Professor John Neff's Blog on the Johnson County Criminal Justice System Has Moved

Professor Neff's blog on the Johnson County criminal justice system has moved. It can now be found here.

Will Iowa’s OWI BAC limit be reduced to .05?

On Tuesday, the National Transportation and Safety Board decided to push states to reduce the Driving Under the Influence legal limit from .08 to .05, as can be seen in today Gazette. Such a move could obviously significantly increase the number of OWI arrests and prosecutions. In future posts I will track attempts to implement this recommendation, including any proposed changes in the OWI limits here in Iowa.

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.  

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.

Interesting Blog on Johnson County Criminal Justice System

Interesting New Blog on the Johnson County, Iowa Criminal Justice System

Here’s an interesting new blog that focuses on the criminal justice system here in Johnson County, Iowa where I live and work. http://www.jco-justice.com/  It is written by former University of Iowa Professor John Neff who lives here in Iowa City.  What I find so useful and interesting about the blog is that it attempts to analyze many of the big criminal justice issues/questions, such as the role of race play in recidivism, but on a local level.  

Deferred Judgments in Iowa

Deferred Judgments in Iowa: A Potentially Favorable Alternative

A deferred judgment is sometimes an excellent option in cases where the State has a strong case and the defendant has concerns about the lasting impact of a conviction on their criminal record. 

In essence, a deferred judgment in Iowa is a legal process where a defendant pleads guilty to a crime, but the judge “defers” imposition of any sentence. If the defendant successfully completes a probationary period (i.e. they pay their fines and court costs, do all recommended treatment, have no new offenses, etc.), then they will avoid a permanent conviction on their record. Thanks to a relatively recent bill passed in 2012, their record will also be expunged.  This can be especially important to college students applying for grad/professional school or for jobs after graduation. 

Deferred judgments are not available in every case, as a defendant can only receive two deferred judgments in their lifetime. Moreover, Iowa Code 907.3(1) also lists numerous additional prohibitions on defendants receiving deferred judgments.  For instance, deferred judgments are not available if the defendant has previously been convicted of a felony in Iowa or any other state, if the defendant committed an assault on a police officer, or if the defendant is charged with domestic assault and has previously been granted a deferred judgment or sentence for domestic assault. 

In Iowa OWI cases, deferred judgments are not available if the blood alcohol concentration was above .150, if the defendant has a previous conviction or deferred judgment for OWI, if the defendant refuses to consent to a test required by the Iowa implied consent statute , or if a bodily injury occurred to someone other than the defendant. 

The decision about whether to pursue a deferred judgment is one that should be made with the consultation of an attorney.