cedar rapids / iowa city criminal defense

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Cedar Rapids OWI Lawyer Best Practices: Do I have to answer an interrogator's questions during an OWI investigation? 

by David A. Cmelik Law PLC


Absolutely not. And you shouldn't.


The typical protocol in an Iowa OWI (DUI) criminal investigation is to conduct the three phases of a OWI investigation in the field, request a preliminary breath test, detain or arrest, transport to the OWI processing office for a breath sample request, either obtain a Datamaster DMT test failure or refusal, and then Mirandize and question the Defendant. This generally occurs at the OWI processing office. In Linn County, for arrestees outside of Marion, this is generally the Linn County Jail "STOP" office. Here is a list of the questions: 

Who is your current employer?

What do you do for them?

What day did you last work?

Without looking at a clock, what time is it?

Do you know the day of the week?

Do you know the date of the month?

Do you have any physical defects?

Are you currently ill or have a cold?

When did you last sleep?

How many hours was that?

Are you taking any prescriptions, medications of any kind?

What do you take?

How often do you see a doctor for your medication?

Any injections of any other drugs recently

Are you diabetic?

Do you wear any of the following: dentures, glasses, contacts, hearing device?

Have you been smoking marijuana today?

Involved in an accident today

Were you driving the vehicle?

Does the vehicle belong to you?

Any mechanical problems with the vehicle?

What was your destination?

Do you know what directions you were traveling—north-south-east-west?

Did you make any stops along the way?

Was there anybody else with you?

Do you know what street or highway you were stopped on? 

Have you been drinking?

What were you drinking?

Do you know how much you had to drink?

Do you know what time you started drinking?

Do you know what time you stopped drinking?

Where were you drinking at?

Do you feel the effects of the drinks?

What kind of effects do they have on you?

As you can tell, the last seven questions are intended to specifically establish consumption and, ultimately, intoxication for the purpose of a jury trial. Questions related to time, day, and month purportedly relate to impairment—the ability to accurately discern the passage of time. Questions about where the defendant was heading, where they were coming from, and whether they made any stops generally get at their spatial discernment but also whether they stopped at a convenience store, bar, or liquor store along the way.


Questions about medication either rule out medication as a possible false positive for impairment in the absence of alcohol or rules in medications as a potential contributor to impairment along with alcohol—because the prescription drug defense is prohibited in the presence of alcohol.

The question about marijuana is obviously about impairment since any amount of a controlled substance in blood or urine is considered impaired in Iowa.

Questions about physical disability or illness are intended to rule out false positives for clues on the standardized field sobriety tests (SFSTs). Questions about dentures are intended to rule out false positives on the breath tests; note that the Iowa Law Enforcement Academy materials related to deprivation period for the DMT attempt to quell any dissent that denture glue would throw a false DMT positive.

This is probably a repeat of questions the SFST administrator and arresting officer asked in the field before the SFSTs. You’ll notice that an officer will ask these questions but generally speaking, most officers I’ve watched on videos tend to be uninterested in following up on actual disabilities. If you say “No, Officer Friendly, I’m fit as a fiddle!” they’ll note that you have no physical disabilities that would prevent you from performing the Walk and Turn or One Leg Stand. If you identify a natural nystagmus they will still give you the horizontal gaze nystagmus test and suggest that any nystagmus—alcohol or natural—contributes to their reasonable grounds to believe you are intoxicated to request a preliminary, or, portable breath test (PBT) pursuant to Iowa Code § 321J.5. On rare occasions, I've seen officers skip an SFST because someone, for example, had one leg shorter than the other or an injury related to construction work, or the like. Most days, the officer simply glosses over the false positives as so much noise and continues with their predetermined script. 

In any case, the short answer is, regardless of the Miranda warning but especially after Miranda, an OWI (DUI) criminal investigation target should not answer questions.  There is no penalty, either for the criminal prosecution or the driver’s license, to decline the invitation to answer these questions.

The first tip off that the police are asking invasive questions that have nothing to do with the investigation is when they ask you Question Number One: who do you work for and Question Number Two: what do you do for them? This has nothing to do with your arrest and is none of their business. I have yet to hear a rational basis for these questions. I speculate myself that this is just a way to start questioning about inane things that appears to make them routine so that they can ask the zingers later.

I will also note that I have seen some officers push the boundaries and interrogate OWI (DUI) suspects with a version of these questions at the roadside. There is some case law that suggests when an officer escalates what is otherwise a traffic stop (perhaps for speeding or a broken tail light) to a more serious investigation, that may require additional grounds to further inquire. The question is, however, whether a motorist is no longer free to leave sufficient to trigger the custodial requirement necessary to convert the traffic stop into a more investigative interrogation.  Let's leave that discussion for another day.
 
If you or a loved one has been arrested for Operating While Intoxicated (OWI) in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, commonly called DUI in other States, contact David A. Cmelik Law PLC at https://www.daclawfirm.com. However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the internet does not establish an attorney-client relationship. 

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

Mirandized Questions Relate to Protocols ​the Mirandized questions seek to rule out physical disabilities and assistive devices as false positives and to rule in alcohol and narcotics as contributors to purported signs of intoxication.  If you or a loved one has been arrested for OWI (DUI) or other offense in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, ​contact David A. Cmelik Law PLC at 319-389-1889. Source for Excerpted Image: Iowa Law Enforcement Academy Datamaster DMT Manual