Right to a phone call?

Updated: 18 hours ago

Does an OWI (DUI) defendant have a right to make a phone call?

Under Iowa Code § 804.20, any law enforcement detainee is allowed contact with an attorney, family member, or loved one by telephone or in person within a reasonable period of time following detention. The statute reads:

“Any peace officer or other person having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person's family or an attorney of the person's choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay . . . .”

Iowa Code § 804.20.

So, what does that mean? It means you can make contact if you can make contact. It’s a big if. In other words, at 3 AM, after the bars are closed, a lawyers’ offices have been closed for nearly nine hours. And while law enforcement believe that the purpose behind the statute is to get to the next phase in an OWI investigation, namely, Datamaster DMT consent or refusal, it’s not that simple.

The purpose of the statute is to allow a detainee to make contact with a loved one, to compose one’s self, and make rational decisions about next steps. But nothing in Iowa Code § 804.20 specifically references OWIs or the Datamaster DMT test.

"One purpose of section 804.20, of course, is to allow an arrestee to call an attorney before deciding whether to submit to a chemical test."

State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005)(emphasis added).

But because Iowa Code Sec 804.20 doesn't merely apply to OWI arrests, it's reasonable to suggest that police cannot dictate that the purpose of the call be about the test.

The importance of Iowa Code § 804.20 is, however, in its refusal if specifically requested. Such refusal might be considered grounds to rescind a driver’s license revocation or otherwise suppress Datamaster DMT results or a refusal.

If you or a loved one has been arrested for OWI (DUI) in the Cedar Rapids, Iowa, or other Iowa community, contact us for a free initial consultation.

However, remember that reading a blog is not legal advice and sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.

© 2020 by David A. Cmelik Law PLC