OWI Law – Consent to OWI Breath Test or Refusal?

When stopped in Iowa under suspicion of an OWI, the arresting officer will undoubtedly take the suspect to a testing station to administer the Datamaster breath test. 

The Datamaster is the more accurate version of the hand-held breath test (called the PBT for preliminary breath test) that is administered in the field.  Although the Datamaster has a margin of error, it is nowhere near the margin of error that exists with the PBT. 

And more importantly than the true margin of error is the court’s treatment of the results of these two tests.  The courts say that the PBT is too inaccurate and prejudicial to be introduced as evidence of OWI at a trial.  That sounds like a defense-sympathetic court, until you read the caselaw on the Datamaster. 

The Court realizes that there is a margin of error for the Datamaster, but they refuse to acknowledge that margin of error when considering whether a defendant is eligible for a deferred judgment.

The cutoff for a deferred judgment is 0.150.  So if you blow within the margin of error and produce a 0.151 or 0.152, you are out of luck.  Even though a true BAC might be below the 0.150 threshold.

Obtaining a deferred judgment is also dependant upon whether a suspect consents or refuses to take the Datamaster test.  A refusal equals no deferred judgment.  And this is something would be illegal for the judge to ignore.  The legislature has simply required that in order to obtain a deferred judgment for OWI in Iowa, the defendant must not have refused.

So what is a refusal?

Iowa caselaw states that anything less than an unequivical consent constitutes a refusal.  So it’s not a matter of “not refusing.”  It’s a matter of unequivically consenting.

To rephrase, there are two possible outcomes.  Either a suspect tenders an unquestionable consent to the breath test, or he refuses. 

If there is some question as to whether a suspect has consented or not, then the court will likely say he has refused.

The primary example would be if a suspect says, “I’m not refusing your test, but I would like to talk to a lawyer.”  Even though this suspect outrightly stated that he’s “not refusing” he’s still not unequivically consenting, and therefore the IDOT judge would call this a refusal.

Therefore, when being asked whether or not you consent to a Datamaster test, make sure there is no question as to your consent.

3 Responses

    1. Iowa City Lawyer

      Ginsberg v . Iowa Department of Transportation

      , 508 N.W.2d 663 (Iowa 1993) is a decent place to start. Then check 402 N.W.2d 392, 227 N.W.2d 155, 210 N.W.2d 660, 157 N.W.2d 336.

  1. Dan

    Seems like with DUI.OWI, anything you were ever told about the Constitution is pretty much out the window

    Seems like there’s a DUI/OWI exception to the Constitution, every step of the way

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