Updated: Oct 28, 2018
This is the fourth in a series of blogs regarding an Iowa OWI (DUI) defendant’s best options during a criminal prosecution for drunk driving.
Many people do not realize that the driver’s license revocation in an Iowa OWI case is not dependent on conviction. I explain that more here.
The driver’s license revocation is an administrative penalty and part of so-called “implied consent” for the privilege of operating a motor vehicle in the State. If a law enforcement officer has reasonable grounds request a breath, blood, or urine sample following standardized field sobriety tests, a test failure for a first offense typically results in a 180 day revocation and a refusal typically results in a one-year revocation. A second offense typically results in a one-year revocation for a test failure and two years for a test refusal. UPDATE: There are no periods of ineligibility for applying for a temporary restrictive license as there were before July 1, 2018.
So should an OWI defendant whose license is revoked as the result of a Datamaster DMT test failure or refusal appeal the revocation?
The first thing an OWI defendant needs to know is that Officer Friendly handed him or her a ten day notice. If otherwise valid to drive before the OWI arrest, a test subject who either failed or refused the Datamaster DMT has ten days to operate a motor vehicle and must carry the paper copy of the 10 day notice for that purpose. That ten days also serves as the deadline to appeal the revocation administratively to the Iowa DOT administration.
The process is not part of the criminal prosecution and appeal will result in a hearing that is separate and distinct from the criminal court proceedings. Typically, a telephone hearing before an administrative law judge is part of the process. It is Defendant’s burden to prove by a preponderance, or 51-49 percent, that the revocation was improper. Contrast that to the criminal prosecution which defaults to a jury trial and requires that the State prove guilt beyond a reasonable doubt.
Failure to timely appeal is typically an absolute bar to rescinding the revocation, although a judge’s suppression of the evidence “shall” result in overturning to the revocation if the test result or refusal is suppressed for all purposes in the criminal prosecution, even after the ten days. This is rare.
The short answer is that if you want to pull out all the stops, you should appeal the revocation and challenge the process in both the DOT administrative venue and the criminal court. If you want to cut your losses and don’t plan on fighting the OWI-- as conviction will result in a revocation anyway-- fighting the Datamaster DMT failure/refusal, revocation is moot.
Moreover, allowing the revocation to take effect gets it over as quickly as it starts; staying, or, stopping the revocation while you appeal the revocation might just be procrastination depending on the facts and circumstances leading up to and including test administration. In some cases, revocation includes a period of ineligibility—accidents, high tests, and refusals.
These also get over with more quickly if the revocation is allowed to go into effect as well.
Someone who wants to hedge their bets might consider allowing the revocation to go into effect while they appeal it. However, be advised that a large percentage of driver’s license revocations are upheld by the DOT administrative judges and director—and may have to be challenged in separate judicial review of the DOT agency decision, a separate lawsuit.
If you or a loved one has been arrested for an Iowa OWI (DUI), contact Cmelik OWI and Criminal Law PLC at 319-389-4276 or
for an initial consultation today. However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the Internet does not establish an attorney-client relationship.