In the last week, I have fielded several questions about whether Cedar Rapids and Iowa City OWI (DUI) convictions "fall off," or, are automatically expunged from, a defendant's public criminal record. The reason for this misperception is simple. Iowa classifies and penalizes OWIs based on previous convictions within 12 years.

That means if someone has a previous conviction for OWI just over 11 years ago but not over 12, they will be classified as an OWI-2nd offender and charged with an aggravated misdemeanor punishable by at least 7 days and $1875 fine and at most two years in prison. If they had been convicted over 12 years prior, the new offense would have only been an OWI-1st offense. That doesn't mean that the original conviction "disappears" from a criminal record. It means only that, for purposes of classifying and penalizing a new offense, authorities may only consider the last 12 years. Prior offenses-- even OWI convictions older than 12 years-- can be used in the plea negotiation and sentencing process to determine what the sentence will be within the legal range of what can be charged. Moreover, even a so-called "second first" offense OWI cannot be deferred. The law looks back over 12 years for deferred judgments. It can be slightly confusing.

There is another reason. The law also directs the Department of Transportation to delete OWI convictions and revocations from operating records of the department.

Iowa Code § 321J.12(4) states that in most cases:

“. . . a conviction or revocation under section 321J.2 or 321J.2A that is . . . shall be deleted from the operating records twelve years after the date of conviction or the effective date of revocation.” But that applies to driving records not criminal archives.

Iowa Code § 321.12(4)

This issue came to a boil when Iowa changed the criminal law to look back 12 years instead of 6 to enhance classification and penalties for repeat OWI offenders.

The Iowa Supreme Court noted at that time that:

[The Defendant] is not being punished for her prior conviction, but for the latest offense on the basis of her propensity for misconduct as a repeat offender, and in accordance with the OWI statute in effect at the time she committed the current offense. See Stoen, 596 N.W.2d at 507-508. [Defendant] acquired no right that her prior conviction would be expunged from her record upon the expiration of the old six-year period, and thus she has been deprived of no vested right by the legislative expansion of that period to twelve years."

State v. Garcia, 600 N.W.2d 320, 321 (Iowa 1999)(emphasis added).

Think about it this way. If Iowa changed the law to look back forever instead of 12 years to classify and penalize repeat OWI offenses, they could do so and it would not be hard to find the records of criminal convictions to do so. That's because they wouldn't "fall off" anyone's record or otherwise be expunged. Where are those records?

Pursuant to Iowa Code § 690.2, all county and municipal law enforcement agencies are required to send fingerprints and record of serious misdemeanor, aggravated misdemeanor, and felony arrests to the Department of Criminal Investigation in Des Moines, Iowa. Iowa Code § 690.2.

Moreover, the criminal conviction is stored in the court system, e.g., Iowa Courts Online and Electronic Data Management System (EDMS), permanently. Even records of deferred judgments are stored by the courts and DPS, though they cannot be publicly disclosed without a release or other exception.

Upon conviction, if the court determines that the defendant has not yet been fingerprinted, the sentencing order can direct the defendant to be fingerprinted and that information will also be sent to DCI. This information transfer is not voluntary. The chief of police and county sheriff for each city and county “shall” send this information to the Department of Criminal Investigation. Iowa Code § 690.1.

The DCI website maintains public criminal records. See Iowa Department of Criminal Investigation website (available at: https://dps.iowa.gov/divisions/criminal-investigation/criminal-history/record-check-forms)(last visited January 25, 2020).

If you or a loved one have been arrested for OWI (DUI) in Cedar Rapids, Iowa City, or other Iowa community, contact David A. Cmelik Law PLC for a free initial consultation today. Become an informed legal consumer. However, remember that reading a blog is not legal advice and that sending a lawyer over the Internet unsolicited information does not establish an attorney-client relationship.

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