Being arrested for Operating a Motorized Vehicle While Impaired (OWI, DUI, DWI, or Drunk Driving) can affect a person in numerous and significant ways. As a result, having an experienced attorney assist you can make all the difference. Moreover, knowing your rights will enable you to make the right decision in the event you are stopped by the police.
The criminal defense attorneys of the McEnroe Law Firm have a combined 55 years of experience in practicing criminal law. Their experience comes from years of work as defense attorneys and as former prosecuting attorneys. Our attorneys know that criminal charges can have life-changing effects on people and our attorneys recognize that these cases must be handled with absolute dedication to ensure that our client’s rights are not impeded and that they receive a just resolution to their case.
What You Should Know About Iowa OWI Laws
If you have been arrested for Operating While Intoxicated, contact an attorney immediately to assist you. An arrest for an OWI results in the State taking action against you in criminal court and in a civil proceeding with the Iowa Department of Inspections and Appeals. If you file a DOT appeal within 10 days of the OWI charge, then you will be allowed to still drive for 2-4 months while the case is pending, and you will not need SR22 insurance or a breathier in your car during the appeal. Most people hire a lawyer on an OWI or DUI case to see if the officer made a mistake. If the officer made a legal mistake, then the case can be dismissed, and your driving privileges can be restored. Many people arrested for an OWI will presume that the officer did not make a mistake, but most people would not know if an officer complied with the requirements of Iowa law such as Iowa Code section 804.20 regarding communications or 321j.6 regarding the implied consent notice. Other examples of officer mistakes include the legality of the stop. If the officer does the field tests correctly and uses a calibrated field breath test. If the officer complies with the state DCI requirements regarding the breath test at the station or jail. Was the officer required to give an independent test? Can you use a prescription drug defense? Was there a violation of the 2-hour rule? These and other important issues must be explored before a person can know if they should take a deal on an OWI case or go to trial. You may call for a free consultation to learn more about this material and other topics related to your OWI arrest.
In criminal court, An OWI First Offense is a serious misdemeanor.
Punishment may include:
- Imprisonment up to one year
- 48 hours in jail minimum unless a legal exception can be presented
- Pay a minimum fine of $1,250.00 unless the defendant qualifies for a $625 reduction.
Additionally, the State in a civil proceeding can:
- Revoke your driver’s license for up to 180 days if you fail the breath test
- Revoke your driver’s license for 1 year if you refuse the breath test
If you have previously been convicted of OWI or had your license suspended due to an alcohol violation, the criminal punishment and civil penalties can increase dramatically. A new OWI, when enhanced by prior OWI convictions can result in an Aggravated Misdemeanor (2 years in prison) or Felony OWI (5 years in prison). Even more serious charges can result from charges of Serious Injury by Vehicle or Vehicular Homicide charges (25 years in prison) if an accident with injuries occurs to persons in other vehicles or persons in your vehicle regardless of your criminal history.
Most OWI investigations begin with an officer stopping your vehicle. When the officer approaches your car and speaks to you, they will ask you questions to determine if you have been drinking. Moreover, their questions will be used to detect the presence of alcohol, if you slur your words and if your movements are impaired, etc.
While you are not entitled to an attorney during these initial stages of the officer’s OWI/DUI investigation, you should request to speak with an attorney immediately upon the officer asking you to perform tests. If the officer determines that you appear to have been drinking, he will ask to perform some tests. These tests, although not at all 100% accurate, are used to aid the officer. The officer will ask you to perform:
- Horizontal Gaze Nystagmus (HGN) – by holding a pen or using their finger, and asking you to follow it with your eyes. He is looking for involuntary twitching of the eye called Nystagmus.
- Walk and Turn – walk a straight-line heel to toe and then turn around and walk back; or
- One Leg Stand – stand on one leg and count to 30.
While not 100% accurate, a failing score (which can be contested in court) on these tests triggers the officer to be able to ask you to blow into a device that checks the amount of alcohol in your system. This is known as the Preliminary Breath Test (PBT). A PBT score of .08 or greater will result in your arrest for OWI, a refusal to the PBT will also trigger an arrest. If you are arrested, the officer will take you into custody and transport you to the station where he will read you an Implied Consent Advisory and request another breath sample on the Datamaster machine.
A test of .08 or greater or a refusal will result in your arrest for OWI. These test results have criminal and driver’s license (civil) implications.
If you refuse the Datamaster Breath test at the station you face a suspension of your driving privileges for one or more years depending on your prior history. If you submitted to a test that indicates an alcohol concentration of .08 or more your driver’s license may also be suspended for 60 days up to 6 years depending on your history. If you are under the age of 21 and you test above .02 (which takes a very small amount of alcohol, possibly one beer for some people) you may lose your license. If you test .04 or more while operating a commercial vehicle you will also lose your driving privileges.
The D.O.T. will suspend your driver’s license if you test over .08 or refuse to take the test. You only have 10 days to file an appeal and request a hearing with the Iowa Department of Transportation to stop the revocation of your driver’s license. Although you can conduct the appeal on your own it is important to know that you will carry the burden of proof and you will be responsible for providing the witnesses, evidence, and legal arguments necessary to win your appeal. Moreover, all information testified to at the D.O.T. will be used in other hearings.
If you take the breath test the officer cannot by law substantially interfere with your right to an independent test. Asking for an independent test can aid your case in numerous ways. If you choose to refuse the Datamaster Breath test you do not have a right to have an independent test.
Clients do not have to be present for DOT administrative hearings. We represent our clients on the initial appeal, as well as the second level of appeal, called an administrative review. Both of these appeals require the DOT to stay the revocation, so the client can still drive.
If you are charged with a criminal offense arising out of the officer’s investigation, most Courts in Iowa will require that you obtain a substance abuse evaluation prior to a sentencing hearing. However, some jurisdictions (such as Polk County) require it before the arraignment hearing for your Operating While Intoxicated case. If you do not have it done by the arraignment, then the Court will order you arrested for violating your release conditions.
Any OWI/DUI charge requires that you obtain a substance abuse evaluation. We recommend Alternative Interventions. (515) 778-7989.
Operating While Intoxicated cases involve both criminal court and civil court proceedings, both processes are complex with many variables that most people are not aware of, so contacting an attorney as soon as you are able, may greatly assist you with dealing with this process.
Criminal Court Penalties
OWI 1st offense –test failure
Minimum 2 days in jail unless granted a deferred judgment or other permitted exception. 2 day OWI class required.
Probation is possible.
Community service is possible.
$1250 fine or civil penalty unless qualifying for 50% reduction. All fines have a 35% surcharge
OWI 1st offense –test refusal
Minimum 2 days in jail or class substitution.
Probation is possible.
Community service is possible.
$1250 fine unless qualifying for 50% reduction. All fines have a 35% surcharge
OWI 2nd offense –test failure or refusal
Minimum 7 days in jail. Maximum 2 years.
Probation is possible.
Community service is possible.
A deferred judgment is not possible.
$1850 minimum fine. All fines have a 35% surcharge
OWI 3rd offense –test failure or refusal
Minimum 30 days in jail maximum 5 years.
Placement in a halfway house is possible.
$3125 minimum fine. All fines have a 35% surcharge
Criminal Court Hearings
There are numerous hearings in criminal cases. Here is a list of most of them including ones we can handle without the client missing work/school etc.
Appearance hearing- we can handle this hearing for the client in writing
Preliminary hearing- we can handle this hearing for the client in writing
Arraignment hearing- we can handle this hearing in some counties without the client but the level of the OWI and the county will be controlling factors
Pre-trial conference – client has to be present in most counties
Motion to suppress hearing- client must be present
Plea or sentencing- client must be present in most counties.
The driver’s license of a person under age 21 who submits to a chemical test that indicates an alcohol level of .02 or more, but less than .08, will be revoked for 60 days on a first violation and 90 days on subsequent violations. If a person is suspected of operating a motor vehicle with an alcohol level of .02 or more, and refuses chemical testing, the driver’s license revocation will be one year for a first violation and two years on a second or subsequent violation. These revocations (.02/”zero tolerance”) are administrative and are not dependent upon criminal charges being filed. If a driver’s license is revoked for a .02/”zero tolerance” violation, the driver is not eligible for a temporary restricted license at any time during the revocation period. An .02 violation will count as a prior OWI with the DOT on subsequent OWI matters.
CDL holders lose their CDL for 1 year on a first OWI and for life on an OWI if, during any other time in their life when they had a CDL, they received an OWI.
Why Do You Need An Attorney?
- To determine if there are issues surrounding the officer stopping your vehicle or other mistakes made by law enforcement:
Was there probable cause under Iowa law?
Were the field tests performed correctly?
Were your rights violated?
Were you allowed to call an attorney, a friend, a relative, and when? Did this violate Iowa Code Section 804.20
- To help with the logistics and statutory issues surrounding an OWI:
How to obtain copies of all police reports?
How to obtain copies of all videos from the police vehicle?
How to obtain copies of 911 and dispatch tapes before they are destroyed?
What Motions to file in Court?
Do I qualify for a Deferred Judgment or any reductions in legal penalties?
- To re-obtain your driver’s license:
You only have 10 days to appeal the suspension of your license?
How do I get a stay to stop the revocation of my driver’s license so I can still drive?
These questions, if not handled properly, could result in your conviction of OWI and the revocation of your driver’s license.
OWI / DUI Law
Daniel Rothman showed a violation of our client’s constitutional rights to be free from illegal search and seizure, in their OWI case. The judge ruled that the officer did not lawfully have enough cause to even order the client out of their car for field testing. As such, results from those tests and the breath test were all deemed inadmissible so the state dismissed the case. In this Story county case, the officer had indicated under oath that evidence such as slurred speech was present. After hearing the videos at a contested motion to suppress hearing the judge disagreed with the officer as to the presence of any grounds to make the defendant submit to testing. Such a ruling also forces the DOT to give the defendant back their driving privileges and the client can expunge the OWI arrest off of all public records.
Daniel Rothman’s client was charged with OWI in Jasper county. After the prosecutor was shown the flaws in the case the state filed a motion to dismiss the OWI with costs assessed to the government. Given the flaws, the DOT also will not pursue any penalty for the OWI. With the dismissal, the client can also have this matter expunged off of their record so even the initial charge will not appear on courts online or any other public database.
Daniel Rothman’s client was facing an OWI based on a urine alcohol test after an accident. Due to an error in the legally required collection process the criminal case is being dropped and no DOT penalties will be incurred by the client.
Daniel Rothman showed a violation of our client’s rights to make their choice to take or refuse the OWI test based on correct information per Iowa Code section 321J.6. In this Polk county case the officer had misinformed the defendant about a small part of the consequences and this enabled Mr. Rothman to win the argument that kicks out the breath test from use at trial. Such ruling also forces the DOT to give the defendant back their driving privileges.
Daniel Rothman’s client was charged with Burglary in the 1st degree a class B felony in Madison county. A class B felony is the 2nd highest level of crime in Iowa and it is the same level as attempted murder. The penalty for this charge is 25 years in prison and as it is a forcible felony, it comes with a mandatory 17.5 years before you can try to parole. There were weaknesses in the state’s case and in the end, the client decided to take a deal for a reduction to a serious misdemeanor assault which is the same level as an OWI 1st. With the agreement, the client also gets a deferred judgment that will allow him to expunge the assault charge and even the record of arrest with the clerk of court, after only 6 months.
Great experience, with McEnroe Law Firm. They ask good questions to answer my problem. I feel very satisfied with my solution. You should contact them to solve your issue.
I signed up for Legal Shield and McEnroe Law was assigned to handle my case. To my pleasant surprise, they took my traffic citation seriously and are handling it very professionally and expediently. I highly recommend this law office.
Nick by far exceeded our expectations of what we thought working with an attorney would be like. He always made sure we understood what we needed to and we were informed every step of the way. He welcomed us to contact him anytime if we had questions or concerns. He never made us feel like we were bothering him or that we should know something.