As noted in the link above, the University has set time limits on when tailgating must end, and intends to enforce the Open Container law which traditionally has been ignored on the west side of the river during tailgating hours.

The Johnson County Sheriff, however, is not thrilled about these rules. He understands the burden additional arrests place on the already-overcrowded jail. He voiced his concern to the Press-Citizen.

Despite the Sheriff’s disapproval, be warned that the new rules can be enforced. Do not be one of the unlucky individuals to get an Open Container or even a Trespass charge on opening day.

In State v. German Marquez, police officers responded to the scene of a two-car accident and approached the defendant, German Marquez, who was one of the drivers. Marquez did not respond to requests for identification in English; the officers asked in Spanish and he produced his credentials. The officers noted that he smelled of alcohol, had slurred speech and was unstable on his feet. They arrested him, believing he was under the influence. He did not understand requests to perform field sobriety tests.

At the police station, Marquez was read in English the standard implied consent statement, an 11-paragraph document informing drivers that, among other things, cooperating with the test is required by law, and refusing to consent results in license revocation. Marquez shook his head in response, and stated in Spanish that he did not understand. He was charged with driving while intoxicated and with refusing to submit to a breath test.

At the trial court level, he was found guilty of both charges. Marquez appealed his conviction, and the Appellate Division affirmed. The appellate panel noted that there was no requirement that the implied consent statement be translated into another language.

The New Jersey Supreme Court disagreed, and reversed the defendant’s refusal to submit to a breath test conviction. The Court noted that the New Jersey implied consent statute, which states that any person who operates a motor vehicle on a public road gives their consent to the taking of a breath sample, also requires that a police officer “inform the person” of the consequences of refusing the test. (Iowa has a similar law: 321J.8 “Statement of Officer,” which states that “A person who has been requested to submit to a chemical test shall be advised by a peace officer” of the consequences of refusing the test.)

The Court held that in the context of the implied consent law, the word “inform” means that police officers must convey information in a language the person speaks or understands. If a person does not hear or understand English, some other effort must be made.

New Jersey’s Motor Vehicle Commission has arranged for certified translated versions of the standard implied consent statement to be prepared, in written and audio form, in nine foreign languages. Perhaps Iowa will decide to follow suit?

Previously, only Public Intoxication convictions were eligible to be expunged. Now, a person convicted of either Public Intoxication or Possessing Alcohol Under the Legal Age may ask the court to expunge the record of the conviction – if two conditions are met: 1) Two years have passed since the date of the conviction; 2) The person has not had other criminal convictions (other than Iowa traffic tickets) during the two year period.

The bill also provides that an expunged PAULA conviction shall not be considered a prior offense for purposes of enhancing punishment under state law, unless the new violation occurred prior to entry of the order of expungement.

The amendment to the Public Intoxication law does not make reference to PAULA convictions that occurred before this law takes affect. We believe that past PAULA tickets will be eligible for expungement, and will have the Court’s answer within a few weeks.

For further reading, the text of the amended law is below:

House Study Bill 643

An Act relating to expunging convictions of certain criminal offenses.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

Section 1.  Section 123.46, subsection 5, Code 2009, is amended to read as follows:

5.  Upon the expiration of two years following conviction for a violation of this section, a person may petition the court to exonerate the person of expunge the conviction,and if the person has had no other criminal convictions, other than simple misdemeanor violations of chapter 321 during the two=year period, the person shall be deemed exonerated of the offense conviction shall be expunged as a matter of law.

The court shall enter an order exonerating the person of the conviction, and ordering that the record of the conviction be expunged by the clerk of the district court.

Sec. 2.  Section 123.47, Code 2009, is amended by adding the following new subsection:

NEW SUBSECTION.

7.  Upon the expiration of two years following conviction for a violation of subsection 2 or of a similar local ordinance, a person may petition the court to expunge the conviction, and if the person has had no other criminal convictions, other than local traffic violations or simple misdemeanor violations of chapter 321 during the two=year period, the conviction shall be expunged as a matter of law.  The court shall enter an order that the record of the conviction be expunged by the clerk of the district court.  An expunged conviction shall not be considered a prior offense for purposes of enhancement under subsection 3 or under a local ordinance unless the new violation occurred prior to entry of the order of expungement.

EXPLANATION

This bill relates to expunging certain criminal convictions. The bill modifies provisions relating to expunging the record of a conviction for public intoxication after two years.

Under the bill, two years after conviction for public intoxication a person may petition the court to expunge the record of the conviction if the person has not had other criminal convictions other than simple misdemeanor violations of Code chapter 321 during the two=year period.

Currently, a person may petition the court to exonerate the person and have the court enter an order exonerating the person as a matter of law.

The bill establishes a similar expungement provision for possessing, purchasing, or attempting to purchase alcohol under legal age and for similar local ordinances.  Under the bill, two years after conviction for possessing, purchasing, or attempting to purchase alcohol under legal age or under a similar local ordinance, a person may petition the court to expunge the record of the conviction if the person has not had other criminal convictions other than local traffic violations or simple misdemeanor violations of Code chapter 321 during the two=year period.  The bill also provides that the expunged conviction for possessing, purchasing, or attempting to purchase alcohol or for a local ordinance shall not be considered a prior offense for purposes of enhancement under state law or under a local ordinance unless the new violation occurred prior to entry of the order of expungement.

The original charge would be possession of controlled substance, usually marijuana.  This, of course, only requires that the suspect had in his possession (whether actual or constructive possession) a substance that he reasonably believed to be an illegal drug.

The most common secondary charge would be possession of drug paraphernalia.  This occurs when the suspect had in his possession any device that is used to ingest or prepare illegal drugs.   This charge is sometimes overlooked by the arresting officers if the suspect doesn’t give the officers a hard time.

Now we get into the ridiculous charges.

In Iowa, it is illegal to “promote a gathering” for the use of controlled substances.  This law was originally enacted to combat massive, Woodstock-like drug parties.  However, the actual language of the statute is so broad that it technically is illegal to invite people back to your home to smoke pot.  Therefore, if a suspect admits that he allowed people to use drugs on his premises, he can be charged with Promoting a Gathering.

Also, it is illegal to maintain a residence for the purpose of using or distributing controlled substance.  Therefore, if a suspect has a room in their residence that is routinely used to smoke pot, that person can be charged with Running a Drug House.   Originally this was the anti-crack house law, but once again the language is broad enough to include the den of a pot smoker.

Finally, the minimum standards for Distribution of Controlled Substances are quite low.  There is no weight or quantity requirements for selling or sharing drugs.  If a suspect says that he shares his marijuana with his friends, that’s the same level of distribution crime as the man that peddles his illegal wares to strangers on the street corner.

Of course, the prosecutor’s office would deal with the street-dealer differently than the young man that shares his marijuana with his roommate, but the charges would still be the same.

Therefore, if someone uses marijuana in Iowa City, they must make sure not to admit to sharing it, allowing it to be smoked in their residence, or to routinely use a premises for smoking it.  These admissions could greatly increase the trouble that befalls a drug-carrying suspect.

When the Court grants a deferred judgment, the defendant is making a promise to the Court not to violate the terms of probation.  The Court becomes upset when this promise is broken.

The terms of probation are explained on the sentencing order. Depending on the offense, the defendant will be required to pay all fines, surcharges and costs, pay a supervision fee, complete community service, complete a substance abuse evaluation and recommended treatment and/or complete an approved drinking-drivers’ course.

The most perilous condition of probation, however, is to have no new law violations.

And for students living in Iowa City under the legal drinking age, a new law violation is a common way to lose the benefit of a deferred judgment.

While on a deferred judgment, a defendant is held to a different standard. He is under the microscope. His PAULA violation has much greater consequences than his friend that is not on probation.

For example, in a recent case of mine, a young man received a PAULA ticket within a few weeks of being granted a deferred judgment. His friends received the $330.00 fine and paid their tickets. My client paid the $330.00 fine and received four days in jail. And this was a break, considering the Court had the power to revoke the deferred judgment and sentence the young man to a greater period of time on the original charge.

Also, for a probation violation, there are very few legal defenses that can be used. Often times, the only way to approach the situation is to try and mitigate the punishment since it cannot be avoided altogether.

So please, make sure to avoid law violations if you are on a deferred judgment probation. There is little I can to once the violation occurs.

The defendant was charged with Burglary in the Third Degree (a class D Felony).

The state alleged that the defendant entered the downtown apartment of the victim without permission, left behind some clothing, stole some clothing and perhaps some items from the refrigerator.

Obviously that does not sound like a typical burglary. And apparently the jury agreed.

At trial, Mark Thompson pointed out the prior friendly relationship the victim and the defendant held. Mark called a witness who testified that she thought the defendant and victim were roommates, based on the number of times she had seen them together at the apartment.

The State argued that a window had been used to enter and/or exit the apartment. But on cross examination, the victim admitted that he has used the window to enter and exit the apartment because he lost his key. The victim also admitted that he had previously given his name and phone number to the defendant on a piece of paper, which was admitted as part of the State’s evidence. This paper was used to confirm the friendly relationship the parties shared.

The jury also the option of returning a guilty verdict for the lesser-included offense of Criminal Trespass. The jury did not know that a Burglary charge carries up to a 5-year prison sentence, and the Criminal Trespass charge carries up to a 30-day jail sentence.

Nonetheless, the jury returned a verdict of not guilty.

The lowest-level ID-related crime is Misuse of Drivers License (belonging to another). This occurs when someone simply uses someone else’s ID in any fashion, representing it as their own. Note that it is not illegal to possess another’s ID, it’s simply illegal to use it. Also note that sometimes an officer might not know the law, or write up the charge based on an apparent intent to use the ID.

This is not truly a fake ID. It’s a real ID, that belongs to someone else. For this crime a defendant would pay a small fine, serve no jail time, and face a 30-day license suspension from the Iowa DOT.

The next crime is Misuse of DL (belonging to another) for the Purpose of Obtaining Alcohol. This crime carries the same criminal penalties, but the license suspension is increased to 6 months.

Finally we have the crime related to a completely fictitious ID. This would be an ID ordered via the Internet that was not manufactured by an appropriate state authority. Mere possession of this type of ID is a crime. It also carries the toughest penalties, up to one year in jail and a fine up to $1,875 (in 2010). More than likely the actual penalty would be no jail time and a fine of around $315, plus costs and court costs making the total closer to $500.

Completely Fictitious ID

If a deferred judgment is granted, then the Iowa DOT should NOT issue any sort of license suspension. That’s another strange way as to why this may be the better crime to be charged with.

However, on a strictly level-of-the-crime interpretation, the Misuse charges are less severe, and can carry no jail time. And it is unlikely to receive no jail time or a deferred judgment if the defendant has a criminal or there were any unusual events surrounding the Fake ID charge.

Another warning, even though the Iowa DOT does not issue any sort of suspension/revocation after a deferred judgment, that does not mean that a defendant’s home state would not issue a suspension. Therefore, it’s not a bad idea to obtain an Iowa license/ID to avoid any interstate entanglements.

In a nutshell, the new PAULA law adds a provision that allows defendants to expunge the charge from their records after a period of two years, provided that no additional convictions take place in that period. (There is an exception for traffic-related convictions, to a certain extent.)

The new law modifies the Public Intoxication law as well, removing the undefined use of the word “exonerate” and replaces it with the more common term “expunge.”

Now students in Iowa City actually have a chance to receive a clean criminal history after receiving a PAULA ticket. It just takes 2 years of good behavior to do so.

News from the latest meeting is that this current proposal could go into effect as early as June of this year.  Another proposal is that the ordinance may be delayed until the public votes upon it in November.

Now that this issue has come back to the forefront of Iowa City politics, I’ve had the opportunity to speak with various parents who have children attending the University.

Overwhelmingly they feel that the 21-only ordinance should be in place.  They feel it is an unfair trap for 19 and 20-year-old residents.  Many are surprised that 19 and 20 year-olds can get into the bar to begin with.

At this point, I agree with them.  Although I do not think it is a “trap” set up by Iowa City to get PAULA tickets, it is a dangerous situation that many students find themselves in.

With my prior posts on the ridiculous stacking of simple misdemeanors that can occur, I think the passing of 21-only would be fair, and would result in fewer student violations.

Currently the City Council is 6-1 in favor of the new ordinance.  And for the benefit of local students’ criminal records, I think this measure should pass.

For the local bar owners I sympathize.  They built their businesses and signed their leases with the idea that they would be able to charge cover for underage patrons.  This income would be taken away from them.

One prediction is clear.  Outside-of-the-city-limits bars like Wildwood Saloon would see an increase in business.

This fall they plan to open a restaurant here in Iowa City.

It’s great to see Iowa City on the same list as these other fun towns.

I first found out about CHeBA Hut in a message from one of my associates in Denver. He is often on the lookout for new small chain restaurants. And although CHeBA Hut was born in Arizona, the Denver-Boulder area of Colorado is generally on the forefront of great new restaurant ideas.

This friend mentioned that Iowa City’s liberal college community would create the right environment for a successful CHeBA Hut.  Apparently the organizers of the Iowa City CHeBA Hut agree with his opinion.

I do not wish to imply that this friend or myself have anything to do with CHeBA Hut’s arrival. It was just a passing thought we had a few months ago.

I’ve not had the opportunity to try their sandwiches, they look delicious.

Their menu is peppered with marijuana references.  But their food obviously contains nothing illegal.

I respect CHeBA Hut and their stance on free speech, as outlined on their website. Public displays such as a sandwich shop like this one are factors in dispelling the myth that marijuana is more harmful than various legal substances such as alcohol, tobacco, or even “Super Sized” Coca-Colas.

Hopefully the rest of Iowa City will welcome their arrival this fall.