Iowa OWI/DUI Defense Attorney Robert G. Rehkemper

Summary Of Iowa Impaired Driving Statutes

COMMON ACRONYMS USED TO DESCRIBE DRUNK DRIVING: Operating While Intoxicated, OWI, DUI, Drunk Driving.

PROHIBITED VEHICULAR ACTIVITY: Operation. “Operating” is defined by the Iowa Supreme Court as: “the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running.”1

COVERED VEHICLES OR DEVICES: "a motor vehicle."

COVERED LOCATIONS: Anywhere in the state, not only public highways.2

DRINKING-DRIVING OFFENSES: The offense of operating while intoxicated may be committed by: 3

Operating While Intoxicated

1. Operating a motor vehicle while under the influence of an alcoholic beverage or other drug or a combination of such substances, or
2. Operating a motor vehicle while having an alcohol concentration of .08 or more.
3. Operating a motor vehicle while any amount of controlled substance is present in the individual’s blood or urine.

Serious Injury by Vehicle

1. Unintentionally causes a serious injury (bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily organ or major bodily member, or which causes the loss of any bodily member)5 by
2. Operating a motor vehicle while intoxicated (as set forth above).

Vehicular Homicide 6

1. Unintentionally causes death of another; by
2. Operating a motor vehicle while intoxicated (as set forth above).

DEGREE OF IMPAIRMENT REQUIRED FOR CONVICTION: If provide a chemical test within two hours of operating the motor vehicle, the result of which indicates an alcohol concentration in excess of .08 or the presence of any amount of controlled substance in ones blood or urine, no proof of impairment is necessary. If there is no chemical test result or the chemical test result indicates and alcohol concentration below .08 the State must prove that the individual was “under the influence” of alcohol at the time of operation. A person is “under the influence” when by consuming liquor or beer, one or more of the following is true: (1) His reason or mental ability has been affected; (2) His judgment is impaired;(3) His emotions are visibly excited; or(4)He has, to any extent, lost control of bodily actions or motions. 7

PENALTIES FOR DRINKING-DRIVING OFFENSES 8:

Operating While Intoxicated

Criminal Penalties

• First Offense: Serious Misdemeanor. Jail sentence of up to 1 year in jail but no less than 48 hours; fine of up to $1,500 but no less than $1,250 plus 32% surcharge, court costs and $10 DARE surcharge; Substance abuse evaluation; drinking drivers course; restitution (if any).
  • An individual with an alcohol concentration under .15 when no accident resulting in bodily injury has occurred and no prior deferred judgment for OWI may be eligible for a deferred judgment which avoids jail time but still results in a $1,250 civil penalty , court costs; substance abuse evaluation; drinking drivers course; restitution; and probation for up to 1 year.
• Second Offense: Aggravated Misdemeanor. Imprisonment for up to two years but no less than 7 days in jail; fine of up to $5,000 but no less than $1,850 plus 32% surcharge, court costs and $10 DARE surcharge; Substance abuse evaluation; drinking drivers course; and restitution (if any). Convictions or deferred judgments with in the last twelve years in any state are counted as prior offenses.
• Third Offense: Class D Felony. Imprisonment for up to 5 years but no less than 30 days in jail; fine of up to $7,500 but no less than $3,125 plus 32% surcharge, court costs and $10 DARE surcharge; Substance abuse evaluation; drinking drivers course; restitution (if any); and court imposed barrment of driving privileges for 6 years.
• Serious Injury by Motor Vehicle: Mandatory 5 years imprisonment; fine of up to $7,500 but no less than $750 plus 32% surcharge, court costs, $125 Law Enforcement Initiative Surcharge and $10 DARE surcharge; Substance abuse evaluation; drinking drivers course; and restitution. Judge may not give probation or defer judgment. Prison sentence must be imposed.
• Vehicular Homicide: Mandatory 25 years imprisonment; Fine of up to $10,000 but not less than $1,000 plus 32% surcharge, court costs, $125 Law Enforcement Initiative Surcharge and $10 DARE surcharge; $150,000 restitution to victim’s estate; substance abuse evaluation and treatment if recommended; 6 year license suspension. Judge may not give probation or defer judgment. Prison sentence must be imposed.

Civil Penalties (License Suspensions) – Imposed by the Department of Transportation

• With the exception of the court imposed barrment for a third offense, an individual’s driving privileges are suspended by the Department of Transportation based solely upon a determination of whether the individual consented to chemical testing indicating an alcohol concentration in excess of .08 or refused chemical testing.
• For purposes of determining second or subsequent offenses the Department of Transportation looks back 12 years to determine if there has been a prior suspension for a violation of drinking-driving statutes. Prior .02 violations by minors are counted as prior suspensions for these purposes.

Test “Failures”

  First Offense:
  180 day revocation

• Eligible for temporary license immediately as long as there was not an accident causing personal injury or property damage and you blew under .15.
• Must wait 30 days for temporary license if you blew over .15 or an accident occurred.
• Must get an ignition interlock device installed if BAC is greater than .10 or an accident occurred if you want to get a temporary license.
• Ignition interlock devices must be put on all vehicles owned and operated by a person seeking a temporary license.

Second or Subsequent Offenses:

  1 year revocation

• Not eligible for a temporary license for 1 year

Test “Refusals”

  First Offense:
  1 year revocation

• Must wait 90 days for temporary license and must install an ignition interlock device.

Second or Subsequent Offenses

  2 year revocation

• Eligible for temporary license after 1 year but must get ignition interlock device.

Revocation Upon Conviction if Not Revoked Otherwise:

First Offense

180 days

• Temporary license and ignition interlock restrictions and requirements are the same as if revoked administratively for both test failures and refusals Subsequent Offenses

2 years

• Same requirements and restrictions for temporary license and blow and go as if revoked administratively for both test failures and refusals.

Commercial Driver’s License (CDL)

First Offense

One year regardless of whether person is operating a private or commercial vehicle at the time of the offense.

• Requires conviction or final administrative decision that individual was operating while intoxicated or refused testing.

Second Offense

Lifetime ban from operating a commercial vehicle which may be reduced to ten years pursuant to applicable federal law.

Revocations when a deferred judgment is entered and no earlier revocation
Revocation for 30-90 days

• Requirements and restrictions for temporary license and ignition interlock device are the same as for an administrative revocation for a first offense.

Court Ordered Revocation in addition to previously mentioned administrative and court ordered revocations:

Third and Subsequent Offenses
6 year revocation

• Eligible for temporary license after 2 years but must get ignition interlock device.

Any level of offense causing personal injury

Additional 1 year

• Does not affect timing of temporary license eligibility but must get ignition interlock device.

Any level of offense causing death
6 years

• Eligible for a temporary license after 2 years but must get ignition interlock device.

Zero Tolerance revocations/Under 21 years of age .

02 to .08 Test Failure

60 days for first offense

90 days for subsequent offenses

Refusals

1 year for first offense

2 years for subsequent offenses

• Never eligible for a temporary license under zero tolerance statute

Iowa DOT Treatment of Out of State Conviction

If you are licensed in the State of Iowa and receive a dui/owi in another state, upon getting the required notification, the Iowa Department of Transportation will take action against your license as if the offense occurred within this State.10 The Iowa DOT will take administrative action based upon notification of administrative action by the State where the offense occurred.

STATUTORY DRINKING-DRIVING PRESUMPTIONS: 11

The alcohol concentration established by a chemical test the result of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn within two hours after the defendant was driving or in physical control of a motor vehicle is presumed to be the alcohol concentration at the time of driving or being in physical control of the motor vehicle.

IMPLIED CONSENT LAWS: 12

Tests permitted: Blood, breath or urine test as designated by peace officer. Individual may refuse blood testing and/or preliminary breath test.

Type of advisement required: Implied consent law penalties for refusal as opposed to consent resulting in a chemical test in excess of .08.

Penalties for refusal: See Civil Penalties above. No criminal penalty for refusal of breath test.

Admissibility of refusal: Admissible in any civil or criminal proceeding arising out of same acts. 13

Administrative Per Se Law: See Civil Penalties above.

CHEMICAL TEST LAWS: 14

General provisions: Evidence of chemical testing is admissible at trial and if it is established that a breath test was performed by a certified operator using a device and methods approved by the Commission of Public Safety, no further foundation is necessary for the introduction of the evidence. A chemical test result below .08 may still be used by the prosecution in an attempt to prove “under the influence” theory of prosecution. 15

Administrative rules & regulations: Adopted by Commission of Public Safety. Compliance with “methods” adopted by the Commissioner of Public Safety is a foundational requirement to admissibility of chemical test results. 16

Disclosure of test information: Test information must be provided to person tested upon request.

BLOOD-DRAWING STATUTE: Only a licensed physician, licensed physician's assistant, medical technologist, or registered nurse may withdraw a specimen of blood for the purpose of police testing. Only new equipment kept under strictly sanitary and sterile conditions shall be used for drawing blood. 17

INDEPENDENT TEST STATUTE: The person tested may have an independent chemical test administered at the person's own expense in addition to any test administered at the direction of a peace officer. The failure of the person to obtain an independent chemical test does not preclude the admission of the test administered at the direction of the peace officer.18 However, government interference with an individual’s request for independent test results in suppression of the State’s chemical test result.

RIGHT TO COUNSEL STATUTE:20 A person arrested or otherwise restrained of their freedom has a statutory right to place phone calls and/or consult in person with an attorney and/or family member prior to making a decision regarding chemical testing. Law enforcement is not required to advise the person of this right, however, once a request to place a call or consult with someone is made, the officer is obligated to provide the person with a reasonable opportunity to exercise this right.

PLEA BARGAINING STATUTE: None exists.

Acronyms used above:

1. Iowa Model Jury Instructions 2500.6; Iowa Code section 321.1(46); see also Munson v. Iowa Department of Transportation, 513 N.W.2d 722, 724 (Iowa 1994).
2. State v. Valeu¸257 Iowa 867, 134 N.W.2d 911 (Iowa 1965).
3. I.C.A. § 321J.2.
4. Iowa Code section 707.6A(4)
5. Iowa Code section 321J.1(9).
6. Iowa Code section 707.6A(1)
7. Iowa Model Criminal Jury Instruction 2500.5; State v. Dominguez, 482 N.W.2d 390 (Iowa 1992).
8. I.C.A. §§ 321.208, 321J.2, 321J.3, 321J.4, 321J.9, 321J.12.
9. The constitutionality of the newly enacted civil penalty is currently pending before the Iowa Supreme Court.
10. I.C.A. § 321C.1, State v. Peterson, 347 N.W.2d 398 (Iowa 1984).
11. I.C.A. § 321J.2(8).
12. I.C.A. §§ 321J.5 et seq.
13. I.C.A. § 321J.16.
14. I.C.A. § 321J.15.
15. State v. Price, 692 N.W.2d 1 (Iowa 2005).
16. State v. Geinzer, 406 N.W.2d 457, 457 (Iowa App 1987)
17. I.C.A. § 321 J.11.
18. I.C.A. § 321 J.11.
19. State v. Foss, 669 N.W.2d 260, 2003 WL 21361556 (Iowa App.); State v. Bindner, 2002 WL 531504 (Iowa App.); Casper v. Iowa Department of Transportation, 506 N.W.2d 799 (Iowa App. 1993)
20. Iowa Code section 804.20; State v. Moorehead, 699 N.W.2d 667 (Iowa 2005)