This article develops the Iowa laws concerning OWI (Operating While Intoxicated) (called DUI or DWI in other states), the procedures, and defensive tactics in Iowa. This article cannot be construed as comprehensive or definitive, as every case varies and facts in the cases are crucial. A criminal defense attorney is crucial in analyzing the facts of the case and developing a proper strategy in an OWI case and should be contacted as OWI is a complicated and technical defense. This information is provided as a guide only and should not and MUST NOT be relied upon as legal advice.  While most OWI cases are pleaded or found guilty, there are usually significant problems with most cases that could possibly provide a crucial defense.

    It is recommended that all clients carry a driver's rights card in their car to specify their rights in case of a traffic stop. Do not speak to the officer (as slurred speach is one of the key indicators for intoxication, and opening your mouth allows the smell of alcohol on your breath).  Be polite, and provide your driver's license, proof of insurance and registration.  Allow the card to do your speaking.

    OWI laws are being reorganized effective 12/1/2010.  The criminal penalty, sentencing, and related license revocation provisions are being revised (nonsubstantively) in Iowa Code Section 321J.2.  Certain provisions in Code Sections 321J.4, 903.1, 907.3, and 907.14 are being duplicated and placed under Code section 321J.2.  Conforming changes in Code Sections 707.6A, 902.3, and Chapter 910 are being made.


Administrative Hearing for License Suspension:

      Warning: In Iowa, you must file a challenge with the Department of Transportation to your OWI charge within 10 days of your arrest, or you will lose your license without a hearing. You should contact an attorney immediately upon your arrest to assist in this decision.  There is the possibility of the charge being dismissed after the informal hearing, so it is a factor to be considered, but the time frame is short for action to request a hearing.  If the suspension is protested, an administrative hearing by the Department of Inspections and Appeals will be held within a few weeks of the arrest to determine if the license should be suspended.  The driver's license suspension by the administrative hearing can be appealled to the Department of Transportation.  An appeal of the administrative hearing must be submitted within 10 days to the Director of the Office of Driver Services, Iowa Department of Transportation, P.O. Box 9204, Des Moines, IA  50306-9204.  If this appeal is unsuccessful, judicial review is available.
     The request for a hearing can be used as evidence in criminal or civil proceedings. Only your full name, current address and phone number, Driver's License Number, and date of birth are required on the request.  All other information is optional, and should not be provided.  Failure to provide the required information however, will result in waiver of the hearing right.
     Within the 10 day period for the challenge, the DOT Revocation Notice serves as your temporary driver's license, since your driver's license was surrendered upon arrest.  After the 10 day period, your driving privileges are suspended until either a temporary restricted permit is obtained or a new license is obtained, and you must not drive or face further charges.
    To request the appeal of the driver's license suspension, if a form was enclosed with the DOT revocation notice, the form may be filled out.  Otherwise, on a plain sheet of paper, request an appeal with the required information listed above.  The form or sheet of paper may be faxed, mailed, or hand carried to a DOT office.  The faxed request for an appeal should be sent to 515-239-1837.  If the request is mailed, it should be mailed to:   Iowa DOT, Driver Services Office, P.O. Box 9204, Des Moines, IA  50306-9204.  The hand-carried request may be taken to any DOT office for processing.  To protect your rights, get confirmation of the date/time that the request for appeal is submitted. 
    The suspension of driving privileges is stayed pending the administrative hearing on the license suspension.  Be sure to carry the stay notice to be used as your drivers license.
    Once the request for an appeal is processed, the driver will be notified of the date and time for the administrative hearing, and will be provided notification of the appeal results with a license suspension date if the appeal is upheld.  The driver may then appeal the revocation to the district court.
    The Iowa Court of Appeals has held that the only issues that can be considered in the administrative hearing are reasonable grounds and whether the person submitted to testing and failed the test.  Casper v. Iowa Department of Transportation, 506 N.W.2d 799, 802 (Iowa App. 1993).  The appellant has the burden of proving that the appellant complied with the implied consent law and that the peace officer did not satisfy the procedural requirements of the implied consent law.  Mary v. Iowa Department of Transportation, 382 N.W.2d 128, 132 (Iowa 1986). Iowa Code section 17A.18(3) (2001).  The driver has the burden to show that the alcohol concentration was other than what was shown by the test.  Scott v. Iowa Dept. of Transportation, 604 N.W.2d 617 (Iowa 2000). The licensee must prove not only that the licensee consumed something within 15 minutes before the Intoxilyzer test, but also that the consumption affected the test result.  Anson v. Iowa Department of Transportation, 477 N.W.2d 695, 697 (Iowa App. 1991).  Thus, expert testimony or some other testimony must be given to show that the test results were inaccurate.
    Questions about this procedure can be handled by your attorney or the DOT Driver Services Office at 515-237-3253.


Substance Abuse Evaluation:

     Additionally, a substance and abuse evaluation will often be required within 10 days after the arrest. As this evaluation is required before sentencing, it is best to get the evaluation as soon after the arrest as possible, to start complying with the recommendations of the evaluation, and provide a copy to your attorney for his/her file.

OWI in Iowa: 

    In Iowa it is unlawful to operate a motor vehicle under any of the following (a violation of Iowa Code 321J.2 can occur under any one of three alternatives):

      a. While under the influence of alcohol, drugs, or a combination     (Note:  can be any amount, not just BAC of .08 or above)

      b. While having an alcohol concentration of .08 or more

      c. While having any amount of a controlled substance in your body.

    The Iowa Supreme Court has stated that a blood-alcohol content in excess of the legal limit does not necessarily mean a person is "under the influence."  State v. Price, 692 N.W.2d 1,4 (Iowa 2005) (distinguishing the test failure alternative of section 321J.2(1) from the "under the influence" alternative.  Benavides v. J.C. Penny Life Ins. Co., 539 N.W.2d 352,355 (Iowa 1995) (rejecting an argument by an insurer that an insured was "intoxicated" as a matter of law based upon a blood alcohol content in excess of the legal limit).  State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) ("A person is 'under the influence' when the consumption of alcohol affects the person's reasoning or mental ability, impairs a person's judgment, visibly excites a person's emotions, or causes a person to lose control of bodily actions.").

    "Accurate test results, if positive, provide valuable evidence for use in criminal prosecutions." Veach v. Iowa Dep't of Transp., 374 N.W.2d 248, 250 (Iowa 1985).  A breath test result "showing some level of alcohol in the blood makes it more probable that a person was under the influence of alcohol than without the evidence. Price, 692 N.W.2d at 4.

Motor Vehicle: A motor vehicle is defined in the code as a self propelled vehicle. The definition includes golf carts and snow mobiles. Boats are covered under another code section.

Intent: OWI in Iowa is a general intent crime. Only a general intent to drive is required, not a specific intent to drive knowingly under the influence. It is not a strict liability crime, so defenses are allowed.

Under the Influence: Under the Influence is defined by case law and jury instructions. It is defined as:

“A person’s reason or mental ability has been affected; or judgment is impaired; or emotions are visibly excited; or has, to any extent, lost control of bodily actions or motions by consuming liquor or beer.” State v. Conner, 377 N.W. 2d 664, 667 (Iowa Ct. App. 1985) (citing People v. Lujan, 192 Cal. Rptr. 109, 116-17 (1983)).

State must prove:

If No test:

     1. Defendant was operating a motor vehicle.

     2. At the time of operation the defendant was under the influence of alcohol, drugs, or a combination.

If Test failure:

     1. Defendant was operating a motor vehicle.

      2. At the time, the defendant had an alcohol concentration of .08 or more.

If Drugged:

     1. Defendant was operating a motor vehicle.

     2. At the time, defendant had any amount of a controlled substance in his system as measured by a blood or urine test.

Implied Consent: "Iowa's implied consent statute establishes the basic principle that a driver impliedly agrees to submit to a test to determine alcohol concentration or presence of a controlled substance in return for the privilege of using the public highways."  State v. Massengale, 745 N.W.2d 499, 501 (Iowa 2008).  Operating a motor vehicle implies consent to have a blood, breath, and/or urine test for the presence of drugs, IF a peace officer has reasonable grounds to believe the operator is under the influence. This is a probable cause standard if the person is arrested. However, if an arrest is not conducted, the Iowa Supreme Court has held that:

“An individual’s detention by an officer for the purpose of performing field sobriety tests does not rise to the level of custody, but is merely detention for investigative purposes.” State v. Krebs, 562 N.W.2d 423, 426 (Iowa 1997).

     Implied consent is triggered by conditions in I.C.A. §§ 321J.6(1)(c)-(f). Who may invoke implied consent is given in I.C.A. §§ 321J.1(8)(a)-(d). The procedure for invoking implied consent is given in IC.A. §§ 321J.8(1)-(3). If a person 18 years or older refuses the test, his license is suspended for 1 year if he has not had a revocation for the past 12 years for implied consent or drunk driving laws or 2 years if he had one or more revocations for the past 12 years.  if the driver is under 18, his license is revoked for the above periods or until he is 18, whichever is later.   Under Iowa Code section 321J.8 (2007), when a peace officer requests a person to submit to chemical testing, the officer "must advise the person of the consequences of refusing the test as well as the consequences of failing the test."  Massengale, 745 N.W.2d at 501.

       If the driver submits to the test and the results are .08 or higher or indicates any controlled substance, his license is suspended for 180 days if there are no revocations within the past 12 years or 1 year if one or more revocations. If the driver is under age 18, his license is revoked for the above periods or until he is age 18 whichever is later.  If the driver is under age 21 and the level is between .02 and .08, the license is revoked for 60 days if there is no previous revocation within 12 years or 90 days if there is a previous revocation within 12 years.

     If he is operating a commercial vehicle and either refuses the test or the test results are .04 or greater, he is disqualified from operating a commercial vehicle for one year.  The revocation is for 3 years if the driver was driving a commercial vehicle carrying hazardous materials or required placarding.  The disqualification is for life if the driver previously committed any of the following acts while operating a commercial vehicle after June 30, 1990: operating under influence of alcohol or other drugs or a combination, operating commercial vehicle with BAC of .04 or higher, refusal to submit to chemical testing, failure to stop and render aid following an accident involving your vehicle, or felony or aggravated misdemeanor.  The lifetime revocation may be reduced to 10 years under federal law.
 
     If a person is unconscious, dead, or unable to consent, a doctor, physician assistant, or advanced nurse practitioner may certify and allow consent.

     If an officer invokes implied consent and the driver refuses to submit to the test, a form must be provided to the driver notifying them of their right to contest the revocation or request a temporary permit. I.C.A. § 321J.13(1). If the driver desires to contest the revocation a hearing will be set by the department within 45 days. The hearing can be by telephone and is limited in scope. The issue in a hearing is whether the officer had reasonable ground to believe the person was operating while intoxicated. The department must also establish that the driver refused to submit to a test, the driver submitted and the test exceeded the limit, or the driver tested positive for a controlled substance. The driver has the burden of proof to show the alcohol concentration was not as tested. 

    The ultimate question in implied consent "is whether the decision to comply with a valid request under the implied-consent law is a reasoned and informed decision.  State v. Bernhard, 657 N.W.2d 469, 473 (Iowa 2003).  "Not every inaccurate depiction by law enforcement officers that might bear on a subject's election to submit to chemical testing is a basis for suppressing the test results." Id. The "key revocation information regarding the license must be provided to the driver.  State v. Kentner, 562 N.W.2d 431, 433 (Iowa 1997) (rejecting argument that officer was required to inform a driver when the revocation would become effective.)  The driver should be advised "of the consequences of refusing to take the test and the consequences of a positive test result, including the potential periods of revocation."  Voss v. Iowa Dep't of Transp, 621 N.W.2d 208, 211 (Iowa 2001).

     A driver may appeal to the director of the department within 10 days of the suspension. If this appeal is unsuccessful, the driver is entitled to judicial review.


Commercial Vehicle:

         If he is operating a commercial vehicle and either refuses the test or the test results are .04 or greater, he is disqualified from operating a commercial vehicle for one year.  The revocation is for 3 years if the driver was driving a commercial vehicle carrying hazardous materials or required placarding.  The disqualification is for life if the driver previously committed any of the following acts while operating a commercial vehicle after June 30, 1990: operating under influence of alcohol or other drugs or a combination, operating commercial vehicle with BAC of .04 or higher, refusal to submit to chemical testing, failure to stop and render aid following an accident involving your vehicle, or felony or aggravated misdemeanor.  The lifetime revocation may be reduced to 10 years under federal law.

    If the person is operating a noncommerical motor vehicle and holding a commercial drivers license, and either refuses to submit to the test or submits to the test and the results indicate the presence of a controlled substance or an alcohol concentration equal to or in excess of the level prohibited by section 321J.2, the person is disqualified from operating a commerical motor vehicle for the application period under section 321J.208 in addition to any revocation of the person's driver's license or nonresident operating privilege which may be applicable.  Iowa Code 321J.8(1)(c)(2) (2009).

    The Iowa Code provides for revocation of a commercial driver's licens upon a conviction or final administrative decision that the person was operating a motor vehicle while intoxicated, as provided in section 321J.2.  Iowa Code 321.208(2)(a) (2009).

OWI First Offense and Age 18 or older:  (note: all fines in this article are subject to change as fines are updated yearly by the state and may not be current in this article).

Administrative Action or upon court conviction: Revocationof Driver’s License for 180 days due to chemical failure test.  Note: The administrative Action is separate from court conviction and procedes from 10 days from date of test, even if the charges are dismissed or the defendant is found not guilty. The adminstrative suspension is also not considered punishment for purposes of the Double Jeopardy Clause.  State v. Krebs, 562 N.W.2d 423 (Iowa 1997).  Administrative proceedings are separate and distinct from criminal charges arising from the same incident and each action proceeds independently of the other.  Heidermann v. Sweitzer, 375 N.W.2d 665, 668 (Iowa 1985).

     -Reinstatement of License: The driver must pay a $200 civil penalty, present proof of drinking driver’s course (12 hour course) (see below), complete substance abuse evaluation and treatment or rehabilitation services, comply with financial responsibility laws, if applicable (usually requiring SR-22 High Risk Insurance). The driver must send or deliver the above to Office of Drivers Services, Park Fair Mall, 100 Euclid, PO Box 9204, , Des Moines, IA   50306-9204 to be eligible for reinstatement of the license.  Upon receipt of the above, DOT will send a notice ending the revocation.  The driver must then present the notice ending the revocation to the Drivers License Examiner, retake driving tests, pay a reinstatement fee, and pay the required license fee to obtain a new license.  The new license will be probationary for 12 months.  If the driver commits a moving violation during the probationary period, driving privileges will be suspended for a like additional period, not to exceed 1 year.

     - If a chemical test indicates an alcohol level of .08 or higher or any level of a controlled substance, and there has been no OWI-related revocations in the past 12 years, the driver may apply for a temporary restricted license.

     -If a blood alcohol content (BAC) test indicates an alcohol level of greater than .15 or an accident occurred, the driver must wait 30 days from sanction date to apply for a temporary restricted license.

     -If the BAC test indicates an alcohol level greater than .10 or an accident occurred, the driver must install an ignition interlock device, which involves paying for the rental of a device.

     -If the driver is under age 21, the driver must wait 60 days from the sanction date to be eligible for a temporary restricted license.

For reinstatement of a driver’s license, a 12 hour Iowa Course for Drinking and Driving (conducted by DMACC and other community colleges) must be completed.
      The DMACC class currently costs $115 (money order or cashiers check only). The DMACC Class is currently taught at Ames (call 515-433-5027), Ankeny (515-964-6385), Boone (515-433-5027), Indianola (515-961-8830), Newton (515-964-6385), and South Des Moines (515-961-8830). 
       Iowa Western Community College teaches classes in Council Bluffs, Clarinda, Harlan, and Atlantic (cost $115, call 712-325-3404 or 1-800-432-5852 ext 3404).  
      South Western Community College teaches the class in Red Oak (call 712-623-2541).  
      Iowa Lakes Community College teaches classes in Spirit Lake and Spencer (call 1-800-252-5664 or 712-362-7231).
For a complete list of classes, contact the Iowa Department of Education or contact your local community college.

Vehicle License plates must be turned into the Iowa DOT within 10 days after being arrested for OWI unless SR-22 High Risk Insurance is obtained within that period.  Even if the plates are retained, the defendant still cannot drive unless he/she obtains a temporary restricted license or a regular drivers license.

Additionally, a driver may face nonstate nonpunitive restrictions such as inability to rent a car in the future, higher insurance rates, and possibility of loss of job or inability to obtain a job (especially if the job involves driving).  If a driver is a noncitizen, immigration issues may also be involved.

Criminal Penalties:

      A serious misdemeanor with a mandatory incarceration. In Iowa, a serious misdemeanor provides for a imprisonment term of not greater than 1 year and a fine of at least $315 to a maximum of $1875 (updated annually see I.C.A. § 903.1).

      For the first offense, if the sentence is not suspended or deferred, the defendant is required to serve a minimum of 48 hours confinement with credit for time served. Sometimes this 48 hour sentence may be served by a residential weekend class at DMACC if it is recommended by the County Attorney, and space is available. Cost for the class is currently $325 (money order or cashiers check only). Registration Packets are available at the Polk County Courthouse, Room 110, for the Des Moines location. Classes are held in Carroll twice a year. (Contact 515-964-6385 for information about the OWI 1 weekend class).  An alternative class is available at ALPP Institute which offers a full range of classes and detoxification. 

       A deferred judgment is often a good recommendation to a judge for a first offense OWI.  However, a person is only entitled to 2 deferred sentences/judgments during his/her lifetime.  A deferred sentence allows a judge to "defer" the actual sentence pending completion of conditions. A deferred judgment defers any judgment until the probation period is completed or violated. If the probation is successfully completed, and no further criminal activity has taken place, the judge may expunge the conviction from the person's record by dismissing the charge.  A judge cannot defer judgment if the BAC was above .150, the defendant has a previous conviction, the defendant has previous received a deferred judgment for OWI, the defendant refused the test, or a bodily injury occurred to someone other than the defendant. I.C.A. § 321J.2(3)(a)(1)-(5). Additionally, the Court may not consider the preliminary breath test or ignore the third digit of intoxilizer to give a defendant a deferred judgment. State v. Iowa District Court, 630 N.W.2d 838 (Iowa 2001).  Additionally, civil penalties must be enforced even if a deferred sentence is given.

      A mandatory fine of $1250 of which $650 may be suspended if there was no personal injury or property damage as a result of an accident and the defendant presents the court with a temporary restricted license. The court may order community service if the defendant cannot pay the fine.  Surcharges of 35% are tacked onto the fines.

      Minimum revocation period of ineligibility for a temporary permit of 30 days up to as long as a year.  A request for a temporary work permit can be utilized as evidence in a criminal or civil proceeding. Only the full name, address, and date of birth are required on the form.  All other information is optional and should not be provided, although this might delay issuance of the work permit.

      Substance abuse evaluation (around $95)  and possibly a treatment program.

      Restitution must be ordered even for a deferred judgment. Restitution may include restitution to a public agency for the costs of emergency response.

      Surcharge of $10 for drug education.

      Court costs of around $50.

      Probation supervision fees (varying but around $250-$300).

OWI Second Offense or One or More Revocations in the Previous 12 Years (from date of conviction not arrest) and Age 18 or older:

Administrative Actions: The driver is not eligible for a temporary restricted license for 45 days, and the license revocation period is for one year.

License Reinstatement: See above under OWI First Offense.

Vehicle Impoundment: The vehicle being operated may be seized and impounded immediately upon arrest for a second or subsequent OWI offense or driving while license is revoked for an OWI. The vehicle may be impounded for at least 180 days or until the license revocation is completed, whichever is longer. If the vehicle is not impounded upon arrest, it must be impounded or immobilized upon conviction for the second or subsequent OWI offense. If the vehicle is operated in violation of the impoundment or immobilization order, it shall be seized and forfeited to the state, and the operation of the vehicle is considered a serious misdemeanor.

Criminal Penalties: Aggravated misdemeanor with a mandatory 7 day incarceration. In Iowa, an Aggravated misdemeanor provides for maximum imprisonment term of 2 years. If the sentence is for more than one year, it is an indeterminate sentence. The code also provides for a fine of a minimum of $625 and a maximum of $6250 (updated annually, see I.C.A. § 903.1).

     For the second offense, the defendant is required to serve a minimum of 7 days confinement.

     Fine of $1875-6250, with a surcharge of 35%. (note fines change yearly in Iowa and may not be updated)

     Substance abuse evaluation (around $95)  and possibly treatment.

     Restitution as for First Offense.

     Surcharge as for First Offense.

     Court costs as for First Offense.

     Probation fees as for First Offense.

     The court may enhance a sentence for OWI if the jury finds or defendant agrees that he had a prior conviction within 12 years (from date of conviction). However, convictions entered on the same day may not be used to enhance a sentence for OWI. Deferred sentences can be used to enhance a sentence. The State must prove the first OWI conviction for enhancement beyond a reasonable doubt.

     The defendant can challenge priors by filing motion to strike priors, alleging defendant was not represented by an attorney and did not waive an attorney.  The motion must be filed within 40 days after arraignment.  If the prior was out-of-state, file motion to strike, as it could prove difficult for the prosecution to prove the prior.  The prior OWIs must be proven, and it can be a proof problem.  The trial might be a bifurcated trial first finding guilt of OWI, and then prove prior OWIs.

OWI Third Offense and over Age 18:

The driver’s license is revoked for 6 years. The driver may apply for a temporary restricted license after 1 year if all vehicles are equipped with an ignition interlock device.

License reinstatement: See OWI First Offense above.

Vehicle Impoundment: See OWI Second Offense above.

Criminal Penalties: Class D felony with mandatory 30 days in jail if court suspends sentence. In Iowa a Class D felony provides for confinement of not more than 5 years, and a fine of at least $750 and a maximum of $7500.

      Habitual offenders. If the Class C or D offender has been convicted of 2 or more previous felonies in Iowa or another state or of the United States, he can be classified as a habitual offender and must serve the minimum term of 3 years.

     For the third offense, the defendant is required to serve a minimum of 30 days confinement.

     If court sentences defendant to 5 years incarceration or a substance abuse evaluation recommends it, the person shall be assigned to a treatment facility. If the court suspends the sentence, the defendant could be ordered to treatment facility as a condition of probation pursuant to section 907.6 of the Iowa Code.

     If the court determines that the full term of the mandatory jail sentence is an undue hardship on the defendant or not sufficient jail space, it may order the defendant to serve the minimum sentence in segments of at least 48 hours and a specified number of community service hours.

     Fine of $3185-9375, with a surcharge of 35%.

     Restitution as for First Offense.

     Surcharge as for first offense.

     Substance abuse evaluation (around $95) and possibly treatment.

     Court Costs as for First Offense.

     Probation Fees as for First Offense.


Under Age 18: The revocation of the driver’s license continues until the revocation expires or the person reaches age 18, whichever is later.

Under Age 21: Under age 21 submitting to a chemical test indicating an alcohol level of .02 or more, but less than .08, driver’s license revocation for 60 days on a first violation and 90 days on subsequent violations. If the driver is suspected of operating with a level of .02 or more and refuses the chemical test, the license revocation will be for 1 year for a first violation and 2 years for subsequent violations. This is regardless if criminal charges are filed (administrative action). The driver is not eligible for a temporary restricted license any time during the period of revocation.

Deferred Judgment by the Court: If the license has not otherwise been revoked, the driver may apply for a temporary restricted license. Revocation of the driver’s license is for 90 days.

     -If the BAC test level is greater than .15 or an accident occurred, the driver must wait 30 days from the sanction date to apply for a temporary restricted license.

     -If BAC level greater than .10 or an accident occurred, the driver must install an ignition interlock device. The driver must wait 90 days from the sanction date if the driver refused to take the test.

     -If the driver is under the age of 21, the driver must wait 60 days after the sanction date to obtain a temporary restricted license.

OWI with resulting personal injury caused by OWI:

An additional 1 year revocation of the driver’s license, in addition to any other revocation. The driver may apply for a temporary restricted license when allowed by the other categories. All vehicles must be equipped with Ignition interlock devices.

OWI with resulting death caused by OWI:

Driver’s license revoked for 6 years. Driver is not eligible for a temporary restricted license for 2 years.

Traffic Stop and Investigation:

      An officer must have reasonable belief that a traffic law or other law has been violated before stopping a vehicle. Often this reasonable belief is based upon a license plate light being inoperative or some other minor violation. This is sufficient to sustain a reasonable belief to stop the vehicle. However, at this point, the officer usually doesn’t have a reasonable and articulate basis to believe that an OWI has occurred. Often the driver provides the crucial evidence to sustain an OWI conviction.

      At this stage, the driver MUST remember his Fifth Amendment Rights. Under the Fifth Amendment, the driver does not have to answer any of the officer’s questions that could incriminate you. Simple questions like "where are you going?" could provide evidence of slurred speech and possible evidence of OWI. A refusal to answer an incriminating question can not be used against the driver. Driver admissions are a key part of the officer’s expansion into an OWI Investigation. However, the driver must tell the officer his name and provide documents such as his driver’s license, registration, and insurance. If the officer asks about drinking, the driver should politely tell him “I’ve been advised never to answer those sorts of questions and I decline to do so.” Almost always those answers will hurt, not help the driver’s case. Better yet carry the Iowa Driver's Rights Card and say nothing (see below for how to obtain the card).  Never lie about drinking as it will impeach you in court. Be polite, as the officer has discretion to pursue the arrest. He can also let someone come pick up the driver or car, or tow the car incurring towing fees.

     The officer’s observations are key to expanding into an OWI investigation from the traffic stop. The officer will consider the driver’s driving, his appearance (“smell of alcohol”, “blood shot and watery eyes”, “messy or soiled clothes”, “slurred speech”, or “balance problems.”), driver admission of having a drink or going to a bar, or alcohol containers in the car. One of the first observations that the officer makes is the driver’s choice of location to pull the vehicle over and how well the driver stops. The driver should drive to a safe, well-lit location, signal, and slow to a stop, before pulling over. Listen carefully to the officer over the loudspeaker as to where to pull over. Keep your hands on the steering wheel at the 10 and 2 o’clock positions, so the officer has no concerns about weapons. Don’t get the registration and driver’s license until the officer instructs you to do so.

     If the officer believes from the above indications that you are operating while intoxicated, then the investigation expands. The officer will ask the driver to exit the vehicle to conduct field sobriety tests. Field sobriety are used by peace officers to determine whether there are reasonable grounds to believe a person is intoxicated.  These tests are part of an officer's investigation and at this point the person is detained by the officer, not restrained of his liberty.  State v. Krebs, 562 N.W.2d 423 (Iowa 1997). The three major field sobriety tests utilized in Iowa are the Horizontal Gaze Nystagmus, Walk and Turn, and the One Leg Stand. In the Horizontal Gaze Nystagmus, the officer moves his finger and watches your eyes following his finger. Often these tests are filmed by a camera in the officer’s car, and the film can be utilized as evidence. A driver does not have to perform any field sobriety tests. These tests are subjective tests conducted by the officer and since the officer already suspects the driver of OWI, it is unlikely that the driver will ever pass these tests. These tests will usually hurt an OWI case. These tests are often difficult to perform even when sober.  Refuse to perform these tests.  If the officer insists, inform the officer that you are not performing these tests willingly, but doing so only to avoid a confrontation.  Request to have your attorney present during all testing or questioning.  This right must be asserted by the driver.

     If the officer believes that the driver failed the field sobriety tests , the officer will ask the driver to provide a sample in the PBT (Preliminary Breath Test). Regardless of the results of the PBT, the driver will probably be arrested for OWI. The driver does not have to take the PBT. It is unreliable and is not admissible in court, and a refusal will not lead to suspension of the driver’s license.

     At this point, the officer will usually read the driver’s Miranda Rights, but unless an interrogation is occurring, is not necessarily required to do so. Miranda is triggered by custody and interrogation.

     Once the driver is arrested and taken to the station. The officer will read an Implied Consent Advisory, and after reading the consent advisory asks the driver to breathe into a testing device. The device results will be used in court to affect the driver’s sentence, revocation period, and eligibility for a temporary restricted license. Prior to taking the test, the driver has a right to consult an attorney and should do so. Once the driver arrives at the station, he must be given a chance to call an attorney or family member IF the driver requests it. The driver MUST ask to exercise this right, and the officer may not necessarily tell the driver about this right. Another advantage of making the call is to have a third party hear your speech (which the officers will maintain is slurred, but another party could determine as logical and coherent). The officer however, must be able to complete the test within a 2 hour period of time. Demand this right. By demanding the right, the driver can make a knowing, voluntary, and intelligent decision about taking or refusing the test. Insist that without this right, you cannot make a knowing, voluntary, and intelligent decision. 

     If the driver refuses to take the breath test, his license will be suspended for 1 year for a first offense (versus taking the test and failing it by blowing over .08 for adults leading to a 6 month suspension.) However, taking the test provides evidence that can be utilized at a criminal or civil trial. Refusal to take the breath test and field sobriety tests could lead to a dismissal for lack of evidence or an acquittal in court, but will lead to loss of your license for 1 year (first offense).  Officers have the tests prior to writing their reports and can tailor their report to fit the test results. Refusal to take the test can also lead to a jury instruction that allows the jury to consider the refusal to take the test. However, the state must show compliance with statutes regarding implied consent. State v. Jensen, 216 N.W.2d 369 (Iowa 1974).

     If the driver fails the breath test, the driver has a right to have an independent chemical test conducted at his own expense. The officer must take the driver to a hospital or clinic of the driver’s reasonable choosing to conduct a blood or urine test. The officer does not have to inform the driver of this right. The driver must specifically request the test. The chemical tests are usually produced after the officer writes his report, and can contradict the report.  Also, demand that you be transported to the nearest law enforcement agency not affiliated with the arresting officer to have another breath test conducted by an independent officer and department.  You may be required to pay for this test.  Assert that these tests conducted at your expense are attorney work product and are confidential and are not to be provided to the State for evidence and the results are only to be given to the driver or his attorney.

     After taking the breath test, the officer will then interview the driver. The officer may reread the driver’s Miranda Rights. Depending upon the circumstances and evidence, the officer will then cite and release or return the driver to jail.

OWI Defense:

     The best defense is  to take the actions indicated on the Driver's Rights Card, many of which should be conducted prior to your arrest.

     There are many possible ways to defend against OWI. Below are a few of the possible ways. However, an experienced criminal defense attorney should be consulted to develop the case, so an attorney should always be consulted. An OWI case can be won, but it requires investigation of all the facts, not just the police report.

    Breath tests vary with techniques utilized and equipment utilized.  The best and most accurate test (but seldom used except for defense purposes) is the gas chromatograph test. Unfortunately there are numerous factors that can lead to false positives or incorrectly high results, and manufacturers are unwilling to reveal formulas and equations utilized by the machine to eliminate the error.  The approved list of evidentiary breath testing devices in Iowa is listed at List of approved evidential devices.  the Iowa Administrative Code 661-157.2 contains rules on Evidentiary breath testing devices. Currently only the DataMaster cdm and DataMaster DMT is approved in Iowa. The operating manual  for the DataMaster is listed at the DCI site.


1. Illegal Traffic Stop: As stated above, the officer must have a reasonable and articulate basis to believe that a law has been violated for a traffic stop. This can be as simple as a license plate light being out. Any violation will do, but it must be reasonable and the officer must be able to articulate that reason. Weaving inside the traffic lines, briefly encroaching into the neighboring lane, or touching the line briefly are not valid reasons for a stop, but weaving outside the traffic lane could be a valid reason if an experienced officer observed pronounced weaving for a substantial distance. An anonymous caller reporting a drunk driver is not sufficient for a stop. If there is no reasonable and articulate basis, then the traffic stop is illegal. A suppression hearing can be demanded in which the officer must prove the reasonable and articulate reasons for stopping the driver. There must be probable cause for the traffic stop or the entire arrest is illegal and a motion to suppress evidence should be submitted and upheld by the judge.  Without the evidence from the illegal stop, it would be unlikely that a conviction could be supported.

     Speed is not correlated to OWI in studies. A speeding driver is no more likely to be under the influence than a sober driver. So, speeding is not an indication of OWI.

     Often a vehicle is stopped on a pretext. Blacks are more often stopped. Older, rusty vehicles are more often stopped. Police often watch restaurants and bars, especially near closing time. Even an accident may not be evidence of an OWI, especially if the accident was not the driver’s fault and there were no errors in judgment.

    Anonymous calls may not be used to stop a car, the officer must have some evidence to support the anonymous call.

     Missing in many cases is the element of danger to the public or evidence to indicate that the driver was about to violate the law in any manner.

    The location of the stop should be revisited to reexamine the stop location and photographs taken for court.

2. Field Sobriety Tests are Inaccurate. The standing leg test has been measured as only 65% accurate in healthy individuals, while the walk and turn is only 68% accurate and the HGN was 77% accurate. Remember, the criminal threshold for conviction is beyond a reasonable doubt. 65%, 68%, and even 77% accuracy is not beyond a reasonable doubt. One third of innocent people could be convicted with this accuracy level. Various factors such as medical conditions, injuries, being 50 pounds overweight, and being 65 or older, cannot accurately being tested. Often a driver is arrested after failing one, but passing many of the tests.

     Nonstandard field tests such as touching your nose, finger count test, hand pat test, coin pickup test, counting backwards, Rhomberg test (tilting head and estimating 30 seconds), or saying the alphabet are not considered valid by the National Highway Traffic Safety Administration (NHTSA). There are no standards as to how to perform, score, or interpret these tests, and there are no studies showing reliability.

     Inaccurately administered tests are not valid evidence. The NHTSA has guidelines for performing these tests. Most officers have never received training on how to perform these tests. Often the suspect has performed well according to the guidelines, but the police are biased.

     The officer will probably claim poor performance on the field sobriety tests. However, what is the poor performance compared to? This means little unless it is known how the driver would normally perform the test. The tests depend on many factors: coordination levels, balance, fitness, pressure, injuries, age, practice, terrain conditions, weather, lighting conditions, traffic conditions, footwear, nervousness.

     Often the officer will fail the test when asked to demonstrate the test in court, since a very high percentage of people fail the test. Jurors will often fail the test themselves when they attempt it back in the jury room.  Thus, it is important to read the training manual for the field tests and for the lawyer to be able to conduct the tests and ask the officer to perform the tests themselves.

     Medical conditions can affect the results of these tests, so the officer should ask if you have any medical conditions.  Problems with legs, arms, neck, back, eyes, and balance can affect the field sobriety tests, and other medical conditions can affect the breath results.

3. Breathing Tests. A One breath test by itself is considered inaccurate, so most experts require at least 2 breaths. With the DataMaster, between the two breaths a control test is conducted with a measured amount of alcohol and water to show that the machine is working properly.  Even under perfect conditions, the inherent error rate is about ± .02 for breath testing, and ± .005 for blood testing.
      Only devices or methods approved by the commissioner of public safety may be used for breath or urine tests. As stated above, only the DataMaster cdm is approved in Iowa at the current time for evidentiary breath purposes.  The list for breath devices is controlled by Iowa Administrative Code 661-157.2.
      Experts have stated that breathing tests have a 12.5% variance in nonspecificity for ethanol. If there is an inherent error of plus or minus .01% in the reading (which means that the machine is working properly) then a reading of .10% means a result of .09% to .11%. This error has been acknowledged in California (People v. Campos, 138 Cal.Rptr. 366 (California)),  and in Alaska (Haynes v.Deparment of Public Safety, 865 P.2d 753 (Alaska)), and recognized an even larger inherent error of .0165% in Hawaii (State v.Boehmer, 613 P.2d 916 (Hawaii)).  With a .08 reading and a.01 variance, this leads to a reading of a margin of error of 25% (plus or minus 12.5% in either direction).  A margin of error of 25% is not guilt beyond a reasonable doubt. Of course, this margin of error would not be helpful if your reading was a high reading, but if your reading was just over .08 it could raise a reasonable doubt.  However, remember that in Iowa, only one prong of the law requires .08 or higher.  It is also against the law to operate a motor vehicle under the influence of any level of alcohol (so any level could be a problem, not just .08).

4. Videos. Police vehicle and booking room videos may show a difference in speech and balance and may contradict police testimony. Failure to retain or produce the videos can lead to suppression of evidence.

5. Speedy Trial. In Iowa, a person must be indicted or trial information produced within 45 days of the arrest, I.R.Crim.P. 2.33.(2)(a), and a trial within 90 days after that, unless good cause exists to exceed the 90 day limit (then within 1 year after arraignment). I.R. Crim.P. 2.33(2)(b),(c). Failure to meet either of these dates unless waived by the driver, is grounds for dismissing the action with prejudice. A preliminary hearing must be conducted within 10 days of the initial appearance if the defendant is in custody, I.R.Crim.P. 2.2(4)(a), or within 20 days of initial appearance if defendant is not in custody. I.R.Crim.P. 2.3(4)(a). Failure to meet time frames for the preliminary hearing can result in dismissal without prejudice.

6. Blood Tests. There are prescribed procedures for the police to obtain, test, analyze, and preserve blood samples. Failure to follow these procedures can result in the suppression of evidence and dismissing the charge. Hospital Blood tests are typically overestimate by as much as 25% true levels in healthy individuals, and are not reliable in severely injured persons. Only a physician, physician’s assistant, medical technologist or registered nurse may take a blood sample.

7. Breath Test Operator and Operation. The operator must be validly licensed in most states or the test is inadmissible, and the machine must be properly operated according to protocols.

     There are many different types of machines for the breath test. The Breathalyzer is largely obsolete. Other types include: the Intoxilyzer, Intoximeter, DataMaster, Alcotest, and the Draeger among others. All of these machines must be properly operated and are subject to error. 

    The most common problem is the Belch Contamination. Belching brings alcohol from the stomach to the mouth where it erroneously reads high. Manufacturers warn police not to rely on the machine to measure mouth alcohol contamination.  

    Only the DataMaster cdm and the DataMaster DMT are approved in Iowa at this time.

    Several operational issues can cause a test to be thrown out (the operator must be certified, machine certified within the past year by the DCI, calibrated per instructions on the Public Safety Website,  and follow the operation manual): mouthpiece changed before test given,, record of calibrating solutions properly kept, log kept of test runs, results of test runs not more than .01 apart, suspect not working with solvents.

    The attorney should obtain during discovery copies of all maintenance and record logs, operator's license, and machine cerification.


8. Breath Test Malfunctions. If the machine malfunctions before or after testing, the results are presumed invalid. Check for operation and repair records indicating malfunctions. The machine also needs to be tested for accuracy with certification tests documented.

9. Radio Frequency Waves. Radio Frequency Interference (radio waves in the air), can influence breath or blood tests. Testing devices are affected by the RFI (generated by police radios, equipment, computers, and radar) resulting in high readings, yet it is impossible to tell how RFI has affected any individual test.

10. Other Chemicals mistaken for alcohol. Other chemicals can be mistaken for alcohol in breath testing machines. Commonly mistaken chemicals include: ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol. People often ingest these compounds at work or other locations where the chemicals are present.
      Common substances which can cause false results include asthma spray, cough drops, paints, and fingernail polish (see other substances in number 25).

11. Low Carb Diets. Low-carb diets can cause falsely high OWI readings. A body produces ketosis as it burns stored body fat for energy. This is precisely the process producing dramatic weight losses on many diets. Yet the ketosis causes abnormally high blood alcohol readings from breath testing machines.

12. Unapproved Breath Test. The machine must be on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible. The Portable Breath Test is inadmissible in most states. Manufacturers of PBTs consider a minimum of two tests to consider the tests evidential.  The approved list of breath evidentiary devices for Iowa is found at the DCI site.

13. Driver’s Admission. An admission to driving, without further evidence, does not prove OWI.

14. Independent Witnesses. Independent witnesses may be crucial to proving sobriety of the driver. Consider passengers, bartenders, ambulance or hospital personnel, and other witnesses to prove sobriety. The driver should immediately after the arrest write down an itinerary of events in the hours preceding the arrest (and after release from jail so it can’t be utilized as evidence) to provide to his attorney. Include any receipts for purchases of food and drink and any witnesses. Alcohol hits harder on an empty stomach, so what was eaten during the day is critical.

15. Failure to Give Miranda Warnings. If a driver is not Mirandized and he is in custody and interrogated, without waiving his rights, any statements made can be suppressed.

16. Officer’s Testimony. His disciplinary record may be utilized to impeach the officer. Prior inconsistent statements may also be used to impeach the officer. One of the key observations is “the smell of alcohol.” However, the officer looks foolish on cross examination when he admits that alcohol does not have a smell. It’s the mixing agent or flavoring that has a smell. To show this, drink O’Doul’s. It tastes and smells like beer, but has no alcohol. Tests show that officer’s perceptions of how strong the breath smells like alcohol have no correlation with actual consumption. Even if the smell is from alcohol, it has no correlation to the amount consumed. Thus the smell of alcohol does not correlate with OWI.

    Testilying of police officers is a common problem in criminal defense and is a difficult problem.  Police officers have credibility, especially over an accused suspect, and will often be believed over the suspect.  Thus, it is seldom advisable for the accused to take the stand in an OWI to oppose police officer testimony.  It is better to show that the officer was over zealous and possibly jumped to conclusions, making mistakes by jumping to conclusions (afterall making mistakes is human), than to have lied.

     Police are trained to observe details. Yet their reports usually only are detailed on the tests. All relevant details are not included in the police reports, so the officer’s credibility can be tested by asking details that the officer should have asked or noticed.

17. Failure to observe. Most states require a continuous period of observation prior to a breath test to consider the results valid and admissible. The purpose of the observation is to ensure that the suspect does not consume anything, drink, smoke, burp, belch, hiccup or regurgitate which can move alcohol from the stomach to the mouth causing falsely high alcohol readings. Officers rarely follow the proper observation period procedure. They are usually busy and fail to closely observe the suspect. This can lead to throwing the test out of court.  Iowa requires a 15 minute observation period. However, it is not always necessary to show that the fifteen minute period was of continuous observation, as any reasonable likelihood that the arrestee smoked, ate or drank can be negated by circumstantial as well as direct evidence.  State v. Hershey, 348 N.W.2d 1,3 (Iowa 1984).

     The observation of the entire behavior of the driver is crucial, not just driving and the field sobriety tests. Testimony should be developed to demonstrate the failure of police to properly observe for the required period. Timing of police tasks should be examined to show that the officer’s attention was not on the suspect continuously.  The problem is also that an officer cannot observe regurgitation.  Regurgitation does not mean simply vomitting, but is also the flow of gases back and forth from the stomach (like a belch without noise)--it cannot be observed. 
   
    In Anson v. Iowa Department of Transportation, 477 N.W.2d 695 (Iowa App. 1991), the observation requirement was not met.  However, the court determined that the person needed to also show that failure to follow the observation requirement affected the test results. In an administrative hearing, the licensee has the burden to show that the alcohol concentration was other than what was shown by the test.
 Scott v. Iowa Department of Transportation, 604 N.W.2d 617 (Iowa 2000).   

18. Expert Witnesses. Consider experts to review the test results.

19. Medical and Health issues. Medical problems can affect field sobriety and breath test results. Gastroesophageal Reflux Disease (GERD), acid reflux, or heartburn can cause an inaccurately high reading of blood alcohol level on the Breath machines. GERD causes alcohol to travel from the stomach back to the throat and mouth, blowing mouth alcohol rather than lung alcohol into the machine. A true .05 BAC can read as .20.

       If the driver suffers from heartburn or indigestion, he/she may suffer from GERD.  Indications could also be the taking of over the counter medications such as Prilosec, Rolaids, Tums, Maalox, Tagamet, or other antacids. Even if the driver has not been diagnosed with GERD, if it is suspected that GERD might be indicated, he should see his physician for tests. Two tests should be conducted--endoscopy (scope looking for acid damage and to see if the Lower Esophageal Sphincter (LES) is open, and a 24 hour pH test.  If the LES is open, it allows gas to leave the stomach in constant regurgitation with constant mouth alcohol interfering with accurate test results. If there is alcohol in the stomach at the time of the test, this is a GERD case, but if there is not alcohol in the stomach, there is no GERD case whether or not GERD exists or not. However, alcohol in the stomach is many times greater than that coming from the lungs and will cause much higher readings.  For example, 0.005% alcohol in the stomach can test 0.15
      The 24 hour pH test informs us how long GERD episodes occur and whether the episode occurs in the upright or laying down position.  If the episodes last for several minutes, then it should be considered that the 2 minutes between tests would be invalid since if a breat test was given during a major episode, the results could be vastly wrong.

An excellent article on GERD is found at http://www.1800dialdui.com/cm/40waystobeataDUI/40waystobeatadui-gerd.asp

20. Weather. Weather conditions can affect driving or field sobriety tests.

21. Probable Cause for Arrest. An officer must have probable cause for an arrest or the arrest is invalid and evidence suppressed. Probable cause means that a reasonable officer would believe that OWI has been committed. The probable cause can be challenged in a probable cause hearing. At the hearing the officer testifies and is cross examined. If there is no probable cause, then the subsequent evidence obtained from the arrest is excluded, and often the case is dismissed, or charges reduced.

22. Search. An officer may not search a vehicle for a minor traffic offense unless the driver gives permission or the officer has probable cause for a search. Evidence obtained illegally can be suppressed in court.

23. Misleading Police Statements. A misleading police statement as to the consequences of taking or not taking a test may cause the suspension to be reversed and removed from the driver’s record.

24. Alcohol Levels. Breath tests are unduly high during the absorption phase of drinking. The State must prove the alcohol level at the time of driving. It is important to remember that drinking and driving is not illegal. Merely proving drinking is insufficient for conviction of OWI. Under the influence or exceeding a particular level of blood alcohol is illegal.

     Recent consumption of alcohol just prior to driving causes higher test levels than when driving. Results could be rising due to absorption. An OWI suspect can test a .15 at the station, but have a .07 when pulled over. Alcohol can take from 50 minutes to 3 hours to absorb into the bloodstream. During this period arterial BAC can be 60% higher than venous BAC. The Breath tests measure arterial BAC. This is especially a problem if the driver recently drank before driving. There is no law against having a particular blood alcohol level at the police station, only while driving.

     In Iowa, however, if the alcohol concentration is established by the specimen of blood, breath or urine being withdrawn within 2 hours after the defendant was driving, the specimen is presumed to be the alcohol concentration at the time of driving. I.C.A. § 321J.2(2)(8)(a). The same is true for drugs. I.C.A. § 321J.2(2)(8)(b). These presumptions may create an impermissible mandatory presumption violating due process. However, the Iowa Criminal Jury instruction modifies the statute by stating that the jury “may, but are not required to, conclude that the alcohol concentration established by the analysis of the sample was the alcohol concentration at the time they operated the motor vehicle.” Iowa Criminal Jury Instruction § 2500.4 OWI-Presumption from Chemical Test (July 1995). This still leaves open the argument for rising BAC levels.

     Additionally, breath testing is based on a 2100-to-1 partition ratio, assuming that the average ratio across the population is 2100-to-1. The ratio of blood to alcohol varies widely across the population and there is no way to determine what a person’s normal ratio is, let alone at the time of the breath test. A person with a ratio lower than 2100-to-1 will have an inaccurately high reading from a breath alcohol test.

25. Other substances. Many items contain alcohol and can cause invalid breath results. Latent alcohol in the mouth can trick breath testing devices. Belching, recent use of cough syrup, cold medicine, mouthwash, or breath spray can affect the results. Suspects with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or food particles trapped between their teeth produce mouth alcohol which affects the breath results.

    To successfully challenge the breath test, the driver must do more than merely speculate something might have occurred to invalidate the results.  Anson v. Iowa Department of Transportation, 477 N.W.2d 695, 697 (Iowa App. 1991), quoting Hounsell v. Commissioner of Public Safety, 401 N.W.2d 94, 96 (Minn. App. 1987).

26. Private property. Driving on private property is covered by the Iowa OWI statute.

27. Failure to disclose experts. On the trial information, all persons expected to testify must be listed or those experts may be prohibited from testifying if the trial information is not amended. Nondisclosure of experts can lead to a prohibition from testifying.

28. Lactate Ringers. Hospital use of lactate ringers leads to false reporting of hospital blood serum levels.

29. Forced Blood Draw. In some states, police may not draw blood without consent where no injury occurred.

30. Fatigue and other reasons. Police often state that the suspect had “bloodshot and watery eyes”, “slurred speech”, “flushed face”, and “unsteady gait.” Police reports often have preprinted boxes for these symptoms. Seldom are the symptoms photographed as evidence for the jury. Appendix E of the NHTSA study (Sept. 1997, DOT HS 808 654) details problems with many of these observations. Often officers will admit to being aware of this study.

     Fatigue produces similar results to OWI. Exhaustion creates poor driving, bloodshot and watery eyes, slow responses, and poor results on field sobriety tests. Allergies, contacts, cigarette fumes, eye strain, shift work, and normal appearance are other possibilities for bloodshot eyes. Nervousness, embarrassment, and anger can cause flushed faces. Flushed faces are also characteristic of certain workers such as agricultural, oil field and other outside work. Intimidation and fluster can cause slurred speech. Officers also usually have no experience with the normal speech of the driver, and often normal speech such as in the Milwaukee or Chicago area, may be slurred. Many of these causes are present in a normal traffic stop, so the evidence could just as innocently point to causes other than OWI.

31. Police have no special ability to judge intoxication levels. Tests by the Rutgers University’s Alcohol Behavior Research Laboratory have found that police officers’ ability to judge intoxication levels is no higher than that of bartenders or social drinkers, of which none could judge the accuracy of intoxication levels more than 25% of the time.

     Some officers but not all have had special certification in “OWI Investigation and Sobriety Testing.” Even if the officer is certified, the testing could have been improperly conducted. Police policies and procedure manuals should be reviewed to determine whether proper policies and procedures were utilized.

32. Mental Impairment. Being under the influence requires both physical and mental impairment. Officers will often admit that the driver when pulled over, was coherent, alert, and correctly answered the officer’s questions. However, mental impairment must proceed physical impairment. Therefore, if there was no mental impairment, there can not be physical impairment.

33. Breathing Techniques. A longer breath sample (more than 10 seconds) may generate a higher BAC reading, since the machine is calibrated for a 10 second test. A shallow breath or holding breath can blow residual mouth alcohol into the machine producing a high BAC. Hyperventilation also affects the test.  Police will often instruct the suspect to blow harder or deeper on their second sample (bringing up deeper lung air and a more inaccurate sample also).  This can lead to an inaccurate result, which is not within 0.020 of the first sample which many states require for an "accurate" sample.  A valid sample is considered when the suspect blows a consistent and deep breath, not a long and hard blow until one is out of breath.

34. Breath Temperature. Machines are calibrated to test breath at 34 degrees Centigrade. However, individual breath temperature varies. A one degree difference can produce a BAC reading 7% higher.

35. Disconnect cases. Symptoms of intoxication can be predictably observed at higher and higher blood alcohol levels. However, a person’s driving may be consistent with only slight impairment, but the tests may show a high level of intoxication. This is a “disconnect case.” If the symptoms don’t match the alcohol level, then the case can be called into question.

36. Jury Trial. A key to fighting an OWI is a jury trial, not a bench trial. A lawyer must sow the seeds of doubt in the jurors’ minds by showing that the police concentrated on one set of facts but totally ignored others which are equally probable. A conviction for OWI must meet the threshold of beyond a reasonable doubt.

      A lawyer at a trial will present a coherent theme throughout the trial such as “Bad Cop”, “Rush to Judgment”, “Officer Only Saw what he wanted to see”, etc. This theme will be tied together with evidence throughout the trial to persuade the jury.

     The suspect in a jury trial must be portrayed as an honest, hardworking person. The attorney must work to make the jury like the defendant, but the actions must be honest. If the jury detects deception, then this will work against the defendant. The defendant should dress properly, speak clearly and honestly.

37. Start treatment. Before sentencing, start treatment for alcohol abuse. Attend meetings and treat the problem. Show remorse at sentencing.

38. Exculpatory Evidence Destroyed. Samples may be destroyed. Due process may be violated when the State fails to preserve evidence which is known to have an exculpatory value. Bad faith may need to be shown by the police, but there may be occasions where the destruction of the evidence may make a trial fundamentally unfair. Arizona v. Youngblood, 488 U.S. 51 (1988). This could be relevant in cases in which the samples are destroyed prior to an attorney being retained, or the officer does not have the skill, experience, or training to provide an expert opinion on whether the suspect was under the influence.

39. Collateral estoppel. Normally the State is not collaterally stopped from submitting evidence that the defendant refused to submit to a test because he was not properly informed of his implied consent rights even if an administrative judge had so determined, since the State had no opportunity to fully litigate the issue. However, if four requirements are met:

     a. Both proceedings involve the same parties or privies.

     b. Issue must have been actually litigated and determined in the first proceeding

     c. The determination must have been essential to the first proceeding

     d. Party against whom it was asserted must have had a full opportunity to litigate the issue.

then the collateral estoppel doctrine may be applicable.

40. OWI Defense. Even if the driver was under the influence, there may be an applicable defense. If the act was to prevent death or injury to themselves or another person, a Justification defense could be raised. Justification is applicable if there is defense of self or others, imminent danger, and reasonable. Necessity may be a defense if the defendant is required to choose the lesser of two evils and avoids a greater harm by bringing about a lesser harm.

     All defenses must be raised no later than 40 days after arraignment. I.R. Crim. P. 2.11(4).

41. Motions in limine. Motions in limine should be pursued to limit the testimony of officers to actual observations only, prohibiting terms such as “failed the test.” Motions in limine are discretionary with the court and must be produced no later than 9 days before trial date. I.R. Crim. P 2.11(4). All other pretrial motions must be raised no later than 40 days after arraignment. I.R.Crim.P. 2.11(4).

42.  Elements of OWI.  Of course, as with any offense, the state code should be checked (321J.2) to determine if the State can prove beyond a reasonable doubt that the defendant committed the offense, at the time alleged, and at the location alleged.  The elements of the crime must be proven by the State or the defendant is entitled to dismissal of the case.

43.  Motion to Suppress.  The attorney should always file a motion to suppress the evidence in the case, as the case can be won if the evidence is suppressed.  Even if it is not granted, it provides another opportunity to question the officer, and the testimony can be used at trial.

44.  Air Bag Talc.   It is suspected that breathing in air bag talc after deployment of air bags may affect some readings producing inflated results.

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