The Iowa City Law Blog

In a case decided this week, the New Jersey Supreme Court held that when police officers invoke New Jersey’s implied consent law, and request a breath sample from a motorist they suspect was driving while intoxicated, officers must inform the motorist of the consequences of refusing the test. Further, if the person does not speak English, the statement used to explain those consequences must be given in a language the person speaks or understands.

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?

An amendment to the Iowa Public Intoxication law takes affect today (7/1/10), and now makes PAULA convictions eligible to be expunged. House Study Bill 643 was passed earlier this year and amends Iowa Code Section 123.46, which relates to Public Intoxication.

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.

When a suspect is arrested in Iowa City for a drug-related charge, there are many related charges that the police or the prosecutor can pile on.

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.