Thank You May I Have Another

Today in State v. Lukins (No. 12-2221), the Iowa Supreme Court finally announced a straightforward rule as to how an arrestee can assert their right to independent testing following an arrest for OWI (drunk driving) here in the State of Iowa.  In reaching this determination, the Iowa Supreme Court concluded that when Mr. Lukins requested to take another breath test after failing the first one, he triggered his right to independent testing under Iowa Code Section 321J.11.  The Court specifically found "no reason why a detainee should be required to string together a precise formulation of words mirroring the statutory language in order to invoke his or her statutory right to an independent chemical test."  Any request for additional testing should be "liberally construed" and as long as the request can be "reasonably construed" to be a request for an additional test, it will trigger the rights afforded to the detainee pursuant to Iowa Code Section 321J.11 and requires the officer to honor the request.

Additionally, the Court concluded for the first time in a published opinion that when the right to an independent chemical test is denied by police officers, the chemical test obtained by the police officers must be suppressed.  In reaching this conclusion, the Court determined that if suppression was not the appropriate remedy for a violation of this statutory right, it would allow "officers to deny with impunity a detainee's request for an independent chemical test and render the right "meaningless."  This decision now puts the statutory right to independent test right in line with the statutory right to make telephone calls and is a right that should be exercised following every OWI arrest.

The question that is left unanswered by today's opinion, is what duty is imposed upon the officer when a person does adequately assert their right to independent testing.  At the bare minimum, the officer should inform the person of their right to independent testing and how/if the officer will facilitate that request.  Questions most certainly will arise as to whether a trained professional can come to the jail to collect a sample if the detainee remains in jail ;whether the officer must transport the detainee to a trained professional for the testing; or even whether letting the detainee submit to another breath sample is sufficient.  It is important to remember that the "failure" or "inability" of a person to obtain independent testing will likely not trigger suppression unless the officer contributes to that "failure" or "inability." However, for now, suffice it to say that anyone deciding to submit to a breath sample at the station following an arrest for OWI should be asking to take a second breath test!

Finally, as the writer of this blog, I am forced to eat crow and admit that my law partner and associate correctly predicted the outcome if this appeal ;)

The "Secret" Sobriety Tests

Most people are familiar with at least one or two of the three Standardized Field Sobriety Tests that law enforcement use to investigate suspected drunk drivers. These include the Horizontal Gaze Nystagmus Test; Walk and Turn Test; and One Leg Stand.  However, what many people do not recognize is that officers begin testing and evaluating the driver even before those three "formal" tests are commenced.


The complete anatomy of a operating while intoxicated investigation starts with the person's driving behavior and ends with chemical testing at the station.  However, it is during the "personal contact" phase that law enforcement is most prone to exaggerate observations they make in support of their predetermined conclusion that a person is intoxicated.  The "personal contact" phase starts when the officer initially approaches the individual to discus the basis for the stop.  During this phase, the officer is trained to observe how the person reacts and interacts with him when asked various questions and simultaneously requesting multiple documentary items from the driver.  According the law enforcement's training, the following are just some of the observations an officer can make that are "consistent" with impairment:

    1.  Inability to produce two or more things requested simultaneously, i.e., license and registration;
    2.  Not immediately answering questions while searching for the requested documents;
    3.  "Unusual" answers or responses;
    4.  "Nervous" behavior.

Anyone who has been stopped by law enforcement, knows that any, if not all of those things can and often times are, a natural consequence to any motorist being stopped by law enforcement.  Nerves are much more likely to cause many of those behaviors than impairment by alcohol.  Indeed, the Iowa State Patrol has published a pamphlet entitled: "The Traffic Stop and You."  In that brochure it explains that nervousness is a natural emotion during a traffic stop.

The absurdity of law enforcement's training as it pertains to the "personal contact" phase is best demonstrated by the "meow" scene from the movie Super Troopers.  Applying law enforcement's training to that scene, that poor fellow could easily be painted as intoxicated.  He only produced his drivers license when asked to produce both license and registration; He does not immediately answer questions; Appears unsure and confused by the entire situation; and has a nervous mannerism of reaching up to his right ear.  Now, it certainly does not help that the officer threw in 9 "meows" during the interaction with one to end it, but that clip demonstrates how law enforcement has made a practice of turning completely normal behaviors into evidence of intoxication so long as they have any reason to believe the person has been drinking.

Looking at this from another side though, knowing what law enforcement is looking for and how they are trained to interpret their observations, can work int he favor of a driver.  Having license, registration and insurance ready to go; knowing that you will be "tested" even while sitting in the car; and understanding how the process and investigation works from law enforcements perspective can better equip you to conduct yourself in a manner where you are actually creating evidence of sobriety, even by law enforcement's own training.  This can be a powerful tool in defending any number of accusations that may come about as a result of a traffic stop.

Know your rights before you see lights.  Visit www.Oh-Crap-App.com to download your free app explaining your legal rights when investigated by law enforcement.

Why Would Anyone Do Field Sobriety Tests?

"Would you mind doing some tests for me real quick just to make sure your are alright to drive?"

By the time a police officer is asking a driver this question, chances are he has already made up his mind that the driver is intoxicated.  Believing that they really don't have a choice and that the tests are presumably fair and objective assessments of their state of sobriety, most drivers agree to perform these tests.  Unfortunately, following this testing, most drivers are shocked to hear the officer say "turn around and face the car, place your hands behind your back" as he cuffs and arrests them for operating while intoxicated.

When a lawyer meets with the confused driver the following morning to discuss the predicament he now faces, there is a consistent theme to the conversation. The driver believes he performed well on the field sobriety tests and cannot understand why the officer claims he failed and is further frustrated and shocked to learn that he never had to perform field sobriety tests in the first place.

Field sobriety tests in the State of Iowa are completely "voluntary."  There is no way that a police officer can compel a person to perform these tests.  If field sobriety tests are declined, chances are the officer will place the individual under arrest which nobody every wants to experience.  However, as many drivers find out the hard way, submitting to the tests inevitably leads to the same result but with additional problem that the State then has more evidence to use against the driver in an effort to prove he was "under the influence of alcohol." 

There really is no good reason why someone would or should submit to field sobriety testing.  Why voluntarily subject yourself to a test that may well be used to incriminate you, especially when you are nervous, scared and your muscle and memory coordination is not what it would ordinarily be under optimal conditions?  Furthermore, many officers have testified that a person passing a particular field sobriety test is not evidence of their sobriety.  Why would anyone agree to take a test that they don't get credit for passing?  Add to all of this, the fact that many officer will "fail" drivers on field sobriety tests even when the driver is completely sober.  In a study conducted at the University of Clemson, researchers found that officers concluded completely sober individuals had "too much to drink" when evaluating their performance of these tests an astounding 46% of the time.  Why would anyone agree to take a test that specially trained police officers get wrong almost half of the time?


Finally, as the below video demonstrates, in order to be an effective sobriety evaluation, the test should be something that is reasonably simple for the average person to perform sober.  If this police officer is having trouble simply demonstrating the test, why would anyone agree to perform the test when their freedom is on the line?

(If video does not open and play, click here)

The biggest reason that drivers submit to field sobriety tests is because they do not know that they do not have to submit to field sobriety tests or are not confident in their rights.  The lawyers at GRL Law have developed a smart phone application to assist motorists in knowing and effectively exercising their rights.  Download your free version of the Oh Crap App, available at iTunes and Android Market. Know your rights; Exercise your rights; Preserve your freedom!

Permit to Carry and Operating While Intoxicated

Since the legislature's enactment of the "shall issue" statute pertaining to concealed weapon permits (i.e. permits to carry), questions are starting to arise as to what applicability an arrest or conviction for operating while intoxicated will have on a person's permit to carry a concealed weapon. The answer to that question slightly depends on whether the person is carrying a concealed weapon at the time of the arrest for Operating While Intoxicated (OWI) or if they simply had a permit to carry and no gun was present on their person or in the car.  First and most importantly,  pursuant to Iowa Code Section 724.4C a permit to carry a concealed weapon becomes "invalid" if the person to whom the permit is issued is legally intoxicated.  The definition of "legally intoxicated" means (1)  being "under the influence of alcohol or a controlled substance, or (2) while having an alcohol concentration of .08 or more, or (3) while having any amount of a controlled substance in the person's blood or urine.  See Iowa Code Section 321J.2(1). Thus, if someone is carrying a concealed weapon and they are legally intoxicated, the permit to carry becomes invalid and the person is guilty of the crime of carry a concealed weapon in violation of Iowa Code Section 724.4 in addition to any suspension of the person's permit to carry. 

Second, if you have a permit to carry a concealed weapon and get arrested for OWI it is very likely that you will receive a notice suspending your permit to carry.  Pursuant to Iowa Code Setion 724.13, if a person who has been issued a permit "has been arresed for a disqualifying offense or is the subject of proceedings that could lead to the person's ineligibility of such permit may immediately suspend such permit."  "Disqualifying offenses" are numerous and contained in Iowa Code Section 724.8 and Iowa Administrative Code Section 661-91.3. However pursuant to Iowa Administrative Code Section 661-91.3 any person who has been convicted of an offense punishable by a term of imprisonment for more that one year (i.e OWI 2nd or 3rd offense), would be prohibited from carrying a concealed weapon.  Additionally, any person who is "addicted to the use of alcohol" (Iowa Code Section 724.8) or is an unlawful user or addicted to any controlled substance (Iowa Admin. Code 66-91.3) is prohibited from carry a concealed weapon. The term "addicted to the use of alcohol" is defined in Iowa Administrative Code Section 661-91.1 and this definition creates a presumption that anyone who has two or more arrests with at least one conviction for an alcohol related offense or anyone who has three or more arrests with one conviction within the last five years for an alcohol related offense, is addicted to alcohol.  Additionally, anyone who has received treatment for or has a diagnosis of drug or alcohol dependence, abuse, or addition, is presumed to be an unlawful user or drugs and/or addicted to alcohol.  Finally, any test of the person's blood, breath, or urine that indicates the person has engaged in unlawful acts involving alcohol is presumed to be addicted to alcohol.

Given the recency of this legislation, it is not entirely clear at this point how the Sheriff's departments will deal individuals holding a permit to carry that get arrested for OWI.  Nevertheless, it is safe to assume that should a permit holder get arrested for OWI (whether it is a first, second, or third offense), their permit to carry privileges will likely be suspended.  In the event a person is notified that their permit to carry privileges will be suspended due to an OWI arrest, it is imperative that the individual contact a qualified attorney for two reasons.  First, the permit holder is entitled to an appeal to contest the reason(s) for the suspension.  Second, pursuant to Iowa Administrative Code Section 661-91.6(3), if the person is found not guilty following the arrest, the permit to carry must immediately be reinstated.

This blog is not intend to be an exhaustive summary of Iowa's concealed weapons law and in only intended to inform individuals of the potential consequences they face with respect to the their permit to carry in the event they are arrested and/or convicted of OWI.  To see the statutes and administrative rules relating to permits to carry in Iowa CLICK HERE.

OWI With Children In the Car

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

"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.

Can't Unrefuse a Refusal

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

Legislature Changes Work Permit Suspension Periods

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

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

Cost of an OWI Conviction In Iowa

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.

Tis the Season

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

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.

OWI Conviction Reversed

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

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.

DUI vs. OWI

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

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

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

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

Know your rights; Exercise your rights; Preserve your freedom

June Traffic Enforcement Crackdown

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

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

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

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

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

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

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

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

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

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

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

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

Know your rights; Exercise your rights; Preserve your freedom

Defendant catches break . . . finally!

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

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

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

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

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

Work Permit for Second and Subsequent DUI Offenses?

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

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

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

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

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

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

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

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

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.