David A. Cmelik Law PLC
Cedar Rapids DUI Lawyer and Criminal Defense Attorney
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Cedar Rapids, IA
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Cedar Rapids Criminal Lawyer: What is operation in an Iowa Operating While Intoxicated prosecution?
Clients and potential clients ask me whether the State of Iowa can prosecute them for a “DUI” in a parked car. It depends. Here’s how.
The State of Iowa does not have a DUI law. In fact, there is no criminal DUI offense in Iowa. It’s a colloquial shorthand like Kleenex for tissue or Coke for a soda.
Because most people have heard of "drunk driving" or DUI, they assume that driving is a necessary element of Iowa's operating while intoxicated statute. It really isn't.
In Iowa, OWI stands for Operating While Intoxicated or Operating While Under the Influence in violation of Iowa Code § 321J.2. It is a criminal offense punishable on a first offense with fines ranging from $1,250 to $1,875 and jail ranging from 48 hours to one year. Second, third, and subsequent offenses depending on convictions dating back 12 years carry greater penalties.
Operating means the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running.
So a parked car includes the actual physical control over a motor vehicle that has its engine running.
But wait a minute. A parked car might have its engine turned off. So what gives? Can someone still be convicted of OWI if the car is parked and the engine is not running? That also depends.
“Circumstantial evidence” is proof of a chain of facts and circumstances indicating that the defendant is either guilty or not guilty. An officer who finds a driver slumped over the wheel of a parked car, at the side of the road or in a parking lot, may find that the hood of the car is warm. What does this tell the officer? That someone drove the car to that location recently. If no one else other than the occupant slumped over the wheel is present, is it safe to conclude that the occupant was also a recent operator? The Court will instruct the jury during a criminal drunk driving trial that the law makes no distinction between circumstantial and direct evidence—and that the jury may give as little or as much weight to such evidence as it deems reasonable.
And if the officer subsequently determines that the operator is under the influence, can they also conclude that they were under the influence at the time of operation? That depends.
How long has the car been parked there? How warm is the hood? Has the occupant been drinking since they were stopped? Did they leave and come back? Did someone else plausibly operate the motor vehicle? Are they waiting for that person to return?
If the engine is running, however, or the prosecution can establish intoxication at the time of operation, it is possible for a defendant in a parked car to be convicted of Operating While Intoxicated. But it is up to a good defense attorney to challenge that evidence and force the State to meet its burden, if necessary.
If you have been arrested for drunk driving in Cedar Rapids or other Iowa community under Iowa’s Operating While Intoxicated law, sometimes called DUI in other states, contact us for a free initial consultation. Remember that a blog is not legal advice and that sending unsolicited information to an lawyer over the Internet does not establish an attorney-client relationship.
