Criminal Charges – Offenses

Iowa Code section 321J.2 prohibits an individual from operating a motor vehicle while under the influence of alcohol, drugs or a combination of drugs or alcohol; or while having an alcohol concentration of .08 or greater. There are two elements of Operating While Intoxicated that the State must prove beyond a reasonable doubt at trial:

• The defendant operated a motor vehicle;
• He/she did so while under the influence of alcohol or drugs; OR
• While having an alcohol concentration of .08 or greater.

“Operating” is defined by the Iowa Supreme Court as: the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running. Thus, sitting in a vehicle, even with the keys in the ignition, so long as the engine is not running, does not and cannot constitute “operating.”

In Iowa, an individual is considered “under the influence” when by drinking liquor and/or beer, one or more of the following is true:

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

An individual commits vehicular homicide when:

1. Unintentionally causes death of another; by
   1. Operating a motor vehicle while intoxicated;
   2. Eluding;
   3. Operating a motor vehicle in a reckless manner; or
   4. Drag racing

Vehicular Homicide – Operating While Intoxicated – Class B Felony

• Mandatory 25 years imprisonment; Judge may not give probation or defer judgment. Prison sentence must be imposed. If convicted the Judge has no choice but to send you to prison. Furthermore bail is not available pending appeal or while awaiting sentencing.
• Mandatory $150,000 restitution to victim’s estate;
• Substance abuse evaluation and treatment if recommended;
• Drinking drivers course; and
• Mandatory 6 year license suspension.

Vehicular Homicide – Reckless Driving – Class C Felony

• Up to 10 years in prison. Probation is an option
• Fine of up to $13,660 but not less than $1,370 plus 15% surcharge, and court costs;
• Mandatory 1 year license suspension

Vehicular Homicide – Eluding – Class C Felony

• Up to 10 years in prison. Probation is an option
• Fine of up to $13,660 but not less than $1,370 plus 15% surcharge, and court costs;
• Mandatory 1 year license suspension

Vehicular Homicide – Drag Racing – Class D Felony

• Up to 5 years in prison. Probation is an option
• Fine of up to $10,245 but not less than $1,025 plus 15% surcharge and court costs.

An individual commits vehicular homicide when:

1. Unintentionally causes a serious injury (bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily organ or major bodily member, or which causes the loss of any bodily member) by either:
   1. Operating While Intoxicated; or
   2. Operating a Vehicle in a Reckless manner

Serious Injury by Vehicle – Operating While Intoxicated

• Mandatory 5 years imprisonment. Judge may not give probation or defer judgment. Prison sentence must be imposed.
• Fine of up to $10,245 but no less than $1,025 plus 15% surcharge and court costs;
• Substance abuse evaluation;
• Drinking drivers course; and
• Restitution to the injured person(s).
• Additional 1 year license suspension.

Serious Injury by Vehicle – Reckless Driving

• Up to 5 years in prison. Probation is an option.
• Fine of up to $10,245 but no less than $1,025 plus 15% surcharge and court costs;
• Restitution to the injured person(s).
• Additional 1 year license suspension

Involuntary Manslaughter is the charge often filed by the prosecution when they are unable to prove an intent on the part of the defendant to cause harm to the victim.

In these cases, there was no intent to harm the victim but the person’s actions were done in a way that the State believes they should be held criminally responsible for the individual’s death. The State can allege either that the individual committed a “public offense” resulting in death or otherwise engaged in conduct “likely to cause death.”

A “public offense” is essentially any traffic or criminal offense that is punishable by a fine or jail time. Careless driving, assault, speeding, failure to maintain control, and other such offenses are all considered “public offenses.” Obviously it is concerning that ANY public offense may form the basis of an Involuntary Manslaughter charge.

However, there is an additional requirement that the person’s conduct must be reckless. In other words, their conduct must demonstrate a willful and wanton disregard for the safety of others. It is not enough for the defendant merely to have committed a “public offense” that offense must have been committed in a reckless manner in order from criminal liability to attach.

Involuntary Manslaughter, by public offense, is a Class D felony punishable by up to 5 years in prison and a fine of up to $10,245. If convicted the defendant is also responsible for $150,000 in restitution to the estate of the victim. Probation is an option.

Involuntary Manslaughter, by conduct likely to cause death, is an Aggravated Misdemeanor punishable by up to 2 years in prison and a fine of up to $8,540. Probation is an option and the statutory $150,000 restitution to the victim’s estate is not applicable although restitution may be ordered.

Drug charges, even minor ones, can have serious repercussions. A person convicted of a simple possession can serve time in jail or prison. If the prosecuting attorney can push it further to an intent or actual delivery or sale, sentences for drug charges can outlast those for violent crimes, including sex crimes.

Is that right or fair? The “righteousness” of drug laws is a matter that we all need to address with legislatures to get the laws changed. However, “fairness” is where we come into the picture.

Often times, possession charges are a matter of perspective that is greatly distorted when the drugs are uncovered during an illegal search and an unfair confiscation. When a roommate gives police permission to search the premises, somebody needs to make that unfair and illegal point to the district attorney. As with all criminal laws, drug laws exist to punish those convicted for a crime. But if the process by which the evidence was obtained violated the laws in existence to protect your home and your privacy, that is an issue that must be argued with legal expertise. No district attorney will be willing to surrender to a weak argument or a defendant without a lawyer. He knows he has the upper hand on both situations.

Conversely, we know drug laws, and we know how to make legal arguments with the district attorneys that not only set them back but cause them to look at our past case results in consideration of whether they want to take a chance on their now obviously weak case.

Marijuana in any capacity is still illegal in the State of Iowa.  While many States across the country have relaxed their laws and the enforcement of those laws regarding marijuana, Iowa has not and is not seriously considering any changes to the existing laws.  Medicinal marijuana his only now being debated by the Iowa legislature.

That all being said, a conviction for a marijuana offense in the State of Iowa has serious and permanent consequences.  A conviction for any drug offense in Iowa even marijuana offenses, can result in ineligibility for federal financial aid for college students.

In addition to the above-stated “civil” consequences, Iowa’s marijuana laws provide for the following criminal sanctions.

Possession Offenses

The majority of marijuana related possession offenses are misdemeanors.  For the State to establish a possession offense they must provide proof of three essential elements: (1) dominion and control over the marijuana; (2) knowledge of the marijuana’s presence; and (3) knowledge of its nature, i.e., that it is marijuana.  Possession can be constructive, or actual.  Thus, the common knee-jerk defense of “it wasn’t mine” isn’t a legitimate defense unless the State is unable to prove that the defendant knew about the presence of the marijuana and had the authority to exercise control of it.

First offense possession of marijuana is a hybrid serious misdemeanor.

Maximum Jail:  6 months             Minimum Jail: 2 days

Maximum Fine: $1,000

Second Offense Possession of Marijuana is an ordinary serious misdemeanor.

Maximum Jail:  1 Year                Minimum Jail: 2 days

Maximum Fine: $2,560                Minimum Fine: $430

Third Offense Possession of Marijuana is a Class D felony, punishable by up to 5 years in prison and a fine of up to $10,245.

Distribution or Sharing of Marijuana

Possession of Marijuana with the intent to distribute or deliver enhances the chargeable offense from a misdemeanor on a first offense, to at a minimum, a Class D felony.  Delivery in Iowa means transferring of a substance from one person to another.  This can be actual, hand to hand transfer, or constructive as well.  Thus, sharing of drugs among friends can, and often times does, result in a felony drug charge being filed.

Accommodation

The Offense of Accommodation is a step below possession of marijuana with the intent to distribute.  It recognizes that an individual who is merely sharing with friends has less criminal culpability than one who sells the drugs for profit.  For the accommodation exception to apply the offense must involve the delivery of ½ ounce or less and the marijuana must not have been offered for sale.  In these situations, the defendant is sentenced as an ordinary possession of marijuana offense.

NOTE: Accommodation does not apply to any other substances other than marijuana.

Possession with Intent to Deliver

Possession of Marijuana with Intent to Deliver other than the Accommodation offense is punishable as follows, depending upon the amount involved in the offense.

• Less than 50 Kilograms = Class D Felony.  Maximum 5 year term of imprisonment and a fine of $1,025 to $10,245.
• 50 Kilograms to 100 Kilograms = Class C Felony. Maximum 10 year term of imprisonment and a fine of $1,370 to $50,000.
• 100 Kilograms to 1,000 Kilograms = Class B Felony. Maximum 25 year term of imprisonment and a fine of $5,000 to $100,000.
• 1,000 + Kilograms = Super B Felony. Maximum 50 year term of imprisonment and a fine of between of not more than $1 million.

Using traffic violations on Iowa’s Interstates as a ruse to conduct drug-related investigations are a common tactic by law enforcement in Iowa.  These efforts target Interstate 80 and Interstate 35, which both run directly through the heart of Iowa.  Interdiction, as law enforcement calls it, is a multi-jurisdictional effort to catch narcotics and narcotic transporters as they drive through Iowa.

Here is how it works.  Law enforcement, particularly members of the Iowa State Patrol, sit alongside Interstate 80 and 35, looking for vehicles that “catch their attention.”  Normally these are vehicles with out-of-state plates, especially, New York, Arizona, California, and Texas.  These states are referred to by law enforcement as “source states.”  Often, these vehicles will have auxiliary amenities to them such as exterior toolboxes or gas tanks or other items that the State Patrol suspects could store illegal drugs such as marijuana, cocaine, and methamphetamine.

Once identified, Troopers will then stop the “suspicious” vehicle for the most minor traffic or equipment infraction including speed (sometimes only 3 miles and hour over the speed limit), tinted windows (Iowa law does not allow for tint on the front driver or passenger window or the windshield), expired registrations, license plate frames that cover any letters or numbers on a plate, or any other “violation” the Trooper can come up with.  The Trooper then approaches the vehicle, looking at the interior to see if it has a “lived in” look as he is asking for driver and passenger identification, proof of insurance and registration.  The driver is then asked to sit in the patrol car as the warning or citation is issued.

Once the driver is in his vehicle, the Trooper begins asking questions about the starting point, destination and purpose of the trip.  Before returning the drivers license and allowing him to go on his way, the Trooper, under the guise of returning the passengers identification, begins questioning the passenger about the same thing.  Any inconsistency in story will cause the Trooper to investigate further.  The Trooper will come back, tell the driver he is free to leave, but as the driver is walking back to the car, the Trooper will ask him to come back and answer a few other questions.  At this point the Trooper confronts the driver about any inconsistencies and flat out asks the driver if there are any drugs in the vehicle.

The Trooper carefully analyzes the driver’s response and then goes through a list of drugs, asking the driver whether any of them are present.  If the driver denies the presence of narcotics the Trooper will request consent to search.  If consent is granted, all occupants are placed in the rear of squad cars with audio recorders rolling to pick up any conversations between the vehicle occupants.  If consent is not granted, often times the Trooper will have the driver return to his vehicle, get the passengers out of the vehicle and secure them as well, before running a K-9 or drug dog around the vehicle.  The Trooper will contend that the inconsistent answers and nervous demeanor of the driver provided a suspicion that justified the K-9 sniff of the vehicle.

If the K-9 “alerts” to any part of the vehicle, an immediate “probable cause search” is conducted.  If the K-9 does not alert, then the occupants are normally permitted to go on about their business.  After letting them go, the Troopers will then review the in-car audio recordings to see if the vehicle occupants made any incriminating statements to each other while seated in the rear of the vehicle.  If so, they will radio ahead and have another agency re-stop the vehicle so that further investigation can be conducted.

Ultimately, any traffic stop, driver or passenger detention, or search of a vehicle implicate the protections of the Fourth Amendment and other constitutional rights of the individuals stopped.  Law enforcement must have a justifiable reason to suspect a vehicle, individual or group of individuals are involved in criminal activity before they may interfere with these rights.  Any evidence discovered by law enforcement, regardless of how damning it may be, can be excluded from court if a motorists constitutional rights violated.  It is imperative to hire an aggressive criminal defense lawyer knowledgeable in search and seizure law.

Most traffic stops in Iowa must be video recorded pursuant to law enforcement policies and procedures so video recordings are a crucial piece of evidence that must always be requested and reviewed before any case resolution is considered.  GRL Law has experienced great success in defending drug related traffic stops thanks to a careful review of associated video recordings.  When results matter, you can’t afford not to call GRL Law.

In drug “interdiction” or drug traffic stop situations, people are well-advised to remember a few simple rules:

1. Once the driving or equipment violation citation is issued, the officer must let you go on about your business, unless they have an articulable suspicion of criminal activity. Mere nervousness alone is insufficient.
2. ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU. Everything is recorded.  Both when you are speaking to the officer and when you are in the patrol vehicle.  The less you say the better and you NEVER have to answer questions.
3. You NEVER have to consent to a search of your person or your vehicle. If they want to search, make them get a warrant or search it without a warrant which then gives your lawyer arguments to have anything they found thrown out of court.

Remember, know your rights before you need them! Know your rights; Exercise your rights; and Preserve your freedom!

If you or a loved one has been charged or indicted for a drug offense or other felony criminal charge in federal court, you are likely scared and unsure what the future holds.  An aggressive, qualified and motivated federal criminal defense lawyer can help.  The federal criminal system is intimidating force where the stakes are much higher then for similar crimes in state court.  Individuals indicted for federal drug offenses often times face severe mandatory minimum prison sentences that can range anywhere from ten years to life imprisonment.  The final sentence imposed depends upon a host of factors with a significant focus being placed on the individual’s prior criminal history and the scope and involvement in the instant offense.

In the federal system, prison terms that are imposed do not get reduced for good and honor time like they do in state court.  As a general rule, the individual must serve 85% of the sentence before being eligible for supervised release.

When an individual becomes a suspect in a federal drug offense involving methamphetamine, crack, cocaine, ecstasy, marijuana or other illegal drug, immediate action is necessary.  There is no debate whether the indicted individual needs an attorney.  A knowledgeable, qualified and motivated defense lawyer is a must.  The quicker your defense attorney can get to work on the case the more effective the lawyer will be.  Time is of the essence.

Our qualified federal criminal defense lawyers understand that serious federal criminal drug charges require an immediate and effective defense.  We begin working aggressively on the case from the very beginning, paying close attention to every detail with a meticulous case preparation and a straightforward evaluation of each and every case.  Our federal drug offense lawyers are satisfied with nothing less then the best result for each and every client we represent.  Contact the federal drug and narcotic defense lawyers at GRL Law., today and ensure that your right to effective representation is exercised and your liberty is the most important focus of your lawyer’s efforts.

There are five ways under the law that an assault can be committed:

1. By committing an act intended to cause pain or injury to another coupled with the apparent ability to do it;
2. By committing an act that is intended to result in physical contact that will be insulting or offensive to another;
3. Committing an act intended to place another in fear of immediate physical contact that will be painful, injurious, insulting or offensive coupled with the apparent ability;
4. Intentionally pointing a firearm at another; or
5. Intentionally displaying a dangerous weapon to another in a threatening manner.

There are multiple types and levels of assaults

Committing an act that was either intended to cause pain or injury to another, or to result in physical contact that would be insulting or offensive to another, or was meant to place another in fear of immediate physical contact that would be painful, injurious, insulting or offensive; coupled with the apparent ability to do the act. A simple assault is a simple misdemeanor; punishment includes a fine ranging from $105 to $855 and up to thirty days in jail.

Any assault as previously defined which results in a bodily injury. Bodily injury is defined as physical pain, illness, or any impairment of physical condition. Assault causing bodily injury or mental illness is a serious misdemeanor; punishment includes the imposition of a fine ranging from $430 to $2,560 and/or imprisonment for up to one year.

An assault with the specific intent to either: cause an injury creating a substantial risk of death, serious permanent disfigurement, a protracted loss of a bodily function, or cause a disabling mental illness. Assault with intent to inflict serious injury is an aggravated misdemeanor; punishment includes a fine ranging from $855 to $8,540 and up to two years in prison.

The term dangerous weapon is very broad and includes: any device or instrument designed primarily for use in inflicting death or injury, and when used in its designated manner is capable of inflicting death; or any sort of instrument or device actually used in such a way as to indicate the user intended to inflict death or serious injury, and when so used is capable of inflicting death. Assault with a dangerous weapon is an aggravated misdemeanor; punishment includes a fine ranging from $855 to $8,540 and up to two years in prison.

An assault that results in injury creating a substantial risk of death, serious permanent disfigurement, a protracted loss of a bodily function, or cause a disabling mental illness. Assault Causing Serious Injury is a Class D Felony; punishment includes a fine ranging from $1,025 to $10,245 and a term not to exceed 5 years in prison. Assault Causing Serious Injury is a forcible felony, which requires the Court to impose a prison sentence.

During the commission of an assault where an object is used to penetrate the genitalia or anus of another is a Class C Felony. It is a forcible felony that requires a prison sentence not to exceed 10 years with a mandatory minimum of 70%.

An assault that is committed while the individual is participating in the commission of a felony. Participation in the offense can be at any point beginning with the first act done directly toward the commission of the offense up to the time of arrest or when they have withdrawn from the scene of the intended crime and eluded any pursuers. It makes no difference whether the person is successful or not in committing the offense. This is a forcible felony. There are two potential sentences. If a serious injury occurs during the commission of the offense it is a Class C Felony with a mandatory prison sentence not to exceed 10 years, with a minimum of 70%. If no serious injury results it is a Class D Felony and a mandatory prison term not to exceed 5 years shall be imposed, with a minimum of 70% being served.

There are two versions of Willful Injury. The first requires the State to prove: 1) an assault, 2) an intent to commit a serious injury, and 3) a serious injury resulted. This version is a Class C Felony, and is also a forcible felony. The Court is required to impose a prison sentence not to exceed 10 years, with a minimum of 70% being served. The other Willful Injury requires the State to prove: 1) an assault, 2) intent to commit a serious injury and 3) a bodily injury resulted. This version is a Class D Felony with a maximum prison sentence not to exceed 5 years and the imposition of a fine ranging from $1,025 to $10,245.

A domestic abuse assault is an assault occurring between individuals who have a domestic or familial relationship and applies to the following:

1. Family or household members residing together at the time of the assault.
2. Separated spouses or persons divorced from each other not residing with one another at the time of the assault.
3. Persons who are parents of the same minor child regardless of their marital or residential status.
4. Family or household members who resided together within the past year but not at the time of the assault.

Simple misdemeanor, a fine ranging from $105 to $855, and up to 30 days in jail. There is a mandatory 2 days in jail unless a deferred judgment or suspended sentence is granted. The Court is also mandated to order batterers’ education treatment program.

Serious misdemeanor, fine ranging from $430 to $2,560 and up to one year in jail. There is a mandatory 2 days in jail unless a deferred judgment or suspended sentence is granted. The Court is also mandated to order batterers’ education treatment program.

Aggravated misdemeanor, a fine ranging from $855 to $8,540 and up to two years in prison. There is a mandatory 2 days in jail unless a deferred judgment or suspended sentence is granted. The Court is also mandated to order batterers’ education treatment program.

Aggravated misdemeanor, a fine ranging from $855 to $8,540 and up to two years in prison. There is a mandatory 2 days in jail unless a deferred judgment or suspended sentence is granted. The Court is also mandated to order batterers’ education treatment program.

Sexual assault, or sexual abuse in the State of Iowa, commonly referred to as Rape, can generally be describe as a sex act between persons performed either against the will of the other or without the other persons legal consent.  There are a number of different alternatives and variations of the offense set out in Chapter 709 of the Iowa Code, which depend upon the nature of the alleged misconduct.

There are varying degrees of sexual assault which encompass all ranges of sexual offenses from misdemeanor sexual abuse to felony sex assault and what many consider to be rape. The degree of offense and corresponding sentence depends upon the alleged force used to perpetrate the offense, position of the alleged perpetrator to the alleged victim, injuries sustained by the alleged victim, and the age of both the alleged perpetrator and alleged victim.

In the State of Iowa, all sexual assault convictions require placement on the sex abuse registry and those involving minors require compliance with Iowa’s 2000 foot residency restriction.

Additionally, certain felony sex assaults require special parole periods where the convicted offender is on parole for the remainder of their life, and when second offenses are involved, special sentencing requirements may impose a life sentence where a first offense for the same sexual assault may only require an indeterminate term of imprisonment. Some offenders may also be subject to civil commitment as a sexually violent predator even after the completion of the prison sentence.

“Sex Act” is sexual contact between two or more persons by any of the following:

• Penetration of the penis into the vagina or anus
• Contact between mouth and genitalia
• Contact between genitalia of one person and the genitalia or anus of another
• Contact between the finger or hand of one person and the genitalia or anus of another
• Ejaculation onto another person
• Use of artificial sex organs or substitutes in contact with the genitalia or anus

“Sexual abuse” is any sex act between persons when the act is performed in any of the following circumstances:

• The act is done by force or against the will of the other
• If the consent or acquiescence of the other is procured by threats of violence toward any person
• If the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness
• The other person is suffering from a mental defect or incapacity which precludes the ability to consent, or if the other person lacks the mental capacity to know the right and wrong of conduct in sexual matters
• The other person is a child (under the age of 16)

“Incapacitated” means a person is disabled or deprived of ability as follows:

• “Mentally incapacitated” which is defined as a person who is temporarily incapable of apprising or controlling the person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance.
• “Physically helpless” which is defined as a person who is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited.
• “Physically incapacitated” which is defined as a person who has a bodily impairment or handicap that substantially limits the person’s ability to resist or flee.

Sex Abuse in the First Degree: When in the course of committing sexual abuse, the person causes another serious injury.

Serious injury includes:

• Disabling mental illness;
• Bodily injury which does any of the following:
• Creates a substantial risk of death;
• Causes serious permanent disfigurement;
• Causes protracted loss or impairment of the function of any bodily member or organ.
• Injury to a child that requires surgical repair and necessitates the administration of general anesthesia.

Penalty: Sexual Abuse in the First Degree is a Class A Felony requiring life imprisonment without the possibility of parole.

Sex Abuse in the Second Degree: Sexual Abuse in the Second Degree may be charged in four separate alternatives:

1. Commission of a sex act while displaying a dangerous weapon in a threatening manner;
   • Dangerous weapon is “any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon another, AND which when used is capable of inflicting death upon a human. This includes among other things, any offensive weapon such as a firearm, knife having a blade exceeding five inches, or razor.
2. Use or threatening to use force that would create a substantial risk of death to any person;
   • Actual injury is not necessary just a real danger of death or serious injury.
3. Sexual Abuse of a child, under the age of 12; or
   • Knowledge of age is completely irrelevant.
4. Aiding and abetting another in committing sexual assault through force or against the will of the victim.

Penalty: Sex Abuse in the Second Degree is a Class B forcible felony requiring mandatory prison sentence of 25 years. It is also subject to the 70% rule for certain forcible felonies meaning that the individual must serve 70% of his/her time before even being eligible for parole.

Also carries with it the “special sentence” requirement which places the individual in the custody of the Director of the Iowa Department of Corrections for the rest of his/her life and in essence the individual is on lifetime parole which can be revoked and a 2-year term of imprisonment for a violation may be imposed for a first offense and 5 years for each subsequent offense.
Second Offense for Sexual Assault 2nd or 3rd Degree requires life imprisonment.

Sex Abuse in the Third Degree is divided into two subsets:

1. Commission of a sex act against another by force or against the will that does not qualify as Sexual Abuse in the First or Second Degree; or
2. Commission of a sex act against another who is incapable of consent or a special relationship exists between the defendant and alleged victim. This subsection is broken down into 6 additional subsections:
   1. The alleged victim is suffering from a mental defect or incapacity which precludes the person from giving consent;
   2. The alleged victim is 12 or 13 years of age;
   3. The alleged victim is 14 or 15 and the defendant is a member of the same household;
   4. The alleged victim is 14 or 15 and the defendant is related by blood or affinity to the 4th degree;
   5. The alleged victim is 14 or 15 and the defendant is in a position of authority and uses it to coerce the participant’s submission; or
   6. The alleged victim is 14 or 15 and the defendant is 4 or more years older than the alleged victim.

Penalty: Sexual Abuse in the Third Degree is a Class C Felony carrying with it a 10-year term of imprisonment as it is a forcible felony. However, two theories of Sex Abuse in the Third Degree are not forcible felonies and the court can grant probation. These include:

1. Sexual abuse between spouses; or
2. If the offense involves an alleged victim that is 14 or 15, the defendant is 4 or more years older, and the “sexual assault” was not by force or against the will of the alleged victim.

Sexual Abuse in the Third Degree is also subject to the “special sentence” of lifetime parole.

A second offense for felony Sexual Abuse in the Third Degree requires life imprisonment.

It is illegal for any person (including other minors), other than the parent or guardian of the minor, to knowingly disseminate or exhibit obscene material to a minor, including the exhibition of obscene material so that it can be observed by a minor on or off the premises where it is displayed. This is a serious misdemeanor, punishable by up to one-year in jail. This offense also subjects the person to 10 years on the sex offender registry.

It is unlawful to employ, use, persuade, induce, entice, coerce, solicit, knowingly permit, or otherwise cause or attempt to cause a minor to engage in a prohibited sexual act or in the simulation of a prohibited sexual act. A person must know, or have reason to know, or intend that the act or simulated acts may be photographed, filmed, or otherwise preserved in a visual depiction. A conviction of this offense is a class “C” felony, punishable by up to 10 years in prison. The court may also assess a fine of not more than $50,000 for each offense in addition to any other authorized sentence. Conviction of this offense also subjects the individual to a lifetime special sentence parole to commence at the completion of the sentence imposed. This offense also requires 10 years on the sex offender registry.

It is unlawful to knowingly promote any material visually depicting a live performance of a minor engaging in a prohibited sexual act or in the simulation of a prohibited sexual act. A conviction of this offense is a class “D” felony. The court may assess a fine of not more than $25,000 for each offense under this subsection in addition to any other authorized sentence. Conviction of this offense also subjects the individual to a 10-year special sentence parole to commence at the completion of the sentence imposed. This offense also requires 10 years on the sex offender registry.

It is unlawful to knowingly purchase or possess a visual depiction of a minor engaging in a prohibited sexual act or the simulation of a prohibited sexual act. A person convicted as a first offense is guilty of an aggravated misdemeanor, punishable by up to 2 years in prison. Conviction of this offense also subjects the individual to a 10-year special sentence parole to commence at the completion of the sentence imposed. This offense also requires 10 years on the sex offender registry. A second or subsequent conviction of this offense is a class “D” felony, punishable by up to 5 years in prison. A second or subsequent conviction also subject the individual to a 10-year special sentence parole and lifetime on the sex offender registry.

If it is illegal for a counselor or therapist to have any sexual conduct with an emotionally dependent patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of either party. Prohibited sexual conduct includes, but is not limited to:

• Kissing;
• Touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or
• A sex act.

A counselor or therapist convicted of this offense commits an aggravated misdemeanor, punishable by up to 2 years in prison. A conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

It is also illegal for a counselor or therapist to have any sexual conduct with a patient or client or a former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of either party. Prohibited sexual conduct includes, but is not limited to:

• Kissing;
• Touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or
• A sex act.

A counselor or therapist convicted of this offense commits a serious misdemeanor, punishable by up to 1 year in jail. A conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

A counselor or therapist who is found to have engaged in a pattern, practice, or scheme to engage in the foregoing conduct is guilty of a class “D” felony, punishable by up to five years in prison. Additionally, a conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

It is illegal for a school employee to have any sexual conduct with a student for the purpose of arousing or satisfying the sexual desires of either party. Prohibited sexual conduct includes, but is not limited to:

• Kissing;
• Touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or
• A sex act.

A school employee convicted of this offense commits an aggravated misdemeanor, punishable by up to 2 years in prison. A conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

A school employee who is found to have engaged in a pattern, practice, or scheme to engage in the foregoing conduct is guilty of a class “D” felony, punishable by up to five years in prison. Additionally, a conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

It is illegal for anyone age 16 or older to perform any of the following acts with a child, either with or without consent, for the purposes of arousing or satisfying the sexual desires of either of them, unless married to each other:

• Fondle or touch the pubes or genitals of a child;
• Permit or cause a child to fondle or touch the person’s genitals or pubes;
• Cause the touching of the person’s genitals to any part of the body of a child.

Any person convicted of one of these acts is guilty of a class “C” felony, punishable by up to 10 years in prison. An individual convicted of this offense is also subject to a lifetime special sentence parole which commences at the completion of the sentence imposed. For purposes of the sex offender registry, it is considered an “aggravated offense” to be convicted of either fondling or touching the pubes or genitals of a child or permitting or causing the child to fondle or touch the person’s genitals or pubes, which results in a lifetime registry. A person convicted of touching their genitals to any part of the body of a child is subject to a 10-year registry.

It is also illegal for anyone age 16 or older to perform any of the following acts with a child, either with or without consent, for the purposes of arousing or satisfying the sexual desires of either of them, unless married to each other:

• Solicit a child to engage in a sex act or solicit a person to arrange a sex act with a child;
• Inflict pain or discomfort upon a child or permit a child to inflict pain or discomfort on the person.

A person convicted of one of these acts is guilty of a class “D” felony, punishable by up to 5 years in prison. An individual convicted of this offense is also subject to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

It is illegal for anyone age 18 or older to perform any of the following acts with a child, who is not their spouse, with or without the child’s consent, for the purposes of arousing or satisfying the sexual desires of either of them:

• Fondle or touch the inner thigh, groin, buttock, anus, or breast of the child;
• Touch the clothing covering the immediate areas of the inner thigh, groin, buttock, anus, or breast of the child;
• Solicit or permit a child to fondle or touch the inner thigh, groin, buttock, anus, or breast of the person;
• Solicit a child to engage in:
  • Fondling or touching the pubes or genitals of a child;
  • Permitting or causing a child to fondle or touch the person’s genitals or pubes;
  • Inflicting pain or discomfort upon a child or permitting a child to inflict pain or discomfort on the person.

A person convicted of one of these acts is guilty of an aggravated misdemeanor, punishable by up to 2 years in prison. Additionally, a conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

This offense also applies to a person age 16 or 17 who commits any of the acts upon a child who is at least 5 years younger. Juvenile court has jurisdiction over these cases. The juvenile court has discretion in terms of sentencing and whether to either waive, modify, or suspend the requirement to register as a sex offender.

It is illegal for a person over the age of 18 who is in a position of authority over a minor to force, persuade, or coerce a minor, with or without consent, to disrobe or partially disrobe for the purpose of arousing or satisfying the sexual desires of either of them.

A conviction for this offense is a serious misdemeanor, punishable by up to one year in jail. Additionally, a conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

A person without authority and with the intent to commit sexual abuse or sexual exploitation upon a minor under the age of 13, entices or attempts to entice a person reasonably believed to be under the age of 13. A conviction of this offense is a class “C” felony and is punishable by up to 10 years in prison. This offense also subjects the person to 10 years on the sex offender registry.

A person without authority and with the intent to commit an illegal sex act or sexual exploitation upon a minor under the age of 16, entices or attempts to entice a person reasonably believed to be under the age of 16. A conviction of this offense is a class “D” felony and is punishable by up to 5 years in prison. This offense also subjects the person to 10 years on the sex offender registry.

A person without authority and with the intent to commit an illegal act upon a minor under the age of 16, entices or attempts to entice a person reasonably believed to be under the age of 16. A conviction of this offense is a class “D” felony and is punishable by up to 5 years in prison. This offense also subjects the person to 10 years on the sex offender registry if the illegal act involves an intent to commit sexual abuse, sexual exploitation, sexual contact, or sexual conduct directed towards a minor.

It is illegal for a person to knowingly view, photograph, or film another person, for the purpose of arousing or gratifying the sexual desire of any person, if all of the following apply:

• The other person does not consent or is unable to consent to being viewed, photographed or filmed;
• The other person is in a state of full or partial nudity;
• The other person has a reasonable expectation of privacy while in a state of full or partial nudity.

Full or partial nudity means the showing of any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of a female, with less than fully opaque covering.

A person convicted of this offense commits an aggravated misdemeanor, punishable by up to 2 years in prison. A conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

It is illegal for a person to expose their genitals or pubes to another, not the person’s spouse, or to commit a sex act in the presence of or view of a third person, if:

• The person does so to arouse or satisfy the sexual desires of either party; and
• The person knows or reasonably should know that the act is offensive to the viewer.

A person convicted of this offense commits a serious misdemeanor, punishable by up to 1 year in jail. A conviction of this offense subjects the individual to a 10-year special sentence parole which commences at the completion of the sentence imposed. A conviction for one of these offenses also carries placement on the sex offender registry for a period of 10 years.

The crime of theft is considered a “crime of dishonesty” and a “crime or moral turpitude.” The offense ranges from a simple misdemeanor to a Class C Felony depending upon the facts and circumstances of each case. Because theft qualifies a “crime of dishonesty” and a “crime of moral turpitude”, a conviction for any level of theft can have long-lasting if not permanent adverse consequences to the individual convicted.

Most employers will not permit an employee convicted of theft to remain on their workforce, and if a theft conviction appears on an individual’s background check, employment will often times be denied. In the State of Iowa, there is no way to expunge a conviction once it is entered on an individual’s record so ensuring that a lapse of judgment or childish mistake does not become embedded on one’s record is essential. If charged with any degree of theft, the assistance of a qualified criminal defense lawyer is a necessity. Whether it is a complex embezzlement case or as simple as taking clothing from a department store (simply larceny, also known as shoplifting), the consequences are just as permanent.

The general crime of theft can be alleged to have been committed in a number of different ways in the State of Iowa. There is Theft By Taking, what many would describe as “stealing”; Theft by misappropriation, oftentimes referred to as “embezzlement”; Theft by deception, commonly referred to as “cons”; and receipt or control over stolen property.

The basic elements that are fundamental to any criminal charge of theft include the taking or maintaining possession of the property of another, and the intent to deprive the rightful owner of its use or benefit or using the property for ones own benefit contrary to the rights of the true owner. The level of the offense is almost completely dependent upon the value of the property taken or the amount of money misappropriated.

The degrees of Theft are as follows:

First Degree: Value exceeds $10,000 or the property was taken from the person of another; or the property was looted – Class C Felony

Second Degree: Value exceeds $1,000 but is less than $10,000 or the theft of a vehicle not valued at more than $10,000 – Class D Felony

Third Degree: Value exceeds $500 but is less than $1,000 or the defendant has two prior convictions for theft – Aggravated Misdemeanor

Fourth Degree: Value exceeds $200 but is less than $500 – Serious Misdemeanor

Fifth Degree: Value is $200 or less – Simple Misdemeanor

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.

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.

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:

• Public streets, alleyways, and parking lots
• Steps and common hallways of apartment buildings
• Dormitories
• Bars and restaurants
• Stadiums, event centers etc.

*Generally speaking any place open to the general public constitutes a “public place.”

Not included as “public places” are:

• Private vehicles (not public transportation)
• Decks or porches to residence
• Inside a person’s apartment
• On private land

Erasing Criminal Record of Conviction – Public Intoxication convictions are the may 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.

Simple Misdemeanor. A maximum jail sentence of up to 30 days; fine of up to $855, but not less than $105 plus 15% surcharge and court costs.

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.

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.

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.

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.

Any person under the age of twenty-one (21) is prohibited from possessing alcohol and everyone is prohibited from providing alcohol to any individual who is underage. This offense is often known as an MIP (minor in possession) or PAULA (possession of alcohol under the legal age). What constitutes “possession” is where much of the litigation surrounding this offense occurs and the State bears the burden of proving that the underage individual “possessed” the alcohol. Questions often arise, and the State often is unable to prove possession when the charges stem from an underage party or other scenario where other minors have access to the same alcohol. Iowa law does allow an underage individual to consume alcohol “in a private home and with the knowledge, presence, and consent of the parent or guardian.”

Violations for being a minor in possession of alcohol are classified as simple misdemeanors but have increased penalties for each subsequent offense. A first offense is punishable as a simple fine. A second offense is punishable by a $500 fine and be required to complete a substance abuse evaluation or face suspension of driving privileges for up to one year. A third offense is punishable by a $500 fine and loss of driving privileges for up to one year. In addition to a fine and loss of license, a person convicted of MIP may also have consequences imposed through their school system.

However, all is not lost if you or someone you know has been convicted of a minor in possession of alcohol charge because the law provides the ability to expunge the charge from the persons record so long as two years have passed from the conviction date without any further tickets or arrests other than simple misdemeanor traffic tickets. If you or someone you know has been charged with or convicted of MIP or a PAULA, it would beneficial to contact an attorney at GRL Law to see what we can do for you!