Drug Law in Iowa - “Possession” or “Intent to Distribute”
Posted on November 21, 2008
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When controlled substances are discovered, the police and the county attorneys have a decision to make: Should the crime be charged as “possession” or “intent to distribute?” Absent an admission from the suspect that he is a drug dealer, what do the charging authorities look at before they make their decision? And more importantly, what will a Court use to determine whether this crime has occurred? Read more
Iowa Criminal Law - Check the Car before you Drive It!
Posted on November 7, 2008
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Many drug-related charges involve traffic stops. During the stop, the officer will be looking for any evidence of any additional crimes, including drug offenses. Drug paraphernalia in plain view, the smell of used drugs (particularly burnt marijuana), or signs of intoxication or drug use by the driver or passengers will all be used to further an investigation and an eventual request to search the vehicle.
If the request to consent to search is denied, the officer can threaten (bluffing or not) that K-9 unit is available and the dog will discover the contraband regardless. If consent is not reached at this point, the officer may be able to proceed with a search if he smells marijuana. He can also hold the suspect for a reasonable amount of time for K-9 unit to arrive.
There are many ways in which the officer can search the vehicle, with or without consent. So where does this put us…Check the car before you drive it! Read more
Commercial Drivers Have a Lowered Expectation of Privacy?
Posted on November 3, 2008
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An “expectation of privacy” is what protects citizens from searches and seizures from the State. Generally, if a citizen has a reasonable expectation of privacy, there must be some additional fact which would allow an officer to conduct a search or seizure upon that person.
One of such reasons may be that the person is operating a commercial vehicle.
A key U.S. Supreme Court decision on this subject is New York v. Burger (U.S. 1987). The court held that warrantless searches of closely regulated industries are constitutional if the rules governing the searches offer an adequate substitute for the 4th Amendment warrant requirement. To do that, the rules must do two things: Provide notice to owners that their property may be searched for a specific purpose and to “limit the discretion of the inspecting officers.”
Iowa courts have applied this thinking to searches without cause of commercial vehicles, noting that motor vehicles are pervasively regulated by statute, and that commercial vehicle drivers are on notice they could be stopped for inspection.
US v. Knight, (8th Cir. App. 2002) provides a little insight into how far searches of commercial vehicles can go. There, the defendant’s commercial vehicle was stopped and searched under the North American Standard Inspection Program, which allows officers to randomly stoop commercial vehicles for specific types of searches. The officer conducted an inspection which included rummaging through the defendant’s personal briefcase. This search was determined to be unconstitutional.
Therefore, commercial drivers have a lowered expectation of privacy because they are in a highly regulated industry. The State has the right to determine if the drivers are in compliance with all regulations. But, as Knight points out, the right to search commercial vehicles is not without limits.
When in Doubt, Plead Not Guilty
Posted on September 18, 2008
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Imagine a dartboard where the bull’s eye is “guilty.” Everything else on the board is “not guilty.” Not guilty does not necessarily mean that a defendant actually did not commit the crime. It can mean that, but it also means everything else, aside from “guilty.”
For low-level misdemeanors (simple misdemeanors in Iowa) guilty pleas can be taken at the initial appearance, often times while the defendant is still in jail. Not guilty can mean “I’m not sure, judge, I need time to speak with a lawyer.” Or it could mean “Well I was there, but I don’t think I was actually intoxicated.” Or it could mean, “I’m not sure what ‘interference with official acts’ means, but I’d like to find out before I say ‘guilty.’ ”
Will a judge be upset or give the defendant a greater sentence because the defendant pleaded not guilty then decided to change his plea? Usually not. Judges understand that defendants can be confused at the time of an initial appearance. Also, they would much rather have a not guilty plea be withdrawn to enter a guilty plea, than a guilty plea attempted to be withdrawn. Read more
Iowa OWI/DUI Field Tests - The Walk and Turn
Posted on September 15, 2008
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The Walk and Turn test is probably the most difficult test for a completely sober person to perform. It has the most complicated instructions, and points are taken off for more than just swaying side-to-side or missing heel-toe contact. Therefore, it would benefit a suspect to review these rules prior to being in the position of being asked to perform the test.
The officer will attempt to find a level, safe area to perform this test. Unfortunately for the defense attorney, this safe, level area is not often in front of the police vehicle in view of their squad car camera. Mainly due to traffic concerns, the officer will ask the suspect to perform this test on a nearby sidewalk or other hard surface.
The test actually begins as soon as the instructions are being given. The suspect is asked to remain in a heel-to-toe position while instructions are being read. A point will be removed if the suspect starts prior to the full completion of the instructions, or if the suspect sways.
The suspect will be given the instructions for the test while in this heel-toe position. The left foot must be placed in front, right foot behind, making heel-to-toe contact, and the arms must be down at the suspect’s side. Read more
Jury Instruction for OWI, Without BAC Test Result
Posted on August 29, 2008
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If a defendant goes to trial on an OWI charge in Iowa, where no BAC was given, the jury will decide whether the driver is “under the influence.” This is commonly called a “refusal” trial, based on the defendant’s refusal to providing a sample. Remember that the PBT, or preliminary breath test results are not admissible, this “refusal” is referring to the blood, urine or Datamaster/Breathalyzer breath results.
A trial of this nature has a better chance of acquittal than a trial with a BAC result which is over the legal limit. For a result-based trial, all the State must prove the that the defendant was operating the vehicle and that he provided a test at or over 0.08. With a refusal trial, the jury must base their decision on whether the driver was “under the influence” based on the following jury instruction. Read more
OWI Law: Use of the PBT Results at Trial
Posted on August 18, 2008
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When a subject is questioned regarding an OWI, he is often offered a preliminary breath test (PBT) by the officer. Based in part on the results of this test, the officer will make his decision to whether charge the subject with OWI.
As mentioned in other posts, the PBT cannot be used at trial for evidence of intoxication. But what about when the results are favorable, and what happens when the information comes into trial “on accident?” Read more
Right to Counsel and the Implied Consent Law
Posted on August 8, 2008
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The United States Constitution guarantees the right to counsel for the accused. The State of Iowa has taken this right and written it into our state statutes. Iowa Code §804.20 states:
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.
Not only does our state code require the right to counsel be honored, but they have made it a crime for an officer to deny this right. But where does this law stand in practice? And, more specifically, what is the impact of this law on the ‘implied consent’ law that is invoked in OWI cases? Read more
How Not to Get Alcohol when Underage in Iowa
Posted on July 30, 2008
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There are several different ways underage students obtain alcohol in Iowa City. And although all of the methods I have listed below are a means to the same end, choosing one of them can get you a ticket, whereas another can make you a felon.
Let me tell you how NOT to obtain alcohol underage. Read more
OWI Field Tests - the “Eye Test”
Posted on July 18, 2008
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One of the standardized field sobriety tests that today’s officers employ is the Horizontal Gaze Nystagmus test (HGN) also called the “eye test.”
The HGN is one of the most tricky and generally most damaging pieces of evidence a prosecutor can present in a borderline OWI trial. It is also a very powerful tool used by the police to gain “reasonable suspicion” to bring a suspect down to the station for the final breath test.
The biggest problem with the HGN is that it is based totally on the officer’s subjective observations, and that it is completely unverifiable by neutral means. By the nature of the test itself, the eye movements cannot be recorded by a video camera, and thus the officer’s word is the only verification that is needed to secure a breath test and ultimately, a conviction. Read more
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