OWIs are the most common middle-of-the night phone call our office gets. Drivers who have been detained under suspicion of operating while intoxicated always want to know — should I blow? There are are a number of things to consider when deciding whether or not to submit to Iowa DUI breath tests.
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 used mostly to ascertain whether there’s probable cause for arrest.
Later, when you get to the station (or to 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 or BAC. Because Datamaster results may be skewed by external factors, it’s important to review breathalyzer findings with an Iowa DUI lawyer.
Iowa DUI Breath Tests
Iowa DUI (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, it’s important to weigh the consequences. 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.
Under implied consent, you have impliedly consented in advance to letting a police officer test your blood, breath, or urine for alcohol or drugs. When an officer has “reasonable grounds” to believe you’re operating under the influence, implied consent applies.
In order 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 or not you should refuse testing depends on a number of factors. To make the right choice, you’ll need to quickly reflect on what the police can prove and on what the potential consequences.
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 the field sobriety tests, depriving the prosecution of behavioral evidence of guilt.
There are definitely 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 y if you are convicted of OWI or your license is revoked for OWI and you blow in excess of a .15. Iowa Code Section 321J.2(3)(b)(2)(a). Additionally, you are ineligible for a deferred if you have previously had two or more deferreds, if you have already had a deferred judgment or conviction for DUI, or if your OWI offense 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 the test refusal should be suppressed. However, generally, a test refusal will result in a revocation, and the revocation will usually be longer for a refusal than for a refusal.
Like with most legal things, there are also exceptions to this. For example, two OWI convictions will result in a lifetime revocation of your CDL. Iowa Code Section 321.208(4). Refusing testing twice (or having one OWI and one refusal) will also get you a lifetime revocation. If you will have a lifetime revocation if you refuse *or* if you fail the test,
Consequences for Failing Iowa DUI Breath Tests
If you fail the OWI breath test, your test result will likely be admissible at trial against you under most circumstances. Maybe the machine wasn’t properly calibrated or maybe your results fell within a margin of error that a jury will find plausible, but conviction is the most likely outcome when you fail the Datamaster/breathalyzer.
Your Rights and Iowa DUI Breath Tests
You have a number of rights regarding Iowa DUI breath tests.
Right to Refuse
You have a number of relevant constitutional rights. For example, you have a right against self-incrimination. You also have rights regarding warrantless searches.
Refusing a breath test will withhold the most important 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 testing because you were guilty, there are valid, non-guilt reasons that people might choose to refuse to let the government test them.
Right to Informed Consent
Often, DUI suspects have to decide quickly whether to submit to testing. Many suspects are unable to reach an attorney in time to help them make this decision. In order to make sure you are able to make a reasoned and informed decision about chemical testing, the police should read you an informed consent advisory. Their advisory will need to accurately explain the consequences 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 the jail or from wherever you’re being detained. They have to let you make a reasonable number of calls. If you’re calling late at night, like many DUI suspects do, you may need to make a number of calls to reach someone who is awake and able to talk to you. When you reach an attorney, find out whether they’re able to come talk to you in person. If a lawyer can get to the station in time, the police have to 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
In order 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 revocation won’t apply. Iowa Code Section 321J.9.
Des Moines DUI Breath Tests Lawyer
If you’re arrested for DUI or OWI in Des Moines, Iowa, or in Polk County, you should talk to a local attorney immediately. 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.
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 local 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 the police accuse you of DUI, they’ll 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 an intimidation attorney or a law firm.
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.
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.
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.
What should I know about Iowa OWI 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, 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.
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 intimidation offenses, ask a lawyer.
What can an Iowa 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.
A Victim Services Support Program is available through the Iowa attorney general’s office.