How We Defend You

Iowa DUI Attorneys

How We defend You

Our DUI Attornys Explore Every Avenue And Do Everything Within Our Ability And Resources To Compel A Positive Resolution To Your Case.

Our DUI attorneys represent clients that want to explore every avenue and do everything within their ability and resources to compel a positive resolution to their case. We never take a case just to take someone’s money, hold their hand and plead them guilty. That may be some DUI lawyer’s business plan, it is not ours! Plan A is always to beat the case.

Our approach requires a thorough, detailed and exhaustive investigation into each and every possible fact and defense for your case. We cannot change the facts but we do investigate them and ensure that no stone is left unturned. We stare where others glance; we dig where others skim; we review what others don’t know to ask for; we listen where others talk over. We work for you, keeping your best interest at the forefront throughout your case. Only after the facts, law and science are thoroughly explored do we even consider Plan B.

We cannot and will not ever tell you that we guarantee that we will win your case. What we can promise is that if there is an issue we will find it and we will make every effort to develop the facts, argue the law and science, in order to ensure the best possible outcome of each case we take.

For more information about our DUI attornys or if you want to schedule a consultation visit our contact page or call us at (515) 393-2610.

Search and Seizure

The United States Constitution and the Iowa Constitution both guarantee the right to be free from unreasonable searches and seizures. A “search” occurs any time the government intrudes upon an area or property item that a person has a reasonable expectation of privacy in. A “seizure” occurs anytime the government restrains a person of their freedom to move about. The provisions of the Fourth Amendment and article I section 8 of the Iowa Constitution serve not only to prevent governmental intrusions into our privacy but also provide a defendant with one of the most effective tools in criminal defense – exclusion of evidence.

The accused can be 100% factually guilty of a charge but if the evidence establishing the defendant’s guilt was obtained in violation of the search and seizure provisions of the constitution the defendant may get completely off of the charge. Under the “exclusionary rule,” of both the Iowa Constitution and the United States Constitution, the government is not allowed to use illegally obtained evidence against a defendant at trial. This means if a judge concludes that the evidence was obtained in violation of the accused rights to be free from unreasonable searches and seizure that evidence is “thrown out of court,” often leaving the prosecution without sufficient evidence to convict the defendant.

These situations happen most frequently in cases that arise out law enforcement’s stop of a vehicle. Whether it is a drunk driving, narcotics transportation, possession of drugs, or weapons charge, if the evidence was discovered following an illegal stop of the vehicle, that evidence can be excluded. For this reason, it is imperative to consult with aggressive and competent search and seizure lawyer if a person believes that their right to be free from unreasonable search and seizure may have been violated. Time is of the essence because law enforcement will often not take adequate steps to preserve important evidence documenting a potential constitutional violation. Quick action should be taken to ensure it is properly preserved

Field Sobriety Tests

Field sobriety tests are the primary tools used by law enforcement to determine whether or not a person is impaired by alcohol. Police are also the primary evidence against a person to prove that they are legally “under the influence of alcohol” if no evidentiary chemical test result is obtained. Field Sobriety Tests are strictly voluntary and a driver has the ability to refuse these so-called “tests” without any negative implications on their driving privileges.

Field Sobriety Tests Fail

Field sobriety tests are by no means fool proof and many people cannot perform the tests to law enforcement standards even without having consumed any alcohol. A study conducted at Clemson University found that law enforcement officers will “fail” completely sober individuals on these tests an astounding 46% of the time.

Types of Field Sobriety Tests

Despite their issues, the three “standardized” field sobriety tests are as follows:

Horizontal Gaze Nystagmus Test

Officers check for alcohol induced “gaze nystagmus” by manipulating the eyes back and forth determining when and for what duration, nystagmus is observable. Nystagmus is simply the “involuntary jerking of the eye.” It happens to everyone all of the time at some level, but the theory behind this test is that the more alcohol that is consumed, the more visible and distinct the jerking will be. However, there are environmental conditions that can induce observable nystagmus even without any alcohol being consumed. These include rotating lights and passing traffic in close proximity to where the test is being conducted. Both of which are present in almost every OWI investigation. Also there are approximately 43 medically recognized conditions with the eye that can mimic alcohol induced “gaze nystagmus.” Officers are not trained to distinguish between alcohol induced nystagmus and these other medical conditions.

Walk and Turn

Also known as Simon Says for law enforcement. The individual is asked to stand in the start position with his/her left foot on the “real or imaginary line” with the right foot in front touching heal to toe. The officer then explains the tests, instructing the individual to take 9 heal-to-toe steps down the line while keeping his/her hands at their side and counting the steps aloud. On the 9th step, the individual is instructed to keep the front foot planted and turn using a series of small steps and return the way they came out. During the test the officer is looking for a number of “clues.” 1) Does the person start before being told? (Simon didn’t say); 2) Doe the person break the heal-to-toe position during the instruction stage? For each step, the officer then looks for five separate “clues.” Does the person: 1) Stop walking; 2) Take the proper number of steps; 3) Step off the line (real or imaginary); 4) Miss heal to toe contact by more than ½ an inch; and 5) Use arms for balance (raise them more than 6 inches). The turn is also graded and if the person does not “turn using a series of small steps,” for example, pivots, a “clue” is assessed. Adding it all up, there are 93 ways a person can score a “negative clue.” A score of 2 is considered a “failure” by law enforcement standards.

One Leg Stand

The one leg stand requires the individual to pick a leg to balance on, and lift the other leg, strait out to a point where their foot is six inches off the ground and maintain that position counting out loud (one thousand one, one thousand two, etc). The officer times this “test” for 30 seconds and looks for the following four “clues”: 1) Uses arms for balance (6 inches from side); 2) Sways; 3) Hops; or 4) Foot down. A score of “two” is considered a “failure” by law enforcement.

As you can see, field sobriety tests are completely subjective. The Horizontal Gaze Nystagmus test has no objective verification like the other two tests often times do through video recordings. Thus, the tested person is completely at the mercy of the officer to correctly and truthfully document and testify as to what is observed. More importantly a person can “pass” one or two of the field sobriety exercises and the law enforcement officer will often times still base the arrest decision on the perceived performance on just one of the tests. Add to all this the fact that at the time a person is being asked to submit to these tests they are scared and intimidated and submitting to field sobriety exercises becomes a less and less attractive option. Electing not to submit to these tests is completely within an investigated person’s ability and is an option that should seriously be considered. Prisons are full of people that attempt to cooperate their way out of being arrested or sent to jail for just one night. You should know your options and exercise them in a way that has your best interest in mind.

Preliminary Breath Test

Determining Drunkenness?

The preliminary breath test is the handheld breath test that is given to a driver while still ‘in the field’.

It is a light and portable device that does not have all of the same protections against invalid test results as is present in the breath test machine that is used for evidentiary purposes.

Unreliable Results

As a consequence, the results of a preliminary breath test are considered by law, to be “inherently unreliable” and the numeric test result is not admissible in any proceeding against a person charged with operating while intoxicated.

Breathalyzer Determines Drunkenness For Arrest

However, as ironic as it may be, the officer does use the results to determine whether or not to arrest the person. An officer can still arrest a person even if the preliminary breath test result comes back under the legal limit.

Blood, Breath and Urine Testing

Iowa Datamaster Breath Test Device

Far and away, the most popular evidentiary test given to motorists to determine their alcohol concentration in the State of Iowa is breath. The initial decision on what type of bodily fluid to request for purposes of chemical testing is the arresting officer’s. The officer may request, breath, blood or urine. Under most circumstances this request is being made at the police station after the person has been arrested. In these circumstances, breath is what is ordinarily requested because the breath test machine is installed and presumably functioning there at the police station. These tests are inexpensive to administer and take approximately 3-5 minutes.

Iowa DataMaster DMT

Iowa now uses the DataMaster DMT breath testing device, initially produced by National Patent Analytical Systems, Inc., based out of Mansfield, Ohio. (http://www.npas.com).

The DataMaster DMT uses infrared absorption spectrometry technology to measure the concentration of alcohol molecules in the breath sample submitted into the machine. This machine measures both the alcohol concentration in the individual’s breath sample but also the volume of breath submitted as well.

Iowa DataMaster Graph

In Iowa, the machine is programmed to print out a graph that shows both the alcohol concentration curve as well as the breath volume curve.

The purpose of the breath volume curve is to provide a visual display of the “quantity” of breath sample being provided into the machine for the test.

This graph display theoretically will limit arguments from either side that the individual submitting to the test either did or did not provide an adequate sample of their breath for the test.

Final Breath Test Results

To prevent officer and test subject “manipulation,” the machine does NOT display a numeric test result until the end of the test, when the sample is accepted and the test is complete.

The final results are printed off to the left of the graft and may look like the above image.

The “subject sample” is the numeric test result that is reported. The same breath sample is tested twice by the machine.

Iowa State Requirements to Use Breath Test Results as Evidence

There are a number of requirements that must be followed before an evidential breath test result may be admitted against an individual in an operating while intoxicated case.

  1. The implied consent procedures must have been properly followed.
  2. The officer must be certified to operate the breath test device.
  3. A certified breath test machine must be used.
  4. The officer must follow the proper procedures set forth by the Iowa Department of Criminal Investigation. These procedures include a 15 minute deprivation period that absolutely must be followed in every case.

If the basic evidential foundational requirements are met, the test result can be presented to the jury and the question becomes whether or not the breath test accurately represents the subjects true alcohol concentration at the time they were operating the vehicle.  This is where defenses such as rising alcohol, mouth alcohol, interfering medical conditions such as Acid Reflux or GERD, partition ration, margin of error, statistical uncertainty, electronic interference, and others, may come into play.

Urine Testing

Urine testing in drunk driving investigations is the least reliable of the least desirable form of chemical testing, especially for alcohol. The most significant problem with urine testing is that it simply reveals what was in the person’s bloodstream at a prior time, NOT at the time they are being tested. It is also the most volatile easily contaminated bodily substance that can be tested in DUI investigations.

In alcohol cases, the urinalysis only tells law enforcement the average alcohol concentration that has been through the persons system since the last time their bladder had been emptied. This is because alcohol molecules detected in urine are simply the waste product of what has already been processed through the blood stream, secreted by the kidneys. Once processed through the body, the alcohol molecules then sit in the bladder as more urine is produced which will either have a greater or less concentration than what was previously produced. The result is something commonly referred to as the “pooling effect.” This results in merely averaging of the concentration of alcohol molecules that have been in the person’s blood stream since the last time the bladder was emptied.

While Iowa, like many States, does not require a correlation of alcohol in the urine to a particular blood concentration at the time of driving for ordinary operating while intoxicated prosecutions, the deficiencies in urine testings’ ability to be correlated to a blood alcohol concentration is of significant importance in Vehicular Homicide and Serious Injury by Vehicle cases. In those cases, the State is required to prove that the individual’s intoxication was the cause in fact of the accident. It is not enough to prove that the person simply had a particular level of alcohol or drug in their system and that an accident happened. Rather, the State is required to prove that the person was impaired by the substance and that such impairment was a cause of the collision. In these cases the deficiencies in urine testings’ ability to correlate to a specific blood concentration and corresponding level of impairment, becomes paramount to an effective defense.

Exclusion of Evidence

Excluding evidence based upon legal violations by law enforcement is the single most effective defense to a drunk driving charge.  A person can be factually guilty but if law enforcement violates a defendants rights during the investigation or arrest, crucial evidence needed to prove the prosecution’s case can and often times is excluded.  If it is declared inadmissible by a judge, that evidence is not available for the prosecution to use against the defendant.

Iowa’s exclusionary rule applies to all evidence obtained as a result of a constitutional violation or violation of specific rights guaranteed by the statutes passed by the Legislature.  In Operating While Intoxicated cases, constitutional violations most commonly occur because:

  1. The police did not have a legal justification to pull the person over in the first place;
  2. The police arrest a driver without sufficient probable cause;
  3. Miranda rights are not correctly read at the right time; or
  4. Incorrect or misleading information is given to the person prior to submitting to breath, blood or urine testing.

Iowa also has specific legal requirements or legislatively created rights in addition to constitutional rights which if violated, may result in evidence being excluded.  They include:

  1. Right to call, consult, or see an attorney, family member, or both, prior to making a decision to take or refuse a test;
  2. Mandatory implied consent advisory regarding license suspension consequences if person consents and fails a test versus refuses a test; or
  3. Right to an independent test at your own expense.

A violation of any of these or other specific constitutional or statutory rights can result in exclusion of evidence including the breath test results taken at the station.  It is important to ensure that an attorney representing a defendant on this type of case is well-versed on the numerous different ways that evidence may be excluded for legal violations.