Attorney for Third DUI in Des Moines, Iowa Polk County
If you’ve been convicted of a second OWI (Iowa’s DUI) offense in the last twelve years and are being charged with OWI now, this is your “OWI, third offense.” (By way of comparison, if you’ve had other OWI(s) before, but the convictions happened more than twelve years ago, you could be charged with first offense OWI or second offense OWI again.)
Your first OWI was a serious misdemeanor charge. Your second OWI charge was an aggravated misdemeanor. Your third OWI is a class “D” felony.
People charged with third OWI offenses often have a number of other charges come up simultaneously, such as driving with a suspended license, that should be handled contemporaneously.
While the punishment for your first OWI may have been inconvenient and the punishment for your second OWI was likely pretty unpleasant, you’re in a lot of trouble by the time you get to your third OWI charge. You’re going to complete another substance abuse evaluation. At this point, your evaluator and the court will assess you critically. The state can commit you to a treatment facility if they decide it’s best. Your car can also be seized and forfeited to the state. (You did read that correctly — they can fine you and take your car this time. Permanently.)
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.
What Counts as a Third DUI Offense?
Convictions that happened outside of Iowa count as prior convictions — even if the other state called the offense a DUI or DWI instead of an OWI.
This is your third offense if you’ve had an OWI second offense in the last 12 years, even if your first DUI was more than 12 years ago. If you’ve previously gotten a deferred judgment on an OWI charge, that counts as a conviction for the purposes of determining whether this is your first, second, or third offense.
Offenses after your third are still charged as 3rd offense OWIs. Whether this is your third OWI or your seventh, it’s a D felony. Therefore, the same maximum sentences apply. However, more prior offenses translate to higher likelihoods of prison time.
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 validated 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.
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 alcohol concentration of .08 or higher means you’re over the legal limit (“and under arrest,” as the public service announcements will remind you.)
Underage Iowa BAC
If you’re under 21, a blood alcohol concentration of .02 or higher means you’re over the legal limit.
Third OWI for Drugs
There’s no threshold amount for drugs that constitutes “OWI.” Any detectable amount of a controlled substance 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 here isn’t necessarily fair or practical, but you may as well understand that arguing that just because you had THC in your system didn’t mean you were under the influence isn’t going to get you a lot of traction.
Penalties for OWI Third in Iowa
Jail Time
If you’re convicted of a third DUI offense, you’re getting a month in jail minimum. The judge can’t suspend this minimum sentence — that means you will actually be spending at least a month in jail if you’re convicted of a third OWI. Because this is a class “D” felony, the judge may sentence you to up to five years in prison.
If you caused or property damage with your or if you have an extensive , prison is a likely outcome. An experienced can help you look for ways to minimize the impact on your life.
Fines and Community Service
They’re going to fine you $3,125 – $9,375 (plus a 35% surcharge.) They can give you community service hours instead of the fines, but do bear in mind that they charge (a comparatively much smaller amount) for community service hours placements too.
Also, keep in mind that those are big fines. If the state asks for community service hours instead of a fine, a judge will probably assign a lot of community service hours. If you have difficulty keeping a job, though (and a third OWI conviction may well lose you your job), it might be worth considering asking the state about community service hours instead of some or all of your fine.
Restitution
When you’re convicted of an OWI offense, the court will order you to pay restitution to any victims who you injured or whose property you damaged while you were driving drunk. (MidAmerican Energy, for example, might ask for nearly $5,000 if you crashed into one of their electric poles!)
Although paying court-ordered victim restitution is mandatory, it won’t stop victims from suing you. If someone has a claim against you for damage you caused while you were driving drunk, they can still get an attorney and sue you in civil court. T
he court can also direct you to pay restitution to a public agency (like fire fighters, police, or ambulances) for the cost of emergency response to your drunk driving or drugged driving. You can be directed to pay restitution to each agency that responded.
In addition to victim restitution, you will have to pay Category B Restitution to the extent that you’re reasonably able to do so.
Inpatient Treatment
For second and third OWIs, the court can have a hearing and then decide to commit you to inpatient treatment for alcohol or drug addiction. The court can decide up front how long you have to spend in treatment or they can ask that the hospital tell the court when you’ve gotten as much benefit from the treatment as possible.
The amount of time you spend in court-ordered treatment counts against your sentence and they can’t have you committed to treatment for longer than they could put you in prison. However, since you could spend up to five years in prison for an OWI third, your substance abuse problems could land you a lengthy treatment.
If you can’t afford treatment but are committed by the court, you’ll be considered a state patient and your treatment costs will be handled as provided in the Iowa Code.
License Revocation
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.
If you’re convicted of a third DUI, they’re going to revoke your license for six years. (Have you even gotten your license back after they took it for your OWI 2nd?)
While you have no license, you will very probably be tempted to drive. It’s expensive and time-consuming to rely on other people for transportation, especially if you have kids and need to get them to school and you to work. Don’t do it.
Driving while your license is suspended for OWI is a serious misdemeanor in itself. Additionally, getting caught repeatedly will cause your license to get barred. Driving while Barred as a Habitual Offender is an aggravated misdemeanor.
Before your license is reinstated, you must install an ignition interlock device. Additionally, you must pay all fines and civil penalties.
Third OWI Resulting in Death
If your drunk driving caused a death, you can’t get a TRL for two years (and your licensed is still revoked for six years.)
Temporary Restricted License and Ignition Interlock Device after Third DUI
If you want to apply for a “TRL” (temporary restricted license,) you’ll have to have an ignition interlock device installed.
Third OWI SR22 Insurance
After that year, to get your license back, you’re going to have to show proof of insurance. You’ll need SR-22 insurance. Ask your insurance agent what amount of coverage is right for you.
Substance Abuse Evaluation and Treatment
You’ll have to do a substance abuse evaluation fairly early on in this process — long before conviction. Before getting your license back, you’ll have to complete whatever treatment your evaluator recommends. The court can direct you to do inpatient treatment for drug or alcohol abuse if you’re convicted of a third DUI offense. You’ll also be directed to complete a course for drinking drivers and “if available and appropriate,” a reality education substance abuse prevention program.
Third OWI Lawyer in Des Moines
If you’re being charged with OWI and you have two or more prior convictions for OWI, DUI, or DWI, you can call at (515) 491 6128 to schedule an initial consultation so that we can go over your charges in detail and determine what your options are. A third OWI in Iowa is a class D felony — a serious crime that could affect your ability to get or keep a job in the field that you want. It may well cost you more (in jail time, fines, and other consequences) not to have an attorney than it will cost you to retain counsel. A third OWI is not a charge you want to face alone.
Iowa Drunk Driving Defense Attorney for Third OWI
We can help you figure out what to do about your OWI third offense 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. (515) 491 6128. 
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.
