public intoxication

Gourley, Rehkemper & Lindholm PLC - Attorneys At Law

Iowa Code section 123.46 prohibits an individual from being intoxicated, or simulating intoxication in a public place. There are two elements of Public Intoxication that the State must prove beyond a reasonable doubt at trial:

1. The defendant was intoxicated; OR
2. The defendant simulated that he/she was intoxicated; and
3. In a public place.

intoxication

In Iowa an individual is "intoxicated" when by drinking liquor and/or beer, one or more of the following is true:

1. His reason or mental ability has been affected;
2. His judgment is impaired;
3. His emotions are visibly excited;
4. He has, to any extent, lost control of bodily actions or motions.

public place

A "public place" is defined as "any place, building, or conveyance to which the public has or is permitted access." Included as "public places" are:

1. Public streets, alleyways, and parking lots
2. Steps and common hallways of apartment buildings
3. Dormitories
4. Bars and restaurants
5. Stadiums, event centers etc.

• Generally speaking any place open to the general public constitutes a "public place."

Not included as "public places" are:
1. Private vehicles (not public transportation)
2. Decks or porches to residence
3. Inside a person's apartment
4. On private land

expungement - erasing a criminal record

Expungement of Prior Offenses - Public Intoxication convictions are the only criminal offense in the State of Iowa that can be expunged from an individual's criminal record. In order to have the conviction expunged, the individual must go at least two years after the conviction without being convicted of anything other than simple traffic offenses. The individual must then petition the court to expunge the conviction and if the individual qualifies the judge is required by law to issue the order granting the expungement.

CRIMINAL PENALTIES

First Offense: Simple Misdemeanor. A maximum jail sentence of up to 30 days; fine of up to $625, but not less than $65 plus 32% surcharge and court costs.

Second Offense: Serious Misdemeanor. A maximum jail sentence of up to one year in jail; fine of up to $1,875, but not less than $315 plus 32% surcharge and court costs.

Third or Subsequent Offense: Aggravated Misdemeanor. A maximum of up to two years imprisonment or one year in jail; fine of up to $6,250, but not less than $625 plus 32% surcharge and court costs.

RIGHTS

The 5th Amendment - At no time can you be required to be a witness against yourself. You do not have to answer questions from police officers that could incriminate you. You do not have to answer if asked if you have had anything to drink. Your refusal to answer cannot be used against you.

Right to an Attorney

You have a statutory right to call, consult, and see an attorney or family member once a police officer has restrained your liberty. You are permitted a reasonable number of phone calls to secure an attorney. You also have the right to see and consult with an attorney in private at the jail.

Right to Refuse Breath Test

Preliminary Breath Test - You do not have to take this test. Despite this being an unreliable instrument, the results can be used against you in court for public intoxication. There are no legal adverse effects to refusing this test.

Right to Independent Test

Once you have been arrested for Public Intoxication the officer has a duty to inform you that you may request an independent chemical test to be administered at your own expense.

Note:

An officer may not order you into public and then arrest you for public intoxication. The law requires that you voluntarily put yourself in a public place; a police officer's order to exit a private place does not warrant a charge of public intoxication.

Under / Over Legal Age

The above laws cover situations in which the alleged drunken driver is over the legal drinking age. For information about laws governing people who are under the legal drinking age (minors), please see Minors in Possession.

From our offices in Des Moines, Iowa, we give high-quality representation to people throughout the State of Iowa, including Polk, Warren, Dallas, Boone, Story, and Marion counties, and the cities of Des Moines, Ames, Indianola, Adel, Boone, Nevada, Urbandale, West Des Moines, Waukee, and Knoxville