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  • David A. Cmelik Law PLC

Iowa OWI Evidentiary Breath Test Decision

computer keyboard and screen

The Datamaster DMT is a device approved and certified by the Iowa Department of Public Safety to provide evidence in Iowa Operating While Intoxicated, or, OWI, cases in criminal prosecutions for drunk and impaired driving. According to Iowa Department of Public Safety, there are 170 Datamasters in use throughout Iowa, or nearly two for every county.

The Datamaster DMT is a big machine that sits on a desk. It looks like an old timey computer from the 1970s or 1980s. It is an Internet connected, self-diagnosing device that purports to be more reliable than the portable devices approved for breath screening in the field. It looks like a Commodore 64 from 1982. While it isn’t quite that old, the DMTs in use in Iowa have been in service for almost a decade, with maintenance and yearly certification provided by the Department of Public Safety crime laboratory.

The Legislature and the Department of Public Safety have approved and certified this type of device for use in collecting a breath sample pursuant to so-called “implied consent” under Iowa Code § 321J.6. They shouldn’t be confused with the myriad portable devices that are used by officers at the roadside. Those portable, or, preliminary breath screen, or, PBTs, provide preliminary results that are inadmissible on the issue of guilt as discussed here.

The DMT or “desk blow” back at the jail or police station is the main event. While standardized field sobriety tests, or, SFSTs, as well as the officer’s observations, can be used to prove that you are “under the influence,” a DMT test result is presumptively the level of alcohol in your blood at the time of operation if the test was administered within two hours of a PBT test or arrest, whichever comes first.

The so-called “implied consent” component of DMT test failure or refusal is what really throws OWI defendants. First, if you failed or refused a DMT, your privilege to operate a motor vehicle is already revoked regardless of guilt on the criminal matter. This is because Iowa considers your privilege to operate a motor vehicle just that—a privilege.

Implied consent is the legal fiction agreed upon by the Iowa DOT and the Legislature that when you obtained your first driver’s license, and at every renewal thereafter, you impliedly consented to provide an evidentiary breath sample to Officer Friendly if he or she had reasonable grounds to believe that you were under the influence. Refusal to comply typically results in a revocation of that privilege for twice as long as if you consented and tested above the presumptive level of intoxication of .08 g ETOH/210 L breath. Bet you didn’t know you “impliedly consented” to do this when you applied for your driver’s license, did you?

Moreover, this revocation is nearly immediate—occurring just ten days after notice of revocation unless you seek a stay of revocation as part of an appeal of the Iowa DOT decision through the Iowa Department of Inspections and Hearings Division in Des Moines. This is the number one way to tell that this is separate from your criminal prosecution-- which by any account has barely begun by the time your privilege to operate a motor vehicle in Iowa has already been revoked. If you gathered that this DOT license and privilege stuff doesn’t sound like your criminal prosecution at the courthouse, you are on to something. If you are Jane or John Doe, then your criminal prosecution is State of Iowa v. John/Jane Doe. Your DOT revocation appeal is, however, John/Jane Doe v. Iowa DOT. Whole different venue, standard of proof, burden of proof, and type of law.

So when you make a decision to provide an evidentiary Datamaster DMT test at the stationhouse, choose carefully based on your level of intoxication and your desire to shorten the revocation that may invariably be coming. If you think that you are close to or below the presumptive level of intoxication of .08 g ETOH/210 L breath, providing the test *may* be beneficial to your criminal defense. It may determine that you are below the legal limit, in which case a refusal would be greater evidence against you, and also whether you may qualify for a deferred judgment which is unavailable to OWI arrestees who refuse or blow over .15 g ETOH/210 L breath.

But if you are well over the presumptive level of intoxication—meaning you are well over .08 g ETOH/210 L breath and not at all within the margin of error for the machine (+/- 5% or .004 g ETOH/210 L breath, whichever is greater), your choice to refuse the DMT may deny the prosecution presumptive evidence of your guilt but will result in a revocation twice as long.

In the end, this is a difficult personal decision in any Cedar Rapids or Iowa City OWI (DUI) investigation. It’s your choice and your consequences. You have to do what is right for you—and in any case, if you are reading this, that choice is likely already made and you are looking at your options right now.

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

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