Cedar Rapids DUI win in breath test 15-minute deprivation case

The David A. Cmelik Law PLC firm recently successfully suppressed a Datamaster DMT test result in a Cedar Rapids, Iowa, OWI (DUI) case because of a negative slope issue and a failure to fulfill the 15 minute deprivation period. The drunk driving defendant was not convicted of OWI and their license was immediately reinstated because of the suppression of the DMT test result. 

The idea behind the deprivation period is to make sure no foreign substances or foreign objects interfere with the alcohol sensor and throw a "false positive." This includes but is not limited to substances absorbing residual mouth alcohol-- like chewing tobacco or chewing gum. The protocol thus assumes that the machine is not infallible and requires human intervention to ensure its proper use. When officers fail to follow proper protocol, they risk invalidating the results of the science they purport is the gold standard in Iowa Operating While Intoxicated investigations and criminal prosecutions.

The firm talks more about this issue here.

Should Someone Use Marijuana in Colorado and Subsequently Drive in Iowa

Tetrahydrocannabinol, is widely believed to be the most psychoactive component of marijuana resulting in its "high." This image is taken from C. HEATHER ASHTON, FRCP, Emeritus Professor of Clinical Psychopharmacology (available at: http://bjp.rcpsych.org/content/178/2/101.full) (last visited May 23, 2014).

No. The law in Iowa on intoxication has not kept up with the science of psychopharmacology. Under Iowa law, a jury may find that a defendant is legally intoxicated and guilty of intoxication-related offenses like OWI (DUI), serious injury by motor vehicle, or vehicular homicide if law enforcement legally obtains a sample of his or her urine or blood and that sample contains any trace marijuana metabolites. In contrast, for alcohol, a jury must find that the defendant is “under the influence” or that the presumptive measure of alcohol in one’s blood stream is .08 BAC or more. No such measure exists for marijuana.

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Because marijuana is metabolized differently than alcohol, trace amounts may appear in the blood stream or urine days or even weeks after ingestion.

Dr. Heather Ashton, Emeritus Professor of Clinical Psychopharmacology, has written in the British Journal of Psychiatry that:

“Once absorbed, THC and other cannabinoids are rapidly distributed to all other tissues at rates dependent on the blood flow . . .  Because they are extremely lipid soluble, cannabinoids accumulate in fatty tissues, reaching peak concentrations in 4-5 days. They are then slowly released back into other body compartments, including the brain. Because of the sequestration in fat, the tissue elimination half-life of THC is about 7 days, and complete elimination of a single dose may take up to 30 days (Maykut, 1985).”

Pharmacology and effects of cannabis: a brief review C. HEATHER ASHTON, FRCP, Emeritus Professor of Clinical Psychopharmacology (available at: http://bjp.rcpsych.org/content/178/2/101.full) (last visited May 23, 2014)

As to controlled substances in the State of Iowa, “any amount” violates the statute. State v. Comried, 693 N.W.2d 773, 775 (Iowa 2005).

The Iowa Supreme Court has opined:

“Although there is no direct legislative history, the legislature likely included the ‘any amount’ language in the amendment to create a per se ban. Subsection (1)(a) already prohibited driving while under the influence of drugs. Thus, subsection (1)(c) was intended to do something more--to prohibit people from operating motor vehicles with controlled substances in their bodies, whether or not they are under the influence.” Comried, 693 N.W.2d at 776.

So, no, it is not okay to smoke or otherwise ingest an illicit drug elsewhere—even if it is legal in that location—and return to Iowa to operate a motor vehicle. It is quite possible that such a user might be considered intoxicated even if professionals in the field of psychopharmacology might consider them otherwise uninfluenced by the intoxicating effects of an illicit drug. 

A blog is not legal advice. No attorney-client relationship is established by reading a blog nor by sending unsolicited information to a lawyer over the Internet. 

Open Range: All of Life's Lessons on Honor, Dignity, Individual Liberty, and American Purpose

Open Range (2003) is my favorite Western and, in fact, my favorite movie of all time. It is available on Touchstone OnDemand. It offers not only thrilling panoramic scenery but also poignant lessons regarding honor, courage, dignity, and personal liberty. Here are 20 of those lessons.

Open Range is a Western in the classic American sense. It conjures the stereotypical David and Goliath battle as between free grazing cattle drivers and an unscrupulous, empire-building rancher, corrupt law enforcement, and paid mercenaries in his employ. 

I watch it frequently, since I've gladly paid for the rights to do so, and have assembled the lessons I believe are most central to its narrative-- and the narrative of the American experience. They'll be lessons I pass on to my boys. 

1.         A man’s trust is a valuable thing.

2.         Every man has to pull his weight.

3.         I ain’t one to take a man’s confidence lightly; it’s best to keep rememberin’ it if you want your fair share of respect from men like Charlie and Boss

4.         Get yourself a trade and set up in a town you’ll always have a roof over your head, a bed up off the ground, and food no further than a café.

5.         Always liked me a sidearm with some heft.

6.         We’ll drink to good health for them that have it comin’

7.         Most time a man will tell you his bad intentions if you listen—let yourself hear.

8.         Beautiful country. A man can get lost out here; forget there’s people and things that ain’t so simple as this.

9.         Cows is one thing. But one man tellin’ another man where he can go in this country is somethin’ else . . . sticks in my craw.

10.       A man oughta have something to show he was here.

11.       We pay our way.

12.       A man’s got a right to protect his property and his life. And we ain’t lettin’ no rancher or his lawman take either.

13.       You may not know this but there’s things that gnaw on a man worse than dyin’

14.       I don’t know what you should tell her Charlie. This may be the last time she sees you in this world or you her, so tell her anything you can because she’s entitled to more than just your backside walkin’ away.

15.       Shame to go forever without taking the taste of something.

16.       Pretty day for makin’ things right.

17.       Well enjoy it. ‘cause once it starts it’s gonna be messy like nothin’ you ever seen.

18.       Fact is it’s what I always respected about you. What I always appreciated—how you treated other people. How you treated me. How you never looked for no trouble and that kept me from trouble.

19.       Not much for runnin’ from cowards.

20.       We ain’t givin’ up our guns. He’s gonna kill Button anyway. The only chance for him or us when we walk up there is these guns.

Of course, it is also a love story. But my wife insists that I mention her objection to the line in the movie, in which Charlie asks his intended bride rhetorically, “how is this [marriage] gonna work if you don’t do what I say?” Annette Benning chuckles dismissively at this. If you’re married, you understand this to be a universal reaction.

The last line of the movie? Let's go get our cows.

            

Theft in Iowa: How Value Makes a Difference in a Theft Prosecution

To catch a thief: even if someone is caught "red handed" in Iowa, the State must still prove the value of the stolen item, which is an element of the offense. Note: this image, among the first set of fingerprints taken from 1859 to 1860 by William James Herschel, is considered to be in the public domain because it appears the copyright has expired, according to Wikipedia. The image is available at: http://en.wikipedia.org/wiki/Theft 

The value of an allegedly stolen item is “its highest value by any reasonable standard at the time that it is stolen.  Reasonable standard includes but is not limited to market value within the community, actual value, or replacement value.” Iowa Code § 714.3.

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The classification of a theft charge in Iowa hinges on this value. For example, a theft of something of value in excess of $10,000 is considered first degree theft, a Class “C” felony punishable by at most ten years in prison. Theft of anything in value greater than $1,000 but less than $10,000 is considered a Class “D” felony. Theft of anything in value greater than $500 but not exceeding $1,000 is an aggravated misdemeanor punishable by at most two years in prison. The theft of anything of value greater than $200 but not greater than $500 is a serious misdemeanor punishable by at most one year in jail. Theft of anything of value less than $500 is a simple misdemeanor punishable by at most 30 days in jail.

There are any number of ways to commit theft in Iowa but all require proof of this value. 

If you or a loved one have been charged with theft in the State of Iowa, it may be important for a competent attorney practicing in the area of criminal law to examine the facts and circumstances surrounding the alleged theft.

Of course, a blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to an attorney over the Internet.

Iowa Courts Online: How do I—and others—check on the progress of my criminal case?

The Iowa Courts Online Website is a valuable resource for lawyers and the public-- it is also the official electronic record of all judicial activity in the State of Iowa, called the electronic "docket." It is available at https://www.iowacourts.state.ia.us/

In Iowa, there is an electronic docket sheet that describes items in the court file. A docket is an official log of pleadings in the court file. The docket “has independent legal significance and is the ‘source’ of other things, such as the record on appeal.”

Judicial Branch & State Court Adm'r v. Iowa Dist. Court for Linn County, 800 N.W.2d 569, 577 (Iowa 2011)It contains:

“the title and nature of the action, the place of hearing, appearances, and notations of the documents filed with the judicial officer, the proceedings in the case and orders made, the verdict and judgment including costs, any satisfaction of the judgment, whether the judgment was certified to the clerk of the district court, whether an appeal was taken, and the amount of any appeal bond.”

Iowa Dist. Court for Linn County, 800 N.W.2d at 574.

The Iowa Supreme Court has held that the electronic docket sheet is the official record of activity in a given criminal case. Id.

If you would like to search for a particular name or case on Iowa Courts Online, you may do so as a matter of public record at:

www.iowacourts.state.ia.us/

A couple of caveats apply. First, I frequently hear from former and potential clients that a “deferred judgment” has not be expunged from the official record during the pendency of probation. That is true. Deferred judgment grantees’ files are not immediately removed from Iowa Courts online. They must be “expunged” and the file sealed following the successful completion of probation. That makes sense—if the defendant is half-way through probation, they haven’t proven themselves worthy of expungement yet.

Secondly, I occasionally hear from former clients that the record “inaccurately” reflects that they were found guilty or pleaded guilty to a felony when, in fact, they benefitted from a plea deal to a lesser included or substituted misdemeanor. In reviewing Iowa Courts Online in these cases, I have never found that the record is incorrect. What I suspect is happening is that potential or current employers are reading the search results for a particular defendant. These results show that the defendant was originally charged with a felony but you have to go through a few more mouse clicks to learn that the ultimate disposition was a misdemeanor conviction. That’s because the number describing the case file will have a felony designation beginning with “FECR.”

Third, dismissals have a similar effect while deferred judgments are expunged. In the Iowa District Court for Linn County case above, 800 N.W.2d at 574, the Court held that dismissals do not warrant erasure of the record. Id. Employers and potential employers can easily see that a person was charged with a crime but they must dig deeper to learn that the case was ultimately dismissed or resulted in an acquittal.

In the final analysis, Iowa Courts Online is a valuable tool that lawyers use everyday. If a defendant learns to use it, they can stay on top of their case and also save money calling up their lawyer to ask when court dates will be in the future.

A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to an attorney over the Internet.

OWI-3rd in Iowa: What Now?

A third or subsequent OWI in Iowa is a serious offense. First and foremost it is a felony punishable by at most an “indeterminate” five year prison sentence with a mandatory minimum jail sentence of 30 days. The “indeterminate” part of that sentence means that, if sentenced to prison, the parole board is not hamstrung by a legislative mandate to deny parole for any minimum length of sentence. Good and honor time is applicable but prison is prison and the felon label is impossible to shake. Felons cannot vote unless they specifically request and obtain a restoration of rights. And felons may not possess firearms— stay away from guns and ammunition.

There is no deferrable option for third or subsequent OWI in Iowa. People are sometimes stunned to find this out since the first time OWI offense was typically deferrable for a breath test under .15 or at least a so-called "weekend program" can substitute for the minimum jail sentence on the first offense. That’s not true for either a second or third or subsequent offense where I practice law in Iowa.

When people talk about a "true third" they are talking about someone who has "only" been twice convicted of OWI in their lives-- as opposed to a fourth or fifth OWI that is only classified as an OWI-3rd or subsequent because the classifications go no higher than 3rd or subsequent offense. 

An evaluation is typically required as part of pretrial release and it's legally required before sentencing should a Defendant reach an agreement with the State to dispose of the case with a guilty plea. A defendant who believes he or she will seek a plea agreement with the State should immediately obtain an evaluation and begin any recommended treatment. 

Because of the felony status of a convicted OWI-3rd offender and the minimum 30 day jail sentence (and possible prison sentence) the stakes are high. It will be very important for a competent attorney to review thoroughly the discovery to determine if the law enforcement interaction with the defendant was justified, if field sobriety tests were warranted and properly executed, and if the officer and breath test, if any, were certified in the handling of OWI cases.

A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to a lawyer over the Internet. 

Authenticating the Unauthentic: What forgery is and what it isn't in Iowa

This check appears to be drawn on an account of the Standard Bank of South Africa

on July 10, 1933. It is believed to be an image unprotected by copyright because the

copyright has apparently expired. The image is available at http://en.wikipedia.org/wiki/Cheque

A forgery in Iowa is the presentation with the intent to defraud some writing that is not what it purports to be. Now that’s fancy language but that’s pretty much how the statute reads at Iowa Code § 715A:

A person is guilty of forgery if,with intent to defraud or

injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:

a.       Alters a writing of another without the other's permission.

b.      Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed.

c.       Utters a writing which the person knows to be forged in a manner specified in paragraph "a" or "b".

d.      Possesses a writing which the person knows to be forged in a manner specified in paragraph “a” or “b”.

The Iowa Supreme Court has said that the focus is on the “genuineness” or “authenticity” of the writing. Whether an alleged crime is a “forgery” (instead of no crime at all or possibly a different kind of crime, for example, theft by misrepresentation) hinges on “whether the act affects the genuineness of the instrument.” State v. Calhoun, 618 N.W.2d 337, 339 (Iowa 2000)

But the inquiry doesn’t end there. What if the writing is what it purports to be? For example, a genuine social security card held by someone else posing as that person?

In an unpublished decision, the Iowa Court of Appeals held that a criminal charge that alleges the possession of an authentic social security card by someone else is not forgery if the State fails to craft its trial information in such a way to assail the genuineness or authenticity of the card itself. State v. Hampton, 2008 Iowa App. LEXIS 451, 5 (Iowa Ct. App. July 16, 2008).

The Hampton court wrote, “[t]hese facts could implicate the crime of identity theft but they do not implicate the crime of forgery.” Hampton, 2008 Iowa App. LEXIS 451 at 6.

The specific intent to defraud is also an area to examine. Where forgery requires specific intent to defraud, the jury must specifically find that the defendant intended to defraud someone or some institution. It differs from general intent in that a jury need not delve into the merits of the thought process of a general intent crime; if someone did that general crime the general intent may be inferred from the act.

The jury instruction regarding specific intent is instructive:

'"Specific intent' means not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind.

Because determining the defendant's specific intent requires you to decide what [he] [she] was thinking when an act was done, it is seldom capable of direct proof.  Therefore, you should consider the facts and circumstances surrounding the act to determine the defendant's specific intent.  You may, but are not required to, conclude a person intends the natural results of [his] [her] acts."

 In a forgery, for example, the specific intent may not simply be found by the act of forgery. The jury must look beyond the act and determine if the defendant's purpose was to defraud.

It's an interesting question. Because every case is different, it is important to look at whether the State has sufficiently charged a forgery with the focus on the genuineness or inauthenticity of the document in question-- or whether it has misapplied the forgery statute. It is also wise to scrutinize whether the defendant possessed the requisite specific intent to defraud at the time of the alleged act.

A blog is not legal advice. No attorney client relationship is established by reading a blog or by sending unsolicited information to a lawyer over the Internet.