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Operating With a BrAC Less than .08 g/210 L Breath

by David A. Cmelik Law PLC

It seems wrong in my opinion, but the State of Iowa can pursue a prosecution against a motorist even if a Datamaster DMT test subject provided a test below the presumptive legal limit of intoxication of .08 grams alcohol per 210 L breath.


That’s because drunk driving opponents have for so long pounded away at the national standard (whatever it happens to be at the time) being “legally drunk” that they have no one to blame but themselves if jurors acquit for a breath test under the legal limit.


Unfortunately, in Iowa, however, the prosecution may argue to the jury that a defendant doesn’t need to be “over” that limit in order to obtain a conviction. That’s because there is a jury instruction that dictates that there are many ways to commit OWI in Iowa:


“The crime of Operating While Intoxicated can be committed in three ways:  (1) by operating a motor vehicle while under the influence of [alcohol] [drugs] [combination of alcohol and drugs],  (2) by operating a motor vehicle while having an alcohol concentration of .08 or more, and/or (3) by operating a motor vehicle while having a measurable amount of a controlled substance in the person.


           The State must prove both of the following elements of Operating While Intoxicated:


           1.  On or about the ______ day of ___________, 20___, the defendant operated a motor




2.  A that time, the defendant either: (a) was under the influence of [alcohol] [drugs] [a combination of alcohol and drugs], or (b) had an alcohol concentration of .08 or more, or (c) had any amount of a controlled substance present, as measured in the defendant's blood or urine.


(It is not necessary for all jurors to agree to just (a), (b), or (c).  It is only necessary that all jurors agree to at least one of these three alternatives.)


If the State has proved both of the elements, the defendant is guilty.  If the State has failed to prove either of the elements, the defendant is not guilty.”


The model jury instructions instruct that “under the influence” means:


2500.5  OWI - Definition - Under The Influence.  A person is "under the influence" when, by drinking liquor and/or beer, one or more of the following is true:


1.        [His] [Her] reason or mental ability has been affected.

2.        [His] [Her] judgment is impaired.

3.        [His] [Her] emotions are visibly excited.

4.        [He] [She] has, to any extent, lost control of bodily actions or



Of course, it’s also important to recognize that a law enforcement officer who obtains an embarrassing breath sample below the legal limit will try to rehabilitate his false SFST positive (remember he or she believed they had ‘reasonable grounds’ to believe the test subject was intoxicated to request a PBT, itself inadmissible, and a Datamaster DMT) by asking for follow-up urine test and then possibly a blood test.


They may call in a so-called “DRE” (drug recognition expert). The DRE protocol builds in a cover for false alcohol intoxication positive by stating that it is standard procedure to do a breath test as the first of twelve steps to “rule out” alcohol intoxication. Moreover, a combination of drugs and alcohol will be the fall back position.


If you or a loved one has been arrested for OWI in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC, for an initial consultation today. However, remember that a blog is not legal advice and that no attorney-client relationship is established by sending unsolicited information to an attorney over the Internet.​

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Numbers game. Officer Friendly will conduct standardized field sobriety tests (SFSTs) to build a case to request a preliminary breath test (PBT) pursuant to Iowa Code Sec. 321J.5. However, if the defendant blows zeroes or lower than the presumptive .08 g/ETOH per 210 L breath legal limit, they will likely argue that they are persuaded the test subject is impaired by a drug including or other than alcohol. They will probably request a Datamaster DMT ignoring the evidence contrary to their conclusion and they may request breath, urine, and blood at the stationhouse in an effort to prove what they "know" to be true. ​Let us help you chart your way back to life before legal crisis.  Contact David A. Cmelik Law PLC at 319-389-1889.

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