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  • Writer's pictureDavid A. Cmelik Law PLC

Can my OWI be dismissed?

An OWI can be dismissed in Iowa, but to understand whether dismissal is likely to occur, you have to understand how an OWI is filed in the first place.


Iowa law enforcement investigate the crime of Operating While Under the Influence or Operating While Intoxicated in violation of Iowa Code § 321J.2, Iowa’s drunk driving law often called DUI or driving under the influence in other states. A law enforcement officer who believes she has probable cause to make an arrest will do so.

An Iowa drunk driving defendant is usually arrested following an OWI investigation and held for at least five hours to ensure sobriety before release.  Regardless, within 24 hours, an Iowa DUI defendant appears before the magistrate to retroactively approve or disapprove of the law enforcement officer’s actions. This is a check on police power. From that point, a prosecutor—a licensed attorney who is also duly authorized to file criminal lawsuits in their respective county jurisdiction—must decide whether to craft an indictment, called a trial information in Iowa, against the Defendant for Operating While Under the Influence, in violation of Iowa Code § 321J.2. That can take as many as 45 days from date of initial appearance.


If and when an Iowa criminal prosecutor does file the criminal lawsuit (called an indictment in other states and a “trial information,” here because of the old timey way the prosecutor signs the document: “A True Information”) the Iowa District Associate or District Court must agree that there is sufficient evidence to proceed to trial.  If a district or district associate court judge believes that the trial information, including the list of witnesses and their likely testimony, would result in a jury conviction unless otherwise rebutted by the defendant, she will approve the criminal lawsuit to proceed to trial and set an arraignment for the Defendant to answer thereto.


The most important takeaway from the answer to the question regarding an Iowa OWI dismissal: A dismissal requires a judge to undo all of that decisionmaking, after the law enforcement officer swears an affidavit that probable cause exists to make an arrest, after a magistrate has retroactively approved that decision, after an Iowa prosecutor has drafted and submitted the criminal lawsuit and an Iowa criminal court judge has stated that there is probable cause to believe the defendant has committed the offense.


Defense attorneys who believe they have a good faith basis for dismissal may file a motion to seek a pretrial hearing within 40 days of the arraignment.  But judges are reluctant to undo other judges’ decisions and, further, loathe to take cases away from juries because the jury is sacrosanct in Iowa criminal jurisprudence.

Of course, hope springs eternal. Every defendant would prefer an outright dismissal over an emotionally arduous, achingly time consuming, and financially taxing prosecution and jury trial—or a plea bargain that requires an admission and finding of guilt. But dismissal is simply not reality for the majority of criminal defendants, including Operating While Intoxicated, in the State of Iowa. That is the unvarnished truth.


If a dismissal in an Iowa OWI prosecution does occur, it will not occur in a vacuum. It is a rare outcome that requires the skill and dedication of an experienced criminal defense attorney as a necessary precondition to the discovery of significant defects in the investigation and prosecution. But even a skilled Iowa criminal lawyer cannot invent those defects; they must already exist in the investigation. An unskilled lawyer may not find them. A skilled criminal lawyer will likely find such defects if they do exist.


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