Possession With Intent

In Iowa, in order to be convicted of Possession With Intent to Distribute, the State must prove:

1.  The defendant knowingly possessed a controlled substance.

2.  The defendant knew the substance was a controlled substance.

3.  The defendant possessed the substance with the intent to deliver it to another person.

Iowa Code Section 124.401(1)

What that all mean is essentially this: if you didn't know there was a controlled substance on your person or in your immediate area, you can't be convicted of possession with intent.  If you had a controlled substance, but weren't planning on giving it to someone else, then you can't be convicted of this crime, either.  

If you or someone you know has been charged with a drug crime and you need an attorney willing to put your case to a jury, or if you have other criminal law questions, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @JHDLaw.  

Plea Bargains In Iowa

          Perhaps you've seen some "lawyer show" on TV where a prosecutor offers a deal to someone to get him or her to plead guilty without a trial.  Invariably, the offer is made to appear like a promise; like a guarantee that if the person pleads to what the prosecutor is offering, he or she will definitely get "the deal."

          The reality is actually much different.  You see, in real-life, judges always maintain sentencing authority and discretion.  That means a judge is always able to sentence you to anything within the legal parameters of the crime for which you stand accused. 

          For example, if you're accused of a Serious Misdemeanor, the minimum penalty is a fine of $315 and the maximum is a fine of $1875 and a year in jail.  No matter what deal the prosecutor has offered, a judge is free to sentence you anywhere within that range.

          What prosecutors and defense attorneys do is make recommendations to the judge. When prosecutors make plea deals with defendants, they are only promising to recommend those deals to the judge; they are not promising what sentence they'll actually get.  The judge decides that.

          But what happens when a prosecutor and a defense attorney don't agree on a recommendation?  That's when a defense attorney's powers of persuasion really come into play.  His job will be to convince the judge to see it your way, even though the prosecutor is arguing for a different result. 

          If you need a persuasive attorney to help you avoid an unfavorable sentencing recommendation, or if you have other criminal law questions, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @JHDLaw.  

"But They Didn't Read Me My Rights!" Does it Matter?

          COPS has done the world a disservice.  Because of that show, nearly everyone believes that if they get arrested, they have to be read "the Miranda Warning." A Miranda Warning is what is commonly referred to as "having your rights read to you"; it's what cops are doing when they tell you all that stuff about how they can use anything you say against you, and how if you can't afford an attorney, one will be appointed to you.

          Make no mistake - Miranda Warnings are an essential part of the criminal justice system of our Country.  However, cops are NOT required to "Mirandize" everybody they arrest. And a cop's failure to "Mirandize" you DOES NOT automatically mean the case has to be dismissed.

          Miranda Warnings are only necessary in the context of a "custodial interrogation."  The Miranda Case made it so cops have to tell you about your rights to remain silent and to a lawyer, etc., before you can be interrogated while in custody.  If cops fail to advise you of your rights during a "custodial interrogation," and during that interrogation you give some kind of incriminating statement or information, it's possible that it can be kept out of court.  If that statement or information is necessary for the State to secure a conviction against you, keeping it out may mean the State will have to drop the charges.

          What's a "custodial interrogation?"  That is often a complex legal determination you may need an attorney to figure out. If you think you should have been read your rights, or the State is trying to use information against you that you believe it obtained illegally, or if you have other criminal law questions, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @JHDLaw. 

The Insanity Defense

Recently the "Insanity Defense" has been the subject of broad media conversation. I thought it might be a good idea to review what exactly is meant when someone "pleads insanity".

In Iowa, in order to be found not guilty by reason of insanity, a defendant must show that it is more likely than not that, at the time to criminal act was committed, he or she was suffering from a disease or mental condition that made him or her either:

1. Incapable of knowing the nature and quality of the act he or she is accused of committing; or,

2. Incapable of knowing the difference between right and wrong.

Notice that competency to stand trial and the insanity defense are separate, but sometimes related, issues.  The insanity defense is only concerned with the mental state of the accused at the time the act was committed.  Competency to stand trial is not a matter of what the accused was thinking (or not thinking) during the crime, but about his or her ability to understand court proceedings.

If you or someone you know is accused of a crime, and you believe the insanity defense fits the circumstances of the case, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @JonahHammerDyer. 
 

It's a Conspiracy?

          If you've been charged with conspiracy in Iowa, the State has to prove the following elements for you to be convicted:

1.       That you entered into an agreement with at least one other person to commit either a felony or a misdemeanor;

2.       that you had the intent of promoting that offense at the time the     you entered into the agreement, and;

3.       that you committed some kind of overt act in furtherance of the       agreement.

          Intent at the time of the agreement will likely be inferred by the facts and circumstances surrounding the making of the agreement.  If you know someone you know is facing a conspiracy charge in Iowa, or if you have other criminal law questions, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.  

Eviction now? But baby it's cold outside!

          As the weather gets colder, eviction is something none of us want to think about.  But it is a reality for many Iowans, even in the Winter.  Eviction in Iowa is legally known as Forcible Entry and Detainer, or F.E.D. for short.  It is governed by Iowa Code § 648.

          Because shelter is such a basic human necessity, the law has establishes only six grounds upon which an F.E.D. action can be commenced.  They are:

1.       Where the defendant has by force, intimidation, fraud, or stealth entered upon the prior actual possession of another in real property, and detains the same.

2.       Where the lessee holds over after the termination of the lease.

3.       Where the lessee holds contrary to the terms of the lease.

4.       Where the defendant continues in possession after a sale by foreclosure of a mortgage, or on execution, unless the defendant claims by a title paramount to the lien by virtue of which the sale was made, or by title derived from the purchaser at the sale; in either of which cases such title shall be clearly and concisely set forth in the defendant’s pleading.

5.       For the nonpayment of rent, when due.

6.       When the defendant or defendants remain in possession after the issuance of a valid tax deed.

          Practically speaking, most F.E.D. actions are based on grounds 2, 3, or, 5.

          In order to commence an F.E.D. action a landlord must comply with several notice requirements established by the Code.  Failure to comply with those requirements may mean a tenant cannot be required to vacate the premises as the landlord desires.

          If you are facing eviction, it is important you know whether those notice provisions have been followed.  It may make the difference between being forced out of your home and buying time to make other arrangements.  If you are trying to evict someone, compliance with the Code is a must.  If you have questions about the eviction process please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.  

Do I Need a Custody Order?

          A lot of people call me about child custody cases.  Some people are married to the other parent of the child in question, and looking for a divorce.  Other people have never been married to the other parent, but just want an idea about whether or not a court order about custody is really necessary.

          The question is easy for couples with children looking to divorce.  If you've got kids, you can't get a divorce without some language being included in the decree about how custody, visitation, and child support are going to be handled.  It simply can't happen without it.

          The question is a little more complicated for unmarried couples with children.  Many such couples haven't ever even lived together.  They may wonder if they need a court order to set up custody and visitation schedules if they've always been able to agree among themselves.

          "Need" may be a strong word, but such out-of-court agreements are only good while the couple gets along.  If mom gets mad at dad, or vise versa, then either one could decide they are no longer go to allow the other to see the child, and without a court order, there would be nothing the one parent could do to force the other to give the child back.

          Court ordered custody decrees provide the floor below which visitation cannot fall, and an enforcement mechanism, just in case one parent decides to "break the rules," as it were.

          If you're wondering whether you need a custody decree from a court, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, via Twitter @jonahhammerdyer.