PAULA's to be Expunged (Finally)

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.

Iowa City Drug Busts: Secondary Charges

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.

Probation Violations and Deferred Judgments

I warn every client, multiple times, about the perils of violating probation on a deferred judgment.

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.

Thompson Law Office Wins Felony Jury Trial

On Tuesday, April 20, 2010, a Johnson County jury returned a verdict of Not Guilty for Mark Thompson’s criminal jury trial.

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.

Fake ID in Iowa City – Penalties

There are several different crimes that are associated with trying to get into a bar, or purchase alcohol while underage.

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.

With the Possession of Fictitious ID crime, the defendant has the option of a deferred judgment. This option is not available on the Misuse charges detailed above. In that strange sense it could be better to be charged with this greater crime.

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.

Paula/Public Intoxication Expungment Bill Passes

On 3/19/10 Governor Culver signed HF 2233 into law, providing some relief for defendants convicted of PAULA offenses.

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.

City One Step Closer to 21-Only

The Iowa City council has passed vote #2 of 3 in regard to passing a 21-and-older ordinance for the Iowa City bars.

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.

CHeBA Hut Sandwich Shop Coming to Iowa City

CHeBA Hut is a marijuana-themed sandwich shop with locations in great college towns such as Boulder, Ft. Collins, Eugene and Tempe.

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.

Catch-22 of Simple Misdemeanors

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.

City Council to Address 21-only in Iowa City Bars

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.