Operating While Intoxicated What Ever Lawyer Should Know About: Operating While Intoxicated Robert Rehkemper and Matthew Lindholm GOURLEY, REHKEMPER & LINDHOLM, PLC 303 Locust Street, Suite 200 Des Moines, IA 50309 (515)226-0500 E-Mail: rgrehkemper@grllaw.com mtlindholm@grllaw.com www.GRLLAW.com www.IOWAOWIDEFENDERS.com

It’s not a drinking problem, it’s a recipe for a “balanced budget.” Booze Is Big Money in the State of Iowa   $80.4 million in profit from Liquor sales; and $14.4 million on “Beer Tax” Over 2,500 OWI charges have been filed just this year in Polk County alone = $4,218,750 in revenue from just Polk County alone (just assuming 1st offenses)

Legal Elements of OWI 1. Operate a Motor Vehicle; and 2a. While Under the Influence of Alcohol and/or drug; OR 2.b. With an alcohol concentration in Excess of .08; OR 2.c With any amount of controlled substance present.

“Operation” is defined as: “The immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running.”

“Motor vehicle” means a vehicle which is self-propelled and not operated upon rails YES no

CONSEQUENCES OF OWI CONVICTION

Criminal Penalties 1st Offense 2nd Offense 3rd Offense Offense Level Serious Misdemeanor Aggravated Misdemeanor Class D Felony Min. Fine $1,250 $1,825 $3,125 Min. Jail 2 days 7 days 30 days Max Jail 1 Year 2 Years 5 Years

License Suspension Periods 1st Offense 2nd Offense 3rd Offense Test “Failure” 180 days 1 Year 6 Years Test “Refusal” 2 Years NOTE: DOT does not care about prior criminal convictions, they look to see if individual has prior OWI related suspension within last 12 years. THIS INCLUDES ZERO TOLLERANCE SUSPENSIONS!!!

Work Permit Eligibilty First Offense: .085-.100 = Immediately eligible, no ignition interlock device if no accident. .101-.150 = Immediately eligible, requires ignition interlock device if no accident .151 and higher = 30 day hard suspension, ignition interlock device required. Refusal = 90 day hard suspension, ignition interlock device required.

Second or Subsequent Offense: Test Failure at Any Level: 45 day hard suspension. May make written request for work permit upon expiration of hard suspension. Full license back after one year but another year of ignition interlock device is required. Refusal: 90 day hard suspension. 6 year Court Imposed Barrment for 3rd Offense 6 Year barrment for 3rd offense only applies if convicted for 3rd OWI offense in prior 12 years. Wyciskalla v. Iowa District Court for Johnson County, 588 N.W.2d 403 (Iowa 1998) (6 year barrment is only applicable if three convictions in past 12 years – NOT lifetime.)

Criminal Penalties If Death or Serious Injury Results Death=Vehicular Homicide Mandatory Minimum Prison 5 years 25 years

Top 5 OWI Myths 5. If the cops didn’t see me drive they can’t charge me with OWI. 4. Field sobriety tests are mandatory. 3. I have the right to choose what type of test I’m given. 2. I have a full two hours before I have to take a breath test. 1. If I cooperate the officer will let me go.

The Best Advice 1. SHUT UP 2. WISE UP 3. LAWYER UP

1. SHUT UP

2. WISE UP

3. LAWYER UP

Lawyers Role Provide necessary information to permit arrestee to make an informed decision regarding chemical testing. * License suspension periods * Work permit eligibility * Sentencing alternatives * Impact test result vs. refusal on defense of charge * Evaluate level of sobriety (Careful, they are rarely completely honest about how much they have consumed.)

Advise arrestee of his/her statutory and constitutional rights. 804.20 Right to call consult and see attorney, family member or BOTH!!! Right to in-person confidential consultation with attorney. 321J.11 Right to independent testing 5TH Amendment Don’t answer any questions related to the offense.

WARNING! * “Even when attorneys accept cases ‘in an area in which they are unfamiliar, they bear the responsibility to perform the work competently. No client should be made to suffer through an attorney’s learning curve.’ (citation omitted). A reasonable investigation has been described as ‘a thorough study of as much literature in a particular filed as [the attorney] can possibly absorb in the time allotted.’” King v. State, No. 08-0430 (Iowa 2011). Justice Appel.

RESOURCES Iowa Law Enforcement Academy DWI Detection and Standardized Field Sobriety Testing, Participant Manual. Iowa Law Enforcement Academy, Traci Frasier, SFST Support – 515-242-5357, Traci.Frasier@ilea.state.ia.us. Medical-Legal Aspects of Alcohol, James C. Garriott. Drunk Driving Defense, (5th Ed.), Lawrence Tailor. Cross-Examination: Science and Techniques, (2nd Ed.)Larry S. Posner and Roger J. Dodd National College of DUI Defense. www.ncdd.com