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Iowa OWI - Consent or Refusal of Breath Test?

nospam@example.com (Mark Thompson) — Wed, 11 Nov 2009 16:55:51 -0500

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 more importantly than the true margin of error is the court’s treatment of the results of these two tests. The courts say that the PBT is too inaccurate and prejudicial to be introduced as evidence of OWI at a trial. That sounds like a defense-sympathetic court, until you read the caselaw on the Datamaster.

The Court realizes that there is a margin of error for the Datamaster, but they refuse to acknowledge that margin of error when considering whether a defendant is eligible for a deferred judgment.

The cutoff for a deferred judgment is 0.150. So if you blow within the margin of error and produce a 0.151 or 0.152, you are out of luck. Even though a true BAC might be below the 0.150 threshold.

Obtaining a deferred judgment is also dependant upon whether a suspect consents or refuses to take the Datamaster test. A refusal equals no deferred judgment. And this is something would be illegal for the judge to ignore. The legislature has simply required that in order to obtain a deferred judgment for OWI in Iowa, the defendant must not have refused.

So what is a refusal?

Iowa caselaw states that anything less than an unequivical consent constitutes a refusal. So it’s not a matter of “not refusing.” It’s a matter of unequivically consenting.

To rephrase, there are two possible outcomes. Either a suspect tenders an unquestionable consent to the breath test, or he refuses.

If there is some question as to whether a suspect has consented or not, then the court will likely say he has refused.

The primary example would be if a suspect says, “I’m not refusing your test, but I would like to talk to a lawyer.” Even though this suspect outrightly stated that he’s “not refusing” he’s still not unequivically consenting, and therefore the IDOT judge would call this a refusal.

Therefore, when being asked whether or not you consent to a Datamaster test, make sure there is no question as to your consent.

Please see www.ThompsonJustice.com and www.ThompsonJustice.com/blog for more information.

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Another Change to Iowa Law

nospam@example.com (Mark Thompson) — Thu, 22 Oct 2009 17:11:38 -0400

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.

Contrary to college myth, there is no magic BAC number when it comes to Public Intox. You might think that blowing a 0.07 will save you from arrest, but it does not. An officer can still feel you are “intoxicated” despite the BAC result.

But on the other hand, (unlike with OWI) blowing above 0.08 does not automatically mean a conviction. However, I’ve never seen a case where this came into play.

As far as public, it’s not a matter of defining what “public” is, it’s easier to say what it is not. There are two answers: A private residence, and a private car. Any place else is “public.” This of course includes streets, sidewalks, bars, stores and shared apartment or dorm hallways.

With these two elements of the offense, an officer can place just about any student under arrest downtown between 10:00 p.m. and 3:00 a.m. on a weekend. So what change am I looking for?

Why not switch to Wisconsin’s “Drunk and Disorderly” statute? That “disorderly” element would make our statute much more fair. The whole point of a Public Intoxication statute is to protect people from that “disorderlyness” that may accompany intoxication, not the intoxication itself.

The added protection that exists in Wisconsin allows people that may have had too much to drink go on their way without fear of arrest (or deferred judgment/probation violations). And it keeps the citizens just as safe.

Please take a look at www.thompsonjustice.com or www.thompsonjustice.com/blog for more information.

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One Recommended Change to Iowa Law

nospam@example.com (Mark Thompson) — Fri, 16 Oct 2009 12:28:27 -0400

Every weekend students at the University of Iowa 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.

These tickets used to be called “Ten Dollar Tickets” based on the fine that existed in the 1980’s. The surcharge and court costs were considerably less at that time as well.

Also, before the late 90’s, many of these tickets were paid and lost in the depths of the county courthouse. Now they are available for potential employers and boards of admissions as part of a public database on the Internet. These charges can be discovered even before guilt is established.

The benefits of the incredible fine can be debated.

But the “criminal history” ramifications are more important.

I have had former students contact me stating they did not get their job due to a “criminal history” from a PAULA ticket.

Remember that the PAULA offense does not even mean that a defendant was intoxicated or acting disorderly.

I have seen convictions when the testimony was “I was holding this drink for my girlfriend (who is 21) while she went to the restroom.” The defendant was standing by the door of the restroom when this happened. The officer noticed no effects of consumption or intoxication of the defendant.

And the judge found her guilty.

And that was the right decision.

The law only requires “possession.” If you admit to holding a drink, you are guilty.

So what is the remedy?

Defendants need to be given some sort of second chance. Felony offenders have a second chance - it’s called a deferred judgment. Serious and aggravated misdemeanors have a second chance as well.

But “scheduled” simple misdemeanors, such as PAULA, have no second chance. It’s an immediate criminal record.

Maybe this lack of due process made since when a defendant was only dealing with a $10 ticket that nobody would ever see. But now it’s a potential job loss.

Solution one would be to make deferred judgments allowable for scheduled offenses. Personally, I think that’s too messy.

The best solution would be similar to the law that currently exists for public intoxication. Under a 1st offense public intox, a defendant can have the charge expunged if he receives no criminal convictions (aside from Iowa-based traffic offenses) for 2 years following the conviction.

Why can’t this be made available to PAULA “convicts.” And can we make in retroactive?

Written by Mark Thompson at www.ThompsonJustice.com His blog is www.ThompsonJustice.com/blog

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Iowa OWI 2nd Offenses, and the Ignition Interlock Device

nospam@example.com (Mark Thompson) — Fri, 02 Oct 2009 10:53:39 -0400

Under Iowa law, people with OWI 1st offense test failures over a BAC of 0.10, or test refusals must get an ignition interlock (”blow & go”) device installed on any vehicles they wish to drive or own, if they want to get a work or school permit.

With a first offense, a driver is always eligible for their work or school permit prior to being eligible for a full reinstatement of their license.

For an OWI 2nd offense, the revocation period for a person’s full license is one year if they have a test failure, and two years if they have a test refusal. And if a person does not fall subject to the IDOT adminstrative revocations, a conviction for OWI 2nd offense would carry a 2 year revocation.

Under all the above 2-year scenarios, the person is eligible for a work or school permit after one year. Then if they get that work or school permit, they will be able to get their full license after the final year has elapsed.

However, a strange law requires that a person needs to get an ignition interlock device, even if they are eligible for their full license.

It works like this, If a person has their license revoked by the IDOT for a 2nd test failure, and their license is revoked for only one year, then §321J.17 of the Iowa Code requires that the driver installs the ignition interlock device, even though they are eligible for a full license.

To summarize, no matter how a person’s license is dealt with following an OWI 2nd offense, they will face license restrictions for a full two years in the State of Iowa.

This article is drafted by Mark Thompson. Please see www.thompsonjustice.com/blog for more posts on Iowa Criminal Law.

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Sealing a Juvenile Record in Iowa

nospam@example.com (Mark Thompson) — Tue, 14 Jul 2009 14:47:52 -0400

Iowa Statute §232.150 specifically sets out the requirements and the process for how and when juvenile court records may be sealed.

First, there must be a court hearing. This can be requested by the person who was the subject of a juvenile action, or it can be set by the court’s own motion. After the hearing, the court must order the official juvenile court records in that case sealed, if all of the following requirements are met:

The person is at least 18 years old, and two years have passed since the last official action in that person’s juvenile case;
The person has not been subsequently convicted of a felony, aggravated or serious misdemeanor, or adjudicated a delinquent child;
The person was not placed on youthful offender status, transferred to district court and sentenced after the person’s 18^th birthday for the offense that caused the person to be placed on youthful offender status.

If, however, the person had been adjudicated delinquent for an offense that would have been an aggravated misdemeanor or felony if that person had been 18 or older at the time of the offense, the court must not order the records sealed – unless, after a hearing, the court finds both (1) and (2) above, and that sealing the records would be in both the best interests of the person and the public.

If the person was required to pay restitution to a victim due to a delinquent act, and that amount has not yet been paid, the juvenile court records may still be sealed. However, the name of the court, title of the action and the file number must remain unsealed, and the amount of restitution still owed will be a judgment and lien until it is fully paid.

After the judge has entered an order sealing juvenile court records, all agencies and people who have custody of the records must send them to the court, and all index references to the sealed records must be erased. The records are no longer deemed to exist as a matter of law. If the juvenile court, or any other agency who received a copy of the sealing order, receives any inquires about the records, they must respond by stating they do not exist.

Inspection of any sealed records and the disclosure of their contents is permitted only pursuant to a court order, upon the request of the person who is the subject of the records. A judge may also, in his or her discretion, allow sealed records to be inspected or their contents disclosed for research purposes (only to people who are conducting “bona fide” research and under “whatever conditions the court deems proper”).

Please see www.thompsonjustice.com for more information.

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Iowa Court Fees Increase

nospam@example.com (Mark Thompson) — Thu, 02 Jul 2009 16:05:41 -0400

Iowa Governor Chet Culver claims that the bill he signed on May 27, 2009, did not raise taxes – but as a result of that bill you can definitely expect to pay more if you are headed to court.

Regarding criminal matters, the criminal-penalty surcharge has increased from 32 percent to 35 percent of the amount of the fine imposed. This is applicable in all criminal cases filed on or after July 1, 2009.

The amount of court costs assessed in simple misdemeanors has increased from $50.00 to $60.00.

This means an Iowa City PAULA ticket will now cost $330.00, instead of the “reasonable” previous sum of $314.00.

In civil matters, it now costs twice as much to file for a divorce with an agreement of the parties attached – it’s now $100 instead of $50. The fee for filing a small-claims case has also increased from $50 to $85, while the fee for filing a civil petition, including a petition for divorce, went from $100 to $185. Other fees more than doubled: The fee for filing a statutory lien, as well as the fee for a change of title in real estate, went from $20 to $50.

The increases, estimated to raise more than $16 million per year, are meant to help fund a court system that’s seen significant budget cuts, along with the rest of state government. The judicial branch has also implemented unpaid furlough days for court staff, and has closed court offices some days to deal with budget cuts.

For more information and a complete list of all the fee increases, go to www.legis.state.ia.us/index.html and enter SF478 in the Quick Find: Bills & Iowa Code box at the top of the page.

For more information on Iowa City Criminal Offenses, please visit www.ThompsonJustice.com

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Iowa OWI Stop - Appeal Court Overrules Suppression Motion

nospam@example.com (Mark Thompson) — Thu, 18 Jun 2009 14:36:36 -0400

How much information do police need to make a valid investigatory stop?

A recent Iowa Court of Appeals case discussed this question in resolving whether an anonymous, corroborated, tip was enough information for an officer to stop someone alleged to be intoxicated and about to drive.

The defendant, Guy Christoffersen, was charged with his second OWI after he backed into a police cruiser at 2:00 in the afternoon in the parking lot of a Subway restaurant. The police officer that stopped Christoffersen had received an anonymous tip that there was a possible intoxicated driver in a Subway parking lot about to get in a blue GMC pickup truck. The officer was only 6 blocks away at the time and arrived at that Subway in approximately 30 seconds. He saw someone getting into the driver’s seat of a blue GMC truck and pulled in behind the vehicle, in a way that would prevent the truck from being able to exit the parking lot. Just after the officer parked behind his truck, Christoffersen put it in reverse and rammed into the cruiser.

Initially the trial court judge granted Christoffersen’s motion to suppress and threw out the evidence the police had obtained. However, like in State v. Wilkes (discussed in the previous blog entry), the higher court reversed that decision.

At issue was whether the police officer who parked behind Christoffersen had “reasonable suspicion that criminal activity was afoot,” in order to comply with the Fourth Amendment and justify making an investigatory stop. Christoffersen attempted to argue that the anonymous tip provided no description of driving, no identification of the driver, and no license plate number, so that the officer did not have enough “specific and articulable facts” from which to glean reasonable suspicion. At the appellate court, however, the State successfully argued the anonymous tip was enough, especially when corroborated by the officer when he saw a blue GMC truck in the parking lot as described.

In ruling against Christoffersen, the appellate court noted the refutable presumption that a citizen informant’s tip is generally reliable, and that the suspicious activity in question was open to the public view, citing the Iowa Supreme Court in State v. Walshire (2001). The court in Walshire wrote:

In contrast to the report of an individual in possession of a gun, an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a “bomb,” and a mobile one at that.

Agreeing with the potential danger a drunk driver poses to the public, the Iowa Court of Appeals held a brief investigatory stop was a minor intrusion upon Mr. Christoffersen, and added that letting him drive off without confirming or dispelling any suspicious activity (i.e., intoxication) might have been considered a dereliction of the officer’s duty.

In the end, as stated above, if a stop made by a police officer is questioned, the State must be able to show by a “preponderance of the evidence that the stopping officer had specific and articulable facts, which taken together with rational inferences from those facts, to reasonably believe criminal activity may have occurred.” (see State v. Tague, Iowa 2004.) Whether an officer had reasonable suspicion is determined in light of all the circumstances confronting the officer in any given situation, including the information available and the type of offense being investigated. The short answer to the question of how much information an officer needs to make an investigatory stop is, unsurprisingly, “it depends.”

Please visit www.ThompsonJustice.com or www.ThompsonJustice.com/blog for more information.

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Iowa Supreme Court Further Defines "Seizure" in an OWI Case

nospam@example.com (Mark Thompson) — Thu, 04 Jun 2009 16:55:57 -0400

To activiate the protections of the Fourth Amendment, it matters whether you’ve been “seized” by the police. So when exactly does a “seizure” occur?

Other entries on this blog have discussed the important distinction of when a person is “seized” by the police, and a recent Iowa Supreme Court case, State v. Wilkes, sheds a little more light on the issue. The reason this distinction is important is because the Fourth Amendment protects individuals from “unreasonable searches and seizures” – a clause that is aimed at protecting the “privacy and security of individuals against arbitrary intrusion by government officials.” (See State v. Brecunier, Iowa Supreme Court.) If no “seizure” occurred, the protection the Fourth Amendment provides does not come into play, and a defendant’s attempts to exclude evidence obtained in violation of this provision will fail.

Wilkes involved a defendant charged with driving while intoxicated. He was spotted by police while parked at a quarry shortly after midnight, in a truck with its lights on and engine running. The police officers pulled into the quarry “to make sure everything was okay with the driver.” They did not activate the emergency lights or siren on the patrol car, and pulled about ten or fifteen feet behind the defendant’s truck. Although the quarry had only one entrance, the patrol car did not block that entrance.

After pulling up behind the truck, Officer Wood and his reserve officer exited their car and approached the truck. Wood approached on the driver’s side, and the reserve officer walked toward the passenger side, but stayed behind the vehicle. Through the open driver’s window, Wood smelled the strong odor of an alcoholic beverage coming from the defendant.

Wood got the defendant’s identification, and after making sure the driver’s license was valid and there were no outstanding warrants, he requested the defendant step out of his truck. Wilkes complied and admitted to having consumed a glass of wine. Officer Wood then administered field sobriety tests and concluded there was a strong likelihood that his BAC would be over the legal limit. He administered a preliminary breath test, which was indeed over the limit, and arrested the defendant for operating a motor vehicle while intoxicated.

Wilkes initially won his motion to suppress at both the district and appellate court levels, and the results of his sobriety and breathalyzer tests were excluded. However, when the matter reached the Iowa Supreme Court, the prior decisions were reversed. That court held Wilkes had not been “seized” prior to Officer Wood’s smelling alcohol on his person – and once the officer smelled alcohol, he had “reasonable and articulable suspicion of criminal activity” to detain the defendant and administer sobriety tests.

The court came to this conclusion by reviewing how the U.S. Supreme Court and prior Iowa Supreme Court decisions have defined a “seizure.” The court in Wilkes noted that the U.S. Supreme Court emphasized almost forty years ago that not all personal intercourse between the police and citizens involve seizures, and further: “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure’ has occurred.” (See Terry v. Ohio.)

Whether a “seizure” occurred is determined by the totality of the circumstances. Factors that suggest a seizure include: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. According to the U.S. Supreme Court, a seizure does not occur if “a reasonable person would feel free `to disregard the police and go about his business.” Although the Court has noted that most citizens will respond to a police request, “the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”

The Iowa Supreme Court in Wilkes concluded that objective indications of police coercion must be present to convert an encounter between police and citizens into a seizure. Coercion is not established by “ordinary indicia of police authority,” which include the showing of a badge, or the fact that an officer is in uniform or visibly armed.

Regarding the specific situation in Wilkes, the court placed a lot of weight on the fact that there was no threat of physical force, no use of sirens, and no forced stop. The officer, like any other citizen, had a right to look into the car. The fact that Officer Wood was in uniform was a factor, however “the United States Supreme Court has downplayed the significance of a police uniform as a factor in determining whether an encounter is a seizure.” The court also found “the use of ordinary headlights at night is simply not coercive in the same manner as the activation of emergency lights, which invoke police authority and imply a police command to stop and remain.” And although there were two officers involved in the incident in Wilkes, the reserve officer remained behind the truck, and did not use physical force or show authority in any manner. The fact that Officer Wood parked behind the defendant also did not convert the encounter into a seizure. Wilkes himself testified at the suppression hearing that there were at least two ways for him to turn his truck around and leave the quarry, had he chosen to do so.

The court concluded: “Simply put, neither of the officers displayed coercive or authoritative behavior to transform this encounter into a seizure for Fourth Amendment purposes. Prior to smelling alcohol on Wilkes’ person, the stop was consensual.” One could question how free Wilkes felt to “disregard the police and go about his business” once the police pulled their car behind his – or question what would have happened if he did turn around and the leave the quarry. Would that provide articulable suspicion of criminal activity?

Please visit our blog at www.thompsonjustice.com/blog for more information.

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New Ruling on Phone Calls for Iowa DUI / OWI Suspects

nospam@example.com (Mark Thompson) — Fri, 22 May 2009 17:16:33 -0400

In State v. Garrity, an Iowa Supreme Court case released last week, the Court clarified the duties of police officers when a defendant requests to make a phone call. Iowa law requires police officers who have someone in custody to allow that person to call, consult or see a member of the person’s family, or an attorney, or both. (Iowa Code §804.20.) In Garrity, the Court further explained that when a person in custody asks to call someone other than a family member or their attorney, police officers must advise the person of the purpose of the phone call - that is, they must tell suspects who it is they are allowed to call and why. If the police don’t give such advice, the appropriate remedy is the exclusionary rule, which extends to the exclusion of breath tests, breath test refusals, and non-spontaneous statements made after too long of a delay in allowing the person to consult with an attorney or family member.

As background on this issue, the first time the Iowa Supreme Court addressed the right of someone in custody to make phone calls was in
State v. Vietor, a 1978 case in which the defendant was arrested and read his Miranda rights, but then told that he was not entitled to consult an attorney before deciding whether to submit to a chemical test. The Court found that although the statute did not require the officer to tell the arrestee that he had the right to counsel, the officer could not tell the arrestee that he did not have a right to counsel.

In Vietor, the Court also enunciated three rules: One, an arrestee that asks to call his lawyer must be allowed to do so before submitting to a chemical test. Two, if that person is denied the opportunity to call a lawyer, the evidence of refusal to take the chemical test is inadmissible. Three, the arrestee’s right to prior consultation with an attorney or family member is limited to circumstances where it does not “materially interfere” with the chemical test procedure. This comes into play because Iowa law also mandates the chemical test be given within two hours after a preliminary screening test is administered (or refused), or after the arrest. (Iowa Code §321J.6.)

The Iowa Supreme Court further explained a police officer’s duty regarding the right to phone calls in 1990. In Didonato v. Iowa Department of Transportation, the Court held that when a request for a phone call is made, the officer cannot stand mute and refuse the request. The fact that the defendant there requested to call a friend, rather than an attorney or family member, did not change the duty of the police officer. The officer should have advised the defendant of the purpose of the phone call, and if he decided to call a family member or attorney, the police must have allowed that phone call.

State v. Tubbs, a 2005 Iowa Supreme Court case, seemed to muddy the waters a little. The defendant originally agreed to chemical testing, but later changed his mind. He asked to talk to his wife, but after the officer remembered the defendant’s wife had a no-contact order, he did not allow the phone call. Since the defendant did not ask to talk to any other family member or an attorney, the court held under those “unique facts,” the officer had fulfilled his legal responsibilities; the defendant was not denied the opportunity to talk to any other family member or a lawyer.

In the Garrity decision from last week, the court explained how Tubbs may be distinguished from Didonato. In Tubbs there was no confusion as to who the defendant could call. He knew he could call a family member, so there was no need for the officer to clarify the scope of who a person in custody is allowed to call. The court in Garrity further explained some of the reasoning behind the law allowing phone calls. One reason is so the person may consult with a family member or attorney before deciding whether or not to submit to chemical testing. However, the law does not limit the phone call to that purpose. The reason for the phone call must be a good faith reason – for example, not calling Iowa City's Pizza on Dubuque for a snack – but the arrestee may choose to contact family or a legal representative not just for advice, but also to have them inform his employer that he is not likely to be at work, to arrange someone to pick up kids from school, or let the dog out, and so forth.

The court added that requiring officers to explain the scope of this right will not interfere with chemical tests. People may be aware they have the right to a phone call, but are likely unaware of the specified people they are allowed to call. If an officer turns down the arrestee’s phone call request because the request is to call someone not contemplated in the statute, the officer must explain the scope of the statutory right.

As mentioned above, if there is a violation of the right to communicate with a family member or an attorney, the exclusionary rule comes into play, and can lead to the exclusion of breath tests and breath test refusals. Unfortunately for the defendant in Garrity, although the court held that his test refusal should have been excluded – the police officer failed to explain who the defendant could call – the court also held the error was harmless. Garrity had been pulled over after the police received a phone call identifying him as a possible drunk driver. The police officer stopped him for speeding and failing to use a turn signal, and observed slurred speech and the smell of alcohol on his breath. The defendant failed all three field sobriety tests. The judge who entered the initial guilty verdict of Operating While Intoxicated also specifically stated that she found the defendant was intoxicated based on his body motions, judgment, slurred speech and inability to communicate on the video from the police station the night of his arrest. His refusal to take a breath test was not a factor in the judge’s decision to convict.

Please visit www.thompsonjustice.com for more information on Iowa OWI / DUI and criminal defense. Additional blog posts available at www.thompsonjustice.com/blog

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Impeaching One's Own Witness - Iowa Law

nospam@example.com (Mark Thompson) — Thu, 14 May 2009 09:49:06 -0400

Formerly, a party never had the right to impeach, or question the credibility of, their own witnesses. The theory was that a person vouches for a witness she calls and is bound by what they say on the stand. However, after State v. Trost, a 1976 Iowa Supreme Court case, that is no longer the rule. Now the credibility of any witness may be attacked by any party, including the one who brings them to the stand.

However, the right of the Government to impeach a witness they call to the stand is not without limits. The Government can certainly impeach their own witness, including with evidence of a prior statement the witness made, which is inconsistent with what they say on the witness stand - even if that statement directly inculpates the defendant. However, the Government may NOT bring such a statement in under the guise of impeachment, when it is really trying to get in otherwise inadmissible evidence.

For example, say a person has been charged with Operating While Intoxicated. A passenger in the car later told a friend of his that the driver had “around 6-7 drinks” and was “pretty wasted” before leaving the bar to drive home. At trial, the State calls the passenger to the stand, and the passenger denies knowing or having said anything to anyone regarding the amount the driver had to drink. The State then calls the passenger’s friend to the stand and asks if the passenger said anything about how much the driver had to drink on the night in question.

When the lawyer for the driver objects, because such testimony would be extremely unfavorable for the driver, the State says the testimony about what the passenger told his friend should be allowed in for impeachment purposes – that is, to question the credibility of the passenger’s previous testimony denying he had said anything.

If the only reason the State called the passenger as a witness was to get unfavorable testimony, then impeach that testimony, that evidence must be excluded. The court must determine the real reason for such testimony - not just what the prosecutor says is the purpose for the testimony.

Please see www.thompsonjustice.com for more information on Iowa Criminal Law.

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OWI / DUI in Iowa - Independent Blood Tests

nospam@example.com (Mark Thompson) — Tue, 05 May 2009 17:31:18 -0400

If you are arrested for Operating While Intoxicated in Iowa, there are a couple of important things to know regarding your right to an independent chemical test measuring your blood alcohol content.

First, any suspect who submits to a test requested by a police officer has a right to their own independent chemical test. The request for that test must be made within a “reasonable” amount of time after the arrest and the police-administered test. Iowa courts have found that requests for an independent test made two hours or more after an arrest were not within a reasonable time frame - so the sooner a suspect requests an independent test after submitting to the police test, the better.

Second, although an arresting officer does not have a duty to inform a suspect of their right to an independent test, once a request for one is made, they do have to make reasonable accommodations to help the person get one. What qualifies as “reasonable accommodations” depends on the circumstances of each case. For instance, police officers do not have an absolute duty to transport an arrestee from jail just to get an independent test, but they do have to allow an arrestee to at least make phone calls. In general, the police do not need to go out of their way to make sure a suspect gets an independent test - particularly if the suspect does not make it absolutely clear they want one.

If, however, a suspect can show that the police interfered with his or her right to an independent test, Iowa courts have held the remedy is suppression of the state-administered chemical test – meaning that the test given by the officer would not be admissible in court. However, because the Iowa OWI law makes clear that a suspect’s mere inability to obtain an independent test does not preclude the admission of the results of a police-administered test, there is a fairly high threshold to meet. A suspect that merely mentions he or she would like an independent test, but doesn’t ask to make any phone calls or for other assistance in getting the test (and subsequently does not get one), is unlikely to have the police-administered test thrown out. If, on the other hand, a suspect is able to show he or she clearly and repeatedly asked for an independent test, and the police actively refused to do anything to further the suspect’s ability to get that test, an argument that the police interfered with the right to an independent test could be successful.

The bottom line: in almost every OWI case, a suspect should submit to the test requested by the police officer. He or she should request to get an independent test soon after taking the police-administered test, and should be clear about that request. At a minimum, the police need to allow a suspect to make phone calls in an effort to get an independent test. If the police completely refuse to assist the suspect in getting their own chemical test, a motion to exclude the police-administered test from evidence could be successful.

This article was drafted by Attorney Caitlin Moore for Thompson Law Office.

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Supreme Court Limits Warrantless Searches

nospam@example.com (Mark Thompson) — Thu, 23 Apr 2009 14:03:06 -0400

In a decision released yesterday, the U.S. Supreme Court placed greater restrictions on the ability of police officers to search the vehicles of individuals they arrest. Although in general police are supposed to get a warrant before performing a search, there are a number of exceptions to that rule. One exception, which police officers have relied on for years, is the ability to search an occupant’s vehicle “incident to” their arrest of that person. According to the majority opinion released yesterday, that exception has resulted in “Countless individuals guilty of nothing more serious that a traffic violation... (who) have had their constitutional right to the security of their private effects violated.”

Limiting this exception, the Court held that warrantless vehicle searches should only be allowed in two situations: when the person arrested is close enough to the car to reach in, possibly grab a weapon or tamper with evidence; or when the arresting officer “reasonably believes that the vehicle contains evidence” pertinent to the crime that prompted the arrest.

This particular case involved an Arizona man who was arrested on an outstanding warrant for driving with a suspended license. After he was handcuffed and put in a patrol car, his car was searched, leading to evidence and an initial conviction on drug charges. The Arizona Supreme Court reversed his conviction, finding the search of the vehicle violated the constitutional ban of unreasonable searches and seizures. The U.S. Supreme Court agreed.

This decision limits a 1981 U.S. Supreme Court decision, which had held that the articles within a vehicle’s passenger compartment are “generally… within the ‘area into which an arrestee might reach.’” Yesterday the Court rejected a broad reading of that case, which had been interpreted to allow police to search vehicles, even if the arrestee was handcuffed and in the squad car, with no possibility the arrestee could gain access to the vehicle.

The reaction from law enforcement seems to be one of disappointment, and perhaps some worry that the result will be less drug and weapons charges. However, the decision does allow police to search “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” That might mean many arrests for traffic offenses will not by themselves allow police officers to search vehicles – but arrests for other kinds of crimes may supply a basis for a search. Even if an officer pulls someone over for speeding, but develops a suspicion there might be drugs in the car – perhaps after faintly smelling marijuana – a search of the vehicle will still be permitted.

Disagreeing with the majority, Justice Alito argued this decision “is virtually certain to confuse law enforcement officers and judges for some time to come.” Some argue it could also lead to a temptation for police to leave the occupant of a vehicle unsecured, in the belief that they are acting within the bounds of the 4^th Amendment and thus are able to search the vehicle. It could also lead to more vehicle impoundments, after which the police are free to search the vehicle without a warrant.

This summary was drafted by attorney Caitlin Moore for Thompson Law Office, Iowa City.

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How Should You Plead? - Iowa Criminal Law

nospam@example.com (Mark Thompson) — Fri, 13 Mar 2009 11:52:53 -0400

I have been asked this question many times in one form or another. The short answer is "When in doubt, plead NOT guilty."

What frustrates 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 Iowa 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.

A not guilty plea is not an insult to the Court. It can mean a variety of things, including, the defendant needs more time to think about it, the defendant wishes to negotiate a plea bargain, or the defendant simply wishes to discuss their case with an attorney.

If the charge is not an Iowa simple misdemeanor, the judge will not ask for a plea until the county attorney files their Trial Information. Once the Trial Information is filed, a written plea can be submitted generally at any time, except for felony offenses.

Felony offense guilty pleas must be made in open court, so the judge can have an opportunity to go on the record and inform the defendant of all the rights he is waving.

Whether the charge is a simple misdemeanor, non-simple misdemeanor, or a felony offense, a not guilty plea is not an insult to the Court or the prosecution. It is simply a statement to the Court that the defendant has not yet made up his mind as to entering a guilty plea at that time.

All guilty pleas should be made as if they were final decisions. Whereas a not guilty plea is often an intermediary step to a guilty plea. The only way a defendant can upset or bother the Court in this situation, is to plead guilty, then demand that the guilty plea be withdrawn because he was not aware of his rights. Have more questions? Visit my website.

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DUI / OWI in Iowa - "Operating" the Vehicle

nospam@example.com (Mark Thompson) — Fri, 13 Mar 2009 11:49:12 -0400

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?

Essentially, if a person has placed the keys in the ignition of a motor vehicle, then he is “operating” it. The car can be parked in a parking ramp, a street spot or even a private residence. The intention of placing the keys in the ignition is not relevant to the offense. If the defendant proves that he did not drive the vehicle, and only placed the key in the ignition to operate the heater to stay warm, he would still be operating the vehicle. Again, the intention is not relevant.

Of course, the other factor that must be present to be guilty of the OWI offense is that the defendant must be intoxicated. Many people are more familiar with what the State must prove to show intoxication.

This winter has caught many citizens off-guard with their choices to operate a car’s heater and “sleep it off” before driving home.

So what should you do in this situation? Obviously the best choice is to find another place to sleep it off. However, if you are stuck and must sleep in your car, do not place the keys in the ignition if you wish to avoid an OWI charge. Certainly with this terrible winter weather sleeping in a car without the heater on could be deadly, so at this time of the year there are no good results once you enter that automobile while intoxicated.

Plan ahead and if you plan on becoming intoxicated, arrange for a cab or a DD to take you back home. Sleeping it off with the key in the ignition is a quick way for a 3:00 a.m. prowling cop to bust you for an easy OWI.

Stuck with a DUI / OWI in Iowa, please visit www.thompsonjustice.com for more information.

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Search and Seizure - Remain Silent! - Iowa City Lawyer

nospam@example.com (Mark Thompson) — Wed, 25 Feb 2009 14:30:15 -0500

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. Please see www.thompsonjustice.com for more information on Iowa City cases.

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