Des Moines OUI/DUI Lawyer
Charged with an OWI? We Can Protect Your Rights in Polk County
In Iowa, we have OWIs – other states may call it a DUI or DWI. These terms can be used interchangeably as they mean practically the same thing.
In Iowa, you can be convicted of an OWI for:
- Operating a motor vehicle while having an alcohol concentration of .08 or more
- Operating a motor vehicle while under the influence of alcohol or another drug or a combination of both
- Operating a motor vehicle while ANY amount of controlled substance is present as measured by blood or urine
There are a lot of good reasons why requesting an attorney right after the initial stop for an OWI is one of the the most important things you can do. First, by invoking your right to an attorney, it can limit the way law enforcement can speak with you. Consequently, it will be much harder for them to obtain evidence in your case without having it excluded or limited in trial. Second, by having an attorney present, you will be educated on what steps during the OWI process you should consent to and refuse.
If you have been charged with DUI, do not hesitate to consult with Feld Law Firm. Our Des Moines DUI lawyer has helped numerous Polk County residents fight their charges and protect their driving privileges.
Facing OWI charges in Iowa? Contact our Des Moines DUI attorney online or at (515) 996-4441 to get started with a free consultation.
What is the Difference Between an OWI and DUI in Iowa?
The main difference between an OUI and a DUI in Iowa is that a DUI stands for "driving under the influence" and OWI stands for "operating while under the influence" . OWI is a much broader term than a DUI because an OWI prohibits anyone from operating a motor vehicle while under the influence, whereas a DUI prohibits anyone from driving while under the influence. Iowa defines "Operating" as "being in physical control of a motor vehicle that is in motion or has its engine running." You can "operate" when "driving" but not always "driving" when "operating". Other acronyms such as OMVUI, OUI, and DWI which have their own definitions that are much the same but with similar subtle but important distinctions.
How Long Does an OWI Stay on Your Record in Iowa?
An OWI in Iowa will stay on your driving record for 12 years, this means that if you had another OWI within the past 12 years, your current OWI offense will be enhanced to a 2nd or 3rd offense. It could also enhance your current OWI from a misdemeanor to felony. Though an OWI will stay on your driving record for 12 years, they will permanently stay on your criminal record.
In most cases you will have your license revoked if you are charged with an Iowa OWI. This does not necessarily mean you will be unable to drive. As of July 1, 2018, you can fill out the form 403400 (application) and send it to the DOT. This will allow you to get a temporary restricted license so you are able to drive. The DOT will send you a document stating what you need to do to get a license so you can drive. The requirements most likely will be to install an ignition interlock device, obtain SR22, and pay some civil penalties along with a $20 license reinstatement fee. You will need to complete a class before you can get your full license back. In some cases, even if your OWI is dismissed, you can still have your licenses revoked.
It should be importantly noted that the ignition interlock device must be installed in each of the person's vehicles. This can be a tricky situation if the person owns a business where there are multiple vehicles. You should speak to a Des Moines OWI attorney for advice on how to proceed in this situation.
In rare situations, your license will not be revoked for an OWI. Those situations include where a constitutional right of yours was violated and if the officer did not have reasonable grounds to believe you were intoxicated. There are few other ways – for example, if the officer did not properly request one of the three tests from you or if you were not properly informed of your rights before taking the Datamaster or providing a urine sample. In other words, you will likely lose your full license with an OWI, but you may be able to get your license back with a few conditions.
Remember that you only have 10 days to give notice to the DOT that you are appealing the license suspension/revocation for operating while intoxicated. This is very important to do if you have a CDL.
The length of time you can expect to have your license revoked depends on the nature of the offense, outlined below.
It should be noted that as of July 1, 2018, you will be eligible immediately for a TRL regardless of whether or not you refused to submit to the Datamaster. You will simply need to send in an application (Form 403400) and obtain an ignition interlock device and SR 22. You will also need to pay a civil penalty with the DOT to get your license.
Remember: A person cannot just simply drive after getting an OWI. There are no more periods of ineligibility before you can obtain your license. Your license will be revoked for six months if you submitted to the Datamaster (breath test at police station). It will be revoked for one year if you did not submit to the Datamaster.
It cannot be emphasized enough that you must obtain everything required above by the DOT. If you do not do this and you are caught driving, there is an additional serious misdemeanor charge added to your driving while revoked charge. This means that if you are caught driving while revoked, the state can charge you up to an extra $1,875 fine plus 35% surcharge with the possibility of serving up to one year in prison. Simply put, make sure you meet all the Iowa DOT requirements before you decide to drive after an OWI charge.
If the person was under the age of 21, they are ineligible for a TRL for 60 days. If their blood alcohol content (BAC) was greater than .02 but less than .08, their license is revoked for 60 days on the first violation. It is revoked for 90 days for any subsequent violation. This is called the "zero tolerance" OWI.
It should be noted that previously, if the person refused the Datamaster, their license was revoked for one year on their first violation and revoked for two years on their second violation. The person was ineligible for a TRL. Now a person regardless of age is eligible for their TRL. It seems somewhat unfair that a person under the age of 21 is not eligible for a restricted license to drive if they blew between .02-.08 but is eligible for a TRL for blowing over .08. If you have any questions regarding minor OWI's, do not hesitate to contact us and we will be happy to answer any questions.
A second offender is immediately eligible for a TRL regardless of whether they blew into the Datamaster. If they do blow, they face one year of license suspension. If they do not blow, they face two years of license suspension.
Regardless of whether a person blows for the Datamaster test, they face one year of license suspension but are immediately eligible for a TRL.
Any Level OWI Causing Death
Regardless of whether it is your first or third offense, any OWI that causes death leaves the driver facing a six-year license suspension. They are ineligible to obtain a TRL for two years.
Any Level OWI Causing Injury
The person can apply for a TRL when normally permitted with respect to which OWI it is. The full license suspension is one year in addition to the period that the license is normally suspended for the offense with no injury.
Any Offense OWI While Driving While Revoked
You may have your vehicle impounded immediately upon arrest. The impound continues for at least six months or until the driver's license revocation is completed, whichever period is longer. If the vehicle is not impounded at the time of arrest, it must be impounded upon conviction for the second or subsequent OWI offense.
OWI Offense & The Person Receives a Deferred Judgment
The person is eligible immediately for a TRL. It should be noted that a person is only eligible for a deferred judgment in regard to their first-offense OWI and if they blew under .15. In some counties, the revocation period begins 10 days after the date of the arrest, and therefore, this section will not come into play. This is because there most likely will not be an order in place deferring judgment 10 days after the arrest.
What is Deferred Judgment?
Deferred judgment is a sentencing option in which a judge can postpone the decision to hold a defendant guilty and place them on probation during that period. Upon completion of probation and other conditions (completing classes, not committing any other crimes) the charge will be dismissed and their record will be expunged of the case.
OWI & Job Loss
In most cases, you will lose your job if your job primarily consists of driving because you will likely have to install an ignition interlock device in any vehicle you drive with an OWI conviction. In other words, you cannot drive without an ignition interlock device.
In other job positions, it will depend on the employer. As mentioned above, you will likely be eligible for a restricted license but will be unable to drive any of your employer's vehicles. Sometimes your employer will work with you if your suspension is only for six months, but your employer certainly will not like the fact that you were charged or convicted of an OWI. If you do it right the first time, there are ways to have the matter dismissed from your record, therefore leaving you with no conviction. You can then say you were legally never convicted of the crime. It is important to have the matter handled correctly from the beginning.
How Much Does an OWI Cost?
It really depends, but by the time it is all said and done, it usually costs someone between $4,000 and $10,000. Of course, it could be more or less depending on what OWI offense you are charged with.Obviously, if it is your third offense, you will be paying toward the higher end of my range. Some third-offense OWIs can cost up to $20,000 by the time it is all said and done.
You will likely have to pay for the:
- OWI offender program ($375/$650)
- Substance abuse evaluation ($75)
- SR 22 insurance (About $50-$100 more per month)
- Installation of a breathalyzer in your vehicle ($65/month + fees)
- Your jail time (if any) ($75/day + fees)
- Fine (at least $1,250)
- Court costs ($100)
- Surcharge (35% of the OWI fine)
- SCRAM bracelet (About $10/day)
- Penalties/costs associated with the Iowa Department of Transportation to get your license back
As you can imagine, this is not cheap. In regard to the cost of the OWI offender class, it depends on which offense OWI it is for the defendant. The OWI first-offense class costs somewhere around $375 and the second offense class costs somewhere around $650. The OWI class was designed for the DOT to help someone get back their full license after being convicted of an OWI. With that said, the court (judge) can sentence you to jail time instead of ordering you to complete the OWI class. Regardless, you will have to take some form of an OWI class in order to retain your full license. Generally, if your OWI/DUI is dismissed, you will be required to take a 12-hour class through DMACC or similar facility.
Penalties for OWI/DUI in Iowa
A significant amount of criminal offenses do not go to trial because a deal is worked out or the case is dismissed, but one of the most frequently litigated criminal offenses is an OWI. This is because there are a lot of people charged with it and each person, even for the first time, is looking at a possible minimum of 48 hours in jail.
As an alternative to the 48-hour jail time, you may be able to attend a drunk-driving course. You can sign up for the OWI class through DMACC or in a facility near you.
In addition to the possible jail time and/or class for your first-offense OWI conviction, you will be fined $1,250 plus a 35% surcharge and $100 court costs. You may also be ordered to perform community service.
With respect to a person’s second-offense OWI, an aggravated misdemeanor, you could be sentenced to at least seven days in jail and a $1,850 fine plus a 35% surcharge and $100 court costs. It should also be mentioned that you can lose your license for longer periods of time than you would for first offense.
A third-offense OWI and each subsequent OWI offense is a class D felony. If convicted, you could be looking at serving up to five years in a correctional facility; there is also a mandatory minimum of 30 days in jail. Additionally, a fine of no less than $3,175 is assessed to the person. An additional 35% surcharge is assessed to the fine. You may also be admitted to a treatment facility. Lastly, your license will be revoked for quite some time. As previously mentioned, you will be eligible to drive wherever and whenever you want as long as you install an ignition interlock device, obtain SR22, and pay your civil penalties to the DOT.
The 12-Year Rule
It should be mentioned that there is the 12-year rule in Iowa wherein if you were convicted of an OWI over 12 years ago, that OWI does not count toward your number of offenses. This is called the 12-year look back period. For example, if you received an OWI in 1999 and an OWI in 2017, the 2017 OWI would only be considered your first offense. For calculating the 12-year time limitation for an OWI, the time begins on the date of the incident, not the date of the conviction.
It should be importantly noted, however, that your OWI offenses that date back later than 12 years ago can be considered in your sentencing hearing. The old OWI charge just cannot be used to enhance the offense. In other words, your "old" OWI(s) can come back to haunt you with your new OWI; it just cannot enhance your level of the OWI offense.
Should I Hire an Attorney for my DUI?
The simple answer to that question is yes.
By retaining a Des Moines OWI defense attorney, you may be able to:
- Amend and dismiss charges
- Lower the penalties
- Get your license back much faster
- Eliminate any jail time
- Win at trial or on a constitutional violation
In this regard, an attorney can review each fact of your case and try to find some violation of your rights that law enforcement committed within the process. If the violation is serious enough, your case could be dismissed. A Des Moines DUI attorney can also inform you of any defenses to your OWI, such as the prescription-drug defense.
Do not hesitate to contact Feld Law Firm at (515) 996-4441 if you have been charged with OWI.
Tips When Getting Pulled Over for an OWI
Many people ask us what they should do if they have been drinking and get pulled over by law enforcement. First off, it is never a good idea to drink too much and drive. Secondly, if a person is driving drunk and the law enforcement and prosecutor properly follow procedures and the law, the person is most likely going to be found guilty of an OWI. We understand that there are some instances where law enforcement may think someone is drunk and they are not. So, this section is for the people who are not legally intoxicated when they are stopped by law enforcement.
Law enforcement will try a number of different tactics to determine whether they should place someone in handcuffs and bring them to the police station to take the Datamaster. They may try to get them to consent to field sobriety tests that they may not want to do, and are not required to do, in order to find any little indication that they may be intoxicated.
Once an officer believes someone has been drinking, anything a person says or any little misstep that is made while performing the field sobriety tests will certainly be used against them. The officer works for the state, not you, so he is trained to build and gather evidence against your case. It is highly unlikely that law enforcement or an officer will let anyone drive away if they believe a person has been drinking, no matter how nice someone is to them. Law enforcement’s job is to take drunk drivers off the road.
Listed below are some tips when getting pulled over by law enforcement in regard to OWI and are for informational purposes only – they do not create an attorney-client relationship.
Do not consent to the walk-and-turn test and the horizontal gaze nystagmus test
Police usually try to have a person perform field sobriety tests to confirm their suspicions that the person is intoxicated. Even if the person performs these tests well, they can still be charged with an OWI if the officer has reasonable grounds to believe they are intoxicated.
On the other hand, if the person performs badly on these tests, it will be used against them in their case. It is highly unlikely an officer will have a person perform field sobriety tests if they do not believe the person has been drinking. Consequently, if the officer believes a person is intoxicated, he will try and find a way to bring them back to the police station. There is also the one-leg test you are asked to perform. We would not recommend you take this test either.
Do not consent to the preliminary breath testing
A person should never consent to the preliminary breath test (PBT). If a person blows under .08 they cannot bring them back to the police station if they have been drinking alcohol unless there is some other circumstance allowing law enforcement to bring the person back to the station, for example if they were in a car accident or the officer has reasonable grounds to believe you may be intoxicated.
Conveniently, the officer can bring the person back to the police station if he "reasonably believes" you are intoxicated. If the person submits to the test and blows over .08, they will be brought back to the police station to take the Datamaster. In addition to being able to take the person back to the police station to take the breathalyzer, the police will use this test against the person and try to get more information out of them prior to taking the breathalyzer.
It should also be noted that if a person submits to the PBT and blows 0.00, the officer then believes you may be using drugs and can still take you back to the police station to submit to a urine test.
On the other hand, if a person does not submit to the PBT, police do not know whether the person has been drinking, though they will use this as an indicator and usually assume the person has been drinking. As previously mentioned, if a person does not submit, police can bring them back to the station to blow anyways if they have "reasonable grounds" that the person was driving under the influence. Rest assured, officers always seem to find a reason if they believe a person has been drinking or using drugs.
As previously mentioned, taking the PBT is a no-win situation for the person taking the test. We would not recommend taking the PBT because police will use the results to obtain more incriminating evidence against a person. In reality, you are building the state's case for them by taking the PBT. It should also be noted that even if you blow under the .08 on the PBT, you can still be brought back to the police station if the officer has "reasonable grounds" to believe you are intoxicated OR they believe you are using medication.
Ask for a Des Moines DUI Attorney
If a person tells an officer that they need an attorney before they make any decisions, this can limit the officer from asking them certain questions, making the process much harder for them. Officers sometimes still try to question the person, so you should keep invoking you right to an attorney and ask if the officer can record the conversation or/and put the conversation on video.
Interestingly, officers do not know what to do sometimes when the person invokes their right to an attorney. If this is the case, the officer usually does not talk to the person, and in return, this does not allow them to get any more evidence against the person. This step becomes most important when you return to the police station. Make sure you invoke your right to an attorney.
Invoke your Miranda rights
Do not talk about the facts of the OWI with law enforcement. Invoke your right to remain silent; a person can still reiterate to law enforcement that they want an attorney. It should be noted that Miranda does not apply in regard to giving your consent to the Datamaster. So, in other words you may want to still take the Datamaster.
Take the breathalyzer at the station
It is usually not a good idea to take this at the station even though a person will have their license revoked for twice as along assuming this is your second or subsequent OWI offense. Miranda rights do not apply to consent to take the breathalyzer, although we understand how a person could be very confused about this situation. The advantage to taking the Datamaster at the police station for your first-offense OWI is that you may be eligible for a deferred judgment if you blow under .15. This is why it is a good idea to ask to speak to an attorney while you are at the police station. If you refuse the Datamaster on your first offense, you will be ineligible for a deferred judgment – though there are a few exceptions to this.
If you fail the breathalyzer, ask to take it again.
Call Feld Law Firm
As previously mentioned, the information provided above is for informational purposes only and is NOT legal advice nor does it create an attorney-client relationship.
Speak to our Des Moines OWI attorney about the facts and circumstances of your case during a free consultation. Schedule yours by calling (515) 996-4441.
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