal drug offenses begin with a 10 year mandatory minimum and increase to 20 years and life as a mandatory minimum sentence depending on the aforementioned factors. The judge must impose this punishment regardless of whether or not the person has never been in trouble before, wasn't the main player or has other mitigating personal circumstances. Additionally, in the federal correctional system, the defendant there is no such thing as good time to subtract from the sentence nor is there any parole. Even with various program credits the convicted criminal must serve at a minimum, 85% of the actual prison time imposed.

Faced with a certain lengthy stay in prison, the criminal that was caught red-handed is soon offered one and only one way to avoid that prison sentence . . . . . "cooperation." The only possible way for a person convicted in federal court of a crime that caries a mandatory minimum sentence to avoid serving that minimum sentence, is to "cooperate" with the government. Without proffering and without a plea agreement the government cannot and does not file a substantial assistance motion with the court requesting that the person be given a specified percentage off of their sentence in exchange for their cooperation. Only the government has the power to file the substantial assistance motion. Both the Judge and the defendant are powerless to get below the mandatory minimum absent this motion. Whether or not the motion is filed is completely up to the discretion of the prosecuting attorney and his/her determination of whether or not the defendant has provided "substantial assistance." The "cooperating witness" turned snitch is advised of this fact in writing and is specifically advised that if the information is not "useful" to the government then no substantial assistance motion will be filed. Thus, a snitch only gets credit for getting others in trouble. It is a well known fact amongst these nefarious characters that the more indictments and pleas or convictions that result from the information the more time off the sentence one can expect to receive.

At this stage in the proceedings a desperate, often times, drug addicted individual, is faced with the sudden reality of spending 10, 20, 30 years to life in a federal penitentiary without the possibility of parole. Desperate times call for desperate measures. Knowing that the person is desperate and left with but one option, the government then approaches the desperate miserable fool who was caught red-handed selling drugs on tape and/or on video to undercover officers, and offers that person the one possible hope he has to avoid the lengthy prison sentence. Cooperation. They are told: “tell us what you know and we will consider filing a motion to get your sentence lowered.” At this point in time the desperate individual is offered the one thing that they want most, freedom. Intoxicated with the hopes and dreams of a second chance at freedom, cooperating witnesses begin talking. It is understood from the outset without a word needing to be uttered that “useful” information is the type of information that points the fingers at other people. The more people that you can name or accuse of committing criminal offenses the more “useful” your information is and the more time you can expect to be taken off of your sentence. The newly anointed snitch begins telling all, some truthful but some not always. So long as the information provided points to individual’s that the government suspects to be involved in criminal activity, the truth and consistency of the snitches stories seem to be all but irrelevant. Under cooperation agreements and proffer statements, it is the government who has the sole and complete discretion of determining whether or not the snitch is telling the truth, and even if the government knows the individual is not telling the truth, whether or not the agreement should be voided. Thus, the sole determination as to whether the witness is telling the truth is the federal government, the same people who are attempting to benefit from the witnesses information to secure a conviction.

The most troubling part of the cooperation process is that snitches interviews with law enforcement and the government are never recorded either through audio, video or through written statements of the cooperating individual. This is where the true problem with the system arises with the current snitch system in the federal courts. There is an old saying: “The truth never changes.” The single best way to determine whether or not someone is telling the truth is to ask the same question in different ways repeatedly. An individual who is telling the truth should not have any problems maintaining a consistent answer throughout the interview. A person who is being untruthful with their answers and who is making a story up will not be able to maintain consistent answers because they must try to remember what they said on previous occasions. In a rapid-fire type interview/interrogation, 99% of the people that are lying will not be able to maintain the consistent story, especially when pushed for details. Knowing that snitches do not make very good witnesses for the most part and knowing that their stories and details are prone to change with time, the government makes an intentional and calculated decision that facilitates and permits perjury to occur and go “unnoticed” or at the very least unchecked by the federal government. The government intentionally elects not to record cooperating witness statements either through audio recordings or video recordings and further elects not to even have a snitch write out their statements. As opposed to having the snitch speak for himself/herself, the government agents participating in the interview write their own reports regarding the information provided based upon their interpretation of the interview. This is done for a number of reasons:

First, if a witness has provided a prior statement that is recorded in any manner, the government is required by law to turn it over to the defense in the event that the witness testifies. Multiple inconsistent statements by a snitch make for powerful evidence on behalf of the defense. When law enforcement simply authors a report containing their interpretation of the witness’ statement, they are free to include or omit information that would otherwise make the witness’ statement inconsistent. For example, if a snitch says initially that Joe Blow was not involved in the conspiracy but later in the interview states well yes he was, law enforcement is free to record that in their reports as snitch 1 said Joe Blow was involved. Thus, inconsistent statements become consistent statements with nothing to refute the government’s contentions. There simply are no effective checks and balances without a recording that is handed over to the defense.

Second, the governments refusal to record snitch interviews permit the use of suggestive interrogations without the interrogators being called on the practice by defense counsel. Suggestive interrogations occur when law enforcement provides the person being questioned with information or suggestions about what law enforcement believes happened. The suspect/witness at that point can then simply agree with the interrogator and the answer is recorded as if the suspect actually said those words. Suggestive interrogations are a huge no-no when interrogating a potential criminal during the initial investigation because studies have found that suggestive interrogations lead to false confessions. This has in turn lead many states, including Iowa to consider passing laws requiring that all interrogation of suspects in felony investigations be recorded. When the snitch interviews are not recorded there is no possible way for a defendant and his/her attorney to determine whether the snitch said that something happened or whether law enforcement put ideas or words in their mouths based upon law enforcements own theory of the case.

Finally, the witnesses own words make for much greater impeachment than a defendant’s attorney simply questioning the witness about what they had previously told to law enforcement. No recordings of inconsistent or untruthful statements lead to less effective impeachment of the government’s star witnesses. It is much more effective for the defense when the defense attorney can cross examine the snitch with his/her prior inconsistent statement and when the snitch denies or the all-time favorite fall back, “does not remember”, play the witness’ own words for the whole world to hear that contradict the in-court testimony. In order to impeach a witness who denies saying something to the interviewing agents or who otherwise provides untruthful information, the defense then would have to call one of the interviewing officers in an attempt to have them testify as to what the witness really said. Is it really legitimate to think that a government witness will whole-heartedly sell out a fellow witness bound to the same cause of obtaining a conviction against the defendant?

Bottom line is that the cooperation system or snitch system currently employed is designed to protect snitches and avoid disclosure of their inconsistent and uncertain testimony. Intentional steps are taken wherein the single most compelling piece of evidence that would prove a witness is lying, exaggerating or at the very least is being inconsistent, is ensured never to exist. If the government really believes its own witnesses and is more interested in the truth the whole truth and nothing but the truth, above and beyond a conviction, why not document and record what witnesses say throughout the interview process? The justification that the government will let us know when a witness is lying is nothing short of ludicrous. Our country was founded upon the fundamental principal that unchecked, “self-regulating” government is the beginning of tyranny. The only remedy to the current perjury breeding environment is truthful recorded documentation regarding each and every word uttered by a “cooperating” individual. Their words can be presented to a jury and the jury can then make a decision regarding the witness’ credibility and truthfulness with all of the necessary facts before them. Until that is done, the federal snitch system will continue to breed and fester perjurous testimony of desperate individuals.

A Court in Conflict? The Iowa Court of Appeals and Iowa Code section 804.20

2008-10-19T18:16:00.000-05:00

It is time for Iowa Supreme Court to accept another appeal regarding an arrested individual's rights under Iowa Code section 804.20 to clear up an apparent conflict between various panels on the Iowa Court of Appeals.

Iowa Code section 804.20 states in relevant part:

“Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or any attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. . . . ” While this law seems relatively straight forward at first glance, decades of caselaw and hundreds of decisions of Iowa's Appellate Courts have been required to interpret the extent of ones rights and law enforcements obligations under this statute. Iowa Code section 804.20 may well be the single most litigated statute in the entire Iowa Code.

As it stands today an individual who has been placed under arrest is not required to be advised of the right to place phone calls but once the arrested person makes a request to place phone calls, law enforcement may not deny the request and must provide a reasonable opportunity to do so. This is relatively straightforward, however, room for disagreement and sometimes result oriented judicial decisions tend to spring from the grayer areas of this law. For example: What is a reasonable opportunity to place calls? What if the person asks to call someone other than an attorney or family member? How long must the person be allowed to call or consult with a family member or an attorney before the
officer may require a decision? It is in these relatively gray areas that the conflict and at times judicial thinking of various judges both at the appellate levels and the district court levels can reveal itself. There could be no better example of this phenomenan than in the two recent decisions by the Iowa Court of Appeals filed within two weeks of each other this month.

On October 1, 2008, the Iowa Court of Appeals panel of Sackett, Miller and Potterfeld, decided the case of State v. Ryan McKibbin (http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20081001/8-673.pdf?search=McKibbin#_1). The facts of McKibbin were that the defendant, following his arrest for OWI, requested to call a friend who was a local law enforcement officer. The arresting officer would not let him place that call but did advise him that he could place calls to a family member or attorney if he so desired. Mr. McKibbin was permitted to place telephone calls and was then required to make a decision regarding chemical testing. The defense in McKibbin unsuccessfully attempted to argue that pursuant to the Iowa Supreme Court decision of Didonato v. Iowa Department of Transportation, provided him the right to place a phone call to a friend even though the plain language of Iowa Code section 804.20 did not bestow that right. The Court of Appeals disagreed and Mr. McKibbin lost his appeal but the Court made sure to clarify what an officer is required to do whan an arrested person requests to place a call to someone other than a family member or an attorney. According to the McKibbin court "when an arrested person requests to make a call not permitted by section 804.20, such as a call to anyone other than a family member or attorney, an officer is required to advise the arrested person of, and allow the person to make, the calls that are permitted by the statute." This rule seems clear and is completely in line with what the Iowa Supreme Court said back in 1990 when it issued the Didonato decision. In Didonato the Iowa Supreme Court stated: "when a request to make a phone call is made we do not believe the statutory purpose is met if the officer stands mute and refuses the request. Nor would there be any difference if the request is to call a friend. In these circumstances the statute is implicated and the officer should then advise for what purpose a phone call is permitted under the statute."

The clarity provided in the McKibbin decision was soon muddied by a decision that one could not help but feel was nothing more than result-oriented judicial activism. Two weeks following the McKibbin decision, the Iowa Court of Appeals was presented with another appeal surrounding an individual's rights under Iowa Code section 804.20 in State v. Paul Garrity (http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20081015/8-786.pdf). This time, the issue was presented to a different panel of judges, Mahan, Vaitheswaren and newly sworn in Doyle. The resulting decision was in stark contrast and direct conflict with the McKibbin decision as well as the decision in Didonato. So much so, that one cannot help but wonder aloud if it was primarily driven by the fact that Mr. Garrity was a repeat drunk driving offender being charged with his 3rd offense. Following his arrest for OWI, Mr. Garrity requested to call an Iowa State narcotics officer in a hope to strike a deal and avoid jail. The arresting officer refused Mr. Garrity's request but never informed Mr. Garrity of his statutory right to call an attorney or family member. It was this failure to inform Mr. Garrity of who he could call and for what purpose that the defense argued violated Iowa Code section 804.20. From a straightforward reading of the afore-quoted Iowa Supreme Court's decision of Didonato this would appear to be an easy decision, the officer was required to advise Mr. Garrity that he could not call the officer but could call an attorney or family member. It seems relatively simple. Unfortunately for Mr. Garrity the panel of judges deciding his case didn't see it that way. Rather, they chose to rely on the Iowa Supreme Court decision of State v. Tubbs which was a rather peculiar case with a set of facts considerably different from to Mr. Garrity’s. In Tubbs, the defendant was arrested for OWI after he fled from law enforcement and during sobriety testing, began to run around wild, shouting obscenities at the police officers, daring them to shoot him. He was ultimately arrested and taken to the hospital where he slipped in an out of consciousness during his contact with law enforcement. During a moment of consciousness he initially agreed to chemical testing but then changed his mind and asked to call his wife. The arresting officers were going to let him place the call until one of them remembered that a no contact order was in place and they refused to let him place the call. The defense in Tubbs argued that he should have been permitted to place that call but they DID NOT apparently argue that the officers should have advised him that he could call another family member or an attorney. The Supreme Court obviously held this was not a violation of Iowa Code section 804.20 since he was legally prevented from having contact with his wife. Rather than go with the straightforward language out of Didonato the Garrity panel elected to find Tubbs controlling and held that the arresting officer did not have to advise Mr. Garrity that he could call an attorney or family member but that he could not call the officer at that time.

Clearly the McKibbin and Garrity decisions are in direct conflict with each other. Is this due to a legitimate disagreement in interpretation of ones rights under Iowa Code section 804.20 or result-oriented judicial activism? We will never really know. However, one thing does appear clear, that is the Iowa Supreme Court needs to speak on this issue again to clear up what seemed to be chyrstal clear but has now become muddied uncertainty. The good news is that Mr. Garrity's attorney has voiced his intention to give the Iowa Supreme Court an opportunity to to do just that by requesting that they reverse the Iowa Court of Appeals decision on Further Review.

Anfinson Conviction Reversed

2008-10-17T08:48:00.000-05:00

This morning the Iowa Supreme Court reversed the conviction of Heidi Anfinson finding that her trial counsel provided ineffective assistance of counsel by failing to sufficiently inquire into the evidence of her postpartum depression. (http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20081017/06-0076.pdf)

The Anfinson case drew considerable media coverage and public outcry as it involved the death of Heidi Anfinson's 15 day old son who's body was found submerged under rocks in shallow water in Saylorville Lake. Anfinson contended all along that the death of her son Jacob was accidental and that she panicked when she found him submerged in bathwater and then took his body to Saylorville in an attempt to cover up the accident. The first trial resulted in a mistrial as the jury was unable to come to a unanimous verdict but the second trial resulted in a conviction for 2nd degree murder and child endangerment. It is this conviction that the Iowa Supreme Court reversed.

While the conviction was affirmed by the Iowa Court of Appeals on direct appeal, Ms. Anfinson and her family filed an Application for Post Conviction Relief which is another way by which a convicted individual can seek to have their conviction overturned. The primary basis for this Petition was the claim that Ms. Anfinson's trial counsel was ineffective to a point where her constitutional right to the assistance of counsel was violated. In other words, her attorney was alleged to have made a mistake so large that it violated her constitutional rights. In this case, the alleged mistake was refusing to consider and investigate a defense involving postpartum depression or diminished capacity as a result of that medical condition.

According to the Iowa Supreme Court's decision published this morning, Ms. Anfinson had a considerable history of medical and psychological ailments that were consistent with postpartum depression. The Court outlined numerous instances where she exhibited signs and symptoms consistent with postpartum depression. For example at her baby shower, Heidi was perceived by family members to be "exhausted, wooden and unjoyful"; she was hospitalized on 11 days after Jacob's birth and was medicated for depression, suicidal ideation and panic attacks; and she had experienced prior episodes of depression after giving birth and agreeing to the adoption of her first child in 1980 and again following an abortion in 1985. Despite family members insistence that her trial attorney have her mental status evaluated and voicing their concerns that she may have suffered from postpartum depression, trial counsel remained steadfast in his insistence that postpartum depression and diminished capacity defenses should not be pursued because in his opinion that meant that she would have deliberately killed the child which would obviously be contrary to the accidental death defense.

The Iowa Supreme Court agreed that Ms. Anfinson's potential postpartum depression would not have been useful in supporting an insanity or diminished responsibility defense. Neither the State's nor the defenses experts believed she was legally insane at the time of baby Jacob's death. With regards to the diminished capacity defense, Ms. Anfinson was only convicted of 2nd degree murder and in Iowa the defense of diminished capacity is only available in specific intent crimes which in this case would have been the first degree murder charge for which she was ultimately acquitted. Thus, the case came down to whether or not Ms. Anfinson's potential postpartum depression would have assisted in her accidental death defense. According to the Supreme Court, in order to successfully advance the accidental death theory Ms. Anfinosn needed to supply the jury with a plausible explanation of: (1) why Anfinson was so distracted an inattentive that she left her 2 week old baby unattended in bath water; (2) why she behaved irrationally in taking Jacob's body to the lake, burying it under rocks and then returning home to go to sleep; and (3) why she was emotionless later that day when she was questioned by investigators about her child's disappearance. The Supreme Court concluded that the evidence of her postpartum depression would have done so. In an unusually scathing admonishment, Justice Hecht who wrote the opinion stated: "There was ample evidence of Anfinson's postpartum depression available to trial counsel if he had chosen to undertake the most rudimentary inquiry. He chose instead to rebuff all attempts made by Anfinson's family members and her grief counselor to educate him. He closed not only his ears, but also his eyes as he neglected to obtain medical records evidencing Anfinson's mental state."

From a close reading of the Iowa Supreme Court's decision, it is apparent that Ms. Anfinson's trial counsel was found to be ineffective not just because he failed to use the postpartum depression as a defense at trial but primarily because he failed to so much as investigate her medical and psychological state surrounding the time of the child's death. Bottom line is that all defense attorneys, regardless of age, experience and notoriety have a continuing obligation to conduct a reasonable investigation into their client's defense. Sometimes clients and their family can offer valuable insight into a clients case even though many times, attorneys feel like their way is the only way. All it takes is a little extra time for a lawyer to sit and listen; nothing more, nothing less. We don't know it all and at times, the client knows best.

Destruction of Evidence and the Right to Present a Complete Defense

2008-10-09T07:43:00.001-05:00

When the State of other governmental agency either intentionally or passively permits evidence to be destroyed, a criminal defendants constitutional right to due process and a fair trial is implicated. There are really two fundamental constitutional rights that are implicated when the government destroys evidence in a criminal prosecution. The first, is what is referred to as the defendant's constitutionally protected right access evidence that will be used against him/her during the trial. This is far and away the most popular and well-known argument advanced by a defendant when evidence is destroyed. Many times it is referred to as a Brady violation referring to the United States Supreme Court's ruling in Brady v. Maryland where the Court ruled that a defendant in a criminal case has the constitutional right to request and receive evidence that is either material to guilt or to punishment. The difficulty with this allegation is that a defendant is often times required to prove that the evidence would have been exculpatory or was destroyed in bad faith which has become increasingly more difficult to do.

The second, less commonly argued constitutional right implicated when evidence is destroyed is the defendant's overarching right to a fair trial. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment . . . . the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense. . . . ’" Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right encompasses many "subrights," for lack of a better word, that are all integral in the defendant exercising his/her constitutional right to present a defense. As it stands today, a criminal defendant’s right to the presentation of a complete defense involves: (1) A right to present evidence on her own behalf. Washington v. Texas, 388 U.S. 14, 17-19 (1967); (2) A right to physically inspect and know the physical characteristics of real evidence the state expects to use against her. State v. Eads, 166 N.W.2d at 773; (3) A right to subject the State’s physical evidence to scientific testing. Id.; (4) A right to the services of an expert witness that may assist in evaluating and rebutting the expert analysis of physical evidence and testimony of the State’s witnesses. Van Scoyoc, 511 N.W.2d at 630; see also Eads, 166 N.W.2d at 773 (“Failure to afford defendant a reasonable pre-trial opportunity to meet such evidence by a cross-examination based on adequate factual background, by producing his own experts, or by some other means, results indeed in what has been called ‘trial from ambush.’”); (5) A right to examine witnesses against her by cross examination, to test the witness’ recollection, to probe into the details of his testimony, or to “sift” his conscience, all of which are designed to protect the “integrity of the fact finding process.” Chambers v. Mississippi, 410 U.S. at 295; (6) A right to have compulsory process for obtaining witnesses and evidence in her favor. Washington v. Texas, 388 U.S. 14 (1967); and (7) A right to effective representation of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

When crucial evidence is destroyed by the State of government in a criminal prosecution, each and every one of these rights comprising the overarching right to defend oneself is implicated. Take for example, the State's destruction of blood in a vehicular homicide case where the defendant's blood alcohol concentration is at issue. If the blood is destroyed before the defense has an opportunity to inspect and subject the test to independent analysis' each and every one of the six "subrights" associated with presenting a complete defense are implicated. Specifically, the defendant is prevented from gathering information regarding the type of blood test kit and sample collection vials used to withdraw the blood, the expiration dates documented on the test kit and sample collection vials, and that evidence which would have been obtained through independent scientific testing of the blood. The evidence is gone forever and cannot be produced let alone evaluated or re-valuated in any way, shape or form. It cannot be determined whether defendant's name was the name on the sample vial from which the test result was obtained; it cannot be determined whether or not the blood tested was the defendant's; it cannot be determined whether bacteria had contaminated the blood sample creating an artificially inflated test result; it cannot be determined whether the sample vials had exceeded their expiration date; it cannot be determined whether the alcohol concentration was indeed what the State claims it was. The destruction of the evidence also precludes the defendant from exercising the right to subject the State’s physical evidence to scientific testing. Ordinarily a criminal defendant would have had an opportunity to study the evidence and employ its own experts to test it and to rebut the findings of the State’s expert witnesses. See State v. Fitz, 265 N.W.2d 896, 906 (Iowa 1978). Likewise, defendant’s right to the services of an expert witness that may assist in evaluating and rebutting the expert analysis of physical evidence and testimony of the State’s witness’ is inhibited. While the defendant can of course call an expert witness at trial, that witnesses testimony is of little, if any value, if he is unable to conduct an independent evaluation of the State’s raw evidence and data that form the very basis of the State’s witnesses that he is rebutting. The Iowa Supreme Court has recognized that an independent analysis of the State’s evidence by an expert may well result in a conclusion diametrically opposed to that reached by the State’s experts. State v. Hancock, 164 N.W.2d 330, 333 (Iowa 1969). As noted by the Illinois Supreme Court, “[a] primary strategy available to the defense is to raise reasonable doubt concerning the accuracy of the tests. Without an independent test, a defendant will not be able to contest whether the results of the State’s test were accurate.” People v. Newberry, 638 N.E.2d 1196, 1200-1201 (Ill. App. 2nd Dist. 1994).
A defendant’s right to cross-examine witnesses against him/her also suffers irreparable harm as a result of the State’s destruction of evidence. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. at 316. “[T]he cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Id. The primary manner in which defense counsel accomplishes an effective cross-examination of an adversarial expert witness is not necessarily by attacking the conclusion head-on but rather inquiring into the facts and underlying observations, assumptions, interpretations and conclusions formed as a result of the experts review of the raw data and physical evidence. That obviously cannot be accomplished when the defendant cannot make his/her own observations, assumptions, interpretations and conclusions from an independent review and analysis of the relevant evidence. Finally, all of the aforementioned obstacles to a defendant's exercise of constitutional rights inherent in a fair trial also have an adverse impact on the defendant's constitutional right to effective assistance of counsel. “[A] lawyer is of little help if he has none of the trial tools with which to work. He cannot adequately defend if he is denied access to facts.” Eads, 166 N.W.2d at 771.

Demanding dismissal of the charges or at the very least suppression of the State's use of the evidence that was destroyed under the "complete defense" theory is must more straight forward and in turn effective, then attempting to wade through the Brady violation quagmire. While a defense attorney must of course raise any and all issues that arise out of a destruction of evidence issue, it is much easier to explain and demonstrate why a defendant is irreparably prejudiced as a result of the evidence destruction under this theory as opposed to the Brady theory. It doesn't take a rocket scientist to realize that it would be fundamentally unfair for the prosecution to be able to take advantage of the destroyed evidence when the defendant would have no way to counter or defend against it. This is the precise argument that was successfully made by the attorneys at GRLLaw in the Polk County District Court case of State v. Andrea LaForge. (http://www.grllaw.com/CM/Custom/Legal-News.asp) In Ms. LaForge's case, she requested that her blood samples be preserved eight days after it was withdrawn. She did this by and through her attorney who sent the request to the law enforcement agencies via certified mail. A copy was sent to the Polk County Attorney's Office. Some 5 1/2 months after the request to preserve the evidence was made, the State of Iowa destroyed the blood samples and the blood collection kits that they were submitted in. Six days after the blood was destroyed but 5 1/2 months after the request to preserve evidence was made, the State then filed the charge of Vehicular Homicide against Ms. LaForge. After a day long hearing, Judge Nickerson granted defendant's Motion to Dismiss based upon the irreparable harm done to Ms. LaForge's right to defend herself at trial. The case was quickly appealed by the State and the Iowa Supreme Court will have the final say on this matter in the years to come. While there are no specific cases in existence in the State of Iowa in which this precise argument was made, the attorneys at GRL Law are hopefully optimistic that based on these specific facts, this argument will stand on appeal.

No Hablo Ingles - Implied Consent and Non-English Speaking Arrestees

2008-09-24T14:07:00.000-05:00

One does not need to speak, understand or even read the English language in order to obtain a driver's license in the State of Iowa. The written tests are translated by the Department of Transportation into many of the commonly encountered languages throughout the State. What happens then when an individual who has obtained their license with little if any understanding of the English language, gets arrested for Operating While Intoxicated? By law, officers must read the arrestee the implied consent advisory which "explains" the consequences of their decision to take or refuse chemical testing. This advisory is difficult enough to understand with a solid understanding of the English language but what is to be done for those who have no such understanding?

This question was recently answered by the Iowa Supreme Court in State vs. Hector Garcia (http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080919/06-2110.pdf). According to Justice Baker and the rest of the Iowa Supreme Court, an officer must make a reasonable effort to convey the implied consent advisory to a non-English speaking person. What is reasonable and unreasonable will depend upon the facts of each case and will be determined on a case by case basis. In coming to this conclusion, the Iowa Supreme Court adopted the same standard as previously created by the Wisconsin Supreme Court in State v. Piddington, 623 N.W.2d 528 (Wis. 2001). Under this standard the arresting officer is required to utilize those methods which are reasonable, and would reasonably convey the implied consent warnings under the circumstances facing him or her at the time of the arrest. Pursuant to this standard making an interpreter available when possible is desirable however finding an interpreter is not absolutely necessary especially if it were to interfere with the evidence gathering purposes of the implied consent statute.

The Iowa Supreme Court's holding in Garcia is consistent with the fast majority of Operating While Intoxicated/Implied Consent cases discussing the duties of officers following an arrest of an individual who has been arrested for operating while intoxicated. Just like 804.20 (phone calls) and 321J.11 (independent testing) the officer is bound by the standard of "reasonableness." The difficulty with such a standard however, is the fact that what is considered "reasonable" by one judge may not be considered "reasonable" by another judge. This standard is subject to diverse interpretation and consequently diverse enforcement. This being the case, it is imperative for defense lawyers and defendants to make thorough and concise records regarding the options available to the officer in addition to the arrested individuals proficiency in the English language. In Garcia, the Court affirmed the trial courts decision, because Mr. Garcia communicated with the officer in English and appeared to at least grasp the concepts being relayed by the officer, including signing an English Miranda waiver form. In situations where the arrestee's proficiency in English can be questioned, defense attorneys should most certainly inquire of the applicable law enforcement agencies. the number and availability of interpreters at their disposal, and other services such as telephonic interpreters that are often used by law enforcement and other emergency service agencies when dealing with non-English speaking individuals. A good place to start would be with the county or local 911 operators’s who would most certainly have access to interpreting services to assist with non-English speaking callers.

While the outcome was not what was desired by Mr. Garcia, the Iowa Supreme Court's decision in Garcia is a victory for the OWI/DUI defense community and individuals that do not speak English as their first language. Finally, an issue that was apparently not raised and thus, not considered by the Court was the possibility that the Equal Protection Clause may be violated if an officer does not make an effort to convey the implied consent advisory to an individual in their native language. With each case and each argument made always comes a different twist and different turn that may result in a more favorable outcome.

Lazy Officer Exception to the Warrant Requirement?

2008-09-16T17:39:00.000-05:00

The Iowa Supreme Court recently created what some may call the "Lazy Officer Exception" to the search warrant requirements of the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Iowa Constitution. In the State of Iowa v. Christopher Leon Christopher, filed September 12, 2008, the Iowa Supreme Court determined that officer Butler from the Des Moines Police Department was justified in arresting Mr. Christopher without a warrant for the offense of driving while barred he witnessed Mr. Christopher commit some five weeks prior. Officer Butler witnessed Mr. Christopher driving while he was off duty believing him to have a barred driver's license and took no measures to stop him at that time for the violation. Officer Butler confirmed that Mr. Christopher was barred the next day while he was on duty and then saw Mr. Christopher five weeks later and decided to arrest him without a warrant for the offense of driving while barred. Following Mr. Christopher's arrest, he was searched and drugs were discovered.

Prior to trial, Mr. Christopher moved to exclude the use of the drugs at trial arguing that his arrest violated the Due Process Clause and the Fourth Amendment of the United States Constitution as well as the Iowa Constitution. Mr. Christopher argued that the warrantless arrest was not lawful because it was not done within a reasonable time following the commission of the crime.

The Iowa Supreme Court upheld the arrest concluding that a reasonable time requirement between the time the officer observed he offense and the warrantless arrest is not "necessary to protect the rights of the accused."

From a defense perspective, this poses a problem since officers are now allowed to apparently make a warrantless arrest at any time following the commission of a crime that they witnessed so long as it is within the statute of limitations and are free to conduct a warrantless "search incident to that arrest" of the person following the arrest. Some would argue that officers now can be an ostrich with their head in the sand for a crime that they witness until they believe that a person may have evidence of other crimes on their person in order to hurdle the confines of the Fourth Amendment protections against unreasonable searches and seizures.

The Iowa Supreme Court seemed to somewhat address this concern in the decision by cautioning that if the Police delay an arrest to gain a tactical advantage over the an accused, there may be a due process violation.

Does Topless = Indecent Exposure?

2008-09-09T13:11:00.000-05:00

It has never been offensive or contrary to our public sense of morality for a male to be in public without a shirt. Woman on the other hand are subject to a double standard. However, one cannot help but wonder "what crime would be committed if a female were to sunbathe topless at a public beach?"

At first blush, the answer may seem logical that it would constitute the crime of indecent exposure. In the words of Lee Corso: "Not so fast my friend."

The recent Iowa Supreme Court decision of State v. Ronnie Isaac(http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080905/06-2030.pdf) sheds some light on this provocative question. While the facts of Mr. Isaac's case are much more offensive and troubling than the question being posed here and will likely lead to some legislative changes, the decision does provide us with a thorough outline to be used in answering this question. According to the Iowa Supreme Court in Isaac, public exposure does not necessarily equal the crime of indecent exposure. In order to establish the crime of indecent exposure, the State must prove beyond a reasonable doubt the following four elements:

1. The exposure of genitals or pubes to someone other than a spouse;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.

In the situation of our topless sunbather, clearly elements 3 and 4 may not be difficult for the State to establish, however, elements 1 and 2 could be problematic.

First, the human breasts do not qualify as "genitals" or "pubes" under Iowa law nor under any recognized medical definition. Therefore, the State would be unable to establish the first element and as a result, a judgment of acquittal or dismissal of the charge would be required on that fact alone.

Second, just assuming that somehow the female breast would qualify as "genitals" or "pubes" the State must prove beyond a reasonable doubt that at the time of the exposure, the person exposed himself/herself for the purpose of arousing or satisfying his/her sexual desires or those of the person making the observation. If there is an understandable alternative purpose to the act other than sexual gratification (who wants tan lines?), then the intent element behind this crime arguably could not be established either.

When we apply the rules of law set forth by the Iowa Supreme Court, it does not appear that topless sunbathing constitutes indecent exposure but a word of caution should be given. Many cities and townships have their own set of municipal ordinances that may have provisions outlawing this type of conduct. We can't begin to go through each and every municipal code section available but we can and do always enjoy providing a little food for thought.

DUI Prevention - Top Ten Ways to Avoid a DUI

2008-08-21T14:06:00.000-05:00

With the extended Labor Day weekend quickly approaching signaling the unfortunate ending of summer, law enforcement will be stepping up patrols and traffic enforcement in an effort to increase DUI/OWI apprehensions. The National Highway Traffic Safety Administration has began hitting the airwaves and television with their advertisements with the theme, "over the limit, under arrest" and "buzzed driving is drunk driving." In response to the increased crack down on suspected drunk drivers, the Attorneys at GRL Law feel it appropriate not only to encourage responsible behavior but also assist the general public in avoiding being stopped by law enforcement in the first place. If you do not give law enforcement a reason to pull you over then a DUI investigation never begins. As such, here are a few helpful tips from the attorneys at GRL Law.

Top Ten Ways to Avoid a DUI

1. Don’t Drink and Drive. While it’s not illegal to drink and drive, the only sure fire way to avoid an arrest for DUI is not to put yourself in a position where an officer suspects you of being intoxicated. The only way to do that is not to consume alcohol prior to driving.

2. Get off the Road by 11 p.m. The majority of DUI arrests occur after midnight and for the obvious reason that people tend to leave bars around that time, especially bar close at 2 a.m. Thus, it is the third watch (11p.m. – 7 a.m.) officers that are much more aggressive in their enforcement. When you would ordinarily not be pulled over for a license plate cover that covers the county during normal hours, after 11 p.m. the chances of that occurring drastically increase.

3. Don’t drive like a jack ass. Simply put, if you don’t give law enforcement a reason to pull you over, you don’t have to worry about a drunk driving arrest. If you have been out drinking for an evening and elect to drive home, make sure to pay attention to posted speed limits and traffic control signs and devices. You should also understand that a “concerned citizen” call can be sufficient to justify an officer in pulling you over. Thus, treat others on the road with respect when you’ve had a few and are driving home. If you don’t give them a reason to stop you, then you don’t have to worry about what to do following the stop (http://www.grllaw.com/CM/Custom/Your-Rights-OWI.asp)

4. Ensure your vehicle equipment is working properly. The smallest traffic violation or vehicle equipment/lighting violation gives law enforcement a legal basis to stop your vehicle. Ensuring that all lighting and equipment is in proper working order will obviously decrease your chances of being stopped in the first place.

5. Remove license plate frames or covers that obscure or obstruct the reading of ANY portion of your license plate. More and more, law enforcement is making a habit of stopping vehicles because the license plate frame covers or obscures a portion of the county printed on the license plate. While it is debatable whether or not this truly violates the statute, the best way to ensure you do not have to get into this fight is to remove any frames or covers that makes the license plate hard to read or obstructs any portion of any letters on the plate.

6. Don’t drive on a suspended or revoked licensed. In the State of Iowa, law enforcement may stop a vehicle if the registered owner is suspended, barred or otherwise revoked. Believe it or not, a police officers job is not always full of fun and excitement. They do get bored and will routinely run license plate numbers of vehicles in front of them or that they pass as they travel down the road. If the registered owner comes back as suspended or revoked, you just gave them something to do and it is downhill from there.

7. Don’t sleep in the driver’s seat of a vehicle that is running. If you are going to take a nap in your car, take it in the passenger’s seat or in the rear seat and make sure the vehicle is not running! A few extra steps can save you a few thousand dollars.

8. Stay off your cell phone. Studies have shown that individuals talking on cell phones are just as, if not more impaired, then individuals with an alcohol concentration of .08. Combine cell phone use and a few beers and you are asking for disaster. Text or call your after hours company once you safely arrive home. It can wait!

9. Don’t make stops on your way home. While a late-night burrito or taco supreme sounds incredible at 2 in the morning, you stopping drastically increases the odds of you spending the night courtesy of the county bed and breakfast. More people get called in for drunk driving by fast food restaurant drive-through workers and convenience store workers then you would think. Go straight home and keep some frozen chimichangas in the freezer for after hours, it all tastes the same at 2 a.m.

10. Don’t eat while driving. Just like your cell phone, eating food impairs your ability to safely operate your vehicle. The less distractions you have while driving the better off you will be. Again, wait until you safely arrive at home.

Bicycle Safety

2008-08-13T08:04:00.000-05:00

Yet another Iowa bicycle/car accident has resulted in a fatality. This morning, KCCI News Channel 8 reported that an 83 year old Cedar Falls man died after being struck by a car while riding his bicycle.

As gas prices continue to climb, the popularity of bicycling will continue to rise correspondingly especially in these warmer months. While riding a bike is obviously good exercise and a way to save money, it is not without its hazards. Bicyclists are much more difficult to see for drivers of motor vehicles and riding a bike in highly trafficked areas requires the rider to be extra alert and cautious of his/her surroundings. It is important for a bicyclist to understand that a person riding a bike on the road in the State of Iowa is subject to all of the rights and responsibilities of the driver of a motor vehicle. In other words, bicyclists are subject to the rules of the road. see Iowa Code section 321.234 (http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=IowaCode&ga=82. (on a side note, this rule also applies to person's riding an animal or animal drawing a vehicle). A violation of the rules of the road by a bicyclist is not only a citeable offense, it may also limit or prevent recovery in the event that the violation is found to be the cause of the accident.

In an effort to promote bicycle safety, the National Highway Traffic Safety Administration has published a list of "Safe Riding Tips." They are as follows:

1. Wear a properly fitted bicycle helmet. "Protect your brain, save your life." As inconvenient and "goofy" as bicycle helmets may be, they do save lives.

2. Adjust your bicycle to fit. According to NHTSA when standing over your bicycle there should be 1 to 2 inches between you and the bar if using a road bike and 3 to 4 inches if using a mountain bike.

3. Check your Equipment.

4. See and Be Seen. Make sure you can be seen by others, especially motorist. If riding at dusk or dawn or in the dark, ensure that the proper reflective garments are worn and that your bike is equipped with adequate reflectors and lighting.

5. Control Your Bicycle. This should go without saying.

6. Watch for and Avoid Road Hazards. In Iowa, our roads are not always in the most pristine shape, especially in the spring following the harsh winter weather and melt. Be alert and on a lookout for potholes, cracks, and other hazards that may suddenly appear.

7. Avoid Riding at Night. Nighttime is obviously the most hazardous time to be on the road on a bicycle. It is hard enough for motorists to see a bicyclist in broad daylight, if at all possible avoid night riding.

All in all, biking is a wonderful mode of transportation that provides exercise, entertainment and a little cushion to the wallet that many of us should do more. However, keep in mind that when riding a bike on the road we are required to obey the rules of the road, and a little extra caution can make the difference between a serious if not deadly accident and arriving home safe. Be safe, stay aware, and arrive home safely.

Top 5 Things to do Following an Arrest for Operating While Intoxicated to Protect Your Rights

2008-08-05T09:37:00.000-05:00

1. Contact an attorney or law firm that specializes in this area such as the lawyers at Gourley, Rehkemper, and Lindholm. Your attorney should be able to assist you in obtaining and preserving valuable evidence such as video recordings, 911 calls and dispatch reports and other items that might otherwise be destroyed if a timely request is not made.

2. Request a hearing with the Department of Transportation to contest your license revocation. This must be done within 10 days of the date of your arrest, and by doing so, your license will not be suspended until after you have been given an opportunity for a hearing. If you do not request a hearing within 10 days of the date of your arrest, you will lose your right to have that hearing and your license will be suspended on the 10th day following your arrest with no opportunity to contest it.

3. Schedule a substance abuse evaluation. In most counties, the court will require this as a condition of your release. If it is not completed within the time required they will attempt to put you in jail until it is completed.

4. Do not talk to anyone especially the police about the specifics of your case. People have a tendency to try and discuss their case with others prior to talking to an attorney which has the potential to give you even more problems.

5. Document what happened. Write down what happened and be as specific as possible. The police have written details of what happened, so should you. Take pictures (digital if possible) of the scene and your vehicle you never know when or why you may need these. Collect any phone records, financial statements, or other documents from your activities before and following your arrest.

Dog Bite Prevention

2008-07-16T07:47:00.000-05:00

According to the Center for Disease Control, dogs bite more than 4.7 million people per year with 800,000 Americans requiring medical attention for those attacks. The scariest statistic is that the highest rate of dog bite related injuries were among children ages 5 – 9 years old with approximately 150,000 dog bites occurring among children under the age of 14. More importantly, the majority of injuries to children 4 years old and under were to the head/neck region, causing obvious concern regarding the possibility of severe injuries.

Despite the troubling statistics which are considered by many experts to under-represent the true number of dog bites and attacks in our country, many dog bites are widely considered to be preventable. As a result, the Center for Disease Control has published a number of ways that dog attacks can be prevented which include considerations before purchasing a dog as well as safety tips that should be taught to every child. They are as follows:

Things to Consider Before You Get a Dog:

Consult with a professional (e.g., veterinarian, animal behaviorist, or responsible breeder) to learn about suitable breeds of dogs for your household.

Dogs with histories of aggression are inappropriate in households with children.

Be sensitive to cues that a child is fearful or apprehensive about a dog and, if so, delay acquiring a dog.

Spend time with a dog before buying or adopting it. Use caution when bringing a dog into the home of an infant or toddler.

Spay/neuter virtually all dogs (this frequently reduces aggressive tendencies).

Never leave infants or young children alone with any dog.

Do not play aggressive games with your dog (e.g., wrestling).

Properly socialize and train any dog entering the household. Teach the dog submissive behaviors (e.g., rolling over to expose abdomen and relinquishing food without growling).

Immediately seek profession advice (e.g., veterinarian, animal behaviorist, or responsible breeder) if the dog develops aggressive or undesirable behaviors.

Preventing Dog Bites:

Do not approach an unfamiliar dog.

Do not run from a dog and scream.

Remain motionless when approached by an unfamiliar dog.

If knocked over by a dog, roll into a ball and lie still.

Prevent children from playing with a dog unless supervised by an adult.

Immediately report stray dogs or dogs displaying unusual behavior to an adult

Avoid direct eye contact with a dog.

Do not disturb a dog who is sleeping, eating or especially caring for puppies.

Do not pet a dog without allowing it to see and sniff you first.

If bitten, immediately report the bite.

The full article can be found at http://www.cdc.gov/ncipc/duip/biteprevention.htm

NOTE: If you or a loved one has been injured by a dog bite or attack, many of these factors, especially the "Things to Consider Before You Get a Dog" are investigated and may form the basis of a cause of action against a caretaker of a dog for negligence in addition to the statutory strict liability claim against the owner. On the other side of the case, the insurance company will likely attempt to question the bitten person's actions prior to the bite, using many of the factors listed in "Preventing Dog Bites" in an attempt to limit their monetary exposure.

Boating While Intoxicated - Just say no, don't blow!!!

2008-07-10T10:24:00.000-05:00

In boating while intoxicated cases the motto must be "Just say no, don't blow!"

There is no reason to submit to any testing in a boating while intoxicated case. One does not lose their motor vehicle driving privileges for refusing testing in a boating while intoxicated case so the benefits of denying the State potential evidence to use against the individual to obtain a criminal conviction for boating while intoxicated greatly outweigh the benefit to taking the tests.

If a person refuses the evidentiary breath test at the station in a boating while intoxicated case, the individual obviously can still be charged with the criminal offense under the theory of being "under the influence" of alcohol, however, the State's case is much weaker without any "tests" then it is with a "test" result. The only consequence in addition to the potential criminal charge which would be filed if the person took and failed the test anyway, is a $500 civil penalty (for a first offense) and an order prohibiting the individual from operating a motorboat or sailboat for a year. Most people can live with not driving a boat for a year, especially in Iowa where the boating season is maybe 4-5 months long. That being the case, there simply is no reason to voluntarily provide the government with evidence necessary to prosecute and obtain a criminal conviction for the offense of boating while intoxicated?

Furthermore, there are significant constitutional issues and challenges that can be made when the State attempts to impose punishment and "civil penalties" against an individual in a boating while intoxicated case for refusing to submit to testing. Every individual in the United States of America has the constitutional right to elect not to consent to the search of their person, place or effects. In motor vehicle operating while intoxicated cases, the United States Supreme Court and Iowa Supreme Court have adopted and approved the legal doctrine of "implied consent" which in essence states that by obtaining a drivers license and driving on public highways built for the public's use and enjoyment, all drivers of motor vehicles "impliedly consent" to testing their bodily fluids for drug or alcohol concentration if suspected for operating while intoxicated. This is called "implied consent" which permits the State to use coercion by threatening drivers license suspensions against the person to obtain their consent to chemical testing. Additionally, pursuant to the doctrine of "implied consent", if a person refuses to submit to testing, the State is authorized to impose a punishment against the individual as opposed to forcibly extracting their bodily fluids for chemical testing.

The problem that arises in boating while intoxicated cases is that no driver's licenses or permits are required to operate a motorboat or sailboat in the State of Iowa. Additionally, the waterways are natural as opposed to constructed roadways built and paid for by the State and Federal governments. As a result, the fundamental principals upon which the doctrine of "implied consent" rest, do not apply in boating while intoxicated cases. Thus, the argument goes that the State is not justified in obtaining one's consent to chemical testing through the use of coercion and the State cannot punish the individual for exercising a constitutional right to refuse consent to the search of their person. Ultimately, these issues have not yet been presented or decided by the Iowa Supreme Court or even the United States Supreme Court.

Given the right case and the right facts, these issues will most certainly be raised by the attorneys here at GRLLaw, however in the meantime, the motto in boating while intoxicated cases continues to be "Just say no, don't blow!"

Intoxicated Surfing in Iowa . . . Really?

2008-07-07T19:03:00.000-05:00

In drafting additional content for the GRLLaw website for boating while intoxicated we came across an interesting little statute still in full force and effect in the State of Iowa.

Iowa Code section 462A.12(2) prohibits any individuals in the State of Iowa from "manipulating" any "water skis, surfboard or similar device while under the influence of an alcoholic beverage, marijuana, a narcotic, hypnotic or other drug, or a combination of these substances." A violation of this law is a simple misdemeanor. (see http://www.grllaw.com/CM/Custom/misdemeanor.asp.)

While one can understand how watersking or wakeboarding while intoxicated can be considered a hazardous activity and one that should possibly be made illegal, aren't we taking it a little too far to make it illegal to be on a surfboard while in such a condition. First, there have yet to be any documented "surfable" waves in the State of Iowa. Second, if one is in the water while in an intoxicated condition (whether by alcohol or marijuana or other drug) the safest place would probably be on a surfboard or other similar floatation device. Should we make swimming while intoxicated illegal as well? Actually we have. Ultimately, being in a public place such as a public waterway while intoxicated is a crime in and of itself (see http://www.grllaw.com/CM/Custom/Pulic-Intoxication-Iowa.asp) which leads one to wonder why in the world our Legislature thought it necessary to spend time creating a law specifically saying that it is illegal to be floating on the water while in an intoxicated condition. As if somehow a waterway open to the public could be considered private? Can our state legislatures please find something more important to do?! Get to work fellahs (and ladies) we have an economy in the tank right now.

Sometimes a lighter sided rant is necessary. Just some food for thought and a little bit of useless trivia.

Iowa Smoking Ban - The Consequences

2008-07-01T08:43:00.000-05:00

There has been much to do about the newly effective smoking ban in public places in the State of Iowa that went into effect at 12:00 a.m. this morning. According to the newly enacted Iowa Code section 142D .3 smoking is prohibited in all public places and all enclosed areas within places of employments. Additionally, a person is not allowed to smoke in the seating areas of outdoor sports arenas or stadiums or other type of venues where members of the general public assemble to watch entertainment events, patio areas of restaurants or public transit stations, school grounds or any public buildings under the control of the state government or political subdivision. The prohibition does not however apply to the Iowa state fairgrounds in specified designated smoking areas nor to facilities of the Iowa national guard in designated smoking areas or the gaming floor of a casino. There are a number of detailed definitions and exceptions as to when and where people can still smoke in the State of Iowa, but a question worth answering is what are the consequences if someone breaks the new law.

A violation of the new smoking bans is a "civil violation" for both the offending smoker and the offending establishment.

For the offending smoker, the violation is punishable by a civil penalty of $25.

The consequences are a little steeper for the owner, operator manager or person with custody or control of the public place in violation. First Offense = maximum civil penalty of $100; Second Offense within one year = maximum civil penalty of $200; and each Third and Subsequent Offense within one year = maximum civil penalty of $500. More importantly any permit or license issued to the premises or owner is subject to suspension for violations of this law. The Administrative Rules pertaining to the enforcement of these penalties can be found at http://www.iowasmokefreeair.gov/common/pdf/admin_rules.pdf.

Also, in case you were wondering, the money raised by these civil penalties goes into the general fund of the state, unless a local authority is designated by the department in administrative rules is involved in the enforcement, in which case they are deposited in the general fund of the respective city or county.

Charges Against Ambulance Driver Dismissed

2008-06-25T16:06:00.000-05:00

Charges against the City of Baxter ambulance driver charged in a fatal crash in Bondurant have been dismissed.

On June 25, 2008, on the morning of trial, the Polk County Attorney’s office filed its Notice of Intent Not To Prosecute Baxter ambulance driver, Kimberly Milligan, for the charges arising out of the fatal accident that took place at the intersection of Grant Street and Hubbell in Bondurant. Judge Eliza Ovrum granted the State’s Motion to Dismiss and assessed all costs associated with the action against the State.

Had the case proceeded to trial, the State would have been required to prove beyond a reasonable doubt that Ms. Milligan’s operation of the ambulance prior to the collision was reckless and that it amounted to a willful and wanton disregard for the safety of others.

Iowa law permits the driver of an emergency vehicle to proceed past a stop light and/or exceed the maximum speed limit unless doing so would be reckless. The law specifically states:

1. The driver of an authorized emergency vehicle, when responding to an emergency call . . . . may exercise the privileges set forth in this section.
2. The driver of any authorized emergency vehicle, may:
a. Park or stand an authorized emergency vehicle, irrespective of the provisions of this chapter.
b. Disregard laws or regulations governing direction of movement for the minimum distance necessary before an alternative route that conforms to the traffic laws and regulations his available.
3. The driver of a fire department vehicle, police vehicle, or ambulance, or a peace officer riding a police bicycle in the line of duty may do any of the following:
a. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.
b. Exceed the maximum speed limits so long as the driver does not endanger life or property.

The Iowa Supreme Court has held that the standard for imposing responsibility on the driver of an emergency vehicle for accidents arising from these situations is one of recklessness as opposed to ordinary negligence. “Reckless” is defined by Iowa law as “intentionally doing an unreasonable act in disregard of a risk that is known or so obvious that it should have been known making it highly probable that harm would follow.” This is a difficult burden to meet as best demonstrated by the Iowa Supreme Court’s decision in Bell v. Community Ambulance Service Agency for Northern Des Moines County, where the Supreme Court determined that the Ambulance driver was not legally responsible for the injuries to a driver of another vehicle that pulled out in front of the ambulance at an intersection. The Supreme Court reasoned that because all traffic was stopped and the lane ahead was clear, the driver of the ambulance could not have reasonably be said to have had a conscious knowledge of a dangerous situation. With facts very similar to Ms. Milligan’s case, the Supreme Court reasoned that the driver of the ambulance had no warning or actual knowledge that a dangerous situation was about to be created by the other vehicle drivers actions.

Supreme Court - Execution of Child Rapist is Cruel and Unusual

2008-06-25T11:19:00.000-05:00

"We hold the Eighth Amendment prohibits the death penalty" for the rape of a child where the crime did not result and was not intended to result, in death of the victim." Kennedy v. Louisiana, Justice Kennedy, writing for the majority. http://www.supremecourtus.gov/opinions/07pdf/07-343.pdf.

As a result of the United States Supreme Court's decision decided this morning, Patrick Kennedy has escaped the death penalty and instead will be forced to spend the remainder of his natural life in prison. The crime for which Ms. Kennedy was convicted is best described by Justice Kennedy as "one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death." However, the Supreme Court held that the principals of the Eighth Amendment prohibiting cruel and unusual punishment require that the use of the death penalty be restrained and only resorted to for the worst of crimes. The Court's precise words were: "The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application." "In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

In writing the opinion, Justice Kennedy stressed that the "standards of decency" by which cruel and unusual punishment is judged under the Eighth Amendment are constantly evolving. What may have been the societal standards that prevailed in 1791 when the Eighth Amendment was adopted are not the "current prevail" of today's society. In essence, Justice Kennedy and the majority of the court held that today's society does not approve of executing those convicted of offenses where another life is not taken. This may or may not change in the future depending upon how our societal standards of decency evolve.

To date, only six states authorize the death penalty for child rape.

An Allegation Impossible to Disprove - Sexual Abuse in the Third Degree

2008-06-18T09:08:00.000-05:00

There is nothing more scary and troubling then an accusation that is all but impossible to completely disprove. One theory of Sexual Abuse in the Third Degree in the State of Iowa is just that.

Iowa law provides that it a person commits Sexual Abuse in the Third Degree when the defendant performs a sex act on another while the other is incapacitated. Incapacity under this section includes three separate areas: 1) mental incapacity; 2) physical helplessness; and 3) physical incapacity. "Mental incapacitated" is defined to mean: that a person is temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance."

As you can see from reading the definition of mental incapacitation, alcohol intoxication can and does fall under the scope of this law. Thus, all it takes is for a regretful or vengeful partner to cry foul and a "night of pleasure" can immediately turn into a nightmare where the alleged perpetrator is looking down the barrel of a sexual abuse (rape) charge requiring a 10 year prison term and membership in the Iowa Sex Offender Registry if convicted. How many times have grown adults, college kids, and high schoolers left a party, bar or social gathering after having too much to drink and engaged in the infamous one night stand? In this day and age, these events are becoming more and more common, so much so, that an energy drink company makes light of the "walk of shame" in a recent television commercial. What nobody thinks about before, during or even after is what happens if the other person wakes up in the morning and realizes they just committed adultery; cheated on their significant other; don't receive a call back; or feel slighted, ridiculed or ignored or otherwise greatly regret their previous nights actions? What happens when the person's significant other finds out and they get backed into a corner or they become irate because they don't receive a call back?

Given the law described above, it becomes very easy for the slighted partner to claim that the sex was nonconsensual due to alcohol intoxication. Once the allegation is made, law enforcement is obligated to investigate and the "suspect" is at the mercy of prosecutorial discretion whether or not charges get filed. While many of these cases may never be proven beyond a reasonable doubt, the mere fact that a charge such as this if filed can destroy families, careers and a person's future. They will always be tagged with the label of suspected rapist. The most frustrating part for individuals in this situation is the fact that their innocence cannot be proven. The allegations cannot be completely disproved. An incapacitated individuals body will still often times function normally, thus, pointing to the lack of physical evidence of force is not as effective as it otherwise would be. Additionally, polygraph tests are not admissible in court and videotaping the escapade without the other's consent is a separate crime in and of itself. These situations come down to a game of he-said, she-said. Ask Kobe Bryant how much fun it is to play this game.

It's a scary and troubling thought but something that should be considered before laying down with strangers. Know the law; understand the law; avoid undesired accusations

Flood zone notification - Part 4 - The Bank

2008-06-12T16:00:00.000-05:00

Before any federally regulated lending institution may issue a loan to an individual for the purchase of property, federal law requires that it first conduct a flood search and issue a document called a flood certification. This is a condition that must be satisfied before any lending institution can make, increase, extend or renew a loan secured by real estate or a mobile home. If the bank or lending institution in conducting the required flood search determines that the physical structure is located within a FEMA standard flood hazard area, the institution must also then provide notice to the purchaser of the property prior to closing. In fact, the law's exact language requires that the notice be given to the potential buyer "a reasonable period in advance of the signing of the purchase agreement, lease, or other documents involved in the transaction."

The notice to the potential buyer must including the following:

A) a warning, in a form to be established by the Director, stating that the building on the improved real estate securing the loan is located, or the mobile home securing the loan is or is to be located, in an area having special flood hazards;

(B) a description of the flood insurance purchase requirements under section 102(b) of the Flood Disaster Protection Act of 1973 [42 U.S.C.A. § 4012a(b) ];

(C) a statement that flood insurance coverage may be purchased under the national flood insurance program and is also available from private insurers; and

(D) any other information that the Director considers necessary to carry out the purposes of the national flood insurance program.

The bank or lending institution is then required to keep within its records a copy of the notification in it's records for the period of time that the bank owns the loan.

While the lending institution may hire an outside company to conduct the flood search or determination, the institution must still vouch for and take responsibility for the accuracy of the information provided by way of the flood certification.

It is important to note that unlike the seller disclosure and appraisal report previously discussed, the search conducted by the lending institution is only concerned with the actual structure's location within a flood zone or FEMA flood hazard area. This is because it is the structure or house's location withing the flood hazard area that triggers the corresponding federal requirement that the home be covered by flood insurance before the loan can legally be issued. The rest of the properties location in the flood hazard area is of no consequence as far as the lending institution is concerned.

Many lending institutions have attempted to avoid liability for their failure to perform a flood search or for conducting below standard flood searches by claiming that they owe no legal duty to the home buyer to provide accurate information or to even conduct these flood searches in the first place. While these arguments have had some success in federal court under the federal laws, they have left it open for State's to make their own determinations. Under Iowa law, the cause of action would be both for negligence and for misrepresentation and should be sufficient to get the case to the jury.

Flood zone notification - Part 3 - The Appraiser

2008-06-11T14:30:00.000-05:00

When a person or entity is in the business of providing information to another for that person's benefit, the provider of information has a duty to exercise ordinary care in ensuring that the information provided is truthful and accurate. According to the Iowa Court of Appeals, “[i]t is generally recognized that persons who supply information, in the course of their business or profession, for the guidance of others in their business, have a duty to use reasonable care in obtaining and communicating the information.” Greatbatch v. Metropolitan Federal Bank, 534 N.W.2d 115, 117 (Iowa Ct. App. 1995); citing Restatement (Second) of Torts section 552 (1977). This includes real estate appraisers conducting appraisals of residential property prior to the closing of a purchase.

Anytime a residential real estate appraisal is conducted, the appraiser is required to determine whether or not any part of the property is located within a FEMA special flood hazard area. This is obviously taken into consideration by the appraiser in coming to a fair market value assessment of the property. Often times appraisers will use computer software to assist in the search but like any software these programs are only as reliable as the person using and directing them.

When a breach of the appraisers duty is discovered, they will often times attempt to fall back on a claim that the home buyer is not their client and thus, they owe no duty to accurately report this data to the home buyer. This argument however is misplaced because all residential real estate appraisals are forwarded to the home buyer for their review and the appraisal must be in range with the purchase price for closing to take place. In the event that the property is located within a flood zone, this would naturally be noted in the appraisal report and/or reflected in the final appraised value. Additionally, The Iowa Supreme Court has held that the purchaser of residential property is justified in relying on an appraisal ordered by the lender for the purpose of completing the sale. According to the Supreme Court: "Even though the appraisal might be made primarily for the benefit of the lending institution, the appraisal should also reasonably expect the home purchaser, who pays for the appraisal and to whom the results are reported (an who has access to the written report on request), will rely on the appraisal to reaffirm his or her belief the home is worth the price he or she offered for it. The purchaser of the home should be among those entitled to rely on the accuracy of the report and therefore should be entitled to sue for damages resulting from a negligent report."

In the event that the real estate appraiser does not detect or accurately or timely disclose that the property to be purchased is located within a flood hazard area, they may be liable for a portion of damages incurred by the home buyer. Larsen v. United Federal Savings and Loan Association of Des Moines¸ 300 N.W.2d 281, (Iowa 1981).

Please see following posts for specifics on each required disclosure.
Seller Disclosures Real Estate Appraiser Disclosures Mortgage Lender & Bank Disclosures

Flood zone notification - Part 2 - Seller Disclosure

2008-06-10T15:17:00.001-05:00

The seller of real property is required by law to complete and serve on all potential buyers, a written seller disclosure.

Chapter 558A of the Iowa Code requires that all real property transactions be accompanied by a written disclosure filled out and completed by the seller of the property. The seller disclosure must be provided to any potential buyers and must be delivered to the potential buyer prior to either the making of a written offer by the seller or acceptance of a written offer by the buyer. Delivery must either be in person or by way of certified or registered mail.

The law also sets forth specific requirements that each seller disclosure form must contain. This includes whether or not the seller knows if the property is located within a flood plain and if so, what the flood plain designation is. The minimum requirements for a seller disclosure are set forth in the Iowa Administrative Code and can be found at http://nxtsearch.legis.state.ia.us/NXT/gateway.dll/IAC?f=templates&fn=default.htm

It is important to note however, that a seller is only required to disclose conditions that are known at the time of the transaction. If they are unknown, there is a portion of the disclosure where that can be indicated. However, the seller is also required to amend the disclosure at all times if additional information is obtained that would put them on notice of the condition. Often times, prior knowledge of the condition can be established through prior permit applications, insurance claims and if it is a builder on new property, their own written documentation.

In the event that the seller does not disclose the conditions of the property including its location within a flood zone, the seller is liable to the buyer for the amount of actual damages suffered by the buyer.

Please see following posts for specifics on each required disclosure.
Seller Disclosures Real Estate Appraiser Disclosures Mortgage Lender & Bank Disclosures

Flood zone notification - Part 1 - Introduction

2008-06-10T14:29:00.000-05:00

Is your house located in a FEMA special flood hazard area or flood zone? If so, were you notified of that fact before making your decision to purchase your home?

Unfortunately, this is a question that is not asked by many people until after disaster strikes. The recent flooding in Mason City, Iowa City, Cedar Falls, Waterloo, Des Moines and throughout the State of Iowa, will likely have many homeowners asking these very questions. The FEMA flood hazard area is normally those areas within the 100 year flood way fringe as determined by FEMA (Federal Emergency Management Agency). Flood maps with this information can readily be obtained through FEMA or even the County Department of Public Works or the City depending upon where the property is located. Many builder plat maps will also note the 100 year flood way fringe.

In the unfortunate event that property is in a FEMA flood hazard area what if anything does that mean? There are a number of consequences to a property being located within a flood zone. First, and foremost, the property is at risk to flood. Second, if any portion of the structure or building is in the flood hazard area, federal law mandates flood insurance for the structure. If the structure is damaged by a flood and there is no flood insurance then federal aid is not likely to be available to the home owner. Third, there are extensive rules and regulations surrounding the building of improvements in flood zones. For example, Polk County will not permit any sort of a fence to be built on the property of a Des Moines home located in a flood zone because it could end up obstructing water flow in the event of a flood. There are also significant restrictions on building any "permanent" structures in those areas, most of which are not permitted.

So, what happens if it turns out that the property and/or structure is located within a FEMA flood hazard area and you either were not told of that fact or were misinformed? In such an event, there are at least three possible parties that may be held responsible for damages incurred. Both Iowa state and federal law require a number of parties to a real estate transaction to disclose to a potential home buyer that the home and/or property is located within a FEMA flood hazard area or flood zone. Additionally, industry standard of care requires that due diligence be used to determine whether property to be sold is located with in a flood zone and if it is so determined, that the potential buyers be notified of that fact before the sale is completed. The three most likely responsible parties are:

1. The Seller - the seller has a duty to accurately complete a Written Seller Disclosure that must be provided to the buyer prior to any offers being accepted. This disclosure requires the seller to disclose whether the property is in a flood hazard area;
2. The Appraiser - Part of a real estate appraisers standard of care requires that they make an independent inquiry as to whether the property is located within a flood hazard area; and
3. The Bank - Federal law requires that prior to granting a mortgage on residential real estate property, the bank must complete its own flood determination and may not issue a mortgage without proof of flood insurance, if any part of the structure is located in a flood hazard area.

If a homeowner determines that their residence is indeed located within a flood zone and any or none of those three disclosure requirements were not met or were incorrect, a potential civil cause of action against the responsible party may exist.

Please see following posts for specifics on each required disclosure.
Seller Disclosures Real Estate Appraiser Disclosures Mortgage Lender & Bank Disclosures

Why Don't They Have to Play By the Rules

2008-06-06T11:12:00.000-05:00

Iowa Code Section 321J.15 and 321J.11 (2003) requires the operator of a breath testing device to follow the methods approved by the Commissioner of the Department of Public Safety in order for the breath test result to be admissible at trial. The methods that the operators are required to follow are set out at 661 Iowa Administrative Code Section 157.2 (1) (2007) and include a requirement that the operator shall proceed in accordance with the instructions included in the operational checklist and an operating manual furnished by the division of criminal investigation criminalistics laboratory. Iowa Administrative Code 661-157.2(1) adopts and incorporates by reference the following documents: (1) the operational checklist, and (2) the operating manual for the Datamaster. Each of these documents are available to the public by accessing www.state.ia.us/government/dps.

The above rules and documents set forth the parameters that are supposed to be followed in order to introduce at trial any breath test results in the State of Iowa. Despite these clear rules,the Iowa Supreme Court in State v. Stratmeier, 672 N.W. 2d 817 (Iowa 2003), buried their head in the sand and essentailly said we don't really care if the officers follow the rules or not. The Supreme Court in Stratmeier set forth the following:

"unless it can be demonstrated that the test results are so unreliable as to preclude consideration, the results of the tests taken by methods other than those strictly prescribed by administrative regulation are admissible....any challenge to the procedures used in obtaining the chemical test goes to the weight of the evidence rather than its admissibility."

In addition to the Iowa Supreme Court gutting the procedures that the officers are supposed to follow, Robert Monserrate, the head of the Iowa Division of Criminal Investigation Breath Alcohol Testing Division was recently asked under oath if he had ever testified that an officer's failure to follow the appropriate methods ever made the breath test results unreliable. His response was, "not that I remember." Thus, it becomes merely impossible for a person charged with the crime of operating while intoxicated to argue that the breath test results should be excluded because the apporpriate procedures for obtaining the test were not followed.

This begs the question, if we have these rules why don't the officer's have to follow them especially when we are talking about people's freedoms and ability to make a living? Unfortunately for us, the Iowa Supreme Court did not give a rationale for their decision and seemed to go against prior precedent on this issue. See State v. Wolfe, 369 N.W. 2d 458, 459 (Iowa App. 1985) (holding that "in order to admit the results of a breath test into evidence, the State must demonstrate compliance with the procedural requirements of Chapter 321B (now Chapter 321J), and the accuracy and reliability of the particular test results.")

Attempted Enticement is Not Enticement

2008-06-06T10:55:00.000-05:00

"We doubt any of the Cedar Falls police officers were 'enticed away' from their offices to the Wal-Mart store because of Hansen's blandishments." Justice Streit, Iowa Supreme Court, State of Iowa vs. Eric Hansen http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20080606/06-1735.pdf

In the recently issued opinion, the Iowa Supreme Court used common sense today in holding that the criminal offense of enticing away a minor actually requires that a minor be enticed away. Mr. Hansen through e-mails and telephone calls arranged what he believed to be a sexual rendezvous with what he believed to be a 15 year old girl. It turned out that the 15 year old girl was a Cedar Falls police officer and Mr. Hansen was promptly arrested upon his arrival at the predetermined meeting spot at Wal-Mart. The trial court found Mr. Hansen guilty of actually enticing away a minor but the Supreme Court held that because no minor was actually enticed away. Thus, Mr. Hansen was only guilty of attempted enticement.

It seems logical and basic common sense but the Iowa Attorney General's Office attempted to argue that even if someone was not enticed away the crime of enticing away a minor could be committed. According to the Iowa Supreme Court, if we were to accept the State's argument there would be no conceivable offense of attempted enticement. However, the State claimed that even under their proposed definition of enticement, the crime of attempted enticement could be committed in situations where for example a defendant tried to make contact with a minor with the intent to commit the illegal act but was unsuccessful in reaching the minor. The Supreme Court all but scoffed at this argument when it stated: Presumably, the State is referring to circumstances where a defendant called a minor and got a busy signal or a defendant's email to a minor was blocked by filters. We do not believe this is the type of conduct the State meant to outlaw when it created the attempted enticement statute. The Court concluded that a defendant is guilty of enticement if the child goes with or goes to meet the defendant and guilty of attempted enticement if the child declines the offer or does not meet the defendant

The lessons learned from this case are simple: 1) don't attempt to entice away minors; and 2) if you are foolish enough to actually be attempting to entice a police officer posing as a minor, you are only guilty of attempted enticing a minor which is an aggravated misdemeanor as opposed to enticing away a minor which is a Class C or D felony depending upon the intended act. Either one lands you on the sex offender registry if the solicited act is sexual in nature, and good luck residing anywhere in Iowa with a sex offense involving a minor.

The Problem With Stops Based Upon "Concerned Citizen" Calls

2008-06-04T21:14:00.000-05:00

Currenly Iowa law permits law enforcement officers to stop a vehicle based upon a call from an identified or even unidentified "concerned citizen" call alleging that the driver of a vehicle is possibly intoxicated or has committed some other criminal offense even if law enforcement observes nothing that corroborates the complaint. The classic example is a "concerned citizen" calling in a suspected drunk driver on the interestate because he is "all over the road."

While these stops can serve an important public interest, keeping us all safe from drunk drivers on the highway, permitting law enforcement to stop vehicles absent independent corroboration can also be subject to abuse as illustrated by a recent case handled by GRL law partner, Matt Lindholm. In Mr. Lindholm's case the police stopped a vehicle driven by a GRL law client based upon two telephone calls from two separate individuals alleging that the driver of the vehicle was threatening to fight one caller being loud and beligerent, and appearing to be intoxicated. Law enforcement stopped the vehicle based upon these calls without making any independent observations to corrobotrate that the driver was possibly drunk and subsequently ended up arresting the driver for OWI. As it turned out, the "concerned citizen" callers were individuals who were at the same party and were upset at Mr. Lindholm's client because the client had talked to one of the caller's girlfriends. The callers had made up these allegations simply in order to get Mr. Lindholm's client pulled over.

Fortunately for Mr. Lindholm's client, the callers' were identified and their lies were exposed. Had the law required some independent corroboration by the officers prior to stopping Mr. Lindholm's client, his right to be free from an unreasonable search and seizure under the Fourth Amendment of the United States Constitution would not have been violated. Nevertheless, it makes one wonder how many individuals have been stopped because of a concerned citizen call that was false!

Wife Can't Consent to Search Where Husband Objects

2008-05-30T08:28:00.000-05:00

An estranged and allegedly battered wife cannot consent to the search of the family residence when the husband objects and demands that law enforcement obtain a search warrant.

On May 29th, the Iowa Court of Appeals in State v. Jackie Brandon followed the United States Supreme Court's decision in Georgia v. Randolph in holding that the consent to search by one occupant of a residence could not override a specific refusal to consent of another occupant or owner who is present on the property to be searched. According to Justice Zimmer, Mr. Brandon's inquiry of the officers as to whether or not they had a search warrant was a sufficient challenge to the officers authority to remain in the residence. Their subsequent actions in placing Mr. Brandon under arrest and removing him from the residence clearly established that any further objection or inquiry regarding the need for a search warrant would have been futile. Thus, Mr. Brandon's question as to whether or not the officer's had a search warrant was sufficient to establish that he objected to the search of his residence.

It is important to note however that in different circumstances, a mere question as to whether or not a search warrant was obtained may not always be sufficient to establish the "express refusal of consent" required by Georgia v. Randolph. When law enforcement seeks to conduct a search and a person wants to voice an objection, using manners and being polite is not necessarily advised. The individual should be clear and forceful with the language used to express their objection to the search. While physical resistance is unacceptable, a profanity laced objection never fails to get the point across.

In conclusion, probably the best part of the Court of Appeals decision in Brandon is the fact that one of the officers was caught lying and the Court of Appeals felt it important enough to note and publish. Often times these "misstatements" by law enforcement get swept under the rug. Not this time. Justice Zimmer stated: "Deputy Alan Johannes testified at the suppression hearing. Initially he testified that the defendant was in jail when Terri gave her consent to search the Brandon's home. However, after being shown documents that clearly revealed the defendant was not in custody, the deputy recalled that Brandon was present in the living room of his home when deputies arrived to conduct a search."

The full opinion can be found at http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20080529/8-243.pdf

Just Say No Don't Blow - Iowa 2nd Offense OWI's

2008-05-29T08:19:00.000-05:00

On a second offense operating while intoxicated (owi/dui/oui) case in the State of Iowa there is absolutely no reason to submit to a breath test if there is a chance you will be over .08.

The implied consent advisory read to an individual that has a prior offense for OWI advises them that if they consent to taking a breath test and "fail" by providing a breath sample indicating an alcohol concentration in excess of .08 they lose their driving privileges for 1 year. If they refuse to provide a breath test, their driving privileges are suspended for 2 years. What the advisory does not tell the individual is that the work permit eligibility and DOT and legislatively imposed sanctions for a second offense make the license suspension periods pretty much the same regardless of whether the person blows or not.

If the person "fails" the test, they provide evidence that is presumed to be their alcohol concentration at the time they were driving and their license is suspended for an entire year without the possibility of a work permit, temporary restricted license, or hardship license. This is a hard suspension where the person is hitching rides to and from work or riding their bike. What many people do now know until it is too late is that even after the one year hard suspension is up and they are eligible to have their full license reinstated, Iowa law requires them to install an ignition interlock device for another full year in order to have their license reinstated.

If the person were to refuse testing, the state is without it's most powerful evidence and must actually prove that the individual was "under the influence of alcohol" at the time the vehicle was being operated. Driving privileges are suspended for two years but after a year of a hard suspension the individual is eligible for a temporary restricted licence so long as an ignition interlock device is installed.

The only logical conclusion when the truth is revealed is that there is no reason to take a breath test on a 2nd Offense OWI in the State of Iowa. Just say no . . . don't blow! This is another classic example of how hidden or unknown consequences result in an inaccurate and misleading implied consent advisory designed to coerce people into providing evidence against themselves in operating while intoxicated cases.

Get Out of Jail Free Days

2008-05-28T10:18:00.000-05:00

A few fun facts on the lighter side for once.

A brief perusing of the Iowa Constitution reveals that our State has get out of jail free days plainly stated in the text of our Constitution.

Article 2 Section 2 of the Iowa Constitution states: "Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance of such election, going to and returning therefrom." "Elector" means person who may vote.

Article 3 Section 11 states: "Senators and Representatives, in all cases, except treason, felony, or breach of peace, shall be privileged from arrest during the session of the general assembly and going to and returning from the same."

The purpose of these constitutional provisions should be fairly clear, to avoid undue and unwarranted harassment against the general voting public on election day and against members of the House and Senate while they are in session. It is a constitutional assurance that our political process will go on uninterrupted but for the commission of most serious crimes. However, it would be an interesting situation if an individual were arrested for a misdemeanor such as Possession of Marijuana or other controlled substance or operating while intoxicated either on the way to or from voting. According to the Constitution, the arrest would be illegal. Taking it one step further, a citation has been equated to an arrest by the Iowa Supreme Court in certain circumstances, thus an argument could be made that we cannot be given speeding tickets in our rush to vote or return from voting nor can members of the House of Senate receive citations on the way to or from general assembly sessions.

On a final note, Article 2 Section 5 of the Iowa Constitution states: "No idiot, or insane person, or person convicted of any infamous crime, shall be entitled to the privilege of an elector." Hmmmmm . . . . . . . do I smell a recount?!

Look Into My Eyes - Horizontal Gaze Nystagmus

2008-05-23T09:26:00.000-05:00

The first of three standardized field sobriety tests for operating while intoxicated investigations is called the Horizontal Gaze Nystagmus test. The majority of people charged with drunk driving present to the attorneys office claiming to have passed this test because as far as they were aware, they were able to properly follow the officers pen or finger throughout this test. Unfortunately, an individuals ability to follow the stimulus is not the primary concern of this test. While it is necessary to follow the stimulus for the officer to correctly administer and interpret the test results, the officer is looking for much more.

This test is designed to look for and detect the presence of Gaze Nystagmus in the human eye. “Nystagmus” although a complicated sounding word simply means the involuntary jerking of the eye. Nystagmus occurs in every human’s eyes all the time however, it is not normally observable under normal circumstances. The theory underlying this test is that when someone has consumed excessive amounts of alcohol the “jerking” of the eye becomes more pronounced and sustained and is visible to another human eye when the eye is manipulated in various ways. This field sobriety test is the only field sobriety test that has any background in science of medicine. However, there are a number of different problems with the use of the Horizontal Gaze Nystagmus test in criminal prosecutions that should be noted.

First, there are over 45 different medically and legally recognized causes of conditions in the eye that can simulate Horizontal Gaze Nystagmus. Officers are not trained to detect and differentiate between Horizontal Gaze Nystagmus and any of the other conditions in the eye that may cause the eye to involuntarily twitch or jerk. Officers ARE trained however that different environmental factors can cause Nystagmus even absent the consumption of alcohol by the individual being tested. One such phenomenon is known as Optokinetic Nystagmus which can be caused by rotating lights or rapidly moving traffic in close proximity to the individual being tested. What is present in the majority of drunk driving arrests? That is correct, traffic passing in close proximity and police vehicles with their overhead rotating lights activated.

Second, a number of common prescription medications such as Cerebryx and Dilantin have Nystagmus listed as a potential side effect. It is important to notify your attorney if you were taking any prescription medications at the time of your arrest. You can also check for yourself at http://www.fda.gov/

Third, the large majority of all police officers do not administer the test correctly and fail to follow the standardized procedures and protocols. There are very specific standardized procedures and protocols for the administration of this test that must be followed for the test results to have any validity or reliability per the officers own training manuals. This author can count on one hand the number of Horizontal Gaze Nystagmus Tests that he has observed actually been conducted correctly.

Finally, there is no independent objective verification available in this type of test to determine whether or not the officer actually is observing Nystagmus as alleged. Officers will claim the individual scored 6 out of the 6 possible cues thus “failing” this test miserably. . . . prove him wrong. There is no video camera that is zoomed up into the tested person’s eyes and whether or not Nystagmus is actually present can not be objectively challenged. Even the most talented DUI attorney is stuck attacking the manner in which the test is administered as opposed to showing a jury that the objective evidence establishes Nystagmus was not present. While this can an often times if very effective, there is no substitute for objective video evidence showing that what the officer claims to have observed was not present.

In conclusion, an individual submitting to the Horizontal Gaze Nystagmus test is completely at the mercy of the officer administering the test to administer and interpret the test correctly and truthfully. The officer already thinks that the test subject is potentially under the influence of alcohol which is why the test is being administered in the first place. Why put yourself in that precarious position when, in the State of Iowa, you have the absolute right to refuse field sobriety testing. You do not lose your driving privileges for refusing field sobriety testing. You may be arrested and taken to jail but chances are if you submit to these tests you will be arrested anyway. If you really think about it, you could take all the field sobriety tests, blow below the legal limit on the preliminary breath test, and still be arrested and taken to jail for the night. Know your rights, exercise your rights, preserve your freedom!

Postville raid creates potential conflicts for attorneys

2008-05-20T12:52:00.001-05:00

On May 12th the largest single-site workplace raid in U.S. history resulted in arrest warrants being issued for 697 employees of Agriprosessors Inc., the largest kosher slaughterhouse in the United States. As a direct result of the raid 389 people were detained and over 154 immigrants were charged with federal offenses ranging from misuse of social security numbers to aggravated identity theft. Each of these individuals charged with federal criminal offenses in the Northern District of Iowa were entitled to court appointed counsel if they could not afford an attorney. Many of these immigrants lived from paycheck to paycheck and could not afford to retain private counsel. This created a very unusual and troubling problem for the courts. How do these individuals receive adequate representation to protect their rights when the Northern District of Iowa does not have enough attorneys on the court appointed panel list to represent each and every defendant? The solution was to appoint o1 attorney to 10 defendants at a time.

This seems like a logical solution to an unheard of problem but it also creates significant issue that will have to be addressed in the future that actually hurt the more prominent criminal defense attorneys in the Norther District of Iowa. The reason being is that many of the individuals initially detained and charged are floor level employees who have been provided plea agreements whereby they "debrief" to the authorities and in essence, implicate their supervisors and plant management in more serious criminal activity such as harboring illegal aliens and now there are stories brewing about allegations of soliciting sexual favors from employees in exchange for promotions and raises. The lower level offenders are being used as witnesses against those alleged to have committed much greater and more serious offenses as is usually the case in the federal criminal "justice" system.

The problem that arises comes from the fact that most if not all of the criminal defense attorneys in the Northern District that practice in federal court will be representing at least one defendant who has entered into a cooperation agreement with the government. What happens then when indictments are handed down and arrests are made for the managers and supervisors against whom the floor level employees are testifying against? There will likely be no federal criminal defense attorneys remaining in the Northern District to represent these people because they will all be conflicted out. Once an attorney has represented a client who has provided testimony against another, he or she is then precluded from then representing an individual whom his/her client has provided testimony against. This is a classic conflict of interest. Thus, who is left to represent the defendants charged in the imminent second wave?

These conflicts of interest not only creates problems with finding attorneys that are able to represent the new waves of defendants (this will probably be remedied by bringing in attorneys from other areas including the Southern District of Iowa) but it also prohibits some of the best and brightest federal criminal defense attorneys in the Northern District from being privately retained by those clients that can afford them. This is an unfortunate situation where those attorneys willing to assist the indigent end up suffering economic damage when they could otherwise be experiencing a significant boost in business. Kudos to those criminal defense attorneys in the Northern District that are putting the rights of the indigent criminal defendants above their own financial gain. We'll just have to wait and see how this whole thing shakes out.