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.

Collateral Consequences of a Criminal Conviction

After a sentence is finally imposed in a criminal prosecution, many people are surprised to find out that the penalties imposed by the judge and other agencies are often above and beyond simple jail or prison time or even fines and probation. These can be categorized as the "collateral consequences" to a criminal conviction.

The following are some of the collateral consequences that flow from convictions of various offenses:

1. Felony Conviction: Mandatory provision of a DNA sample; loss of right to vote; loss of right to possess firearms or ammunition; ineligible for certain federal financial aid; ineligible to hold an elected position.

2. Drug convictions: Mandatory 180 days license suspension and ineligibility for federal financial aid for college.

3. Sex Offender Registry: Individuals convicted of any sexual offense are required to be placed on the Iowa sex offender registry which is made public to all who wish to know.

4. 2000 foot restriction: Individuals convicted (or found to have committed) sexual offenses involving minors may not reside within 2000 feet of any schools, day cares, parks, library's, or other areas defined by city ordinances where children tend to gather.

5. Court costs and surcharges. One would think a fine is a fine but unfortunately in the State of Iowa, the State also "taxes" the fines imposed by 32%, calling it a surcharge. Thus, a fine of $1,000 quickly turns into a fine of $1,320. On top of that the court also taxes court costs against the defendant which can range anywhere from $50-$100 per charge filed.

6. Attorney fees. When you an arrested person is read their Miranda rights they are informed that they have the right to an attorney at State expense. They are also told this when they apply for court appointed counsel. What they are not told is that in the Iowa state criminal "justice" system, a convicted (and even acquitted) individual must repay the State of Iowa for the court appointed attorney fees that they end up paying the court appointed lawyer. This can come to a big surprise and expense to a lot of people. Fortunately, in the Federal system, "free attorney" means just that and the federal government does not require criminal defendant's to repay the government for court appointed attorney fees.

7. Drivers license suspensions. More and more the Iowa Legislature and Iowa Department of Transportation are providing for suspension of individuals driving privileges for convictions on various offenses. The drug conviction previously mentioned is a great example and most recently the Iowa Legislature has provided for suspension of driving privileges of those that attempt to steal gas. Other convictions include speeding 25 mph over the posted limit, habitual violations of traffic laws (3 moving violations in one year) among other things.

8. Deportation. Many criminal convictions may and do result in deportation of immigrants that are legally in the country. Only a qualified immigration attorney can adequately advise an individual as to these collateral consequences and the likelihood of them being enforced.

What these collateral consequences demonstrate is that criminal defense attorneys as well as defendants in the criminal "justice" system must make a concerted effort to educate themselves as to each and every potential collateral consequence that may flow from a conviction. Failure to do so may result in claims of ineffective assistance of counsel and in any event, unpleasant surprises to clients and criminal defendants.