OWI First, Second and Third Offenses

A person is legally “under the influence” of alcohol or a drug when any one of the following is true as a result of consumption of alcohol or use of a drug:

• The person’s emotions are visibly excited;
• The person’s judgment is impaired;
• The person has lost control of their bodily actions or movements to any extent; or
• The person’s mental ability has been affected.

“Any amount” of controlled substance means just that; “any amount.” Thus, if a controlled substance is detected in a person’s system at or near the time they were operating a motor vehicle, they can be charged and potentially convicted of operating while intoxicated even if they were not even necessarily “impaired” by that substance.

Only prior criminal convictions are counted to determine if a criminal charge is a First OWI, Second OWI or Third OWI offense. Prior license suspensions may be considered by sentencing judges but cannot form the basis for an enhancement of the pending criminal charge.

Iowa has a twelve (12) year “look back period” which is used to determine whether the current charge is a 1st OWI, 2nd OWI or 3rd OWI offense. The clock runs from the date of sentencing on the prior conviction to the date of the alleged current charge.

Example: Person is arrested for operating while intoxicated on January 1, 2010. He has a prior arrest for operating while intoxicated on November 1, 1997 however he was not sentenced for the first offense until January 15, 1998. While the offense occurred more than 12 years before the pending offense, the person was sentenced for the first offense within 12 years of the new charge thus making the new charge a 2nd offense, an OWI – Second Offense.

When determining whether an offense is a Third OWI offense, the level of prior offense is irrelevant. All that matters is whether the individual has been convicted of any level of operating while intoxicated within the “look back period.” In other words you don’t have to be convicted of a 2nd offense in order for the next charge to be a 3rd offense. Sometimes prosecutors will amend a 2nd offense down to a 1st offense as part of a plea bargain but if that person picks up another charge and has two prior convictions for any level of operating while intoxicated, the new charge will be a 3rd offense.

In the event that a person provides a breath test and the test indicates an alcohol concentration in excess of .02 but less than .08, and they are under the age of 21, their driving privileges are disqualified for six months on a first offense, and they are not eligible for a temporary restricted license for 60 days from the start of the suspension.

Also, the department of transportation does not issue a stay for zero tolerance violations so the suspension starts immediately and cannot be put on hold.

The officer is watching a vehicle to determine if there is a sufficient basis to pull it over. For alcohol related investigations, officers are specifically trained to look for things such as weaving, inconsistent actions such as slowing down and speeding up or signaling one way but turning another, or failing to use headlights. They also pay close attention to how a person reacts to being pulled over. Officers document whether or not the person does not immediately pull over, whether they hit the curb, fail to signal, or even pull over too abruptly. Obviously, from the defense perspective, anything the person did correctly will also be highlighted to combat the officer’s claim that the person was intoxicated.

At this stage of the investigation, the officer makes personal contact with the driver of the vehicle asking for license, registration and proof of insurance. One game officers like to play is to ask for multiple items at one time and while the person is retrieving those items, to ask them questions about where they are coming from and what they have been up to that evening. Law enforcement calls this a “divided attention task.” According to their theories, intoxicated individuals will have difficulty providing these items and answering questions at the same time. Other reasonable explanations would obviously be nerves, cluttered glove box, or a normal lack of attentiveness. Again, anything the person does correctly will be highlighted as evidence of sobriety. During this stage, the officer will also question the driver about whether or not they had consumed any alcohol and where they were coming from and where they were going. They also pay close attention to the driver’s eyes, breath and speech. Almost every officer’s report will claim that the arrested person had “bloodshot and watery eyes, slurred speech, and an odor of an alcoholic beverage coming from their person or breath” whether they really made those observations or not.

These are commonly referred to as field sobriety exercises. At this stage of the investigation, the officer has already determined that they suspect the person has consumed alcohol and claims to simply want to determine if the person is “ok to drive.” The normal statement from the officer is: “since you told me that you have been drinking, would you mind doing a few quick tests to make sure you are ok to drive?” If the person agrees, they are run through three “standardized field sobriety exercises”: 1) Horizontal Gaze Nystagmus; 2) Walk and Turn; and 3) One Leg Stand. These three “tests” are usually followed by a preliminary breath test.

Officers and ultimately the prosecution will pick apart everything and anything the person does in order to make them out to be a stumbling drunk. As you can see, from the minute a person comes into contact with the officer, every movement and statement is being scrutinized. This is why it is important to have an attorney who knows and understands what the officers look for so that their own investigation techniques can be used against them to provide evidence of sobriety.