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  • Writer's pictureDavid A. Cmelik Law PLC

Petty or Pretextual? Police couch mere DUI hunches in minor traffic stops

If a law enforcement officer has just a hunch without more proof that someone is driving under the influence in the State of Iowa, called DUI in other states and criminal, indictable Operating While Intoxicated, or, OWI, here, they may assert another more substantial reason for conducting a traffic stop that is mere pretext for their ulterior motive. This is perfectly legal and there’s a name for it in the law: pretextual stop. It typically requires probable cause to believe that the driver has committed some peripheral violation, usually traffic or equipment related.

Such pretexts mostly include minor traffic and equipment violations like speeding, lighting failures, and expired registration, although honorable mentions include swerving within or outside your lane and making a wide, right hand turn that does not track as closely to the right hand curb or lane as prescribed by state law.

Officers are trained by the Iowa Law Enforcement Academy and by materials provided by the National Highway Traffic Safety Administration, or, NHTSA, to always be looking out for DUI impaired drivers in “Phase One” of an OWI investigation—called “Vehicle in Motion.”

Driving conduct and equipment violations are part of this drunk driving scrutiny and an officer that suspects DUI/OWI will use this phase to conduct a traffic stop to get to the “next level,” which is a pre-screening interview or exchange. Law enforcement officers engaged in a DUI investigation do not need to issue a citation for the Phase One justification for the traffic stop to stick in Iowa court—although the refusal or failure to issue such a citation is often viewed by criminal defendants as a smoking gun that the police fear the peripheral reasons for law enforcement interaction will not pass muster in court. That’s just not true in most cases.

Often times a potential criminal DUI client will report to their attorney that the officer “harassed” them by following them “too long.” The potential client will want to know from a lawyer’s perspective how long is too long and if an officer must break off scrutiny of a suspected impaired driver if they fail to establish reasonable suspicion to believe a crime is occurring or probable cause to believe a traffic violation has occurred within some magical time frame. In short, there is no such magical time frame. An officer is typically restricted by their own internal department policies to follow drivers only in their area of responsibility, or, for lack of a better word, jurisdiction, but they are not required by the law to do so here as long as they are law enforcement academy trained and they are within the State of Iowa. There is no dismissal of a prosecution if an Iowa law enforcement officer crosses a county or municipal line in the furtherance of their duties within the State of Iowa. Moreover, they can follow drivers for as long as they would like but will usually break off a tail if the driver does not produce any violations within a reasonable amount of time. Remember, they want a DUI/OWI arrest and an unproductive tail will not yield one. To be fair minded, if they believe the driver is abiding by the law, there is no reason to continue following them.

However, if the officer does suspect DUI/OWI, they will typically cite to an otherwise minor traffic or equipment violation to justify the stop, a criminal seizure under the Fourth Amendment to the United States Constitution and Article I Section 8 of the Iowa Constitution. If the reason is legitimate, no matter how minor, Iowa criminal courts will not scrutinize the officer’s ulterior motive for making the stop—mere suspicion of impaired driving.

If you have been arrested for DUI in Iowa, called OWI here, contact us for an initial consultation


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