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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OWI Appeal - Iowa Bars Use of Prior Arrests Unless Convicted

In State of Iowa v. Figueroa, Slip Copy, 2011 WL 2090020 (Table) (Iowa App.), the defendant was charged as a 3rd time offender and pleaded guilty. A pre-sentence report revealed multiple charges and offenses for which she had been arrested but not convicted. The trial court, specifically stating that it took into account the arrests, sentenced the defendant to 5 years in jail. In vacating the sentence and remanding, the appeals court stated:

"In imposing her sentence, the district court stated that it reviewed the PSI and addendums attached and that Figueroa had been arrested twenty-two times in the past ten years. See State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct.App.1991) (finding the sentencing court “considered matters which it legally should not have considered, such as the defendant's record of arrests without convictions”). Where a sentencing court makes a specific reference to unprosecuted and unproven charges it is an affirmative showing the district court considered those charges. State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Consequently, we find the district court abused its discretion by considering unprosecuted and unproven charges. Compare id. (“When considered in context with the remainder of the court's explanation for imposing sentence, the reference to ‘additional crimes' is not ‘an affirmative showing’ that the court considered unproven charges.”), with State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (“The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption that his discretion was properly exercised.”). We are required to vacate Figueroa's sentence and remand for resentencing. State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct.App.1994). We note that the district court also considered permissible factors, such as Figueroa's extensive record of convictions, probation violations, and being found in contempt. By vacating and remanding, we do not imply that permissible factors would not support the sentence imposed and make no judgment as to what the sentence should be."

Editor's notes: Most states prohibit the use of bald arrests as a factor for sentencing. Instead, these states require the prosecutor to 'prove up' the arrests with reliable evidence, before they can be used.


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DUI Appeal of the Day (DAD) Driver in Car Being Towed is Guilty of Operating

Just when i thought I had seen everything, along comes Ehrp v. Iowa DOT, Slip Copy, 2011 WL 662663 (Table) (Iowa App.). There, the defendant appealed his conviciton and suspension based on one issue:

Was Ehrp “operating” his pickup truck when he was behind the wheel while the truck was being pulled backwards out of a ditch by a tractor?

As a police officer arrived at the scene, he observed a vehicle being pulled backwards out of a ditch by a tractor. The defendant jumped out of the drivers seat of the vehicle when the cop arrived. The defendant's sister, who was also at the scene, claimed to have been operating the vehicle when it went into the ditch. The keys were in the ignition of the pickup, but Deputy Bruscher could not recall whether the pickup's engine was running when it was being pulled out of the ditch by the tractor. A neighbor was operating the tractor..

On appeal, the court found that the defendant was operating the vehicle when he sat inside the driver's seat at the time of the tow:

We do not find capability of vehicle movement to be an essential element of ‘operating.’ Thus the disablement of Murray's vehicle does not place his conduct beyond the scope of the statute. OWI statutes attempt to deter intoxicated individuals from getting into their vehicles except as passengers.

In support of its decision, the court cited to numerous other decisions:

Additionally, cases from other jurisdictions have repeatedly decided that a person who is behind the wheel of a vehicle that is being towed or pushed by another vehicle is “in control” of his or her vehicle for purposes of the OWI laws. See generally James O. Pearson, Jr., Annotation, What Constitutes Driving, Operating, or Being in Control of Motor Vehicle for Purposes of Driving While Intoxicated Statute or Ordinance, 93 A.LR.3d 7, 25-26 (1979) (“ § 6[cj Vehicle in motion-By being towed or pushed by another vehicle”); see also Williams v. State, 884 P.2d 167, 168-69 (Alaska Ct.App.1994) (intoxicated person steering a car being towed by another car was “in physical control” of the vehicle), abrogated on other grounds by State v. Coon, 974 P.2d 386, 391 (Alaska 1999); Bridgers v. State, AAA S.E.2d 330, 330 (Ga.Ct.App .1994) (intoxicated person steering a vehicle as it as being towed was “in control” of the vehicle); State v. Larson, 479 N.W.2d 472, 474 (N.D.1992) (intoxicated individual steering a bus as it was being pushed by another vehicle was “driving” the bus); State v. Keeton, 600 N.E.2d 752, 755-56 (Ohio Ct.App.1991) (intoxicated person steering a pickup as it was being towed out of a ditch and down the road was “operating” that vehicle); State v. Dean, 733 P.2d 105, 105-06 (Or.Ct.App.1987) (intoxicated person steering and braking a towed vehicle was “in actual physical control” of that vehicle); Hester v. State, 270 S.W.2d 321, 321 (Tenn.1954) (intoxicated person steering his vehicle that was being pushed by another car was “in physical control” of his vehicle); Chamberlain v. State, 294 S.W.2d 719, 720 (Tex.Crim.App.1956) (intoxicated person steering a car that was being pushed by another car was “operating” the vehicle). But see State v. Derby, 607 A.2d 1068, 1071-72 (N.J.Super. Ct. Law Div.1992) (intoxicated person who was behind the steering wheel of a vehicle under tow that had no engine was “clearly in physical control” but was not “operating” the engineless vehicle so as to sustain an OWI conviction).

The dissent stated as follows:

Although the state has “broad discretion,” to pass criminal laws, Murray, 539 N.W.2d at 369, some common sense surely tempers the scope of the interpretation of those laws absent a legislative purpose of strict criminal liability. The term “operate” in sections 321J.2 and 321J.6 must have some connection to the goal of protecting the public. I see the limits of the meaning “to operate” in the situation here.

Will wonders never cease?


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