Polk County Iowa Second OWI Attorney
You need a if any court has convicted you of another OWI in the last twelve years. (Iowa DUI is called OWI.) If they convicted you more than twelve years ago, your second DUI will be charged as first offense OWI.
Your first OWI was a serious misdemeanor charge. However, your is an . If you have a third offense, it will be a .
You’ll have to do a fairly early on in this process – long before happens. Before you get your license back, you’ll have to complete whatever treatment your evaluator recommends.
An Iowa OWI will be able to explain what you’re facing after your alleged . After your , 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 ? How soon will you need an ? An experienced will be able to explain the consequences of your offense. Ask your for guidance.
Call (515) 491 – 6128 for a free consultation to discuss your case.
Any , 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 .
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 stops you for , you may want to know if you should submit to field sobriety tests. Different lawyers will give you different advice. Every has an opinion on FSTs and . Whether or not you should take a may depend on a number of variables. Unfortunately, the will likely not permit you to call a before deciding whether or not to submit to FSTs.
The 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 will review any video and consider both your performance and the ‘s performance.
Field sobriety tests are only validated for alcohol intoxication. They are not validdated for any . Your may be able to get the tests excluded in a drug DUI case. Every is different. Whether your performance leads to an and a or helps your will depend on the facts of your case.
What Counts as a Second Offense?
Convictions that happened outside of Iowa count as prior convictions – even if the other state called the offense a DUI or instead of an OWI.
Penalties for OWI Second in Iowa
is serious. After your , you must get a .
Your will explain the of a .
You must go to after a second . Under , you will spend at least a week in . Alternatively, the court could commit you to two years in prison for . The judge will consider many things in deciding how long you must go to . For example, if you caused , you may have a longer sentence.
If you caused or property damage or if you have an extensive , prison is a real possibility. An experienced can help you look for ways to minimize the impact on your life.
In addition to time, the judge may assign to monitor you. is unlikely after your .
They will fine you $1,875 – $6,250 (plus surcharges.) The judge may give you community service hours instead of the fines.
The court can direct you to do inpatient treatment for drug or alcohol abuse if you’re convicted of a second DUI offense.
Consequences
A puts your at immediate risk. follows a test refusal or a test failure. When failed to correctly perform the test, can sometimes get license suspensions rescinded.
is often inevitable for an . Every carries possible loss of driving privileges.
After your , will usually provide you with paperwork. is a civil issue with the DOT. proceedings are part or civil law, rather than criminal law. You may have only ten days to appeal your .
Do not drive without a valid . While it is expensive and time-consuming to rely on others for transportation, driving without a license will cost you much more. You could be charged with Driving While Barred or with other offenses.
Apply for a as soon as possible. Your comes with certain requirements.
You must purchase SR-22 insurance. A licensed insurance agent will explain your SR22 filing requirements. If you don’t have a TRL or a car, ask your ask your insurance agent what to do.
You must also install an . You must do this in any car you own. Additionally, you must install an in any car you operate. This applies even if the car is not yours. Many companies, such as Intoxalock, install IIDs.
Under , your second will result in . You will lose your because of your . They will revoke your license for a year. However, if you refused a , they may revoke your license for two years.
Before the state will give your license back, you must pay fines and a civil penalty.
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.”
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.
for Drugs
There’s no threshold amount for drugs that constitutes “OWI.” Any detectable amount of a in your system that you aren’t taking according to a doctor’s prescription is going to get you charged with OWI.
This means that if you drop a urine sample and their test comes up with marijuana metabolites, you are, according to the Iowa Code, operating under the influence. Yes, even though you can test positive up to a month (or more) after you last smoked . Yes, even though everyone in the room knows that if you last smoked a few weeks ago, you weren’t by any means “high” when you were driving. The law in Iowa isn’t necessarily fair or practical.
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.
Warrants
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.
Iowa OWI BAC
If you’re over 21, a blood of .08 or higher means you’re over the legal limit (“and under ,” as the public service announcements will remind you.)
Underage Iowa BAC
If you’re under 21, a blood of .02 or higher means you’re over the legal limit. A under age 21 is likely to get you some scrutiny by the court, by the way – I doubt you’ll get off probation early.
Elements
When is a not a ? Does “operating a ” just mean “driving?” Your will have insights into whether or not your offense qualifies for under Iowa’s OWI law. An will review cases to look for the law that best suits your offense.
in Des Moines
If you’re being charged with OWI and you have a for OWI, DUI, or , call lawyers at (515) 491 6128 to schedule a free initial consultation so that we can go over your charges and options in detail.
We can help you figure out what to do about your criminal charges in Des Moines, Polk County, Ankeny, Ames, Johnston, West Des Moines, Waukee, Saylorville, Bondurant, Altoona, Clive, Grimes, Pleasant Hill, Story County, Boone County, Marshall County, Dallas County, Jasper County, Madison County, Warren County, Marion County, Wapello County, Davis County, Ottumwa, Bloomfield, Iowa City, Council Bluffs, and the rest of Iowa.
This blog post is for informational purposes only. Don’t rely on it as legal advice. It may be out of date. It may not apply to your situation. Reading this site doesn’t make me your lawyer.
Consult with a licensed Iowa OWI lawyer in your jurisdiction. If you want to talk to us about your Iowa case, please contact us at (515) 491 6128. We’ll set up a time to talk.
What will happen if I’m charged?
When someone alleges that you operated while intoxicated, law enforcement will investigate. Then, if a judge finds probable cause, you could go to jail. Once in jail, you might be let out on bond. Pretrial release might let you out. You might not be let out at all.
Instead of sending you to jail, the judge might give you papers. Those papers will tell you when your court date is. After your arrest. police will read you your rights. Then, they will give you time to call a drug crimes attorney or law firm.
Preliminary Hearing
At an initial appearance, you will see a judge. The judge might schedule a preliminary hearing. At a preliminary hearing, you or your lawyer will ask questions. One or more witnesses will be under oath. After the questions, the judge will decide whether probable cause exists.
Your attorney might suggest waiving the preliminary hearing. Before deciding, consult your lawyer. Alternatively, the prosecutor might file the “trial information” before the preliminary hearing. If so, there won’t be a preliminary hearing.
Arraignment
Your attorney tell you about your next court date. After your preliminary hearing happens (or after you receive the trial information,) you will have an arraignment.
Procedure
Police will give reports to the county attorney’s office. Then, the county attorney’s office will review the information. After the prosecutor reads the reports, they will decide what offenses to charge you with. For instance, a prosecutor might charge you with a misdemeanor. Alternatively, they could accuse you of a felony. Your defense lawyer will tell you what the government accused you of. Moreover, they will explain your rights. You also need to know how this could affect your criminal record. In short, they will tell you about the worst case scenario. A criminal lawyer will tell you more about the fines, terms of incarceration, and collateral consequences that might apply.
Your law firm will give you legal advice. Specifically, they will explain the pros and cons of taking your case to trial. After all, only you can decide whether or not to accept a plea offer.
Finally, if a jury convicts you, you can probably appeal. The court of appeals hears appellate arguments. So does the Iowa Supreme Court. Because they review legal issues, they might find a constitutional problem. That means that the law can be illegal. Alternatively, the district court might have treated a legal law illegally. However, the right to appeal does not apply to simple misdemeanors. Ask your criminal defense attorney for more information.
FAQ
What should I know about Iowa OWI defense lawyers generally?
Attorneys completed their bachelor’s or 4-year degrees. Thereafter, they went to law school. One example is Drake University Law School. That school is in Des Moines. Afterward, Iowa lawyers take the bar exam. Thereafter, a committee evaluates their character and fitness. The Iowa State Bar admits Iowa lawyers. The Iowa bar association regulates the legal profession. Some lawyers and law firms do general practice. In light of that, they accept all kind of representation. In contrast, some lawyers specialize in particular areas of law. For example, a lawyer might do only civil practice. When a lawyer does civil work, they might handle divorces. Additionally, the Iowa lawyer might represent small claims cases. Further, a civil practice lawyer could do personal injury work. In another case, the lawyer might focus on family law or child custody.
Alternatively, some lawyers practice only criminal defense. Some lawyers get even more particular. For instance, a lawyer might take only domestic violence defense. Another lawyer might focus on sex crime, sexual abuse, operating while intoxicated, child endangerment, child abuse, indecent exposure, theft, possession of controlled substances, sex crimes, marijuana, DUI defense, controlled substance offenses, arson, criminal mischief, vehicular homicide, drug offenses, traffic violations, violent crime or drunk driving.
Federal charges
Many Iowa lawyers practice only in Iowa courts. The Iowa Code defines all Iowa crimes. The Iowa rules of criminal procedure control what happens in Iowa criminal justice cases. Federal court is different. If you are facing federal charges for a federal criminal offense, make sure to let your Iowa lawyer know. Because Iowa federal courts are not state law courts in Iowa, your lawyer might refer you elsewhere. Federal prosecutors and federal judges use different procedural rules. Federal crimes are subject to federal sentencing.
What offenses exist in Iowa criminal law?
Criminal law offenses are misdemeanors or felonies. Class A felonies exist, but most people facing felony charges are facing a class B felony, a class C felony, or a class D felony. If you have questions about Iowa drunk driving offenses, ask a lawyer.
What can a Des Moines DUI lawyer do for me?
When accused, contact an attorney or law firm. Make sure to call one who works with Iowa criminal law. If there’s a warrant out for your arrest, your Iowa lawyer will help. In that case, you will coordinate with law enforcement. Self-surrender won’t be as embarrassing as public arrest would be.
Your Iowa criminal lawyer will stay in touch with the county attorney’s office. That means they will let the prosecutor know whether you choose to exercise or waive your right to speedy trial. Further, counsel can provide legal guidance. For example, you need to know whether it’s a good idea to consider a plea agreement or to go to trial. They will talk to you about whether a judge or jury is likely to find a particular witness credible.
Your criminal lawyer will let you know what sort of jail time you might be facing if convicted. Moreover, they can explain how conviction impacts criminal history. Finally, they can discuss whether or not the prosecutor might dismiss your charges.
Victim Resources
A Victim Services Support Program is available through the Iowa attorney general’s office.
