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.