MySpace, Facebook and Twitter: do you know who your friends are?

Last week, pursuant to a lawsuit filed against the U.S. government under the Freedom of Information Act, the government had to concede that it has in fact been doing the same thing. They even have a “how to” document for its agents, instructing them how to obtain information about Americans through pretending to be something they are not, primarily on MySpace, Facebook, Twitter and LinkedIn, all popular social networking internet sites.

SHOW ME YOUR PAPERS!

Lately I’m growing more and more concerned that we are moving towards living in a police state. Today I hear that the Des Moines Police Department entered Peggy’s, the popular Drake University hangout, and demanded to see everyone’s identification. Is this the USSR? Nazi Germany?

Iowa OWI law: the exception to the Constitution.

We are coming closer to living in a police state. In an OWI prosecution the police officer is the person that controls all the evidence. The officer decides which evidence to preserve. In many cases evidence of a person’s innocence is not preserved. If the evidence doesn’t help the officer, it often times isn’t kept. The standard excuses are videos are lost, breath samples are not preserved, equipment is broken, or none of the officers remembered to turn on their video recording device. People that appear sober on a video don't help an officer get a conviction. Unfortunately, many judges and juries are allowing this so-called “Barney Fife” exception to the Constitution. In other words, a police officer isn’t held to the same standards of other witnesses at a trial. Fortunately, there are more good cops than bad cops. There are however, bad cops.

Why do criminal defendants need a bonsman?

Whenever a person is arrested in Iowa the Court is going to need some assurance that the arrested person will appear at their upcoming court dates. The easiest way to make sure that they appear is to require them to remain in jail. Fortunately, in almost every case an amount of money is set as bail which a person can post with the Clerk of Court to obtain release from jail. For minor offenses, often times the judge will release someone on their own recognizance, which is their simple promise to appear for court.

The government has found a way to save money: scare the officials with criminal misconduct!"

The State of Iowa has started charging government officials with crimes for mismanagement and abuse of tax money. That’s right! So where have they elected to begin? The first to be charged are Tom Wheeler, Wendy Weiner Runge and Matthias Alexander Saunders, although it appears Wheeler is the only person holding an official position. These felony and misdemeanor criminal charges are all apart of the so-called Iowa Film Office scandal. The charges include allegations of theft and misconduct in office: the State prosecutor claims that their expenses were just too much.

Criminal Law Commentary: It is time to decriminalize marijuana in Iowa.

It is time to decriminalize marijuana in Iowa. Nebraska has. Minnesota has. So have Ohio, New York, Massachusetts, California, Oregon, Colorado, Mississippi, North Carolina and Nevada. In any of those states, a person in possession of marijuana for purely recreational purposes can not be sent to jail or prison. They can only receive a fine. Decriminalization doesn’t mean its legal, just like speeding isn’t legal. It just means that we shouldn’t be sending a person to jail or prison for possessing a small amount of marijuana.

Michael Jackson was just like the rest of us.

The King of Pop is dead.  Why did he die?  If one can believe rumors, i.e. "the news", then we should believe that he died of a prescription drug overdose.  The question becomes whether it was purely accidental, or something more sinister.  Michael Jackson's family appears to blame Michael's personal physician.  The allegation appears to be that the good Doc was injecting or otherwise providing Michael with prescription meds.  If this had occurred in Iowa, it is possible that the physician, and perhaps others, could be facing criminal charges for homicide and delivery of drugs.
 
According to the Centers for Disease Control, unintentional fatal drug overdoses nearly doubled from 1999 to 2004 and were the second leading cause of accidental death in the United States in 2004, behind only automobile crashes.  Deaths from accidental overdoses increased to 19,838 in 2004, from 11,155 in 1999.
 
OxyContin, as well as their generic cousins oxycodone and hydrocodone, are from the same family of drugs as heroin. Some refer to these drugs as "hillbilly heroin."  Used correctly, they ease the pain of people recovering from surgery or coping with terrible back pain. They can become powerfully addictive drugs that users need more and more of to get high. Before long, many users live for their next pill and will do anything to get it — just like heroin addicts. And if painkiller abusers are also drinking alcohol or taking allergy medications, they can wind up shutting down their lungs.  Some states have criminally charged the manufacturers of these drugs for misrepresenting the damage that they can cause.  There are also civil lawsuits pending regarding addiction and abuse against the manufacturers.
 
Do people get charged in Iowa in these types of cases?  Absolutely.  One needs to look no farther than last month in Plymouth County.  Nicholas Clay, a 20 year-old man from Akron, died of an overdose.  The State has charged 18 year-old Justin Bringman and 39 year-old Stuart Barton for their involvement in his death.  Both are facing very long prison sentences.
 
Even if someone does not overdose or suffer any harm, it is a felony in Iowa merely to give someone a prescription medication, even if just one pill.  Simple possession of a prescription medication without a prescription is a misdemeanor.  It goes without saying that these cases have far reaching ramifications, beyond the prison sentences and fines.
 
Michael Jackson's friends and family are rushing around telling everyone who will listen that he was in great shape and otherwise healthy.  An argument could be made that Michael was a co-conspirator in his own death, but that's for the lawyers to decide.  We need much more information than what's provided through the media.  Only time will tell if the Doc is  criminally or civily liable.

and Vicodin

Media trials, domestic abuse and murder in Iowa.

Domestic assault or abuse charges are one of the most frequently charged crimes.  They also carry some of the worst penalties, not to mention the negative stigma which attaches.  Often charges are filed against the spouse that does not call the police.  In other words, whomever calls the police first, wins.  These cases are often extremely difficult to sort through for everyone involved.  Because of the penalties and stigma, false reports are often filed.  One spouse attempts to obtain the upper hand for a variety of reasons and false charges can be filed.  
 
Undoubtedly there are violent domestic situations.  I've had family members suffer at the hands of a violent abuser.  Many of the violent crimes, and most of the murder cases I've been involved in, have had a domestic component.  This weekend I heard that a Des Moines man named Charles Ralph Fenton has been charged with murder in Madison County and that it had a domestic component, and this brought these and other issues to mind again. 
 
The media has regurgitated the State's version, which is usually to charge the guy with murder in the first degree and then sort it out later.  (There are women who are also charged with these types of crimes).  Of course Mr. Fenton does not have the ability nor the resources to spoil the jury pool the way the State always does.  Having had many trials in Madison County and other domestic murder cases in other rural Iowa counties, the State knows this information will spread like wildfire.  I guarantee everyone in Winterset, St. Charles, Peru, Earlham and on and on has heard about this case.  I have had a case moved before from Madison County due to media attention and community bias.  Don't get me wrong, they are good people, but they are people and human nature will take over and as a society we demand a fair trial.  I only hope that the media will consider Mr. Fenton's rights to due process and a fair trial.  We all need to remember that he is innocent until proven guilty beyond a reasonable doubt.  But has this become "justice" in our society these days where we are so quick to convict?  The government is always the most well-represented and richest party in the courtroom.  Plato said long ago, "justice is but the interest of the stronger."  Was he right?
 
And since I am quoting, here is another to keep in mind with regards Charles Fenton or any other case that the government tries in the media:  "Where there is room for question, something is wrong."  Here is a question: the reports in the media say that Mr. Fenton was hospitalized after the incident.  Why?
 
As I said before, often times women are charged in these cases.  If you will recall, Mary Winkler was charged with murder in Tennessee in 2007 with shooting her preacher husband in the head with a shotgun.  It was all over the media.  Dr. Lynne Zager testified for the defense in that case.  I have worked with Dr. Zager before and know from experience she is a well-qualified expert.  Dr. Zager testified in the Winkler case that Mrs. Winkler could not have formed the intent to kill due to a compromised mental condition and she would have dissociative episodes.  Winkler was convicted of voluntary manslaughter, served a brief prison sentence, and later obtained custody of her children.
 
As Thomas Jefferson said, "The spirit of resistance to government is so valuable on certain occasions that I wish it to be always kept alive."  We need to resist everyone of the government's attempts to poison a trial.  Alright, one more quote and then I'm done: "Our liberties we prize and our rights we will maintain."  Our state motto.  Its on the flag.  The same flag that bears the name of the first party listed in every criminal case in Iowa.  We the people need to hold them (us) to it, in every case.  No matter what, no matter the charge.  There is nothing more important.

Caught on video at Des Moines City Hall.

Theft involves the taking of property of another.  The last I knew, this is still America and in order to be convicted of a crime requires, among other things, proof beyond a reasonable doubt.  Its easy to take aim at persons accused of crime and criminal defense attorneys, but walk with me one day, meet my clients and you will feel differently about the fight to preserve our way of life.  Its cases like Ryan Wacome's that erode our rights little by little.
 
According to the Des Moines Register, Ryan Wacome has been charged with a series of thefts at Des Moines City Hall.  Wacome was a 20 year-old janitor.  The Register says that small amounts of money were missing from desks over the past month so they contacted the Des Moines Police Department and set up a sting operation.  A detective put a "small amount of money" in a desk and placed a camera to record whatever occurred.  The camera allegedly caught Wacome removing the money.  I hope he has not been charged with the other alleged thefts as has been reported.  It would be one thing for him to agree to make restitution for the other amounts of money, but it would likely be a violation of his rights to get convicted of the other alleged thefts.  Even if he confesses, Iowa criminal law requires more than that for an otherwise uncorroborated crime.  I would also be curious to hear what evidence there is that the other thefts actually did occur.  I keep some pennies and nickels in my desk but I can't tell you how many.  Let me look, hmmmm, I thought I had a few more.  Better call the Des Moines PD and set up a sting.
 
But here is the other thing: video and photographic evidence are sometimes the most unreliable evidence.  Look at this photograph of an alleged burglary yesterday in Des Moines.  Jurors are common people just like you or I, and if its difficult to tell who is in the photo, then that is not proof beyond a reasonable doubt.  Thankfully most jurors are cognizant of that fact.  I once had a convenience store robbery case where it was caught on surveillance video.  The clerk alleged a weapon was displayed and she was stuck in the cooler.  There was a cop in the parking lot and my client was nabbed walking out the door into the parking lot.  It was 5 a.m.  Very few other persons were around.  The person in the video did resemble my client and he was facing a 62-year prison sentence.  For good reason, my client is a free man today.  A photo is not always worth a thousand words.

OWI: Iowa Corn Indy 250 Fans

The Iowa Speedway has been an economic boom for the City of Newton, Iowa.  And here comes the Iowa Corn Indy 250 which will be the boom for the local law enforcement to fill their annual budget.  This means arrests for anyone seen in public who resembles a drinker of alcohol.  Fines will be levied and assessments made for "room and board" for jail sentences.  I expect the arrests will largely be for OWI, which is also known as DUI or drunk driving, interference with official acts, assault on a peace officer, and public intoxication.  Even if you haven't been drinking, officers' reports will indicate a strong smell of alcohol, bloodshot watery eyes and slurred speech- only the names will be changed.  In my experience with these types of events, local law enforcement will have virtually all hands on duty.  Most officers will not have the time or the temperament to properly handle each case, which means that some steps in proper protocol will be overlooked.  To a lawyer, this means that constitutional rights will be violated.
 
The City of Newton sits on an interstate, I-80.  There are other highways; such has State Highway 14 that leads to Newton.  There will be city police officers, county sheriff's deputies, and state troopers all over.  They won't be concerned about Helio Castroneves, Danica Patrick or Dan Wheldon.  They will have their own competition of sorts on arrests.
 
Any guest visiting our state should know that if arrested you do have a right to call a lawyer or family member in order to secure a lawyer once you arrive at the jail in order to protect your rights.  Otherwise, be responsible and enjoy yourself.  Maybe you'll even get to have a Budweiser in the parking lot.

How do the police measure the level of alcohol in your body? ?

What are the different ways that blood alcohol concentration can be measured?  Most of the time the officer is going to request that you provide a breath sample, but they may also request blood or urine.  There are two different times that an officer may request a breath sample.  First, the officer has a hand-held device that can take a breath sample and provide an analysis of blood alcohol content.  The problem is that by law this device is not reliable so they will always request that you provide another breath sample at the police station on another machine which is considered to be more reliable than the hand-held device.  Don’t be fooled- this device also has problems.  Even if a person where to provide a sample each of their breath, blood and urine, all three would have a different alcohol level.  There are many factors to determining the level of blood alcohol concentration and the time of vehicle operation.  Some states do not allow alcohol measurement through urine because it is so unreliable.  In order to obtain more convictions regardless of the reliability of this test, Iowa still allows urine testing.  You always have the right to make a reasonable number of phone calls prior to making a decision on whether to provide a sample for testing.

Caught on video at Des Moines City Hall.

Theft involves the taking of property of another.  The last I knew, this is still America and in order to be convicted of a crime requires, among other things, proof beyond a reasonable doubt.  Its easy to take aim at persons accused of crime and criminal defense attorneys, but walk with me one day, meet my clients, and you will feel differently about the fight to preserve our way of life.  Its cases like Ryan Wacome's that erode our rights little by little.
 
According to the Des Moines Register, Ryan Wacome has been charged with a series of thefts at Des Moines City Hall.  Wacome was a 20 year-old janitor.  The Register says that small amounts of money were missing from desks over the past month so they contacted the Des Moines Police Department and set up a sting operation.  A detective put a "small amount of money" in a desk and placed a camera to record whatever occurred.  The camera allegedly caught Wacome removing the money.  I hope he has not been charged with the other alleged thefts as has been reported.  It would be one thing for him to agree to make restitution for the other amounts of money, but it would likely be a violation of his rights to get convicted of the other alleged thefts.  Even if he confesses, Iowa criminal law requires more than that for an otherwise uncorroborated crime.  I would also be curious to hear what evidence there is that the other thefts actually did occur.  I keep some pennies and nickels in my desk but I can't tell you how many.  Let me look, hmmmm, I thought I had a few more.  Better call the Des Moines PD and set up a sting.
 
But here is the other thing: video and photographic evidence are sometimes the most unreliable evidence.  Look at this photograph of an alleged burglary yesterday in Des Moines.  Jurors are common people just like you or I, and if its difficult to tell who is in the photo, then that is not proof beyond a reasonable doubt.  Thankfully most jurors are cognizant of that fact.  I once had a convenience store robbery case where it was caught on surveillance video.  The clerk alleged a weapon was displayed and she was stuck in the cooler.  There was a cop in the parking lot and my client was nabbed walking out the door into the parking lot.  It was 5 a.m.  Very few other persons were around.  The person in the video did resemble my client and he was facing a 62-year prison sentence.  For good reason, my client is a free man today.  A photo is not always worth a thousand words.

Next week let me talk about eyewitness testimony and whether or not it's reliable. In the meantime you can watch this video clip and test your own ability for being an eyewitness.

Did Iowa legalize marijuana?

Under Iowa criminal law, it could be a felony for someone to be in possession of marijuana or other controlled substances if they have not gone down to the Department of Revenue and obtained a drug tax stamp.  For example, if you are in possession of roughly an ounce and a half of marijuana without the tax stamp, you are considered a "drug dealer" and need to obtain a drug tax stamp.  This amount of marijuana is readily considered a personal usage amount and can have a low value, say $50.  Not my idea of a drug dealer.
 
There is a phone number for you to call and an address for you to appear in Des Moines if you want to schedule an appointment to obtain the stamp.  With most government offices, you can usually just show up and someone will great you with a cheerful face and help you through whatever process you need to complete.  I'm not sure that you would be greeted with a cheerful face at the Iowa Department of Revenue when you show up at your appointment.  The last I knew, no one had ever filled out the paperwork (didn't our legislators say we need to eliminate unnecessary laws??).  I'm guessing we haven't spent much money making these stamps.  It seems like it would be a good money-maker for the State of Iowa: $5 per gram of marijuana and $750 per unprocessed marijuana plant.  The State also will collect $250 per gram of any other substance.  Did Iowa legalize marijuana?  Did Iowa legalize other drugs?
 
Of all the absurd criminal laws we have, this one is just plain terrible.  In my opinion it is unconstitutional for a variety of reasons.  The worst part is that it presumes someone in Iowa is a drug dealer without any other evidence.  Usually this charge is added to many other charges for trial and the prosecutor offers to drop this felony if you plead to another charge.  Most people do that unfortunately, and I'm certain that is the reason for the law- to eliminate the need for justice since justice can be so messy.  If the charge is not dropped, the State can come after you to collect the money that they feel they are owed since you didn't show up in advance to fill out their forms to obtain the tax stamp.
 
If anyone decides to take their marijuana down to the Department of Revenue in Des Moines to get a drug tax stamp, give me a call, I'd like to come watch.  One thing on my life's list of things to do is to see something that has never been done before.  And then I might have lunch with my legislator.

Des Moines has been robbed!

There have been many news stories this week about "robbery."  Robbery is a term that is used rather loosely in the general public, but has a specific term in an Iowa courtroom.  For example, if someone has a lawnmower stolen from their yard, upon discovery they yell "I was robbed!"  This is not a robbery.  When the Iowa Chops said they were leaving town, we all said "we were robbed!"  Of course, that is not a robbery.

According to news reports, there were some Git-N-Go stores that were all "robbed" a couple nights ago.  In a couple of the incidents, the clerks said guns were displayed and money was stolen.  If proven beyond a reasonable doubt to a unanimous jury, this is the classic definition of robbery.  In at least one incident though the alleged suspects were nothing more than mere opportunists and grabbed cash out of the register while the clerk was away without any threats or weapons.  This is not robbery, and is nothing more than a misdemeanor theft.  When caught, however, their charges will need to be negotiated.

In another incident, Pegkella Dameron is charged with robbing a Kum-N-Go because she allegedly threw a punch after being confronted for stealing some candy and tea.  If convicted, she'll go to prison for a long time.  The legislature has considered changing this law so that people like Pegkella that commit an assault during a simple shoplifting event would not be going to prison, but thus far they have not changed the law.  At present, this may meet the current Iowa definition of robbery.

Darnell Ramey is charged with robbing a Wells Fargo concession stand during a Coldplay concert.  Apparently there were others involved, according to the Des Moines Register.  The Register does not make it clear what involvement or charges the others are facing.  This case will involve an analysis of accomplice responsibility and a determination will need to be made of each person's role in this incident.

Often times, robbery charges in Iowa should be nothing more than misdemeanor thefts.  Robbery is a forcible felony requiring either a 25 year or 10 year prison sentence depending upon the level, so be careful the next time you say someone robbed you.  There are some specific defenses to these charges.

Will the Iowa Courts determine multiple taserings to be constitutional?

Iowa’s North Liberty police department sued for multiple Tasering of arrestee.

The Courts define what force is legitimate police power and when the use of force becomes punishment. It is the court's that mete out punishment sanctioned by state law; whereas police enforce the laws. Police are not authorized by the Constitution to punish. It's all about the separation of powers under the United States Constitution.

Once under control would repeated Tasering be considered an abuse of police power?

This Iowa case may answer the question of whether it is justified police action or an unconstitutional abuse of police power to use multiple Tazing of a person under arrest. As you can imagine once a person is under control further Tasering is akin to torture. The police are supposed to enforce the laws, but are not authorized to act as judge and jury as far as punishment goes.

What this case may answer may also demonstrate the difficulty of proving damages in a civil case for the manner in which the Taser was used. If it’s legal to Taser a person at least once, then what pain and suffering does a second, third and fourth Taser event add? If at least one Tasering is legal then you won’t be allowed damages for that first event; only for the 2nd, 3rd and 4th events. But if the Taser makes your nerve pulses ineffective can a person continue to feel painful stimulus? If not how then can you suffer pain? Perhaps the experts will be able to tell us if the Tasered suspect can still feel pain but is simply unable to respond. This damage case will require medical experts on the issue of the Taser and a person’s ability to feel pain after undergoing a Taser event.

I have to wonder how, if the Taser is so effective, can anyone justify multiple Tasering events?

Canadian authorities have been analyzing the use of the Taser by it’s own police forces and seem more concerned than is American law enforcement.    

The ACLU of Florida petitioned the SCOTUS to review a case involving multiple Taser events on the same person during an arrest. You can download the 67 page Petition for Review by following the link.

QUESTIONS PRESENTED

1. Whether a deputy sheriff violated the Fourth Amendment by administering three separate five-second-long direct contact “drivestun” Taser shocks, over a two minute period, to a handcuffed, nonviolent misdemeanor traffic arrestee who had already collapsed to the ground sobbing, who never actively resisted arrest or attempted to flee, and who never posed any danger to himself, the officer or the public, when the sole purpose of the Taser shocks was to administer pain to prompt the arrestee to stand up.

2. Whether a reasonable police officer had fair notice in 2004 sufficient to deprive him of qualified immunity that it violated the Fourth Amendment to administer three separate  fivesecond-long direct contact “drive stun” taser shocks, over a two minute period, to a handcuffed nonviolent misdemeanor traffic arrestee who had already collapsed to the ground sobbing, who never actively resisted arrest or attempted to flee, and who never posed any danger to himself, the officer or the public, when the sole purpose of the Taser shocks was to administer pain to prompt the arrestee to stand up.

PARTIES TO THE PROCEEDING

Petitioner is Jesse Daniel Buckley, plaintiff-appellee below.

Respondent is Jonathan Rackard, Deputy Sheriff of Washington County, Florida, in his individual capacity, defendant-appellant below.

Amnesty International USA covers the use of Tasers multiple shocks in a single arrest. See Canada: Inappropriate and excessive use of tasers.

2.1 Multiple or prolonged taser discharges
Amnesty International's research into deaths following taser use in the USA and Canada indicates that many of those who have died had been subjected to multiple or prolonged shocks. In Canada alone, all six of the deceased in 2005 and 2006 were shocked multiple times with a taser; in one case up to 12 times in three minutes.

Amnesty International believes that repeated shocks should be avoided unless absolutely necessary to avoid serious injury or death and prolonged shocks beyond the five-second discharge cycle should be prohibited.

The Canadian Police Research Centre noted in its 2005 Technical Report that "police officers need to be aware of the adverse effects of multiple, consecutive cycles of a CED on a subject" because "the issue related to multiple CED applications and its impact on respiration, pH levels and other associated physical effects, offers a plausible theory on the possible connection between deaths, CED use and people exhibiting symptoms of CED.(12)

In April 2005, the US Department of Defense released a report which concluded that while available data suggests that healthy adults would not be at significant risk from the taser, "if long periods of uninterrupted EMI [Electromuscular Incapacitation Device] activation did occur, the risk of unintended adverse effects such as cardiac arrhythmia, impairment of respiration or widespread metabolic muscle damage could be severe".(13)

Taser International is the main manufacturer of taser stun guns. In June 2005, in light of a number of lawsuits by relatives of those who died after being shocked by tasers, and the fact that the use of their product was being listed in autopsy reports, the company included a warning that there were potential health risks in the use of its product in a training bulletin.

Taser International on May 3, 2004 issued a Memorandum of Law concerning the Taser Conducted Energy Weapons.

The legal concerns usually raised regarding the TASER conducted energy weapon generally fall into two categories:

1. What are the legal restrictions on the use of a TASER conducted energy weapon; and

2. What is the impact of a TASER conducted energy weapon on legal liability in a use of force incident. The purpose of this Memorandum of Law is to address these issues in the context of U.S. Federal and State regulations and case law.

Watch this video and ask yourself whether these six officers were using force to effectuate an arrest or whether the force is in fact punishment. This is not the Iowa arrest that resulted in the lawsuit.

The Courts define what force is legitimate police power and when the use of force becomes punishment. It is the court's that mete out punishment sanctioned by state law; whereas police enforce the laws. Police are not authorized by the Constitution to punish. It's all about the separation of powers under the United States Constitution.

 

OWI: How do you maintain your silence when they are asking you questions??

An officer has to honor your request to talk to a lawyer and to remain silent.  That is your constitutional right.  You have the right under the 5th Amendment to not be a witness against yourself, and you have the right under the 6th Amendment to the assistance of counsel.  Be prepared however since the officer is not going to take your silence as a friendly gesture.  Some officers view silence as an admission of guilt.  Many officers view the constitution as an obstruction to justice and some have the view that the “end justifies the means.”  Those officers do not care if you’re constitutional rights are violated.  They do not like it when people do not respect their authority and refuse to answer their questions.  They threaten to file additional charges, such as Interference with Official Acts for refusing to answer their questions.  Even if you do not answer their questions and do not take their “tests”, they will still charge you with OWI.  If you have decided, either on your own or through the advice of an attorney, to remain silent then you need to stick to your guns.  If you initially decide to remain silent, which then draws the officer’s anger, and you decide to talk about your charge, you are then in the worst situation which is making statements about your charge in additional to having an angry cop.  Most officers will honor your request and fill out their paperwork as long as you sit quietly.  If you do initially indicate that you are going to remain silent, you can not decide to ask questions and expect the officer to talk to you.  All of your questions should go to your lawyer, not the officer.

What are some "investigative techniques" officers use??

OWI: When should you refuse the breath test?

OWI: Who decides whether someone should be charged with OWI??

WRONGFUL CONVICTIONS OF OWI

You are innocent and charged with OWI.  You should either get a dismissal of the charge before a trial, or a unanimous jury verdict at trial of “not guilty” which in legal terms is called an acquittal.  I’ve had jury acquittals on breath tests as high as .185, which is more than twice the legal limit, and on breath tests as low as .06, which is less than the legal limit of .08.  Yes, sometimes prosecutors will file an OWI charge even if you blow less than .08.  And yes, the law allows them to do that, in their all powerful discretion.  Your case should never get to trial if the officer did not do his job correctly.  Many times the officer fails in some respect during the administration of these tests.  The key to most acquittals is that the client gets to a lawyer’s office almost immediately after arrest.

Here is what you do when you find yourself arrested and charged with OWI and you are innocent.  First, stop talking.  You will never win an argument with a police officer.  You will never convince the officer to let you go.  I realize you believe that you passed all the field sobriety “tests” but those tests are designed specifically for you to fail.  They are not tests at all.  Even if you had a 90% success rate, you failed.  Even if you had a 98% success rate, you failed.  So shut up.  All you are doing is hurting your case and making it more likely that you will eventually be wrongfully convicted.  Next, assume that every phone call you make from the jail will be played at your trial.  Don’t explain to your wife that you’d only had one beer.  Don’t ask your dad to go pick up your car and that the beer in the car belonged to your friends.  If you need legal advice, talk to a lawyer.  Most of the time, talking to family and friends doesn’t help the case- they are not lawyers and do not understand the intricacies of the OWI law.

Being charged with OWI is a very serious crime in Iowa.  If convicted, you will lose many rights, privileges, liberties and a considerable sum of money.  This means jail time, several thousand dollars, the inability to drive for a considerable period of time which will likely cost you your job, and additional freedoms while on probation such as the ability to enter a restaurant for at least one year, or to have to get permission from your probation officer to leave your county of residence on each occasion.  You will also lose your hunting privileges, among other things.

Any lawyer can walk you through a standard OWI guilty plea.  But not every lawyer understands the OWI law and recognizes when an innocent person has been charged.  Do they understand the horizontal gaze nystagmus test?  Do they understand the proper basis for conducting a traffic stop?  Do they know if marijuana impairs driving?  Do they understand fermentation of blood samples?  Do they understand breathalyzer inaccuracies?  Do they understand retroactive extrapolation?  Have they reviewed the OWI prosecution training that an officer completes at the Iowa Law Enforcement Academy?

OWI, The five things you should not do when arrested