Should I Blow? Iowa DUI Breath Tests And Your Rights
There are several things to consider when deciding whether to submit to a breath test.
Law enforcement uses several kinds of chemical tests to measure alcohol and drugs in your body. First, not long after they stop you, they will probably offer you a preliminary screening test, also called a preliminary breath test or PBT. That's the little handheld device they'll ask you to blow into. PBT results are not admissible in court. Therefore, the PBT is mainly used to determine whether there's probable cause for arrest.
Later, when you get to the station (or wherever you're being detained), they will offer you a more "official" test. Usually, police offer a breath test -- a breathalyzer, or "Datamaster." Using the breathalyzer, police will measure your blood alcohol concentration BAC. Because external factors may skew Datamaster results, it's essential to review breathalyzer findings with an Iowa OWI lawyer.
Iowa OWI charges vary in severity. A first offense is a serious misdemeanor. A second offense is an aggravated misdemeanor. A third or subsequent offense is a class D felony. When considering whether to consent to a chemical test, weighing the consequences is essential. What happens if you refuse a breath test? What happens if you take a breath test and fail?
Anyone who drives a car in Iowa needs to know about Iowa's implied consent law.
Implied consent means you have agreed in advance to let a police officer test your blood, breath, or urine for alcohol or drugs. Implied consent applies when an officer has "reasonable grounds" to believe you're operating under the influence.
To withdraw your implied consent, you simply refuse to consent to an officer's request for chemical testing. If you do this, there will be consequences. However, there are times when the benefits of revoking your implied consent outweigh the consequences of refusing a chemical test.
Whether you should refuse testing depends on several factors. You'll need to quickly reflect on what the police can prove and the potential consequences to make the right choice.
Consequences for Refusing Iowa DUI Breath Tests
If you refuse a breath test, the results can't be used against you at trial. That's the upside of refusal. Refusing a breath test might be a good idea for some people under some of the following circumstances:
- You're ineligible for a deferred judgment anyway.
- You think you're likely to fail the test.
- You did well on, or refused field sobriety tests, depriving the prosecution of behavioral evidence of guilt.
There are drawbacks to refusing a chemical test, though. Some of those drawbacks include:
No Possibility of Deferred Judgement
You are not eligible for a deferred judgment if you refuse a breath test. Then again, you are also not eligible for a deferred judgment if you have previously had two or more deferred judgments, already had a deferred judgment or conviction for DUI, blew over a 0.15 on the Datamaster, or if your OWI injured someone or caused property damage.
Longer License Revocation
Your license will automatically be revoked for refusing a chemical test. There may be exceptions to this in some circumstances -- for instance, if your OWI lawyer successfully argues that test refusal should be suppressed. However, a test refusal will generally result in a revocation, and the revocation will usually be longer for a refusal than for a failure.
Like with most rules, there are exceptions. For example, any combination of two OWI convictions or test refusals will result in a lifetime revocation of your CDL. While the CDL consequences might be the same for a 2nd refusal or conviction, keep in mind there will still be a longer noncommercial license revocation for refusal.
Consequences for Failing Iowa OWI Breath Tests
If you fail the OWI breath test, in most circumstances your test results will be admissible at trial. There are still ways to challenge the evidence. It might be that the machine wasn't recently calibrated or calibrated correctly, the test wasn't performed correctly, or that your results fell within a margin of error that a jury will find plausible. Still, conviction is the most likely outcome when you fail the Datamaster/breathalyzer.
Your Rights and Iowa OWI Breath Tests
You have several rights regarding Iowa OWI breath tests.
Right to Refuse
You have many relevant constitutional rights, like the right against self-incrimination. You also have rights regarding warrantless searches.
Refusing a breath test will withhold the most crucial trial evidence from the prosecution. Without a chemical test, the State of Iowa won't have proof of exactly what was in your breath or blood. While the prosecutor will probably insist to the jury that you refused to test because you were guilty, there are valid, non-guilt reasons that people might refuse to let the government test them.
Right to Informed Consent
Often, OWI suspects have to decide quickly whether to submit to testing. Many suspects cannot reach an attorney in time to help them decide. To make sure you can make a reasoned and informed choice about chemical testing, the police should read you an informed consent advisory. Their advisory will need to explain the consequences accurately you will face if you fail or refuse chemical testing.
Right to Contact an Attorney or Family Member
Under Iowa Code Section 804.20, police have to let you call a lawyer or a family member from wherever you're being detained. They have to let you make a reasonable number of calls. If you're calling late at night, as many DUI suspects do, you may need to make several calls to reach someone awake to talk to you. When you reach an attorney, find out whether they can come to talk to you in person. If a lawyer can get to the station in time, the police must let you see and consult confidentially with the lawyer.
Right to an Independent Test
Under Iowa law, you have a right to an independent test at your own expense. Iowa Code Section 321J.11. This right only applies after you've consented to police testing.
Remember that the police do not have to offer you an independent test or an opportunity to re-test. You have to ask for it.
Right to a Test Within 2 Hours
To invoke implied consent, police need to offer you a chemical test within two hours of offering you a preliminary breath test or within two hours of arresting you, whichever happens first. Iowa Code Section 321J.6(2). If this doesn't happen, then no test is required. A refusal or revocation won't apply. Iowa Code Section 321J.9.
Des Moines DUI Breath Tests Lawyer
You should immediately talk to a local attorney if you're arrested for DUI or OWI in Des Moines, Iowa, or Polk County. If it's late and you can't reach someone, keep calling around for as long as the officer lets you. Don't give up after a few minutes! Do your best to reach someone who can give you legal advice before deciding whether to consent to or refuse chemical testing.