• David A. Cmelik Law PLC

Iowa DUI lawyer: DL revocation and prosecution twins


Two dogs from the same litter show different markings
Iowa DL revocation and OWI prosecution, sometimes called DUI in other states, are fraternal--not identical--twins. The two investigations and separate pieces of litigation have the same born-on date, but they grow and develop at different rates. The two matters are before different judges, different opposing counsel, different venues typically in different towns. There is a different burden of proof and in the DOT matter, that burden of proof shifts to the driver to prove that the officer violated Iowa administrative law when revoking the driver's driver's license. The criminal prosecution places on the State of Iowa and the county attorney in the county of prosecution the burden of proof beyond a reasonable doubt. Contact David A. Cmelik Law PLC if you or a loved one have been arrested for OWI (DUI). This is what we do.

So you’ve been arrested for Operating While Intoxicated, or, OWI, Iowa’s DUI law. Let’s see if we can get you through this. First, you should understand that the fistful of papers the jailers thrust into your hands as you left the jail the next day contains one very important piece of paper for Iowa driver licensees.


Typically, unless law enforcement is waiting on the results of a urine test from the Department of Criminal Investigation criminalistic laboratory, an Iowa drunk driving arrestee will on the date of their arrest for OWI also be DL-revoked upon a Datamaster DMT breath test failure or refusal. If the arrestee presents an Iowa driver’s license on the date of the arrest, officers will usually seize it and either destroy it or send it back to the Iowa DOT. The test must be .08 + .004 g ETOH/210 L breath or five percent whichever is greater to result in an Iowa revocation, the margin of error for the evidentiary Datamaster DMT. Note that, unlike the Iowa DOT administrative law discussed above, the criminal law does not apply this margin of error, for example, in deferred judgment cases (which typically require a test lower than .15 g ETOH/210 L breath) or even as a baseline to prosecute.


Back to that important piece of paper—called an Iowa DOT notice of revocation. The Datamaster DMT operator will read to the drunk driving arrestee a notice of revocation that states that the test subject’s “privilege to operate a motor vehicle” in the State of Iowa is revoked effective 10 days from the date of the notice. The document serves as a temporary license while the arrestee and test subject gets their affairs in order before the revocation takes effect.


A number of things hold true here. First, a driver can appeal the Iowa DOT revocation. If that is their wish, they may seek a temporary stay, or, hold, on the revocation while an appeal is pending. But they must notify the Iowa DOT of that appeal in the prescribed manner within 10 days of notice of revocation. Second, alternatively, they may challenge the revocation without seeking a stay and allow the revocation to go into effect while their appeal is pending. Third, also an alternative, they need not challenge the revocation at all. Instead, they may allow the revocation to go into effect and pursue a criminal defense which is unrelated to the Iowa DOT revocation.


In fact, an Iowa DOT revocation appeal is handled statewide by the Iowa Department of Transportation and Iowa Department of Inspections and Appeals. Following a notice of appeal, an administrative law judge will be assigned in Des Moines—not the county seat in the county of prosecution. Two Iowa DOT compliance officers handle the appeals for the entire state. Burden of proof is on appellant—the driver—to prove that the police officer violated Iowa administrative law when they revoked the driver’s privilege to operate a motor vehicle. In effect, this administrative appeal is Driver vs. Iowa DOT. It is not State of Iowa vs. Driver. Because the burden of proof is on the driver to prove a defect in the administrative process, the driver must prove their DOT case to win. Think of Iowa DOT revocation and criminal prosecution as fraternal twins.


In contrast, the State of Iowa must prove the driver guilty beyond a reasonable doubt to convict, fine, and jail the driver. One can happen without the other but a driver must win both to reinstate their privilege to operate a motor vehicle as if never revoked. The formula goes like this:


A=DOT win

B=OWI win

C=DL REINSTATEMENT


IF A and B, then C.


If A and NOT B, then NOT C

If NOT A and B, then NOT C


There are exceptions to this. For example, someone can refuse to provide a chemical specimen, be administratively revoked for a year or two years, respectively. They might win their DOT hearing but then accept a plea agreement to plead guilty to an OWI. Under some circumstances, they might halve their revocation length. These are exceptions not the rule.


Moreover, any third or subsequent OWI criminal conviction will result in a 6-year revocation upon conviction whereas the longest administrative revocation is two years.


David A. Cmelik Law PLC cautions that this is not legal advice for any one person. It is merely an overview and should only be used as a first step in contacting an Iowa criminal defense and DUI lawyer. In our opinion, someone arrested for Operating While Intoxicated in Iowa should consult an Iowa licensed attorney who practices exclusively in the area of Iowa criminal law, of which Operating While Intoxicated is a violation. Contact us if you are searching for an Iowa DUI lawyer and criminal defense attorney.