The Iowa City Law Blog

When a subject is cited for a simple misdemeanor, the officer has discretion regarding arrest.  For a public intoxication charge, the officer will usually (if not always) arrest the subject.  For a simple misdemeanor traffic violation, the officer will usually not arrest.  For a Theft 5th degree charge, the officer may go either way.

The problem with an arrest for a Simple is that the defendant will need to make a decision on how to plead within a few hours.  And only on rare occasions will that defendant have the opportunity to discuss their case with a lawyer prior to that decision.

In the past I had always said, “when in doubt, plead not guilty.”  Pleading not guilty will preserve the defendant’s trial rights, and also give them time to negotiate or request various sentencing options.

If a guilty plea is entered, these rights will be waived and the defendant will not get a chance to go to trial if he changes his mind on the plea.

The only problem to consider when pleading not guilty is that the judge has the option to keep a bond on the defendant until trial.  For a Simple, this bond will usually be in the neighborhood of a few hundred dollars, but that might not be a sum that a defendant readily has with him upon arrest.

The aspect of bond complicates the issue, and must be weighed with the consequences of a guilty plea before any decision is made.

Recently, the Iowa City City Council has chosen to revisit the issue as to whether those under 21 should be allowed inside Iowa City bars during the nighttime hours.

Currently, the age restriction is 19 years. Those under 19 who are in an Iowa City bar past 10:00 p.m. can be cited with a ticket that carries a $500.00 fine, 35% surcharge and $60 in court costs.

On the criminal defense side, there is simply no way to fight these tickets. As long as the defendant is 1) inside the bar, 2) the time is past 10:00 p.m., and 3) they are not yet 19 years old, then the City has a slam-dunk case.

Furthermore, there is no legal mechanism to grant a deferred judgment, to take the case under ‘court supervision’ (an Illinois criminal law term) or otherwise enter the defendant into some sort of diversion program. And to top it off, the City has essentially a no-negotiations policy in regard to these offenses. Their hands are tied as to the penalty (they don’t have the legal authority to change the fine amount), so it becomes an all-or-nothing case where the City will usually find themselves on the winning side.

In regard to the under 19 ordinance, you’ve been warned.

The new proposal would likely carry the same elements as the old offense, only changing the age from 19 to 21. The fine, however, is anybody’s guess.

For certain the new charge would be equally difficult to defend. The only guaranteed way to avoid this ticket would be to not break the (potential) new ordinance.

Negative externalities are the major concern the Council should research. What would be the impact on underage drinking away from the downtown bars? Is private-residence alcohol consumption by those under 21 more or less dangerous? Will the amount of underage drinking diminish, or remain the same? Is drinking safer in a semi-regulated environment such as a bar?

Also, what does the Iowa City Police Department think about this ordinance? They could be relieved because they won’t have to write as many PAULA citations, but perhaps that’s better than busting private underage keggers?

I would like to see the impact this ordinance would have on keg beer distributors such as Hy-vee and John’s Grocery. Which side of the ordinance will you find them on?

If the ordinance passes, I certainly expect to see an increase in fake ID’s possessed by students.

Another big question is what impact this would have on OWI / DUI’s?  Cab service is more prevalent near bars, but it is possible to “sleep it off” on a friend’s couch after a party. I’m pretty sure bar owners frown on overnight guests.

Finally, my biggest fear would be the potential impact on sexual assault. When a person drinks to the point of extreme intoxication in a public place, there would likely be more people around and hopefully a responsible bar owner. This audience can reduce the chance of a sexual assault occurring. There would seem to be more risk at a private residence.

On the positive side, the potential ordinance may break the culture of drinking that is so prevalent at the University of Iowa.

Like the University of Iowa in 2007, I am not going to put an opinion out as to whether this ordinance would be beneficial to the community.

I simply don’t have a dog in the hunt.

Looking at it from a criminal defense attorney’s viewpoint: PAULA’s can rarely be defended, the Under 19 charge is very rarely capable of being defended, and the potential Under 21 charge would be the same. Impacts on other crimes would be speculation at best.

For more information, please see the Daily Iowan’s article.

According to a new Wall Street Journal article, and from the experiences I have seen working out of my law office, people are trying more and more to expunge, or erase their criminal histories.

A criminal history creates a unique problem for some charged with a criminal offense in Iowa.

Aside from the small exception for Public Intoxication convictions, the only way to plead guilty to a charge and have it expunged from your record is to obtain a deferred judgment. There are no post-sentencing methods to erase (non Public Intox) convictions from your record in Iowa.

Even if someone of the highest status were to obtain the theoretical governor’s pardon, the charge may still show up as “pardoned” as opposed to being erased, or expunged, entirely.

Now, what is “expungment” anyway? The legislature does not do a good job of providing us a definition.

One thing is certain, when a charge is “expunged” it is no longer a “conviction.” This is very important, and for a large percentage of situations, this is call that matters. When the job application says, “Have you ever been convicted of a criminal offense?” Someone with an expunged charge can say “no” and be totally correct.

Physically, in Johnson County (Iowa City) anyway, an expunged file is removed from the normal stacks of criminal files, and it is placed into the “sealed” box. Nobody, no judges, lawyers, police or the defendant themselves, is allowed to look at the sealed file without a court order. Furthermore, the entire record of the case will be removed from the Iowa Courts Online public database. (Again, other counties may do this differently.)

So, for most all practical purposes, an expungment can make the case like it never happened. In some ways, this is better than a dismissal. A dismissal means that no guilt was ever established. But that charge will still remain online, despite there being no conviction. An expunged charge should be invisible online.

How does one go about getting a charge expunged? Two words: Deferred judgment.

Iowa’s deferred judgment procedure is what allows a defendant to be given the opportunity to expunge the charge after a successful period of probation.

The moral of the story is to plan ahead, and get that deferred judgment, so that you are not stuck in the position of looking for an expungment that is legally impossible in the state of Iowa.