Iowa Drivers Rights Card
The Iowa Driver’s Rights Card is a written notice to the officer that the individual under investigation is invoking the following rights: 1) Right to remain silent; 2) Right to withhold consent to a search of ones person, property or affects; 3) Right to refuse field sobriety exercises; and 4) Right to phone calls and to consult with an attorney before the breath test at the station. It is simple and succinct and all that needs to be done to invoke these rights is to hand the card to the officer.
Not everyone understands or appreciates the true purpose of GRL Law’s Iowa Driver’s Rights Card. Some criticize it as encouraging drunk drivers while others look at it as some sort of magic “get out of jail free” card. It is neither. The single most important thing to comprehend with regards to the driver’s rights card is that it cannot and does not save someone from themselves. If the individual under investigation is visibly intoxicated and does not have their faculties about them, the card is useless. If the person cannot walk to their car without staggering; starts berating the officer with slurred speech and talks in a non-sensible manner; elects to do field sobriety exercises and looks visibly intoxicated; or if the officer gives the person the opportunity to place calls and the person elects not to, the card is useless.
Here are a few tips to ensure that if you are in the unfortunate position where you need to invoke your rights under Iowa law, you will know exactly what to do. First, read the card and understand the rights you are invoking BEFORE you need it. Second, DO NOT hand the card to an officer until it is clear that you are being investigated. Third, remember the rights that are being invoked so if the officer asks if you still want to do what is clearly requested on the card, you can reaffirm the invocation of your legal rights. Finally, say as little as possible. Prisons and jails are full of people that could not hold their tongue. The less you say the better.
Hopefully, you are never in the position to use GRL’s Iowa Driver’s Rights card but if you are, these tips will help you effectively invoke your legal rights in Iowa. Remember though, the only absolute defense to drunk driving is not to operate a motor vehicle while under the influence of alcohol.
Substance Abuse Evaluations
Iowa law requires a person convicted of operating while intoxicated to obtain a substance abuse evaluation. Some counties even require it to be obtained within a set amount of time following the person’s arrest. If the defendant does not get the substance abuse evaluation completed in the time required by the court, a warrant may be issued for their arrest. To find a location nearest you, click here.
Drinking Drivers Classes
Anyone convicted or who has their driving privileges suspended for drunk driving in Iowa must take a qualifying drinking drivers class. Some counties only require a 12 hour course while others require a 48 hour course that also takes the place of the mandatory minimum 2 days in jail. To find a program nearest you, click here.
When are Interlock Devices Required?
Ignition interlock devices are required almost any time a driver wants to obtain a temporary restricted license (work permit). Even individuals that test positive for the presence of controlled substances are required to install ignition interlock devices even though they have no ability to detect controlled substances. It’s silly, but still the law.
What is an Interlock Device?
Ignition interlock devices are portable breath test devices that are installed in a person’s vehicle that require alcohol-free breath samples to be submitted before starting the vehicle and intermittently as the vehicle is running. If the interlock devices detects alcohol, the vehicle will not start. If the driver misses a sample submission request, the device will then be triggered, often times resulting in the horn blowing and lights flashing. In that event, once stopped, the vehicle will not restart until the device is manually reset by the service provider.
Contrary to some common misconceptions, the vehicle does not immediately shut down on the driver.
Who Pays for the Installation of an Interlock Device?
All costs for installation of an interlock device are the responsibility of the person convicted for operating while under the influence.
How Much Does an Interlock Device Cost to Install?
The cost of ignition interlock devices depends upon the provider used. Generally speaking, providers charge a one-time installation fee plus a monthly service fee of anywhere from $60-$80/month. In addition to those fees, providers also normally charge de-installation fees and fees for service calls.
After an OWI Conviction
Like every other type of insurance, car insurance rates depend upon a number of factors that insurance companies use to determine the risk associated with each individual driver covered by a policy. Factors such as age, vehicle make and model, driving record and criminal record all play a part. Obviously an arrest foroperating while intoxicated can have a big impact on car insurance rates.
Ordinarily, an insurance company will not make an adjustments on a person’s automobile insurance policy until and if they are convicted of an OWI offense or their driver’s license is suspended.
What is SR-22 Insurance?
In the event of a license suspension for operating while intoxicated,test failure or test refusal, or a conviction, the Iowa Department of Transportation will require something called SR-22 insurance. SR-22 insurance is not necessarily a separate type of insurance however it is a filing that an insurance company makes with the Department of Transportation verifying that the individual is covered by a “high risk” insurance policy. They charge for the filing and the insurance premium goes up based upon the underlying conduct that required the filing of the insurance.
How Long is SR-22 Insurance Required?
SR-22 insurance is required for two years following the most recent suspension. Even if the individual forgoes obtaining a work permit, SR-22 insurance is still required for two years from the date their license is reinstated. If SR-22 insurance is obtained and filed with the Iowa Department of Transportation, then the license plate and registration surrender provisions do not apply to that vehicle. SR-22 insurance must be on file for each vehicle owned and operated by an individual following a suspension or conviction for operating while intoxicated.
National College of DUI Defense
The National College of DUI Defense is the leading attorney education program in the nation regarding the effective defense of drunk driving charges. Both DUI defense attorney partners at GRL Law are members of the College and Robert Rehkemper serves as the State Delegate for the State of Iowa. The College’s website is a vast resource for drunk driving related information for every state throughout the nation. To learn more, click here.
If I Fight the Charges, I'll End Up Worse Than Pleading Guilty Right Away
Wrong! Judges and prosecutors expect a defendant to plead not guilty at the initial stages of a prosecution. There are a number of preliminary court appearances in a drunk driving case that a defendant must make that are strictly procedural in nature. These include the Initial Appearance, Preliminary Hearing and Arraignment. The Arraignment date is what actually starts the official process moving and it cannot happen until after the formal charges have been filed. In Iowa State court, the prosecutor is required to file the Trial Information which sets out the charges and evidence believed to support the charge. This must be filed within 45 days of the defendant’s arrest. If it is not, the charge must be dismissed. In most cases, a judge will not allow a defendant to plead guilty until after the Arraignment has taken place, even if they want to.
Prosecutors do not just hand out the best possible resolution to a case, especially to an individual that is not represented by a competent attorney.
It takes a knowledgeable lawyer to review a case and point out factual and legal arguments that would warrant a departure from their “usual recommendations.” In some prosecutor’s minds, they owe no special duty to a defendant that elects to represent themselves, although prosecutor ethical rules would suggest otherwise. A prosecutor’s goal is to resolve a case, not make sure the defendants best interests are served. An early guilty plea clears their case, what happens to a defendant after that is none of their concern.
More importantly, prosecutors and judges may not punish a defendant more severely simply because he exercised his right to investigate his case. To do so would be in direct violation of the Iowa and United States Constitutions. Also, an experienced DUI defense lawyer will always conduct their own independent investigation into a client’s case in a way that minimizes a prosecutor’s involvement. Most of the time, neither the judge nor the prosecutor will even know the extent of a good defense attorney’s investigation. The role of a defense lawyer is to thoroughly investigate a case in order to obtain any possible factual or legal argument that would advance their client’s position. If an issue is discovered then and only then is a decision made to formally “fight” the case. If no issue or defense is viable, then the alternate route may be taken without the prosecutor or judge knowing any different. When there are issues, a good defense lawyer will take a “sniper approach” as opposed to a “shotgun approach” and raise only the issues that are supported by the facts and law for each particular case. Judges actually appreciate having defendant’s represented by well-qualified and experienced attorneys because it makes the process much smoother and their jobs easier. While prosecutors don’t always appreciate it, it is the judge that matters because ultimately the judge makes the final decision.
I Will Lose My Driving Privileges If I Refuse to do Field Sobriety Tests or the Preliminary Breath Test at the Roadside
An individual is not required to perform field sobriety tests or a preliminary breath test on the roadside. Iowa law does not allow for a person’s driver’s license to be disqualified as a result of refusing any of the requested tests out in the “field.” It is the test request at the station that can have an impact on the person’s driving privilege. That is the only test request that can affect driving privileges one way or the other. Officers will often times prey on peoples ignorance of these facts and use verbal judo in an attempt to get a person who was initially unwilling to perform fields to ultimately consent to the testing. While the person may be arrested if they do not perform those tests, the officer already has in his mind that the person will be arrested whether they take the tests or refuse. That is precisely why he is requesting that the person take the field sobriety tests.
I Wasn't Read My Rights, The Case Should be Dismissed
A police officer is required to read a suspect their “rights”, commonly referred to as Miranda Warning (“you have the right to remain silent anything you say can and will be used against you in a court of law. You have the right to a lawyer and to have him present during any questioning. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights at any time and chose not to answer any questions or make any statements.”) after they have taken the person into custody and want to ask them questions that may result in an incriminating response. In the event that the officer fails to give a person their Miranda warnings, the entire case does not get dismissed. Rather only the incriminating statements that the person makes to the police and any evidence obtained as a result of those statements would be declared inadmissible at the trial. If the defendant ends up testifying contrary to the statement and evidence that was suppressed however, the prosecution may use that evidence to “impeach” or discredit the defendant.
I Have the Right to Wait 2 Hours Before Taking the Test
A person suspected of driving while intoxicated does not have the absolute right to wait two (2) hours before deciding whether or not to take the chemical test. A police officer must request that the person submit to chemical testing within at least two (2) hours after the person has been arrested or failed or refused the preliminary breath test, whichever occurred first. The person does however, have an absolute right to contact, consult and/or see an attorney, family member, or both. In situations where the arrested person is making a good faith attempt to contact and consult with an attorney or family member, the officer may not interfere with that consultation. However, he may require that the arrested person make a decision regarding chemical testing within his “two hour window” to request the test. All in all, a person has the right to a reasonable opportunity to consult with an attorney or family member but that may not interfere with the officer’s time within which to request the test. If the person is not making a good faith effort to communicate with an attorney or family member, then the officer may require a decision much sooner.
I Have the Right to Choose What Type of Test I'm Given
The police officer actually gets to choose which type of test is administered to someone arrested for operating while intoxicated. He may choose blood, breath or urine. A person has the absolute right to refuse to give blood in normal OWI investigations without their driving privileges being disqualified as a result. In these situations, the officer must then follow up with a request for breath or urine. A person does however, have the absolute right to an independent test of their choosing if they first take the police officer’s test. The person must make the request for an independent test and be willing to pay for it at their own expense.
If I'm Not Caught Driving, I Can't Be Charged With An OWI
An operating while intoxicated charge can be proven by both direct and indirect evidence. This means that the police do not actually have to catch the person behind the wheel of the vehicle in order to charge then with drunk driving. If the person appears in an intoxicated condition when the police come into contact with them, admits to driving earlier and claims not to have consumed any alcohol since driving, that person may be charged with operating while intoxicated because they admit to driving and being in a similar condition at the time they drove the vehicle. A person’s own admissions can often times be the State’s best piece of evidence.
An affirmative defense is an admission to the charge at hand, or a portion of that charge, together with excuses, allegations or explanations to the original charge.
Preliminary Breath Test
A preliminary breath test is one type of test that can be conducted in the field by police officers. Results of a preliminary breath tests are not considered legally reliable but police officers use them to make arrests. If a person does submit to this test, the test results cannot be used against the individual in court to prove the substantive charge.
DOT is an acronym for Department of Transportation.
Operating A Boat
“Operation of a motor boat” is being in actual physical control of a motorboat or sailboat that is in motion or has its engine running.
Operating A Motor Vehicle
“Operating a vehicle” means the actual, physical control over a motor vehicle that is in motion or has its engine running.
Prescription Drug OWI Charge
A person can be arrested for driving while under the influence of a prescription drug, but there are feasible defenses.
Proximate cause is one of two legal theories used to establish liability, ’cause-in-fact being the other. A cause-in-fact test is complex, but can be simply stated as the “but-for” test: the result wouldn’t have occured but for the actions of the accused. Proximate cause assesses the liability of a person’s actions resulting in a harm, such as foreseeability, risk, reasonableness of the action. Proximate Cause tests are an element of the charge of Vehicular Homicide.
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 person was, or simulated, intoxication; 2) the person was in a public place.
A “public place” is defined as “any place, building, or conveyance to which the public has or is permitted access.”
“Recklessness” is ordinarily one of the underlying requirements for the state to prove before a defendant can be held criminally liable for the death of another person resulting from a car accident. “Recklessness” is defined as “the willful and wanton disregard for the safety of others.” To be “reckless” the conduct must be consciously and intentionally done and involve an unreasonable risk of harm to others which is or should be known to the accused.
Temporary Restricted License
A Temporary Restricted License allows an individual to drive under specified conditions. Most often issued following a conviction for operating while intoxicated, a TRL as it is commonly referred to requires the individual to have an ignition interlock device installed and have SR-22 insurance filed. The restrictions on time and place for TRL’s following a suspension for operating while intoxicated have now been removed.
A work permit is a form of a temporary restricted license but in addition to specific restrictions imposed, the individual’s driving is limited to and from their place of employment or for employment purposes.
Travel to Canada
Crossing Canadian Border With Prior Drunk Driving Conviction Record
You have to be careful if you are planning to travel to Canada with an OWI on your record. Canada is one of a few countries that excludes non-citizens for having an OWI. Canada shares criminal and motor vehicle databases with the United States and a check of your record at the border or in Canada will likely show your inadmissibility into Canada.
Canadian admissibility is determined by the Immigration and Refugee Protection Act (IRPA). Under IRPA, a foreign national is inadmissible into Canada if they committed or were convicted of an offense that would constitute an “indictable” offense under Canadian law. There are a number of charges that can put you into the inadmissible category of persons. The first is impaired driving when a person drives impaired to any degree, no matter how slight, by alcohol or drugs. The second is excessive BAC, when a person drives with a BAC of .08% or more. The third indictable offense is refusing to submit a PBT, breath, or a blood sample to screen for alcohol or drugs. Similarly, a conviction for boating under the influence may also render a person inadmissible into Canada. Any offense that is punishable by a prison term of ten or more years will also render you excludable. It is important to note that even if you are not criminally convicted for OWI but you lose your license in an administrative DOT hearing, you will also be excludable.
A person who has a verdict of guilty, a plea of guilty, or a deferral will be deemed inadmissible under Canadian law. A plea down to a lesser charge than OWI will not make you inadmissible unless the lesser charge would constitute an “indictable” offense under Canadian law. A comparison between the Canadian law and the law of the state you are in is necessary. A person will not only be excludable when driving into Canada but also when traveling to the country by plane and boat as well. If you are inadmissible and found in Canada you can be deported and possibly even prosecuted criminally.
All hope is not lost if you have inadmissible status, however. You may be granted relief from your inadmissibility depending on the nature, number, and timing of your convictions. A person that has a single OWI or other indictable offense that is punishable by less than ten years is automatically deemed “rehabilitated” ten years after the date the court orders its punishment if you don’t get any other convictions. A person with two or more indictable offenses (such as an OWI) cannot be deemed rehabilitated. If you fall into this category or if you just have one OWI and want to be allowed into Canada earlier than ten years, you can apply for rehabilitation status five years after the court orders your punishment. The application is available at the Immigration Canada website. The application fee ranges from $200-1000 Canadian and requires extensive documentation, including references attesting to your good character. The processing time can take up to one year, so plan accordingly.
A person can also apply for a Temporary Resident Permit for those who want to travel to Canada before the five year period. These allow for entry of up to six months. They also range from $200-1000 and can take up to 6 months to issue. These permits can be issued at the border but are rarely granted, so don’t risk it. Whether you will be issued a permit depends on the reason for the visit. Hunting, fishing, or vacation trips are least likely to be approved, while business trips and humanitarian missions are more likely to be granted a permit. The bottom line is to check with an attorney and cover your bases before you take a trip up north.
Resources for Out of State Residents
Out-of-State residents that have their privilege to drive in the state of Iowa disqualified for operating while intoxicated offenses, will want to ensure that the following requirements are taken care of with the Iowa Department of Transportation to avoid complications with renewing or reinstating their driving privileges in their home state.
- Substance Abuse Evaluation. Iowa law requires a substance abuse evaluation be completed and filed with the Iowa Department of Transportation before Iowa’s “hold” on their driving privileges will be lifted. An evaulation can be completed by an approved agency here in Iowa or an out-of-state evaluation can be completed and submitted along with this form.
- Drinking Driver’s Education Class. Iowa law also requires an approved drinking drivers education class be completed before the Iowa Department of Transportation will release their “hold” on an out of state licensed driver. This class can be completed here in Iowa or a qualifying program may be completed in the individual’s home state along with this form. You will want to provide a copy of that form to the agency prior to signing up and completing the program to ensure that it will qualify.
- $200 Civil Penalty. The Iowa Deparment of Transportation will not miss their chance to get money out of an out-of-state resident who has their Iowa driving privileges disqualified in Iowa. A civil penalty of $200 must be paid the the Iowa Department of Transportation before they release the “hold” on the out-of-state licensed driver’s driving privileges. Here is the link to make that payment.
Iowa DOT Hearing Request Form and Rights
Iowa law requires law enforcement to serve a person with certain notices and forms pertaining to their rights after their driver’s license has been taken and destroyed by the officer pursuant to an operating while intoxicated investigation. Many times this paperwork is misplaced, lost or not served on the arrested person due to no fault of their own. Important information is contained in these notices regarding a persons right to request a hearing to contest the revocation of their driving privileges as well as pertaining to their eligibility to request a temporary restricted license.
Below are links to the Iowa Department of Transportation forms that should be served along with every OWI license suspension.