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Iowa Operating While Intoxicated

Iowa Operating While Intoxicated Law

Des Moines Criminal Defense Attorney Jeff Mathias


Quick Summary of Iowa Operating While Intoxicated Law

Presumption of Intoxication in Iowa: .08% Blood Alcohol Content

Zero Tolerance underage (21) drinker presumption: .02 % BAC

Enhanced Penalty – Aggravated Iowa OWI: .15% BAC

How many drinks does it take? BAC Chart

Penalties for OWI in Iowa- Incarceration and Fines

First Offense OWI Serious Misd. 48 hours to 1 year in Jail* $625-$1,200 Fine

Second Offense OWI Aggravated Misd.** 7 days to 2 years in Jail* $1,875-$6,250 Fine

Third Offense OWI Class D Felony** 30 days to 5 years in Prison* $3,125-$9,375 Fine

Death or Serious Injury Class B Felony Up to 25 years in Prison

*You do get credit for time served and the Judge can accommodate your work schedule at their discretion. The look back period is 12 years from the prior conviction.

**Second offense also requires substance abuse evaluation

Penalties for OWI in Iowa Driver License Suspension

We imply consent to submit to a blood alcohol test when we are licensed and there is a 1 year driver license suspension if we refuse. See Iowa Department of Transportation, OWI and Driver License Suspension .

Minimum Drivers License Suspension for:

First Offense OWI 180 Days to 1 Year

Second Offense OWI 1 Year (2 Years if there is a test refusal)

Third Offense OWI 6 Years

See Iowa Code 2013, Operating While Intoxicated

OWI Definitions

Operating a Motor Vehicle - Immediate, actual physical control over a motor vehicle that is in motion and/or has the engine running, State v. Murray, 539 NW2nd (Iowa, 1995) The defendant need not be actually driving. Golf carts, snowmobiles and boats are all motor vehicles.

While Intoxicated - Under the influence of alcohol or drugs or both. This can be proved by the police officers observations or by a test result of .08 BAC or greater. There is no minimum amount of controlled substance required for proving intoxication. See Jeff’s Iowa Drug Offense page.

The Actual Iowa Statute on Drunk Driving (Operating While Intoxicated)

321J.2 OPERATING WHILE UNDER THE INFLUENCE OF ALCOHOL OR A DRUG OR WHILE HAVING AN ALCOHOL CONCENTRATION OF .08 OR MORE (OWI)

1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:

a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.

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

c. While any amount of a controlled substance is present in the person, as measured in

the person's blood or urine.

2. A person who violates subsection 1 commits:

a. A serious misdemeanor for the first offense, punishable by all of the following:

(1) Imprisonment in the county jail for not less than forty-eight hours, to be served as ordered by the court, less credit for any time the person was confined in a jail or detention facility following arrest or for any time the person spent in a court-ordered operating-while-intoxicated program that provides law enforcement security. However, the court, in ordering service of the sentence and in its discretion, may accommodate the defendant's work schedule.

(2) Assessment of a fine of one thousand two hundred fifty dollars. However, in the discretion of the court, if no personal or property injury has resulted from the defendant's actions, the court may waive up to six hundred twenty-five dollars of the fine when the defendant presents to the court at the end of the minimum period of ineligibility, a temporary restricted license issued pursuant to section 321J.20. As an alternative to a portion or all of the fine, the

court may order the person to perform unpaid community service.

(3) Revocation of the person's driver's license pursuant to section 321J.4, subsection 1, section 321J.9, or section 321J.12, subsection 2, which includes a minimum revocation period of one hundred eighty days, and may involve a revocation period of one year. A revocation under section 321J.9 includes a minimum period of ineligibility for a temporary restricted license of ninety days.

(a) A defendant whose alcohol concentration is .08 or more but

not more than .10 shall not be eligible for any temporary restricted

license for at least thirty days if a test was obtained and an

accident resulting in personal injury or property damage occurred.

The defendant shall be ordered to install an ignition interlock

device of a type approved by the commissioner of public safety on all

vehicles owned or operated by the defendant if the defendant seeks a

temporary restricted license. There shall be no such period of

ineligibility if no such accident occurred, and the defendant shall

not be ordered to install an ignition interlock device.

(b) A defendant whose alcohol concentration is more than .10

shall not be eligible for any temporary restricted license for at

least thirty days if a test was obtained, and an accident resulting

in personal injury or property damage occurred or the defendant's

alcohol concentration exceeded .15. There shall be no such period of

ineligibility if no such accident occurred and the defendant's

alcohol concentration did not exceed .15. In either case, where a

defendant's alcohol concentration is more than .10, the defendant

shall be ordered to install an ignition interlock device of a type

approved by the commissioner of public safety on all vehicles owned

or operated by the defendant if the defendant seeks a temporary

restricted license.

(4) Assignment to substance abuse evaluation and treatment, a

course for drinking drivers, and, if available and appropriate, a

reality education substance abuse prevention program pursuant to

subsection 3.

b. An aggravated misdemeanor for a second offense, and shall be imprisoned in the county jail or community-based correctional facility not less than seven days, and assessed a fine of not less than one thousand eight hundred seventy-five dollars nor more than six thousand two hundred fifty dollars.

c. A class "D" felony for a third offense and each subsequent offense, and shall be committed to the custody of the director of the department of corrections for an indeterminate term not to exceed five years, shall be confined for a mandatory minimum term of thirty days, and shall be assessed a fine of not less than three thousand one hundred twenty-five dollars nor more than nine thousand three hundred seventy-five dollars.

(1) If the court does not suspend a person's sentence of

commitment to the custody of the director of the department of

corrections under this paragraph "c", the person shall be

assigned to a facility pursuant to section 904.513.

(2) If the court suspends a person's sentence of commitment to

the custody of the director of the department of corrections under

this paragraph "c", the court shall order the person to serve not

less than thirty days nor more than one year in the county jail, and

the person may be committed to treatment in the community under

section 907.6.

3. a. Notwithstanding the provisions of sections 901.5 and

907.3, the court shall not defer judgment or sentencing, or suspend

execution of any mandatory minimum sentence of incarceration

applicable to the defendant under subsection 2, and shall not suspend

execution of any other part of a sentence not involving incarceration

imposed pursuant to subsection 2, if any of the following apply:

(1) If the defendant's alcohol concentration established by the

results of an analysis of a specimen of the defendant's blood,

breath, or urine withdrawn in accordance with this chapter exceeds

.15, regardless of whether or not the alcohol concentration indicated

by the chemical test minus the established margin of error inherent

in the device or method used to conduct the test equals an alcohol

concentration of .15 or more.

(2) If the defendant has previously been convicted of a violation

of subsection 1 or a statute in another state substantially

corresponding to subsection 1.

(3) If the defendant has previously received a deferred judgment

or sentence for a violation of subsection 1 or for a violation of a

statute in another state substantially corresponding to subsection 1.

(4) If the defendant refused to consent to testing requested in

accordance with section 321J.6.

(5) If the offense under this chapter results in bodily injury to

a person other than the defendant.

b. All persons convicted of an offense under subsection 2

shall be ordered, at the person's expense, to undergo, prior to

sentencing, a substance abuse evaluation.

c. Where the program is available and is appropriate for the

convicted person, a person convicted of an offense under subsection 2

shall be ordered to participate in a reality education substance

abuse prevention program as provided in section 321J.24.

d. A minimum term of imprisonment in a county jail or

community-based correctional facility imposed on a person convicted

of a second or subsequent offense under subsection 2 shall be served

on consecutive days. However, if the sentencing court finds that

service of the full minimum term on consecutive days would work an

undue hardship on the person, or finds that sufficient jail space is

not available and is not reasonably expected to become available

within four months after sentencing to incarcerate the person serving

the minimum sentence on consecutive days, the court may order the

person to serve the minimum term in segments of at least forty-eight

hours and to perform a specified number of hours of unpaid community

service as deemed appropriate by the sentencing court.

4. In determining if a violation charged is a second or subsequent offense for purposes of

criminal sentencing or license revocation under this chapter:

a. Any conviction or revocation deleted from motor vehicle

operating records pursuant to section 321.12 shall not be considered

as a previous offense.

b. Deferred judgments entered pursuant to section 907.3 for

violations of this section shall be counted as previous offenses.

c. Convictions or the equivalent of deferred judgments for

violations in any other states under statutes substantially

corresponding to this section shall be counted as previous offenses.

The courts shall judicially notice the statutes of other states which

define offenses substantially equivalent to the one defined in this

section and can therefore be considered corresponding statutes. Each

previous violation on which conviction or deferral of judgment was

entered prior to the date of the violation charged shall be

considered and counted as a separate previous offense.

5. A person shall not be convicted and sentenced for more than

one violation of this section for actions arising out of the same

event or occurrence, even if the event or occurrence involves more

than one of the conditions specified in subsection 1.

6. The clerk of the district court shall immediately certify to

the department a true copy of each order entered with respect to

deferral of judgment, deferral of sentence, or pronouncement of

judgment and sentence for a defendant under this section.

7. a. This section does not apply to a person operating a

motor vehicle while under the influence of a drug if the substance

was prescribed for the person and was taken under the prescription

and in accordance with the directions of a medical practitioner as

defined in chapter 155A or if the substance was dispensed by a

pharmacist without a prescription pursuant to the rules of the board

of pharmacy, if there is no evidence of the consumption of alcohol

and the medical practitioner or pharmacist had not directed the

person to refrain from operating a motor vehicle.

b. When charged with a violation of subsection 1, paragraph

"c" , a person may assert, as an affirmative defense, that the

controlled substance present in the person's blood or urine was

prescribed or dispensed for the person and was taken in accordance

with the directions of a practitioner and the labeling directions of

the pharmacy, as that person and place of business are defined in

section 155A.3.

8. In any prosecution under this section, evidence of the results

of analysis of a specimen of the defendant's blood, breath, or urine

is admissible upon proof of a proper foundation.

a. The alcohol concentration established by the results of an

analysis of a specimen of the defendant's blood, breath, or urine

withdrawn within two hours after the defendant was driving or in

physical control of a motor vehicle is presumed to be the alcohol

concentration at the time of driving or being in physical control of

the motor vehicle.

b. The presence of a controlled substance or other drug

established by the results of analysis of a specimen of the

defendant's blood or urine withdrawn within two hours after the

defendant was driving or in physical control of a motor vehicle is

presumed to show the presence of such controlled substance or other

drug in the defendant at the time of driving or being in physical

control of the motor vehicle.

c. The department of public safety shall adopt nationally

accepted standards for determining detectable levels of controlled

substances in the division of criminal investigation's initial

laboratory screening test for controlled substances.

9. a. In addition to any fine or penalty imposed under this

chapter, the court shall order a defendant convicted of or receiving

a deferred judgment for a violation of this section to make

restitution for damages resulting directly from the violation, to the

victim, pursuant to chapter 910. An amount paid pursuant to this

restitution order shall be credited toward any adverse judgment in a

subsequent civil proceeding arising from the same occurrence.

However, other than establishing a credit, a restitution proceeding

pursuant to this section shall not be given evidentiary or preclusive

effect in a subsequent civil proceeding arising from the same

occurrence.

b. The court may order restitution paid to any public agency

for the costs of the emergency response resulting from the actions

constituting a violation of this section, not exceeding five hundred

dollars per public agency for each such response. For the purposes

of this paragraph, "emergency response" means any incident

requiring response by fire fighting, law enforcement, ambulance,

medical, or other emergency services. A public agency seeking such

restitution shall consult with the county attorney regarding the

expenses incurred by the public agency, and the county attorney may

include the expenses in the statement of pecuniary damages pursuant

to section 910.3.

10. In any prosecution under this section, the results of a

chemical test shall not be used to prove a violation of subsection 1,

paragraph "b" or "c", if the alcohol, controlled substance,

or other drug concentration indicated by the chemical test minus the

established margin of error inherent in the device or method used to

conduct the chemical test does not equal or exceed the level

prohibited by subsection 1, paragraph "b" or "c".

Iowa Criminal Jury Instructions: OWI

These are the instructions Judges read to juries and that guide juries in determining if the defendant is guilty. Attorneys use them to line up their evidence, hoping to poke holes in the prosecutors case.

2500.6 OWI - Operator - Definition. The term "operate" means the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running.

Authority

State v. Weaver, 405 N.W.2d 852 (Iowa 1987)

State v. Hopkins, 576 N.W.2d 274 (Iowa 1998)

12/98

2500.7 OWI - Refusal To Take Test. The defendant was asked to give a [breath] [blood] [urine] sample so it could be analyzed to determine the percent of alcohol in [his] [her] blood. [The defendant refused.] [It is alleged the defendant refused.]

A person is not required to give a sample of any bodily substance; however, you may consider a refusal in reaching your verdict.

Authority

Iowa Code section 321J.16

2500.8 OWI - Method Of Operation. The State does not need to prove how the defendant was driving. However, you may consider [his] [her] manner of driving in deciding if [he] [she] was under the influence of alcohol.

Authority

State v. Langlet, 283 N.W.2d 330 (Iowa 1979)

State v. Hepburn, 270 N.W.2d 629 (Iowa 1978)

2510.1 Operating a Motorboat or Sailboat While Intoxicated – Elements.

The State must prove the following elements of Operating a [Motorboat] [Sailboat] While Intoxicated:

  1. On or about the ___ day of _____________, 20_____, the defendant operated a [motorboat] [sailboat].
  1. The defendant operated the [motorboat] [sailboat] on navigable waters.
  1. At the time, defendant was (a) under the influence of [alcohol] [drugs] [combination of alcohol and drugs]; or (b) had an alcohol concentration of .10 or more; or (c) had a controlled substance present in [his] [her] person as measured in [his] [her] blood or urine. It is only necessary that all jurors agree to at least one of these three alternatives.

If the State has proved all of the above elements, the defendant is guilty of operating a [motorboat] [sailboat] while intoxicated. If the State has failed to prove elements 1, 2 or 3, then the defendant is not guilty.

Authority

Iowa Code section 462A.14(1)

Comment

Modify paragraph three of the instruction to fit the facts. For example, if no test was administered, then use only (a).

Note: Use Instruction 2500.4 Presumption from a chemical test.

Note: Use Instruction 2500.5 Definition of under the influence.

Note: Use Instruction 2500.7 Refusal to take a test.

6/01

2510.2 Operating a Motorboat or Sailboat While Intoxicated and Causing Serious Injury – Elements. The State must prove the following elements of Operating a [Motorboat] [Sailboat] While Intoxicated Resulting in Serious Injury:

  1. On or about the ___ day of _____________, 20_____, the defendant operated a [motorboat] [sailboat].
  1. The defendant operated the [motorboat] [sailboat] on navigable waters.
  1. At the time, defendant was (a) under the influence of [alcohol] [drugs] [a combination of alcohol and drugs]; or (b) had an alcohol concentration of .10 or more; or (c) had a controlled substance present in [his] [her] person as measured in [his] [her] blood or urine. It is only necessary that all jurors agree to at least one of these three alternatives.
  1. Defendant caused the serious injury of another person other than [himself] [herself].

If the State has proved all of these elements, the defendant is guilty of operating a [motorboat] [sailboat] while intoxicated resulting in the serious injury of another. If the State has failed to prove element number 4, the defendant is not guilty of the offense of operating a [motorboat] [sailboat] while intoxicated resulting in the serious injury of another and you shall consider the offense of operating a [motorboat] [sailboat] while intoxicated as explained in Instruction No. ___________. If the State has failed to prove elements 1, 2 or 3, then the defendant is not guilty.

Authority

Iowa Code section 462A.14(2)(d)

Comment

Modify paragraph three of the instruction to fit the facts. For example, if no test was administered, then use only (a).

Note: Use Instruction 2500.4 Presumption from a chemical test.

Note: Use Instruction 2500.5 Definition of under the influence.

Note: Use Instruction 2500.7 Refusal to take a test.

Note: Use Instruction 200.22 Serious injury.

6/01

2510.3 Operating a Motorboat or Sailboat While Intoxicated and Resulting in Death – Elements.

The State must prove the following elements of Operating a [Motorboat] [Sailboat] While Intoxicated and Resulting in Death:

  1. On or about the ___ day of _____________, 20____, the defendant operated a [motorboat] [sailboat].
  1. The defendant operated the [motorboat] [sailboat] on navigable waters.
  1. At the time, defendant was (a) under the influence of [alcohol] [drugs] [combination of alcohol and drugs]; or (b) had an alcohol concentration of .10 or more; or (c) had a controlled substance present in [his] [her] person as measured in [his] [her] blood or urine. It is only necessary that all jurors agree to at least one of these three alternatives.
  1. Defendant caused the death of another person other than [himself] [herself].

If the State has proved all of the above elements, the defendant is guilty of operating a [motorboat] [sailboat] while intoxicated resulting in the death of another. If the State has failed to prove element number 4, the defendant is not guilty of the offense of operating a [motorboat] [sailboat] while intoxicated resulting in the death of another and you shall consider the offense of operating a [motorboat] [sailboat] while intoxicated as explained in Instruction No. ___________. If the State has failed to prove elements 1, 2 or 3, then the defendant is not guilty.

Authority

Iowa Code section 462A.14(2)(e)

Comment

Modify paragraph three of the instruction to fit the facts. For example, if no test was administered, then use only (a).

Note: Use Instruction 2500.4 Presumption from a chemical test.

Note: Use Instruction 2500.5 Definition of under the influence.

Note: Use Instruction 2500.7 Refusal to take a test.

6/01

2510.4 Operating a Boat While Intoxicated – Definition – Navigable Waters.

“Navigable waters” means all lakes, rivers, and streams, which can support a vessel capable of carrying one or more persons during a total of six months in one of every ten years.

Authority

Iowa Code section 462A.2(20)

6/01

2510.5 Operating a Boat While Intoxicated – Definition – Motorboat.

“Motorboat” means any vessel propelled by an inboard, inboard-outdrive, or outboard engine, whether or not such engine is the principal source of propulsion.

Authority

Iowa Code section 462A.2(19)

6/01

2510.6 Operating a Boat While Intoxicated – Definition – Sailboat.

“Sailboat” means any watercraft operated with a sail.

Authority

Iowa Code section 462A.2(31)

6/01

2510.7 Operating a Boat While Intoxicated – Definition – Vessel.

“Vessel” means every description of watercraft, other than a seaplane, used or capable of being used as a means of transportation on water or ice.

Authority

Iowa Code section 462A.2(37)

6/01

2510.8 Operating a Boat While Intoxicated – Definition – Watercraft.

“Watercraft” means any vessel which floats upon water and is capable of carrying one or more persons. Ice boats are watercraft.

Authority

Iowa Code section 462A.2(40)

6/01

2510.9 Operating a Boat While Intoxicated – Definition – Operate.

“Operate” means to navigate or otherwise use a vessel or motorboat.

Authority

Iowa Code section 462A.2(22) 6/01

2510.10 Operating a Boat While Intoxicated – Definition – Use.

“Use” means to operate, navigate, or employ a vessel. A vessel is in use whenever it is upon the water.

Authority

Iowa Code section 462A.2(36)

6/01

2510.11 Operating a Boat While Intoxicated – Definition – Operator.

“Operator” means a person who operates or is in actual physical control of a vessel.

Authority

Iowa Code section 462A.2(23)

6/01

2510.12 Operating a Boat While Intoxicated – Cause of Death or Serious Injury.

Concerning element number ___ of Instruction No. _____, the defendant caused the [death of] [serious injury to] (victim), if the defendant’s act(s) caused or directly contributed to (victim’s) [death] [serious injury].

Authority

Iowa Code section 462A.14(d), (e)

Comment

The instruction is patterned after Instruction 700.11 (cause of death) in the homicide context.

Note: Add the following paragraph when appropriate:

“However, if you find that, in the treatment of the wounds, another was negligent to the extent that such negligence was the sole cause of death, then the act(s) of the defendant did not result in the death of (victim).

6/01

2510.13 Operating a Boat While Intoxicated – Prescription Drug Affirmative Defense.

The defendant claims that the [drug] that was present in [[his] [her]] [blood] [urine] was legally [prescribed] [dispensed] and was legally taken. The defendant has the burden to prove by a preponderance of the evidence that:

1. the [drug] was [prescribed] [dispensed] for the defendant

and

2. was taken in accordance with the directions of a

[physician] [dentist] [podiatric physician] [person licensed

or registered to distribute or dispense a prescription drug

or device in the course of professional practice in [his]

[her] state] [person licensed by another state in a health

field who is legally authorized to prescribe drugs].

Authority

Iowa Code section 462A.14(7)(b)

Iowa Code section 155A.3(11)

Iowa Code section 155A.3(28)

Comment

Use this instruction if the intoxication results only from the presence of a controlled substance in the person’s blood or urine.

Note: Instruction 100.12 Preponderance of the evidence – defenses.

Additional Resources

See Jeff’s Iowa Criminal Law Blog and the Iowa OWI Guide. The national DWI Defense Lawyers Association, and the National College of DUI defense. The Iowa Supreme Court is the final arbiter of OWI law. Iowa Courts Online Search. The Iowa Association of Criminal Defense Attorneys. The Iowa State Bar Association. See Jeff’s Des Moines Bankruptcy Law website.

Des Moines criminal defense attorney Jeff Mathias handles Operating While Intoxicated cases along with other criminal cases and also bankruptcy and family law matters. Jeff’s office is located at 4800 Mills Civic Parkway, Suite 218 in West Des Moines, Iowa 50265, 515-261-7526, 1-800-997-1395.