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

BEFORE YOU PAY THAT TRAFFIC TICKET….

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.

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.