DUI, DWI, and OWI…What’s the Difference?

Drinking and driving goes by many names.   DUI, or Driving Under the Influence. Or you can call it DWI, Driving While Intoxicated.  Some call it OWI, meaning Operating While Intoxicated.  Or even OMVI, short for Operating a Motor Vehicle while Intoxicated. People call  my office telling me that they need help with a DUI…or a DWI, or a host of other acronyms for drunken driving offenses. While Iowa’s acronym is actually “OWI” for “Operating While Intoxicated,” I get the picture. But what exactly does an OWI in Iowa mean?

In Iowa, there are two elements that make up the offense of OWI: you have to be operating a vehicle and you have to be under the influence of alcohol and/or drugs.

1. Operation.  Iowa defines operation as being in actual physical control of a motor vehicle that is in motion or has the engine running.
2. Under the Influence.  The State can establish that you are under the influence using officers’ observations of a you and your performance on a series of field sobriety tests, or other indicators.  Or, more familiarly, there is a “per se violation; ” which mean that you provide a test result above .08 or indicating the presence of a controlled substance.

So what’s the difference? In Iowa, no matter what you call it, OWI or DUI, DWI or OMVI, Drinking and Driving or just plain bad luck, it’s a violation of the Code of Iowa Chapter 321J.2.

Other states use other acronyms. Iowa’s use of “Operating” gives you a clue to the fact that our legislature has criminalized merely operating a car as opposed to driving one, though it’s impossible to make any assumptions about a state’s laws based on their acronyms. As an attorney licensed to practice in Iowa I can give you a very clear picture of what the Iowa legislature has chosen to criminalize with regards to DUI/OWI, but if you have a question about any other state’s drinking and driving laws, or you or someone you know needs an OWI/DUI lawyer outside the state of Iowa , you can contact the National College for DUI Defense Website to find a competent OWI/DUI attorney in that state.  If you or someone you know has been charged with OWI in Iowa contact me today for a free intial consultation.

It’s my first OWI and I took a breath test – so why are they taking my license for a year?

Under most circumstances when someone is arrested for a first offense OWI and agrees to take a breath test, they are given notice that they’ll lose their license for six months.  But when that person has an .02 violation on their driving record, the Iowa Department of Transportation considers you a second offense for licensing purposes.  In this post I want to address some of the questions that the .02 violation creates for drivers and OWI/DUI Defendants.

Let’s say you are driving through Iowa City or Coralville trying your best to dodge the traffic after a Hawkeye basketball game, and you have an unfortunate run in with a Johnson Count Sheriff’s Deputy.  You are asked to give a breath test and the deputy revokes your license (or non-resident operating privileges) for a predetermined time period specified by the Iowa DOT.  In Iowa, a person charged with drunk driving faces the following consequences:

If you provide a specimen of breath:
• 1st offense 180 days
• 2nd offense 1 year
• 2nd or subsequent 1 year

If you refuse to provide a specimen of breath
• 1st offense 1 year
• 2nd offense 2 years
• 2nd or subsequent 2 years

But occasionally I meet with people who have not previously been charged with operating while intoxicated, however, the DOT is still treating their test as a second offense. They usually don’t understand why they are subject to a harsher penalty.The culprit is usually a “zero tolerance” or “.02 violation” on their driving record.

The .02 violation adopted by the Iowa Legislature is aimed at individuals under the age of 21 who operate a motor vehicle and are stopped by the police and take a breath test with a result that ranges from .02 to .08. Prosecutors offices rarely file an OWI or DUI charge in connection with the incident, so there is no criminal offense. However, the Iowa DOT can take a person’s license for a period of 60 days. For the next twelve years the “.02” violation subjects the driver to an enhancement if another test failure or refusal occurs.

In short the laws under Iowa Code 321J encompass “.02” violations. This law can have dire consequences on a person license. An example from my practice was of a young man received an .02 violation at the age of 17. Eleven years later he received a revocation for operating while intoxicated. His youthful indiscretion from eleven years earlier coupled with the revocation for operating while intoxicated resulted in a year long loss of license. To make matters worse the defendant was not eligible for a work permit under current Iowa Law. The young man faced termination from his employment as a drivers license or work permit was mandatory.

If you find yourself charged with operating while intoxicated and have had a prior “.02” violation it is important to seek legal representation. A thorough analysis of a defendant’s case can yield suppression issues.  If a breath test is suppressed it is possible that the DOT will only revoke your license for 90 days with a permit available for at least a portion of that time.

No one operating while intoxicated case is the same. It is important to seek a competent defense lawyer who understand the criminal and drivers license administrative issues. J. Dean Keegan and Thomas D. Farnsworth offer free consultations to inform the accused of potential issues in their case. This blog is not intended as legal advice. If you find yourself in a similar situation to the blog article above please contact attorney Thomas D. Farnsworth or J. Dean Keegan for a free consultation.

Drunk Driving in the News Today…

Hardly a day goes by when Drinking and Driving doesn’t make the news somewhere.  Here’s a small smattering of  current news stories from across the county addressing the issue of drinking and driving.

Amish man in Pennsylvania arrested for DUI in his horse-drawn buggy.

Transportation Secretary reports drop in OWI/DUI deaths nationwide.

North Dakota news station discusses the “real” cost of an OWI/DUI.

Should I take a breath test?

The most common question asked of lawyers who do Operating While Intoxicated (OWI) or Driving While Intoxicated (DWI or DUI) work is: “Should I take a breath test if I’m accused of OWI, DWI or DUI?” Unfortunately, there is no uniform answer for this question. There are several factors that determine the best course of action.

The first question that you should consider is whether this is a first, second or third or subsequent offense. In the first offense scenario, there are times when it makes sense to take a test.

As a general rule, if you know you will pass a Datamaster breath test, you should take it. If you blow under the legal limit, you will not lose your drivers license unless you plead guilty or are found guilty of OWI. While a prosecutor can still try to prove you guilty of Operating While Under The Influence of Alcohol, they will have a difficult time proving you guilty if you have consented to and passed a breath test.

Another factor to consider is how important a temporary restricted license (work permit or school permit) is to you. On a first offense OWI a person who refuses a breath tests loses their drivers license for one year and is ineligible for a work permit or school permit for 90 days. If you take the test and fail there is a 180 day loss of license. If the person blows between .08 and .10 they are eligible for a temporary restricted license (work permit or school permit) immediately upon loss of driver’s license and they do NOT need to install an interlock in their vehicle. If the test result is between .10 and .15 the person is eligible for a temporary restricted license (work permit or school permit) immediately upon loss of drivers license and they do need to install an interlock in their vehicle. If the test result is above .15 a person must wait 30 days to get a work permit or school permit and must have an interlock installed.

A tricky situation arises when a driver has a driver’s license from a state other than Iowa. The advice concerning whether to take or refuse a test differs depending upon the state that issued the license. It is always wise to seek advice from an attorney who is licensed in the state that issued the drivers license and is knowledgeable on the OWI, DWI, or DUI laws of that state.

Another consideration is whether a person wants a deferred judgment. A person is ineligible for a deferred judgment if the refuse a breath test or if they blow above .15. With that said, some people are ineligible for a deferred judgment in any event. For example, if a person has a prior felony conviction or has two prior deferred judgments, they can not receive a deferred judgment. Additionally, a deferred judgment can not be granted when the driver was involved a personal injury accident.

The bottom line is there is no simple yes or no answer for whether a person should consent or refuse a breath test. It depends on each individual’s unique situation. While this entry dealt with first offense situation, it does not speak to all possible scenarios. It is no substitute for legal advice. I offer a free initial consultation for all criminal and driver’s license matters and would be happy to answer your questions.

The Margin of Error for the Datamaster Breath Testing Machine

Imagine you are enjoying a pleasant evening on the pedestrian mall in downtown Iowa City. As the evening comes to a close, you feel fine and begin to drive home. After driving a few blocks a member of the Iowa City Police Department activates his lights and pulls you over for having a license plate light out. Fast forward now to you sitting at the Iowa City police station. The officer requests a breath test and you consent. After blowing in the machine a small piece of paper which resembles a cash register receipt prints out the result. So, how accurate is the result?

The answer is it depends on who you ask. The prosecution will produce a certification from the Department of Criminal Investigation (DCI) laboratory that professes a “margin of error” for the datamaster as being “.004 or plus or minus 5%, whichever is greater.” Thus, it would appear at first blush that the datamaster is extremely accurate. On closer examination, this “margin of error” would be better described as the “margin of illusion.”

The DCI lab created this margin of error formula without a working definition of margin of error. It essentially is a measure of how precise the datamaster can measure in a laboratory setting with strict controls using a simulator device instead of human breath.

In the scenario where you are sitting in the Iowa City police station being tested, the datamaster is of course not concerned with accuracy of simulators, it matters instead as to how accurate it is in measuring alcohol in human breath. The National Safety Council, for examples, states that when testing for human breath alcohol content, two tests should be taken from the same subject within two to ten minutes of each other. In that test scenario, the breath test should result should be within .02 of each other and the lesser result should be used. Thus that .087 breath test result could easily render a .067 result two minutes later if a duplicate test was administered.

Indeed, if the DCI lab was involved in a study in which human breath and blood where drawn contemporaneously from the same subjects. In many instances the breath registered at least .01 greater than the blood.

So, whats the margin or error for the datamaster when testing for human breath? The one thing that is certain is that it is NOT “.004 or plus or minus 5%, whichever is greater.”