Updated: Oct 28, 2018
This is the eighth in a series of blogs regarding an Iowa OWI (DUI) defendant’s best options during a criminal prosecution for drunk driving. Today, we’ll focus on the Iowa DOT revocation appeal hearing.
The DOT revocation process is immediate but for a 10 day grace period. It is an administrative revocation of a privilege and thus not considered a criminal penalty. Defendants find their driver's license revoked on the date of their Iowa OWI arrest, be it for a bodily sample test failure or refusal. For Iowa driver's license holders, the notice to revoke is communicated by the law enforcement officer and deemed to take effect immediately.
Your attorney can file an appeal of this revocation to challenge the statutory grounds for requesting a preliminary breath test (PBT), for improperly invoking implied consent, for dishonoring your right to contact a relative, attorney, or loved one, defective implied consent advisory, or improper test administration.
On a first offense, the administrative revocation is typically 180 days for a test failure and one year for a test refusal.
Your attorney can request a "stay," or, stop, of the revocation while the appeal is pending.
It is the DOT revocation appellant (the OWI Defendant's) responsibility to prove the above defects by a preponderance of the evidence to an administrative law judge.
If you win the DOT revocation appeal but nevertheless reach a plea agreement with the State even after you win a DOT revocation appeal before the DOT administrative law judge, note that the DOT will reimpose a revocation for a conviction for OWI in Iowa. In other words, if you win at the DOT but you plead guilty to OWI in the criminal court, you will still be revoked. Under certain circumstances, as when someone is alleged to have refused a Datamaster DMT test and they are revoked for twice as long as someone who consents and fails the test, the revocation upon conviction is still shorter than if they hadn't won at the DOT at all.
Sometimes, at the Iowa DOT, you can't win for losing, literally. Because the processes are separate and distinct. You might still be revoked even if you win. But it's important to review the evidence and determine what battles to fight.
However, sometimes in limited circumstances it is possible to "win" a concession by suppressing the Datamaster DMT result at the district associate or district court level as part of an agreement with the State. These situations are rare and require mitigating factual circumstances. Moreover, even if that doesn't happen, sometimes a revocation for a refusal-- one year on a first offense and two years for second and subsequent administrative test failures-- can never the less reduce a revocation on a first and second offense even if the defendant pleads guilty pursuant to a plea agreement. Third offense drunk driving cases that result in a conviction of any kind will result in a six year revocation at the DOT.
Remember that a DOT revocation appeal must be taken within 10 days of the notice of revocation. Act with diligence or lose the right to appeal the administrative revocation forever.
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.