Common DUI Myths

If I fight the charges, I’ll end up worse than pleading guilty right away.

Wrong!  Judges and prosecutors expect a defendant to plead not guilty at the initial stages of a prosecution.  There are a number of preliminary court appearances in a drunk driving case that a defendant must make that are strictly procedural in nature.  These include the Initial Appearance, Preliminary Hearing and Arraignment.  The Arraignment date is what actually starts the official process moving and it cannot happen until after the formal charges have been filed.  In Iowa State court, the prosecutor is required to file the Trial Information which sets out the charges and evidence believed to support the charge.  This must be filed within 45 days of the defendant’s arrest.  If it is not, the charge must be dismissed.  In most cases, a judge will not allow a defendant to plead guilty until after the Arraignment has taken place, even if they want to.

Prosecutors do not just hand out the best possible resolution to a case, especially to an individual that is not represented by a competent attorney. 

It takes a knowledgeable lawyer to review a case and point out factual and legal arguments that would warrant a departure from their “usual recommendations.”  In some prosecutor's minds, they owe no special duty to a defendant that elects to represent themselves, although prosecutor ethical rules would suggest otherwise.  A prosecutor's goal is to resolve a case, not make sure the defendants best interests are served.  An early guilty plea clears their case, what happens to a defendant after that is none of their concern.

More importantly, prosecutors and judges may not punish a defendant more severely simply because he exercised his right to investigate his case.  To do so would be in direct violation of the Iowa and United States Constitutions.  Also, an experienced DUI defense lawyer will always conduct their own independent investigation into a client’s case in a way that minimizes a prosecutor’s involvement.  Most of the time, neither the judge nor the prosecutor will even know the extent of a good defense attorney’s investigation.  The role of a defense lawyer is to thoroughly investigate a case in order to obtain any possible factual or legal argument that would advance their client’s position.  If an issue is discovered then and only then is a decision made to formally “fight” the case.  If no issue or defense is viable, then the alternate route may be taken without the prosecutor or judge knowing any different.  When there are issues, a good defense lawyer will take a “sniper approach” as opposed to a “shotgun approach” and raise only the issues that are supported by the facts and law for each particular case.  Judges actually appreciate having defendant’s represented by well-qualified and experienced attorneys because it makes the process much smoother and their jobs easier.  While prosecutors don’t always appreciate it, it is the judge that matters because ultimately the judge makes the final decision.

I will lose my driving privileges if I refuse to do field sobriety tests or the preliminary breath test at the roadside.

An individual is not required to perform field sobriety tests or a preliminary breath test on the roadside.  Iowa law does not allow for a person’s driver’s license to be disqualified as a result of refusing any of the requested tests out in the “field.”  It is the test request at the station that can have an impact on the person’s driving privilege.  That is the only test request that can affect driving privileges one way or the other.  Officers will often times prey on peoples ignorance of these facts and use verbal judo in an attempt to get a person who was initially unwilling to perform fields to ultimately consent to the testing.  While the person may be arrested if they do not perform those tests, the officer already has in his mind that the person will be arrested whether they take the tests or refuse.  That is precisely why he is requesting that the person take the field sobriety tests.  For more information on Your Rights, click here.

I wasn’t read my rights, the case should be dismissed.

A police officer is required to read a suspect their “rights”, commonly referred to as Miranda Warning (“you have the right to remain silent anything you say can and will be used against you in a court of law.  You have the right to a lawyer and to have him present during any questioning.  If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning, if you wish.  You can decide at any time to exercise these rights at any time and chose not to answer any questions or make any statements.”) after they have taken the person into custody and want to ask them questions that may result in an incriminating response.  In the event that the officer fails to give a person their Miranda warnings, the entire case does not get dismissed.  Rather only the incriminating statements that the person makes to the police and any evidence obtained as a result of those statements would be declared inadmissible at the trial.  If the defendant ends up testifying contrary to the statement and evidence that was suppressed however, the prosecution may use that evidence to “impeach” or discredit the defendant.

I have the right to wait 2 hours before taking the test.

A person suspected of driving while intoxicated does not have the absolute right to wait two (2) hours before deciding whether or not to take the chemical test.  A police officer must request that the person submit to chemical testing within at least two (2) hours after the person has been arrested or failed or refused the preliminary breath test, whichever occurred first.  The person does however, have an absolute right to contact, consult and/or see an attorney, family member, or both.  In situations where the arrested person is making a good faith attempt to contact and consult with an attorney or family member, the officer may not interfere with that consultation.  However, he may require that the arrested person make a decision regarding chemical testing within his “two hour window” to request the test.  All in all, a person has the right to a reasonable opportunity to consult with an attorney or family member but that may not interfere with the officer’s time within which to request the test.  If the person is not making a good faith effort to communicate with an attorney or family member, then the officer may require a decision much sooner.

I have the right to choose what type of test I’m given.

The police officer actually gets to choose which type of test is administered to someone arrested for operating while intoxicated.  He may choose blood, breath or urine.  A person has the absolute right to refuse to give blood in normal OWI investigations without their driving privileges being disqualified as a result.  In these situations, the officer must then follow up with a request for breath or urine.  A person does however, have the absolute right to an independent test of their choosing if they first take the police officer’s test.  The person must make the request for an independent test and be willing to pay for it at their own expense.

If I’m not caught driving I can’t be charged with an OWI (Iowa's Drunk Driving - DUI - Laws).

An operating while intoxicated charge can be proven by both direct and indirect evidence.  This means that the police do not actually have to catch the person behind the wheel of the vehicle in order to charge then with drunk driving.  If the person appears in an intoxicated condition when the police come into contact with them, admits to driving earlier and claims not to have consumed any alcohol since driving, that person may be charged with operating while intoxicated because they admit to driving and being in a similar condition at the time they drove the vehicle.  A person’s own admissions can often times be the State’s best piece of evidence.