• David A. Cmelik Law PLC

Driver's license not part of Cedar Rapids drunk driving criminal case



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Your Iowa driver's license is revoked if you fail or refuse a Datamaster DMT breath test, commonly called a breathalyzer. This is not part of the criminal prosecution against you and occurs well before a finding of criminal guilt. You have just ten days to file an administrative appeal of the revocation of your privilege to operate a motor vehicle in Iowa. Contact us for a free initial consult to discuss.

Iowa has a criminal justice and DL revocation system that may seem strange even to Iowans. When a motorist is subjected to evidentiary breath testing by law enforcement officers, he or she may be simultaneously charged with an indictable, criminal offense of Operating While Intoxicated AND administratively penalized with a DL revocation for a test failure or refusal. These are two, very different independent actions.


The criminal prosecution and the driver’s license revocation are born nearly at the same time but they go off in different directions and neither ought to be mistaken for the other.


For example, in an OWI prosecution, the State must prove you guilty beyond a reasonable doubt to a unanimous jury, and you have a right to confront your accuser and to other constitutional and statutory criminal law protections. Proper venue for the criminal prosecution is the county courthouse of your arrest. The local county attorney must seek your prosecution in district associate or district court in that county.


By contrast, an appeal of the DOT revocation of your privilege to operate a motor vehicle is decided in Des Moines before an administrative law judge at the Department of Inspections and Appeals Hearings division. The hearing officer is not part of the judicial branch. They are an employee of the executive branch and the DOT representatives who are litigating in favor of your revocation are not prosecutors. They work for the DOT.


This coded language of “privilege to operate a motor vehicle” is intended to accomplish two things. First, it immediately signals to you that Iowa DOT does not consider driving to be a right. If driving were a right and the Iowa DOT were trying to take it away from you—much like your liberty interest when the Government tries to jail you—then certain constitutional protections would kick in like the right to confront your accuser, possibly the right to a jury trial, a unanimous jury verdict, and the burden of proof squarely placed on the prosecutor. None of those things are true when the DOT revokes your "privilege" to operate a motor vehicle.


The theory behind this difference is that you have no right to a DL. So you have no right to a jury trial on the issue of your driver's license revocation and the state need not prove you guilty beyond a reasonable doubt—it’s worse: you have to prove the DOT took your license in violation of Iowa administrative law or Department of Public Safety protocols.


This may be confusing but think of it this way. When the government seeks to jail you, it must give you more due process than it does when it merely takes a “privilege” like a driver’s license. So you get less due process when the government takes away a mere “privilege” to drive than when it takes your right to be free.


To emphasize this divide even further, you are not guilty in the criminal prosecution unless and until proven guilty. But before your criminal case even begins, the Iowa DOT has already decided that you are “guilty,” or, revoked, when you either fail or refuse an evidentiary breath test. They have already taken your "privilege" to operate a motor vehicle even before your prosecution in the criminal case has begun. Your first clue that this has occurred already is the ten day notice that the officer gives to you upon a test failure or refusal. You leave with it from the jail. It’s also the piece of paper you are informed is your license if you presented an Iowa driver’s license on the date of your arrest and it is shredded or sent back to Iowa DOT.


To win it back, your attorney will have to timely and successfully appeal the administrative revocation before the Department of Inspections and Appeals Hearing Division by a preponderance of the evidence. That can be a tall order but it can’t happen at all if you do not hire an attorney before the ten days has elapsed.


If you clear that hurdle, you must clear another—you must either win your criminal case at jury trial or get your OWI dismissed to avoid the revocation entirely. In other words, two difficult preconditions to having your license reinstated as if it was never revoked are (1) never being convicted of OWI; and (2) winning her administrative Iowa DOT appeal before the Department of Inspections and Appeals Hearings Division.


Failing to meet either or both preconditions will result in a revocation. For example, a jury trial acquittal (win) or dismissal without a DOT administrative appeal victory still results in a revocation. Likewise, an appeal win without a jury trial win or dismissal still results in a revocation.


This is made more complicated if you hold an out-of-state driver’s license. Again, you will notice that when Iowa notifies a driver that they may no longer drive in Iowa, they do not use the phrase, “driver’s license.” They talk about your “privilege to operate a motor vehicle.” This revocation applies regardless of whether you are a licensed Iowa driver.


But if you have an out of state license, you were never an Iowa licensed driver. You may not drive here after an OWI unless you reinstate your privilege to do so in Iowa—and Iowa will further notify the state that issued your driver’s license to ask them to revoke your actual license, because, hey, they would do it for the issuing state. This is called reciprocity and Iowa DOT claims it has agreements with other states to make such requests.


If you or a loved one have been arrested for OWI, or, Operating While Intoxicated, in the State of Iowa, our DUI law, contact us for a free initial consult.