OPERATING WHILE INTOXICATED

What Ever Lawyer Should Know About:

Robert Rehkemper and Matthew Lindholm

GOURLEY, REHKEMPER & LINDHOLM, PLC

303 Locust Street, Suite 200Des Moines, IA 50309

(515)226-0500E-Mail: rgrehkemper@grllaw.com

mtlindholm@grllaw.comwww.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

railsYES NO

CONSEQUENCES OF OWI CONVICTION

Criminal Penalties1st 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”

1 Year 2 Years 6 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

Serious Injury Death=Vehicular Homicide

Mandatory

Minimum Prison

5 years 25 years

Top 5 OWI Myths5.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 Role1. 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