Tailgating & Law Enforcement: What to Know

It’s hard to believe that a quarter of the Hawkeye football regular season is over. As an Iowa City Criminal Defense Attorney, I often get calls from potential clients cited or arrested by law enforcement during or after a Hawkeye tailgate.  With my criminal defense practice in Iowa City, I’ve found that the most common tailgating infractions or criminal charges are open container violations, public intoxication, possession of alcohol under the legal age (“PAULA”), and OWI. These calls have prompted me to offer a few words of wisdom. 

First, if you’re going to tailgate, it makes sense to read and familiarize yourself with the University of Iowa’s tailgating rules and guidelines. These rules can be found here. 

Second, if you are under 21 you run the risk of a PAULA citation if seen by an officer possessing or consuming alcohol.  Officers inevitably fan out and patrol the stadium parking lot, the streets and sidewalks around the stadium, and even private residences near the stadium that are popular places to party.  A PAULA charge can problematic. It’s not worth the risk. If you’re under 21, enjoy the tailgate without alcohol. 

Third, if you are over 21 and consuming alcohol at a tailgate you need to use your head.  Drinking too much can lead to a public intoxication charge, which will likely lead to a trip to the Johnson County Jail.  It is also wise to pay special attention to the City of Iowa City and the University’s policy on where alcohol can be consumed. Again, it makes sense to read the University’s rules and guidelines on tailgating.  Hard liquor is strictly prohibited. Moreover, consumption of beer and wine are only allowed on game day in designated University parking areas during designated hours. Possession of alcohol on a public street or sidewalk is a violation of Iowa City’s open container ordinance. 

Fourth, do not drive home from your tailgate if you have had too much to drink. It takes longer than you would think for your BAC to drop to safe and legal levels for driving after a day of heavy drinking. As an Iowa City and Cedar Rapids OWI attorney, I know that the costs and consequences of an OWI are significant and that it’s best to catch a cab or ride home with a friend when in doubt.  

Go Hawks!

Johnson County Marijuana Diversion Program

As an Iowa City Criminal Defense Attorney, I have found the marijuana diversion program from the Johnson County Attorney’s Office to be an excellent option for clients who qualify, as their case is dismissed upon successful completion of the program.

The Johnson County Attorney’s Office has complete discretion to determine who qualifies for the program, and takes into account factors such as the defendant’s criminal history and the circumstances of the offense. 

If you are charged with possession of marijuana in Iowa City/Johnson County and qualify for the program, the following factors must be completed within 120 days from the date of your arraignment: 

1. You must attend the arraignment hearing IN PERSON. 
2.  At the arraignment you need to complete the application to participate in the diversion    program, sign a diversion agreement, waive your rights to a speedy trial, and resolve any related simple misdemeanor charges. A new arraignment date will be set in roughly 120 days to facilitate your participate in the program. 
3. You need to complete and pay for an approved substance abuse evaluation and any recommended treatment. 
4. You need to provide a clean urinalysis (“UA”) from an approved provider. 
5. You need to pay all court costs associated with the filing and dismissal of the case.
6.   You need to have no new criminal charges while in the diversion program. 
7.  You need to provide proof, in writing, that you have completed all of these requirements to the Johnson County Attorney’s Office by the second arraignment date.   

7    You need to provide proof, in writing, that you have completed all of these requirements to the Johnson County Attorney’s Office by the second arraignment date.   

The Johnson County Attorney’s Office will then review the case after 90 days and if all requirements are met the charge will be dismissed prior to the second arraignment.  

As noted earlier, as someone who practices criminal defense in Iowa City, I’ve found the program to be a wonderful choice for clients as it secures a dismissal without the expense and uncertainty of litigating an Iowa City/Johnson County possession of marijuana charge.

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.