Refusing to Blow During an OWI / DUI Stop in Iowa

During most police stops on suspicion for OWI, the officer will request a breath sample. What happens if a defendant refuses?

There are two different breath samples which the officer may request. The first is the preliminary breath test or “PBT” or field test. This is the small box which officers carry with them in the field.

The PBT is not fully accurate. For an OWI, it is used only to help officers determine if they have probable cause to make an arrest. The results will not be used in Court as evidence of intoxication. (They can be used for a public intoxication charge, though).

A refusal on the PBT is not a “refusal” in regard to any additional penalties which may fall on the defendant regarding their driver’s license. Refusing the PBT only denies the officer an additional piece of evidence prior to making an arrest. If a PBT is given and the results indicate intoxication, an arrest will almost certainly occur. If an officer suspects intoxication and the PBT is refused, an arrest will likely occur anyway. The important test is not the PBT, but the breath test given at the police station.

Iowa Criminal Law – Search and Seizure

One of the biggest mistakes defendants make during an encounter with the police is failing to exercise their right to remain silent.

The Miranda warnings have been read so many times on television that the general public has forgotten to actually listen to and understand these rights before they continue an interview with the police.

Many times I have reviewed police interviews and heard the following exchange take place:

Officer, “Having been informed of your rights do you fully understand them?”
Defendant, “Yes.”
Officer, “Ok, now tell me, was the pot we found yours?”
Defendant, “Yes.”

In the above situation, a defendant would be wise to state, “I’m sorry officer but I do not wish to answer that question.” Or better, if the defendant were to ask for an attorney, the interview must immediately cease.

When the Miranda rights were first established, it must have been such a surprise to defendants, “Wait, you mean I don’t have to answer these questions? Great!” Now the meaning of the rights has been eroded by television and popular culture that defendants space out and ignore the substance of what the officer is saying.

So please, remember, you actually do have the right to remain silent.

Kirkwood OWI / DUI Weekend Program in Iowa

Sometimes the Court will allow a person convicted of OWI to complete their mandatory 48 hours in jail by attending the Kirkwood OWI Weekend Program. When a deferred judgment is granted, the Court will often require this course as part of the probation. Either way, the OWI program is a great alternative to spending 48 hours in the county jail.

Not only will this program often fulfill the mandatory jail requirements for an OWI conviction, but it will satisfy the Iowa Department of Transportation requirements for a 12-hour class which is required to get your license back after a OWI conviction.

Does Pleading Not Guilty Anger the Court? (Iowa City)

I have been asked this question many times in one form or another. The short answer is “No.”

What does anger the Court is when a defendant rushes into a guilty plea, then wishes to withdraw the guilty plea claiming they did not know what was going on.

For simple misdemeanors, the judge will generally ask a defendant how they wish to plead while the defendant is still sitting in jail during his initial appearance. If that defendant is unsure in any way as to whether he should plead guilty or not guilty, the correct answer is, plead NOT guilty.

"Operating" While Intoxicated / DUI in Iowa

As I have stated elsewhere on my website, the Iowa legislature has decided to call our drunk driving offense “OWI” for Operating While Intoxicated, (also called Operating While under the Influence) as opposed to many other jurisdictions which use the term “DUI” for Driving Under the Influence.

Part of the reason for the “Operating” distinction is that a defendant does not have to actually be driving anything to be found guilty of this offense.

With this terribly cold winter there have been more and more cases of people operating motor vehicles as opposed to driving them. What does this mean?

Operating While "Intoxicated" / DUI Iowa

There are three ways to be “intoxicated” or “under the influence” as defined by the Iowa Code for the offense of Operating While Intoxicated.

Let’s start with what the actual law (Iowa Code §321J.2) says:

1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:

a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.

This means that a person is guilty if they are “under the influence,” as determined by the officer’s various field sobriety tests and the officer’s judgment. This is generally caused by drinking too much alcohol, but the law states that the “under the influence” can arise from any combination of legal or illegal drugs and/or alcohol.

So if a person drinks alcohol so that the alcohol has influenced their driving, then they would be guilty. If a person ingests illegal drugs to the point of allowing the drug to influence their operation, that person is guilty. (More on that point below). But surprisingly, if a person consumes a legally prescribed (or even a non-prescribed, over-the-counter) drug and that drug influences that person’s operation of a motor vehicle, that person can be found guilty.

Iowa Code §321J.2 (OWI)

321J.2 Operating while under the influence of alcohol or a drug or while having an alcohol concentration of .08 or more (OWI).
1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:
a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.
b. While having an alcohol concentration of .08 or more.
c. While any amount of a controlled substance is present in the person, as measured in the person’s blood or urine.
2. A person who violates subsection 1 commits:

Iowa Code §124.401 (Possession of Controlled Substances)

124.401 Prohibited acts – manufacturers – possessors – counterfeit substances – simulated controlled substances – penalties.
1. Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance.

Iowa Code §123.46 (Public Intoxication)

123.46 Consumption or intoxication in public places – notifications – chemical tests – exoneration.
1. As used in this section unless the context otherwise requires:
a. “Arrest” means the same as defined in section 804.5 and includes taking into custody pursuant to section 232.19 .
b. “Chemical test” means a test of a person’s blood, breath, or urine to determine the percentage of alcohol present by a qualified person using devices and methods approved by the commissioner of public safety.

PAULA in Iowa City

Paula – or Possession of Alcohol under the Legal Age, is a very common offense in Iowa City. A short time ago the fine was small, even for multiple offenses. Now the fines are staggering. A first offense Paula will cost a defendant $314.00. That includes $200.00 for the fine, a 32% “surcharge” and the new court costs of $50.00.

A second offense will run you $500.00, plus the 32% and the $50.00, for a grand total of $710.00, plus you are required to obtain a substance abuse evaluation or lose your license to drive for thirty days. For a third and all subsequent offenses, the fine is the same as the second offense, but the loss of license is required.

Obviously your best move is to avoid getting the ticket in the first place. And the best way to do that is not to possess alcohol until you are 21. (Unless you are at home with your parents, in which case the law makes a small exception for you).

Many Paula charges happen in downtown Iowa City bars. But the following scenario happens weekly:
“It wasn’t my beer I was just holding it.”

Let’s say that is the truth. Guess what? You are still guilty. It does not matter if you never had a drink in your life, as soon as you admit to “holding” (i.e., possessing) the drink, the you will be found guilty. So if some guy tells you to hold his drink as he goes into the bathroom, and you are under 21, then decline. The most important lesson when it comes to Paulas is, the law is “possessing” alcohol, not drinking, or being intoxicated by it.

This is another very common situation: