OWI in 2020: What you need to know

As an OWI defendant, you need to know the state of the law. Here is a distillation of some of the high points of the current law and recent decisions affecting OWI arrestees:

1. Pretextual stops—dishonest police reasons for pulling you over at 2 AM for a burned out license plate light or no front license plate—are still completely legal even though their real reasons for the stop are a hunch that you poured yourself into your own car after bar close instead of Uber or a cab. That’s true as long as the fake reason for the stop is nevertheless an actual, legitimate equipment or traffic violation.

2. Phone Call—If you’re at the roadside or even taken to the patrol car garage at the law enforcement center, the Iowa Supreme Court has held that you are not entitled to make a phone call at that time pursuant to Iowa Code § 804.20, which requires that you be allowed to make a phone call to an attorney or family member at your request without unnecessary delay when in a “place of detention.” You are, however, entitled to make phone calls to whomever you please while inside such a jail or locked facility for a "reasonable period of time" that has been interpreted to be just shy of an hour.

3. Just Say No—Any amount of THC and other illicit narcotics in your system still render you impaired under Iowa drunk driving law. THC stays in your system about 45 days. Don’t drive if you’ve smoked in the last month and a half. Yup. I said that. Out loud. Don’t drive for a month and a half if you have smoked for 45 days. It's not legal here and there is a zero tolerance for marijuana metabolites in your system should you be pulled over for OWI, or, worse, charged with serious injury or death by motor vehicle. If you believe you have any amount of THC in your system, a urine test that tests positive will be evidence against you regardless of whether your are under the influence of its psychoactive effects.

4. Point-Oh-Eight For now, still the presumptive level of intoxication in the State of Iowa. A prosecution in Iowa involving a test result below .08 g ETOH/210 L breath is rare but it does happen. Usually, officers and prosecutors will attempt to suggest that a combination of alcohol and drugs caused impairment if they have a test result below .08 g ETOH/210 L breath. They’re using words like “impaired” and “under the influence” instead of “drunk driving” now to pivot away from alcohol and toward the newest front in the war on drugs. So-called drug recognition expertise, or, DRE, and ARIDE, purported Advanced Roadside Impaired Driving Enforcement, are the buzzwords and acronyms police use now to describe their sobriety testing in this evolving area of the law. To cover their mistaken assumption that alcohol caused your impairment, they simply point to standard operating procedure of the first phase of DRE which is to get a DMT.

5. Park and Lock. Officers may not impound your car and search containers therein if you have a valid park and lock option now. A case last year called into question the long abused inventory search exception to the warrant requirement—which stood for the proposition that police were really safeguarding valuables while rifling through your personal belongings to search for evidence of other crimes following an OWI arrest.

6. Implied Consent. The DMT administrator and arresting officer still need to ensure that you are read an accurate advisory on implied consent. However, many officers have already arrested you by the time this occurs. They consider that the DMT is a drug detector or simply part of the DOT process that will net additional evidence for the probable cause they believe they already have. If you refuse, your refusal can be used as evidence against you. They don't tell you that and they still don't have to do so.

7. Unarrest. Even though the officer has placed the defendant under arrest out at the roadside, in Linn County they are allowed to terminate the arrest—which the Iowa Supreme Court held in 2017 doesn’t reach completion until the Defendant has been brought before a magistrate at initial appearance—and release them pending a urine test. Again, when an officer mistakenly assumes someone is under the influence of alcohol and then is chagrined by a test result below the presumptive level of intoxication, in Linn County they have released the Defendant and then awaited urine test results.

7. Five after five. While this isn't the law, you should expect to stay in jail for no fewer than five hours after an OWI arrest in the Sixth Judicial District. You may be asked to provide a Preliminary Breath Test or non-evidentiary DMT test requiring a result below .05 g ETOH/210 L breath. Many defendants are suspicious that they must blow a third time to be released. This result is well outside the two hours required to consider the result presumptively your BrAC while operating. Moreover, preliminary breath tests, or, screening tests are never admissible before the jury. Department of Public Safety protocols instruct officers that non-evidentiary tests are just that: not evidence.

If you have been arrested for OWI, Operating While Intoxicated, in Cedar Rapids, Iowa City, or other Iowa community or county, contact David A. Cmelik Law PLC. However, note that a blog is not legal advice and that sending a lawyer unsolicited information over the Internet does not establish an attorney-client relationship.

© 2020 by David A. Cmelik Law PLC