Tuesday, March 01, 2011

DUI Appeal of the Day (DAD) - Missing CDL Language Requires Rescission of Suspension

In Dereus v. Iowa DOT, Slip Copy, 2011 WL 649233 (Table) (Iowa App.), NCDD member Robert Rehkemper successfully argued that the failure to give the complete implied consent advisory precluded revocation of his client's ordinary driver's license, as well as precluding disqualification of his CDL.
In the case sub judice, the defendant was driving his personal vehicle, but he also held a CDL. Like many other states, Iowa has followed the federal mandate imposing a disqualification of a defendant's CDL privileges for an implied consent suspension, even if the person was operating a non-CDL vehicle at the time. Unfortunately in this case, the officer failed to read the warning language containing that information. On appeal, the court held that the failure to read the language not only required reversal of the CDL disqualification, but that it also required reversal of the suspension of the defendant's personal driving privileges. The statute in question stated that the driver shall be warned (of the CDL consequences):

If the duty imposed is “essential to the main objective of the whole statute, the provision is mandatory, and failure to perform the duty will invalidate subsequent proceedings under the statute.” Downing, 415 N.W.2d at 628. Thus, the appeals court upheld the reversal of all related suspensions and disqualifications.

(Editors note: Iowa has also held that the failure to read the mandatory warnings results in the inadmissibility of a test result in the criminal proceeding...)

Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

No comments:

Blog Archive