Johnson County Courthouse

Johnson County Courthouse
Johnson County Courthouse

Monday, February 18, 2013

Pending Legislation in Iowa to Expunge Dismissed Criminal Charges

I support, and will follow the progress of, Senate File 148. Senate File 148, which is pending before the Iowa State Legislature, would expunge criminal charges that were dismissed or where the defendant was acquitted at trial. The bill only applies to dismissals or acquittals of criminal charges for alleged offenses committed on or after July 1, 2013. 

This pending legislation is much needed. At present, while many deferred judgments and convictions for PAULA and Public Intoxication can be expunged, dismissals and acquittals cannot be expunged.  This leaves the unfair scenario where an innocent defendant, who was acquitted at trial or had their charge(s) dismissed, must be burdened by the public’s knowledge of, and access to, their court file. On the other hand, a defendant who is guilty and convicted of public intoxication or PAULA, or who is guilty of another offense and receives a deferred judgment, can get their case expunged and avoid some of the legal baggage that an innocent defendant whose case was dismissed or who was acquitted must carry. 

Hopefully this bill will rectify this unjust scenario. I encourage readers of this blog to contact their state legislator and voice their support for Senate File 148.  

Sunday, February 10, 2013

Public Intoxication Charges in Iowa

As my practice is located in Iowa City, I deal with a lot of Public Intoxication cases. The combination of a large public university, a downtown with numerous bars, and 6 to 7 home football weekends a year really creates a lot of public intoxication cases on the docket in Johnson County.  Many defendants, often University of Iowa students, don’t grasp the long-term consequences of a public intoxication conviction until years later when applying for jobs. This is why individuals with a public intoxication charge should consult with an experienced criminal defense attorney as soon as possible. 

The two elements of the crime of public intoxication in Iowa, found in Iowa Code 123.46, that the State must prove beyond a reasonable doubt at trial are: 1.) the person was, or simulated, intoxication; and 2.) the person was in a public place.  The penalties for public intoxication in Iowa depend on how many prior public intoxication convictions a defendant has.

  •    First Offense: Simple misdemeanor. Maximum jail sentence of up to 30 days, fine between $65 and $625.

  • Second Offense: Serious misdemeanor. Maximum jail sentence of up to a year in jail and fine between $315 and $1,875. 

  • Third of Subsequent Offense: Aggravated misdemeanor. Maximum jail sentence of up to two years, and fine of between $625 and $6,250. 

An individual who has been arrested for public intoxication must be advised of their right to a chemical test by law enforcement.  The result of this test, if it is taken within two hours of the arrest, is presumed to be the individual’s blood alcohol content at the time of arrest.  The decision of whether to submit to this chemical test is one that should, if possible, be done following the advice of a criminal defense attorney.  

Under Iowa caselaw, the officer cannot order you into “public” and then arrest you for public intoxication. Iowa law requires that the public intoxication suspect voluntarily put themselves in a public place. 

Other than possession of alcohol under the legal age (PAULA) convictions and deferred judgments, public intoxication convictions are the only other type of criminal offense/outcome that can be expunged from an individual’s criminal record. In order for a public intoxication conviction to be expunged, an individual must go two years after the conviction without any other criminal convictions other than traffic infractions.  If this occurs, an individual may petition the court to expunge the public intoxication conviction.

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