OWI 1st Offense

OWI 1ST OFFENSE in Des Moines

If you've been charged with an OWI for the first time (an OWI is what Iowa calls DUI), you're facing a lot.  A criminal defense attorney will review your case.  Your lawyer may try to suppress evidence.  The judge might even dismiss the case.  Drunk driving defense is serious.  A conviction could get you fines, jail time, and a lost license, along with collateral consequences like losing your job or having a hard time finding a new job.

Call (515) 200-2787 for a free consultation to discuss your case.

Drunk Driving Arrest

Any traffic violation, no matter how minor, may give rise to a traffic stop.  An officer with reasonable suspicion to believe you're operating under the influence can prolong a traffic stop to undertake a DUI investigation.  Next, the sheriff's office may start a DUI arrest.

Don't Incriminate Yourself During a Traffic Stop

A defendant can be his or her own worst enemy.  Often, the worst evidence against you will be the things you said to the officer during the stop.

In order to protect yourself from yourself, you might consider saying something like "an attorney told me never to answer any questions during a traffic stop" when the officer asks if you've been drinking.  You don't have to answer questions about where you came from, where you're going, or what you're doing tonight.

Please remember, though -- you do have to provide your driver's license, registration, and proof of insurance when the officer requests it.  Be polite, not belligerent.  There's no need to be rude to an officer who is simply trying to protect the public from drunk drivers.

Different Lawyers, Different Advice.

If law enforcement stops you for drunk driving, you may want to know if you should submit to field sobriety tests. Different lawyers will give you different advice. Every law firm has an opinion on FSTs and OWI law. Whether or not you should take a field sobriety test may depend on a number of variables. Unfortunately, the police will likely not permit you to call a DUI attorney before deciding whether or not to submit to FSTs.

The police officer who stopped you has been trained in administering field sobriety tests. Nonetheless, he may perform the tests incorrectly. This is because officers often do not understand the medical science behind the tests. Others forget minor details. They may hold the stimulus the wrong distance from your face during the horizontal gaze nystagmus test. Your DUI lawyer will review any video and consider both your performance and the police officer's performance.

Field sobriety tests are only validated for alcohol intoxication. They are not validated for any controlled substance. Your criminal defense attorney may be able to get the tests excluded in a drug DUI case. Every OWI case is different. Whether your field sobriety test performance leads to an OWI arrest and a criminal charge or helps your DUI defense will depend on the facts of your case.

Types of Iowa DUI

There are three different ways you can violate Iowa's drunk driving law.

  • Iowa Code Section 321J.2(1)(a) makes it a crime to operate "while under the influence of an alcoholic beverage or other drug" or a combination of drugs and alcohol
  • Iowa Code Section 321J.2(1)(b) makes it a crime to operate with a blood alcohol concentration of .08 or more
  • The Iowa Code Section 321J.2(1)(c) makes it a crime to operate with any amount of a controlled substance in your blood or urine. This is called a "drug OWI."

Iowa OWI law requires a test to convict you under sections (b) or (c). However, subsection (a) allows you to be convicted of a DUI without a breath test.

Drunk Driving Considerations

Preliminary Breath Test

A preliminary breath test is not admissible against you at trial, but it has other uses.  For instance, a judge might consider your PBT results -- including preliminary breath test refusal -- in assessing whether or not an officer had probable cause to make an OWI arrest.  Additionally, either a PBT refusal or a failing PBT score could be a basis for an officer's decision to invoke implied consent.

Field Sobriety Tests

Field sobriety tests are only validated for alcohol consumption.  That means that FSTs aren't actually proven to show when people are under the influence of any drug other than alcohol.  Officers certainly like to pretend otherwise, though!

Iowa OWI attorneys appear to have a range of views on whether suspects should cooperate with or refuse field sobriety tests.  I don't have strong feelings about it one way or another.  Sometimes, field sobriety tests make it very clear that you are drunk.  Other times, actually watching the video of field sobriety tests could undermine jurors' suspicions about your intoxication.

No matter how you perform on field sobriety tests, the officer is likely to say that you failed them.  That is just the reality of policing in Iowa.  Reviewing the video, though, could show that the officer exaggerated your test "failure." For example, there are dozens of ways to "fail" the walk and turn test.  An officer might say that you "fell off" the line during the walk and turn test. At trial, the video and your lawyer could point out that you did not fall down; you simply stepped a little bit off the line. 

Alternatively, the officer could say that you failed a sobriety test by starting too soon or by not remembering all the steps.  While that could show intoxication, it could also just show that you have anxiety or struggle with remembering a series of instructions.

FSTs Don't Work for Everyone

Additionally, it's important to remember that field sobriety tests don't work for everyone. 

At least 1 in 1,000 people have a natural nystagmus, which Nystagmus Network calls "the most common form of visual impairment among school aged children."  While the officer will almost certainly tell you that you would "know" if you had a natural nystagmus, Johns Hopkins Medicine notes that you could have nystagmus that lasts only a few seconds or nystagmus that is permanent. 

If you have nystagmus that comes and goes, that appears only in certain situations (such as maybe during a stressful traffic stop), or nystagmus that has only recently developed, it's not fair to assume that you will know about it.

Numerous conditions can affect your field sobriety test performance.  Concussions and head injuries can cause one or both of your eyes not to focus properly.  Modified Romberg test failure could be caused by intoxication -- or it could be a sign of an inner ear problem, ear infection, metabolic disorder, or vitamin B12 deficiency.  Difficulty with the one-legged stand could arise from various surgeries, injuries, joint problems, balance problems, and from just generally being out of shape.  FST failure does not necessarily mean what the cop says that it means.

Sobriety Checkpoints

Sobriety checkpoints in Iowa must comply with certain requirements:

  • A checkpoint or roadblock location selected for safety and visibility
  • Advance warning signs that inform approaching motorists of the upcoming privacy intrusion 
    • Signs must be illuminated at night
  • Visible uniformed officers and vehicles
  • Policymakers must set the time, location, and procedures according to "carefully formulated standards and neutral criteria."

State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980).

Drug OWI

You can be convicted for having any amount of a controlled substance in your blood or urine.  This includes any amount of drug metabolites.  Even the non-impairing metabolites of marijuana that could not reasonably impact your driving can substantiate an OWI conviction.

Testing positive for a drug does not automatically mean that you will be convicted.  While the DCI laboratory now typically uses liquid chromatography tandem quadrupole mass spectrometry testing, DCI analysis is not flawless. 

An Iowa DUI attorney can review your situation for possible forensic defenses ranging from contamination through inadequacy of the evidence.

For example, many DCI technicians testify that they confirmed a drug DUI spectral match by comparing the retention time of a compound in your blood or urine against the retention time of a compound in a known positive sample. "Retention time" is how long it takes for a substance to pass through a chromatography column.  Retention time is not "fixed" -- even using the same machine and the same drugs, retention time can and does vary from sample to sample.

If you want to challenge a blood or urine test for drugs, you may need to hire an expert witness in addition to hiring an OWI defense lawyer.

Prescription Drug Defense

It is not a drug OWI to operate under the influence of a drug prescribed to you.  Iowa Code Section 321J.2(11)(a). The prescription defense requires that you took your prescription medication as prescribed by your doctor. Alternatively, a substance dispensed to you without a prescription by a pharmacist may qualify for the prescription drug defense.

This defense applies only if there is "no evidence" that you have consumed alcohol -- you don't get up to a .08 limit here. If you are taking prescription medication, drinking ANY alcohol could be enough to get you convicted. Additionally, if your doctor or pharmacist told you not to drive while taking your medication, the prescription drug defense won't help you.

Two Hour Rule

Although Iowa Code Section 321B.3 is now repealed, Iowa law used to require administration of a chemical test within two hours of the time of arrest. State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978).  That is no longer good law.

However, there are other "two hour" rules that are still good law.  For example, a test taken within two hours of driving is presumed to show what was in your system while you drove.  Iowa Code Section 321J.2(12).  Tests outside the two hour window may still be admissible, but they are not entitled to that presumption. The presumption is rebuttable -- your lawyer, with the help of an appropriate expert witness, may be able to prove that the test did not actually reflect what was in your blood at the time.

Additionally, implied consent requires an officer to offer you a test within two hours:

  • Of when you perform or refuse the preliminary screening test OR
  • After you are arrested

(Iowa Code Section 321J.6(2)), whichever happens first.  Failure to offer a test within the allotted two hours means that "a test is not required, and there shall be no license revocation under section 321J.9." Iowa Code Section 321J.9 revokes driver's licenses of operators who refuse chemical tests.  Keep in mind that your license could still be revoked in other ways, such as for OWI conviction.

Implied Consent

Anyone who operates a motor vehicle in Iowa has impliedly consented to undergo a blood, breath, or urine test for alcohol or drugs. This applies whenever a police officer has reasonable grounds to believe a driver is operating under the influence. You can withdraw your implied consent and refuse to undergo testing.  Doing so has some implications for your driver's license status. 

Whether or not you should withdraw your implied consent to testing depends on your situation.

Requirements for implied consent

Iowa Code Section 321J.6 allows officers to invoke implied consent and ask you for a chemical test. In order to invoke implied consent, an officer must have "reasonable grounds" to believe that you were operating in violation of Iowa Code Section 321J.2 AND any one of the following conditions existed:

  • The person has been arrested for DUI
  • An accident or collision causing personal injury or death
  • You refused a preliminary breath screening test ("PBT")
  • A result of .08 or higher on a preliminary breath test
  • You were driving a commercial vehicle and had a PBT result of .04 or more
  • A PBT score of under .08 if the officer has reasonable grounds to believe you were under the influence of a drug or a combination of drug and alcohol
  • A driver under the age of 21 whose PBT showed a BAC of .02 or more

Blood, breath, or urine?

The officer gets to decide whether she will request blood, breath, or urine. Refusing a blood test is not a test refusal under section 321J.6(2). If you refuse a blood test, the officer should request either a breath test or a urine test.


Remember that you cannot "refuse" to allow a warrant to be executed.  If there is a warrant for your blood, breath, or urine, calmly state that you do not consent (if you don't consent) to withdrawal of the specimen.  Next, calmly allow the sample to be taken.  Do not resist.  No not say anything that will further incriminate you.


If you're 21 or older, the legal limit for your blood alcohol content is .08.  You can't control what your BAC is by limiting yourself to a certain number of drinks. Lots of things influence how you metabolize alcohol and how your BAC changes after you drink.  Your weight is one factor you're probably familiar with.  Other things, such as your sex (women tend to have more estrogen, which may make alcohol feel like it's hit you harder and sooner) your fat to muscle ratio, and certain vitamins and medications can affect your alcohol metabolism. Your best bet is to make sure that you don't have to drive after drinking any amount of alcohol.  With the increasing ubiquity of services like Uber and Lyft, there's no reason not to have a safe ride home.

Underage Iowa OWI BAC

If you're under 21, the legal limit for your blood alcohol content is .02.

Penalties for Des Moines OWI 1st

Drunk driving is such a common charge in Iowa that your first offense is only a serious misdemeanor.  That doesn't mean that it's not a big deal.  Your DUI lawyer will explain the DUI penalties of a first OWI conviction.

First DUI in Iowa comes with a mandatory 48 hour minimum -- and you must do the whole 48 hours at once.  Spending only part of the afternoon in jail after your drunk driving DUI arrest won't count.  After conviction, you must go back and serve 2 days consecutively.

Alternatively, the court may allow you to take a weekend class at a community college instead of serving 48 hours in jail.  This is the 48 hour hotel program.  Officers will supervise you during the lockdown program.

The minimum fine for your first drunk driving charge in Iowa is $1250 (plus surcharges.) If you took the BAC test ("chemical test" or "DataMaster" test)  when an officer asked you to, a conviction will mean you lose your license for at least 180 days.  However, if you refused the test, you will lose your license for a year.

First Drunk Driving Deferred Judgment

If this is your first OWI charge, you might be eligible for a deferred judgment.  The judge will assign you to probation.  After you successfully complete probation, the court will expunge the charge.

The court can choose to offer you a deferred judgment for your first OWI charge unless you aren't eligible. If you refused the breath test, you are not eligible for a deferred judgment in your drunk driving case. In addition, you could be ineligible because of a prior OWI conviction or deferred judgment, a chemical test greater than .15 BAC, or causing personal injury or property damage.

Driver's License Consequences

An Iowa OWI attorney will be able to explain what you're facing after your alleged OWI offense. After your arrest, it will be important to talk to someone who understands the law. You will want to understand the consequences to your driving privileges. Will you need to apply for a temporary restricted license? How soon will you need an ignition interlock device?

A drunk driving charge puts your driving privilege at immediate risk. License suspension follows a test refusal or a test failure. When police failed to correctly perform the test, OWI offenders can sometimes get license suspensions rescinded.

After your DUI arrest, law enforcement will usually provide you with license revocation paperwork. License revocation is a civil issue with the DOT. Driver's license proceedings are part or civil law, rather than criminal law. You may have only ten days to appeal your license revocation.

An experienced lawyer will be able to explain the driver's license consequences of your offense. Ask your attorney for guidance.

Charged with a crime in iowa? We can help!

Call (515) 200-2787 today for a free initial consultation.

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