Tuesday, August 16, 2011

OWI Law - Iowa Rejects Refusal Change of Mind Policy

In Welch v. Iowa Department of Transportation, --- N.W.2d ----, 2011 WL 3522804 (Iowa) the Iowa Supreme Court decided to re-visit the issue as to whether an initial refusal could be cured by a subsequent consent. Here, the defendant initially refused a breath test, but changed his mind eleven minutes later. Nothing had changed during those elven minutes. Iowa reviewed the law across the country, noting that a large minority of states allowed a person to have a 'change of heart' under certain conditions, namely: a previous refusal may generally be cured by a subsequent request for a chemical test so long as the request is made within a reasonable time and the delayed administration of the test will neither materially affect the test results nor substantially inconvenience the police.

In deciding that precedent and simplicity was more important than the goal of determining who was guilty and who was not guilty through actually testing, Iowa claimed that upholding the initial refusal was more important than getting an actual blood or breath result:

"Additionally, a bright-line rule has the advantage of providing clear guidance to law enforcement personnel. Clarity as to what the law requires is generally a good thing. It is especially beneficial when the law governs interactions between the police and citizens. Law enforcement officials have to make many quick decisions as to what the law requires where the stakes are high, involving public safety on one side of the ledger and individual rights on the other. A clear, teachable rule is a high priority. Welch's flexible approach, by contrast, is likely to lead to uncertainty in particular cases. See, e.g., Stone v. McCullion, 27 Ohio App.3d 112, 500 N.E.2d 326, 328 (Ohio Ct.App.1985) (“No specific period of time ... can be laid down as reasonable or unreasonable in any and all events.”).FN9

Also, Iowa's existing, clearcut “one refusal” rule reduces the time and cost burdens on law enforcement. As we noted in Krueger, if a motorist can change his or her mind, this means the officer must remain with or near the arrested motorist, effectively removing him or her from other duties, until the “reasonable” time has expired. 169 N.W.2d at 879; see also, e.g ., Zidell, 71 Cal.Rptr. at 113 (“It would be inconsistent with the purpose of the statute to hold that either [the arresting officer], or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences.”). Welch may argue that the last two of the five Standish factors alleviate this burden, because the initial refusal may be withdrawn only if there will be no substantial inconvenience or expense to the police and the individual requesting the test has been in the custody of the arresting officer. But “inconvenience” is in the eye of the beholder, and debates could arise as to whether the motorist remained in the officer's custody and, if not, whether the officer deliberately placed the motorist in another person's custody in order to avoid a possible retraction."

Editor's note: Bright-line rules is what it's all about, isn't it? In a society where individualism is repressed, and conformism is rewarded, we should all applaud Iowa's decision not to be swayed by the thought of giving someone one more chance to prove they are innocent. Whew! That was a close one! One almost got away! It reminds me of the song from Music man entitled Iowa Stubborn, where the below lyric is found:

“We can be cold as our falling thermometers in December if you ask about our weather in July. And we're so by God stubborn we can stand touchin' noses for a week at a time, and never see Eye to Eye.”

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