Iowa OWI / DUI Law: Use of the PBT Results at Trial

When a subject is questioned regarding an OWI, he is often offered a preliminary breath test (PBT) by the officer. Based in part on the results of this test, the officer will make his decision to whether charge the subject with OWI.

As mentioned in other posts, the PBT cannot be used at trial for evidence of intoxication. But what about when the results are favorable, and what happens when the information comes into trial “on accident?”

Iowa's Criminal Right to Counsel and the Implied Consent Law

The United States Constitution guarantees the right to counsel for the accused. The State of Iowa has taken this right and written it into our state statutes. Iowa Code §804.20 states:

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.

Not only does our state code require the right to counsel be honored, but they have made it a crime for an officer to deny this right. But where does this law stand in practice? And, more specifically, what is the impact of this law on the ‘implied consent’ law that is invoked in OWI cases?

Iowa Law for Fake ID's and Alcohol

There are several different ways underage students obtain alcohol in Iowa City. And although all of the methods I have listed below are a means to the same end, choosing one of them can get you a ticket, whereas another can make you a felon.

Let me tell you how NOT to obtain alcohol underage.

Iowa OWI / DUI Field Tests – the "Eye Test"

One of the standardized field sobriety tests that today’s officers employ is the Horizontal Gaze Nystagmus test (HGN) also called the “eye test.”

The HGN is one of the most tricky and generally most damaging pieces of evidence a prosecutor can present in a borderline OWI trial. It is also a very powerful tool used by the police to gain “reasonable suspicion” to bring a suspect down to the station for the final breath test.

The biggest problem with the HGN is that it is based totally on the officer’s subjective observations, and that it is completely unverifiable by neutral means. By the nature of the test itself, the eye movements cannot be recorded by a video camera, and thus the officer’s word is the only verification that is needed to secure a breath test and ultimately, a conviction.

Briefly Crossing the Roadway Edge = OWI / DUI Stop in Iowa?

One of the positive cases to surface in Iowa regarding OWI stops is State v. Tague, 2004. When a motion to suppress is filed in regard to whether a car was stopped for weaving, Tague is usually cited.

In this case, the defendant was traveling on a four lane highway, with a painted median dividing the north and south bound traffic. He was followed for a short distance by an officer. The officer noticed the defendant’s wheel briefly cross the roadway edge line, on the left side of the left lane. At this point the officer conducted a traffic stop.

The defendant was rather intoxicated, and could not win his case on the merits. But that is where a motion to suppress can come in.

The police need to have probable cause that a traffic violation has occurred, or have reasonable suspicion that criminal activity is afoot before they can conduct a warrantless traffic stop. Of course, most stops occur because the officer obtained probable cause by witnessing a violation. In many OWI cases, however, the officer makes a stop due to erratic driving that is an indicator of intoxicated driving, but not necessarily an actual traffic offense.

Tague helps draw the line as to what the officer must observe before he can conduct the traffic stop. In Tague’s case, a single, brief crossing of a roadway edge line was insufficient. Tague’s case was dismissed and the charges were thrown out.

When I review an OWI case, I look specifically for any aspects which would equate to the reasoning in Tague. A slight weave or touching of a roadway line is explained by the Court in Tague:

Drivers talking on their cell phone, looking at a map, adjusting the radio, adjusting the heater, defroster or air conditioner, or check on a child restrained in a back seat can lead a driver to momentarily cross and edge line, without giving rise to a reasonable suspicion of intoxication or fatigue.

To answer the question in the title of this post, briefly crossing the roadway edge is not sufficient evidence to conduct the OWI stop. For questions regarding your specific case, please give me a call at (319) 354-1630.

Iowa Definition of "Intoxication" for Public Intox

The first place to look to find the defining law for a criminal charge is to the Iowa State Bar Association’s approved jury instructions. For (almost) every charge in Iowa, there exists a standard jury instruction which defines what elements the jury must determine have been met for a guilty verdict to occur.

And in searching these instructions for public intoxication you will find…nothing.

So what exactly does it take for a jury to find a defendant guilty of public intoxication?

Public's Right to be on Public Streets?

…who may have consumed a small amount of alcohol…

That’s the issue in the Iowa Court of Appeals case State v. Bolden in 2005. Mr. Bolden was arrested for public intoxication, and he argued that the statute was unclear, vague and overbroad. He stated that the current public intoxication law results in:

“Iowa Citizens, of a majority age, who may have consumed a small amount of alcohol are chilled from exercising their constitutional right to traverse and associate on public streets for fear they may become targets of arbitrary and capricious seizures.”

I think he brings up a good point.

Sleeping in Car = OWI /DUI in Iowa?

Iowa case law is clear that if a person is behind the wheel of an automobile with the engine operating, and that person is intoxicated, they would be guilty of OWI. The vehicle does not have to be in motion, and the State does not have to prove any intent to drive. Mere “operation” of the engine is enough to satisfy the requirements for the statute.

As I have stated elsewhere on this website, if you are intoxicated, and need to “sleep it off” in a car, do not place the keys in the ignition, do not sit behind the wheel, and never start the engine.

But, let’s suppose a person is sleeping behind the wheel with the engine operating, in a legal parking space. What rights to the police have to knock on the window, open the door, or otherwise begin an OWI investigation?

Johnson County OWI / DUI Deferred Judgment Update

A few legislative terms ago, a deferred judgment would allow a defendant to plead guilty to a crime without being assessed any fines. In an OWI, a defendant could be granted a deferred judgment, and instead of the (then $1000.00 + 30% surcharge) minimum fine, the defendant would pay only a supervision fee of $250.00-300.00.

Then, the new “civil penalty” law was passed. This required judges to impose a civil penalty in all OWI cases at an amount equal to the minimum allowable fine if a conviction was entered. This law was vaguely drafted, and it did not allow defendants the opportunity to fully understand their rights and what the possible outcomes could be if they were to be granted a deferred judgment and then if they were to violate it.

Substance Abuse Evaluation for Iowa OWI / DUI

When an arrest is made for OWI in the State of Iowa, a substance abuse evaluation must be ordered to be completed.

In Johnson County (Iowa City) the judge will order that this substance abuse evaluation be completed within 10 days. This is one of the most immediate deadlines that will occur with an OWI arrest. Therefore, as soon as a defendant is released from jail for an OWI, they should contact a substance abuse evaluator and schedule an appointment.

Also in Johnson County, the defendant will be given a list of local clinics that offer substance abuse evaluations. Many of these centers will charge around $100 for the evaluation. A defendant can expect to spend about one hour discussing their history of substance abuse with the evaluator. Questions will be asked regarding all forms of substance abuse, ranging from alcohol to illegal drugs and prescription drugs.