Keeping Charges off Your Record

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.

State to Review PAULA Expungment

The Iowa Legislature is reviewing a bill which would allow those convicted of Possession of Alcohol Under the Legal Age (PAULA) to apply to have their convictions expunged.

The procedure would be nearly identical to the current law which allows defendants convicted of Public Intoxication to expunge their records.

Those convicted of PAULA would be required to avoid any criminal convictions (aside from Iowa traffic tickets) for two years following the date of the conviction. After this period has passed, they would need to petition the court to have the charge expunged.

This is an excellent bill, which would help young people become conviction-free by the time they graduate.

There is also no risk of “violating probation” that would accompany a deferred judgment. If a defendant commits a new violation, there is no probation to be revoked and the court does not need to get involved. The only penalty is that the defendant would not have the option to petition the court for expungment.

Don't Store Drug Info on Your New iPhone

When someone is arrested for a drug crime, specifically a drug distribution crime, the officers will seize evidence.  Notably, they will take any drugs, scales, pipes, grinders and loose cash.  They will also be looking for any sort of record keeping, such as a client list or a ledger.  All of this should be expected.

However, it might come as a surprise to some dealers that the officers will seize computers or cell phones which may have contact information in them.  This is not a big deal when the cell phone is a cheap free-with-contract model.  But this can become a very big deal when the phone is a $400 iPhone.

Officers will seize a cell phone specifically to look at call logs and text messages.

Text messages are a very clear indicator of drug sales, even if supposedly sneaky code words are used.  And as I wrote, the throw-away cell phone is not as big of a deal as the a new smart phone.

In Iowa City, these items will be kept in evidence as the case proceeds through the court.  Once the case is finalized, the items will remain in evidence in case of an appeal.

However, even after the period of the appeal has passed, the items will not be returned.  They will eventually be destroyed.

That makes sense in regard to the drugs and paraphernalia themselves.

But the iPhone is simply destroyed.

So don’t let your fancy smart phone fall victim to destruction at the hands of the I.C.P.D.

Don't Sleep in Your Car

With the icy weather and cold temperatures invading Iowa, it’s time for another reminder of the whole “O” in the OWI offense.

For whatever reason, Iowa has decided to call the “DUI” offense “OWI.”  The law refers to this as both “Operating While Intoxicated” and in the same statute, “Operating While under the Influence.”  So whichever name you wish to use, it’s clear that the “O” means “Operating.”

Why not “driving?”  Well, “operating” is more inclusive.  The legislature wants to trap those people that weren’t actually driving the vehicle, but merely engaged in the operation of it.

Primarily this is going to include people sitting in their cars with the engines on and the heaters running.

This isn’t as big of a problem in the summer.  In the summer you would be fine to “sleep it off” in your car, as long as the engine was never operating and the keys were not in the ignition.

But cars cannot operate the heater without the engine being engaged, so wintertime will often lead to a few more operating-but-not-driving related OWI’s.

The penalty is the same.

Lesson?  Don’t sleep it off in your car in the winter.

Also, as a point of responsibility, often times when “sleeping it off” the amount of time it takes to achieve a non-intoxicated state will exceed the time somebody would sleep in their car throughout the morning.  If someone drinks to the point of passing out (0.15 or greater) and they pass out at 2:00 a.m., they will not be safe to drive when the sun comes up.  Many people will drink to a BAC of 0.20 or more, and that certainly will take more than a few hours in the car to return to a non-intoxicated < 0.08 level.  The only time that “sleeping it off” can really work is if your BAC is very close to 0.08, and a few hours would push it to 0.05 or less.  Nights of heavy drinking cannot be remedied by a few hours of sleep.  And anybody that jumps in the car at 8:00 a.m. after drinking hard until 2:00 a.m. is very likely violating the Iowa OWI law.

The First Court Date in Iowa Criminal Procedure

There are two ways to begin your contact with the court for an Iowa criminal charge, and both are called the Initial Appearance.  (Note, do not confuse this with the Preliminary Hearing, or even the Pretrial Conference, all are very different).

The first way to have your Initial Appearance is by being summoned at a later date.  This is most often the case with scheduled violations, such as Speeding or Possession of Alcohol Under Legal Age.

For these “tickets” the peace officer will usually write an Initial Appearance date down on the bottom of the ticket, he will ask you to sign it to acknowledge that you understand you have to appear, and then he will let you go.  This date will usually be a few weeks in the future.

Sometimes, a peace officer will release a defendant for a later Initial Appearance date even when the charge is not a scheduled misdemeanor.  This can happen regarding a Possession of Controlled Substance charge, but usually, only the Iowa State Patrol will do this.  Local police and deputies will usually bring that person into the jail.  My guess is since the Troopers cover such a large area on their patrols, they feel their time is better spent on the road than processing someone at the jail.  And perhaps it is.

The other way an Initial Appearance can occur is when the defendant is brought before the judge while still being held in jail.  This is common for all non-scheduled misdemeanors.

Either way, at the Initial Appearance the judge has the obligation to tell the defendant what they have been charged with, what the maximum and mandatory minimum penalties are, and then to set their bond (if any).

For scheduled violations, the question of the penalty rarely comes up because it is written on the ticket.  Also, it would be exceedingly rare for bond to be discussed.  The main issue is whether the defendant wishes to plead guilty, or request a trial.

For crimes greater than  simple misdemeanors, guilty pleas cannot be accepted.  The case must be halted until the state’s lawyer files a Trial Information (it’s like an indictment).

If you are questioning what plea to enter for a simple misdemeanor, you should plead not guilty.  There will be time afterward to weigh the situation and discuss your case with a lawyer.  Not guilty pleas can always be changed to guilty, but changing a guilty plea to not guilty is very difficult, and usually impossible.

Criminal Sentencing

After a defendant is determined to be guilty of a given a offense, whether by plea or trial, a sentencing hearing will be set.

Sentencing is where penalties are determined by the court, and is also the point where a conviction would take effect.

For lower-level crimes, such as simple misdemeanors, sentencing will usually occur immediately following the plea or trial.

For serious and aggravated misdemeanors, the defendant has the right to request a separate sentencing hearing.  On many pleaded-out cases, the defendant will waive his hearing altogether and ask that the judge accept the plea bargain as outlined in the guilty plea.

For felony offenses, an in-court sentencing must take place.  Felonies are so important that the court must afford the defendant the right to go on the record even if he does not wish to do so.

A Clean Criminal Record – Iowa Law

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 all 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.

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 Another Recommended Change to Iowa Law

The State of Iowa has the crime of Public Intoxication, which prohibits that a person be 1) in public and 2) intoxicated (or simulating intoxication). When these criteria are met, the officer can effectuate an arrest and perform a search.

There is not a whole lot to add here. The legislature has not defined “intoxication.” Iowa case law has not been helpful either. The very few cases on point do not get much more in depth than talking in circles and saying “is intoxicated” once again.

One Recommended Change to Iowa Law

Every weekend students are charged and convicted of Possession of Alcohol Under the Legal age, also known as “PAULA.”

This offense has existed since alcohol age restrictions have been around. But even in the last few decades, the penalties have gone from comically low to ridiculously high.

With the new (July 2009) surcharge of 35%, and the new court costs of $60.00, the penalty for a 1st offense PAULA has risen to $330.00.

That’s a pretty steep penalty for a night out drinking. And I’m not going to comment on the size of flat screen TV that could be bought for the fees on a 2nd offense.