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.  

What Is "Self Defense" In Iowa?

         Recent news events have had many people wondering whether they are legally allowed to defend themselves against an assault.  Maybe you're one of them.  Maybe you know you can defend yourself, but find yourself wondering, how "far" you can go - that is, how much force you can use to defend yourself against the force of another person.

          In Iowa, the defense of "self-defense" is called "justification."  Simply put, one who raises that defense is claiming he was justified in doing what he did based on the circumstances.  When someone uses the Justification Defense, he admits doing an act that would be considered a crime as a general rule, but then seeks to demonstrate some legally sufficient excuse that takes that act outside of the criminal law.  Something like, "Sure I hit him (admission), but he was going to hurt my children (legally sufficient excuse)

The defense is codified (made part of the written law) in Iowa Code § 704.3, which provides:

A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.

          Iowa Code § 704.6 sets certain limits on the defense,  It says the Justification Defense is not available to one who initially provokes the use of force against oneself (cannot have "started it") by one's unlawful acts, unless:

a. Such force is grossly disproportionate to the provocation, and is so great that the person reasonably believes that the person is in imminent danger of death or serious injury or

b. The person withdraws from physical contact with the other and indicates clearly to the other that the person desires to terminate the conflict but the other continues or resumes the use of force.

          Essentially, Self Defense cases boil down to whether what you did to defend yourself was reasonable given all the circumstances.  What is reasonable is a question for a jury.  If you're charged with assault but you feel like you acted in self defense, you will need to present the case to a jury to decide. If you or anyone you know needs an attorney who will be willing to put your assault case to a jury, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, via Twitter @jonahhammerdyer. 

"But I Didn't Mean To!" So What?

         I have kids; four of them.  My oldest is six.  He is a good and sweet little boy with a real zest for life.  Occasionally his zest for life gets the best of him, the most common side effect of which is that he ends up playing to rough with his younger siblings.

          You know what I'm talking about.  As you read this you're hearing your own parents saying something like, "Someone's going to get hurt if you don't quit."  Maybe you've said the same thing to your own children.  Inevitably, as night follows day, someone always does get hurt.  The victim comes crying to mom and dad, the accused following close behind, repeating the five words that were supposed to make it better:

"But I didn't mean to!"

          Even at that young age we felt like our mind set at the time we did what we were "accused" of doing should be taken into account when deciding whether or not we were "guilty."  Many of my clients, now grown men and women, stand accused of things much more serious than the stuff sister used to taddle for, but they still wonder if they can escape criminal penalties if "they didn't mean" to do it, whatever "it" is.  They are NOT saying they DIDN'T do it.  They're saying they did, but that what they were thinking at the time of the bad act should make it so they can't be punished for it.  So, I guess that begs the question:

"Does it matter?"

         

           The answer is a clear "maybe."  There are certainly crimes for which it doesn't matter, like traffic violations - saying you didn't know the speed limit will never be legally sufficient to keep you from getting the ticket.  But there are certainly crimes for which it does matter, like theft - if you accidentally walk out of the store without paying for something, you can't be found guilty of stealing.

          If you, a family member, or a friend have been charged with a crime and you wonder whether or not "I didn't mean to" is a good defense to the charges, you are strongly encouraged to contact my office for a free, initial consultation.  Don't let being in the wrong place at the wrong time ruin your life.  Contact JHD Law today at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.

If You're Arrested for OWI...

          I'm sure you've seen, whether in person or on TV, someone getting pulled over for Operating While Intoxicated (OWI).  You've seen police officers ask suspects to walk-and-turn, "follow the finger," stand on one foot, or perform any number of field sobriety tests; tests which a stone-sober person would have a hard time doing.

          Sometimes I get asked whether a person has to do those tests when asked.  The answer is no, and I generally tell people not to take them.  I say that because the results of those tests will be used against you if you are later charged with OWI, and I have a problem with giving the State evidence to use against you.

          In all reality, you don't have to do any of the sobriety tests an officer may ask of you while in the field, including a preliminary breath test (PBT), and your refusal cannot be held against you later.  The only test refusal that can affect your privilege to drive or a future criminal case is one made after an officer has invoked Iowa's implied consent advisory laws.

          What's the implied consent advisory, you ask?  Well, by operating a motor vehicle on the highways of this State, an individual implicitly consents to the withdrawal of their breath, urine or blood for purposes of chemical

testing.  Before implied consent can be invoked officer must have “reasonable grounds” to believe the individual is operating while intoxicated AND one of 7 other statutorily specified conditions must be present:

1. Valid Arrest for violation of § 321J.2;

2. Motor vehicle accident resulting in personal injury or death; 2

3. PBT Refusal;

4. PBT Failure;

5. Operating a commercial vehicle and a PBT of .04 or greater;

6. PBT under .08 and reasonable grounds to believe under influence

of a controlled substance.

7. Under 21 and .02 or greater.

          Before he can ask you for a sample, he has to read the "implied consent advisory," which is a statement about the consequences of providing or refusing to provide a sample.  A test refusal at this stage does have consequences.  Generally speaking, if you refuse, your license is suspended for a longer time than if you had consented.

          Being arrested for OWI is a serious matter.  Sometime the difference between conviction and exoneration depends upon the actions you take at the scene.  If you would like more information about what to do when you get pulled over, or if you have already been charged with OWI, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, via Twitter @jonahhammerdyer.  

Who Ya Gonna Call?

One of my favorite things about the law is that it can provide context for things we've heard all our lives, but have not known exactly where they come from.

          For example, whenever someone gets arrested on TV, the first thing they ask the cop is something about using that "one phone call" we've always heard you're supposed to get once you get booked.  Perhaps you've wondered where the "one phone call" idea comes from.  Well, wonder no more.

          In Iowa, the right of an arrested person to contact a family member and/or an attorney is part of the Code, found in § 804.20:

Any peace officer or other person having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person's family or an attorney of the person's choice, or both.  Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney.  If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained.  If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody.  An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay.  A violation of this section shall constitute a simple misdemeanor.

          This code section allows you to call, consult with, and see a family member and/or the attorney of your choice.  It also requires that these opportunities be given to you without unnecessary delay.  Finally, you are permitted to make as many phone calls as reasonable to contact those with whom  you wish to get in touch.     

          Whether or not this statute was violated in your case can be a complex legal determination.  If it was violated, it is possible to "throw out" some of the evidence that has been obtained against you, which could make it impossible for you to be convicted of the crime for which you've been charged.   If you, a family member, or a friend believe your § 804.20 rights have been violated, contact JHD Law today at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.

Constructive vs. Actual Possession of a Controlled Substance

            Controlled substance violations are among the most common of crimes committed in our society - everything from possession to manufacture to delivery.  Regardless of your views about the legalization of certain substances, the fact is that drug convictions can have a serious impact on one's future ability to find success in life.

           

            Nowhere is the criminal justice system more complex than when it comes to its treatment of drug crimes.  The level of the offense (whether misdemeanor or felony) and the length of the possible sentence vary depending on the kind of substance involved, the amount of the substance in question, and the number of prior convictions a Defendant has.

            Most of us understand "possession" to mean physical, actual, control of something, such that to be in possession of a controlled substance the accused must have it somewhere on his person.  However, that is NOT the case.

            Imagine you are the passenger in the backseat of a car.  Your friend is driving you home from school, and there are three other people in the car with you.  Your friend gets pulled over for speeding, and during the process of the stop, the officer asks if he can search the vehicle.  Your friend consents.  While the officer is searching, he finds a baggie of marijuana in the backside pocket of the passenger seat - the seat you were sitting behind.  The officer asks who it belongs to.  You say it's not yours, because you really didn't know it was there.  Your friends all say it's not theirs either.  You are likely to be charged with possession.

            Why? How is that possible if you weren't in actual possession of the weed?  Because of the doctrine of constructive possession.  Using the doctrine of constructive possession, the State seeks to infer ownership of the drugs based on the circumstances surrounding its finding.  Simply put, because you were closest to it, the State is going to ask a jury to conclude that means it was yours.

             If you, a family member, or a friend have been charged with possession, whether actual or constructive, you are strongly encouraged to contact my office for a free, initial consultation.  Don't let being in the wrong place at the wrong time ruin your life.  Contact JHD Law today at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.

"Can I Be Charged With Assault If I Didn't Touch Anyone?"

          I'm asked it over and over - "How can I be charged with Assault if I didn't actually touch anyone?"  

          The answer is simple, but not very well known.  Here in Iowa, an assault is:

1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act; or, 

2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act; or,

3.  Intentionally pointing any firearm toward another, ordisplaying in a threatening manner any dangerous weapon toward another.

(Iowa Code section 708.1 (2012))

      

          Notice that none of the above require actual physical touch to qualify as an assault.  It only requires an act which is either intended to cause physical contact or which would make someone afraid of physical contact. Also, any pointing of a firearm or dangerous weapon toward another person is assault.

          Whether or not the act you're accused of doing qualifies as an assault can be a complex legal determination.  If you, a family member, or a friend have been charged with assault, or are otherwise involved in Iowa's complex legal system, you are strongly encouraged to contact my office for a free, initial consultation. Contact JHD Law today at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.