cedar rapids / iowa city criminal defense

It is a new form of prohibition that effectively outlaws drinking in public at all. 

It is a new form of prohibition that effectively outlaws drinking in public at all.

The presumptive blood alcohol limit in Iowa is .08 grams of ethanol per 100 L blood, or, in the alternative, .08 grams of ethanol per 210 L breath. However, the first hurdle to an OWI (DUI) arrest in Iowa is an officer’s purportedly reasonable grounds to believe a motorist is intoxicated before any breath or blood is ever tested. 


The presumptive blood alcohol limit in Iowa is .08 grams of ethanol per 100 L blood, or, in the alternative, .08 grams of ethanol per 210 L breath. However, the first hurdle to an OWI (DUI) arrest in Iowa is an officer’s purportedly reasonable grounds to believe a motorist is intoxicated before any breath or blood is ever tested. 

1450 Boyson Road Suite C-2A Hiawatha, Iowa 52233     319-389-1889


In any case, pretextual stops for equipment violations and the like are allowable. They allow an officer to stop a vehicle, and, thus, its driver, to spy on the driver, watch his or purportedly bloodshot and watery eyes, smell alcohol on his/her breath, and note slurred or thick tongued speech. The LEO will then ask the motorist to step out of the vehicle to perform so-called standardized field sobriety tests, or, SFSTs: horizontal gaze nystagmus (HGN), Walk and Turn (WAT), One Leg Stand (OLS), and, if enough reasonable grounds exist to believe a test subject is intoxicated, the officer may request a Preliminary Breath Test (PBT). The sum total of these observations usually results in an OWI (DUI) arrest in Iowa and a trip to the stationhouse to invoke implied consent and request a Datamaster DMT breath test.

If a test subject refuses, an Iowa prosecutor is allowed to request, and the Court will likely grant said request for, a model jury instruction that tells the jury they may, but are not required, to take a Datamaster DMT refusal into consideration to find an OWI (DUI) conviction.

So does law enforcement and the criminal justice system need a Datamaster DMT test result to convict an OWI (DUI) defendant? No. The officer may testify as to his/her observations, testing protocols, and test subject performance on the SFSTs. An attorney should be consulted to determine whether the sum total of these observations is sufficient to justify testing and, in turn, an arrest. If you or a loved one has been arrested for DUI (OWI) in the State of Iowa, please contact David A. Cmelik Law PLC at http://www.daclawfirm.com for a free ½ hour initial consultation. Remember, however, that a blog is not legal advice and no attorney-client relationship is established by sending unsolicited information to an attorney over the Internet.

Can I be convicted without a Datamaster DMT test result or with a test result lower than the presumptive .08 limit?

by David Cmelik

Unfortunately, intoxication is in the eye of the beholder, or, rather, the jury. Many people believe that the law of intoxication is a science. It’s not. It’s not even an art. It’s a combination of grief politics, moralism, and subjective opinion that has so lowered breath and blood alcohol limits that what used to be legal is now illegal. 


Detroit law enforcement seize illegal alcohol and bootlegging equipment during prohibition. This image is in the public domain because it was photographed by a US Government official in his official duties. 

Unfortunately, intoxication is in the eye of the beholder, or, rather, the jury.  

Under Iowa law, an officer must have reasonable suspicion, or, in the alternative probable cause to conduct a traffic stop. Typically, an officer will trawl the streets near bar close and look for people who don’t use their headlights, fail to signal, have a burnt-out license plate light or engage in some other petty traffic or equipment violation. This is a “pretext” because the officer doesn’t really want to merely cite a driver for a license plate light violation but is looking to arrest a drunk driver. 


While law enforcement officers deny quotas, I suspect their superiors would soon question why an officer never makes an OWI (DUI) arrest on the night shift. Statistically speaking, the law enforcement community has to believe there is a given number of drunk drivers on the roads at any given time. If a particular officer arrests fewer of them than the department average, his or her superiors may begin to wonder whether he is merely idling at the local all-night diner instead of conducting routine patrol.