Cedar Rapids DUI Lawyer: OWI arrest checklist

By David A. Cmelik Law PLC

Hire an attorney licensed in Iowa and, in our opinion, limited exclusively to criminal law with an emphasis on OWI, or, Operating While Intoxicated. We’re biased, but because criminal law, with an emphasis in OWI, is all we do to keep the lights on, we think it’s important to practice in a single area of the law. Some law firms say they “specialize” in multiple areas, but by definition, this cannot be true. If an attorney practices in two or more areas, it is our humble opinion that he or she is a generalist not a specialist. There is, of course, no special certification in the State of Iowa for DUI, or, as it is called here, Operating While Intoxicated, or, OWI, law. Lawyers are licensed to practice all law in all 99 counties. Even so, I would not take on a case in an area outside my practice field. I would not file a personal injury case, for example, or write a will or represent someone in a divorce. I would not go to a podiatrist for a tooth ache or my urgent care clinic to have my dog vaccinated. It’s fair to say we specialize in this area because we do nothing else. You can use your own judgment as to whether a firm that divides its time among two or more practice areas is really a specialist.

Pinpoint your revocation notice and separate it from your other paperwork—it’s your license to drive for 10 days if you presented an Iowa driver’s license to law enforcement on the date of your arrest and you were valid at that time. Keep a copy with you at all times and be ready to present it to law enforcement if they conduct a traffic stop within those 10 days. If you are an out of state resident, it’s slightly more complicated than that, but not much. You still must carry your driver’s license and your 10 day notice. Whether you are an Iowa resident or an out-of-state resident, your privilege to operate a motor vehicle in Iowa has been revoked and you may not drive in the State of Iowa after the 10 days unless you obtain a stay of the revocation following the filing of an appeal.

To appeal or not to appeal the administrative DOT revocation? It’s a good idea to consult with and hire an attorney well within 10 days of your notice of revocation. Together, you can decide whether you want to file an administrative appeal of the Iowa DOT revocation, which is completely separate from your criminal prosecution. Because Iowa considers your driver’s license a privilege and not a right, the Iowa DOT immediately revokes your privilege to operate a motor vehicle regardless of whether you are convicted. To challenge the revocation, you must file an Iowa DOT administrative appeal and prove by a preponderance of evidence before the Department of Inspections and Appeals Hearings Division administrative law judge, or, ALJ, that law enforcement officers violated administrative law in revoking that license. The 10 day grace period that allows you to drive is also the deadline to file this appeal. If you do nothing, the revocation will go into effect. The most complicated aspect for people to understand in this process is the fact that (1) you are already revoked regardless of conviction unless and until you successfully appeal to the Iowa DOT and Department of Inspections and Appeals Hearings Division; (2) the appeal of said revocation has nothing to do with the county courthouse, the county attorney, or the criminal prosecution. Your criminal prosecution is State of Iowa vs. Jane/John Doe. Your Iowa DOT revocation appeal is John/Jane Doe vs. Iowa DOT. In the criminal prosecution, the State of Iowa must prove you guilty beyond a reasonable doubt unanimously before a jury of your peers. In the DOT revocation, you have to prove by a preponderance of the evidence, or, roughly 51 to 49 percent that law enforcement violated administrative law and procedures in obtaining a test failure or refusal. It’s a huge difference and one you should understand going into it.

Obtain a substance abuse evaluation—a substance abuse evaluation is required in Linn County within 30 days of your arrest and in Johnson County within 10 days. You must use a certified substance abuse counselor approved by the Iowa Department of Education.

Obtain a Temporary Restricted License, or, TRL, if you are an Iowa resident. If you were otherwise valid on the date of your OWI arrest in Cedar Rapids or Iowa City, you may qualify to obtain a temporary restricted license, or, TRL, from the Iowa Department of Transportation. To do that, however you must have installed an ignition interlock device and obtain SR22 insurance before you apply for the TRL. There are just five private sector companies approved to install their ignition interlock devices, sometimes called “blow and go” machines in your car. You’ll also have to pay a $200 civil penalty to the Iowa DOT and bring roughly $30 additional cash to the Iowa DOT to pay for the ID card since you’re getting a brand new restricted license card with your photograph. You may not obtain a TRL unless you are an Iowa resident. If you want to delay this requirement until the administrative law judge or Director of Driver Services decides your DOT challenge, you can, but are not required, to request a stay of the revocation pending appeal.

What’s next? Your criminal prosecution will take roughly two to three months to complete. Your first court date is typically an initial appearance. If you bonded out approximately five hours after your arrest, you will have to reappear on the court date indicated on a delay of initial appearance and promise to appear. If you appeared on video court the morning after your arrest, that was likely your initial appearance and the court will issue an initial appearance order and set preliminary hearing. When you hire a criminal defense attorney, they will usually waive the preliminary hearing or it will be cancelled by the Court when the State files a Trial Information, or, indictment against you. But, technically, unless you receive notice in writing from an attorney that it is cancelled, it is a court date scheduled by a judge. Miss it at your own peril.

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 consult. 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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