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OWI Refusal to Submit to Testing

The Fifth Amendment of the U.S. Constitution gives you the right not to incriminate yourself. In OWI cases, however, the law provides for certain negative consequences if you refuse to submit to a test of your breath, blood or urine after a lawful arrest for OWI. In these cases, the prosecutor is without the most important piece of evidence - the results of the test showing a breath or blood alcohol concentration over the legal limit. Although the prosecutor might assume that the refusal indicated you were conscience of your guilt, other important reasons might exist for an innocent person to refuse invassive testing.

If you are facing OWI charges, an experienced Des Moines drunk driving lawyer from McCarthy & Hamrock, P.C. can represent you in your OWI refusal case. We can challenge any evidence the prosecution brings forward and seek a dismissal if the evidence is insufficient. When the case cannot be resolved through pre-trial motions or negotiations, the attorneys at McCarthy & Hamrock, P.C. will be ready to fight for a not guilty verdict at trial.

We have more than 40 years of combined experience fighting for the rights of our clients. We will put that experience to work for you. Contact us at (515) 279-9700 to set up a free consultation. We represent those facing OWI charges throughout the Des Moines area, including in West Des Moines, Urbandale, Johnston and anywhere in Polk County or Dallas County. We may also represent clients all over Iowa charged with serious criminal traffic offenses such as OWI, reckless driving, driving on a suspended license and fleeing to elude. 


Right to Refuse Iowa OWI Test

In Iowa, it is illegal to drive with a blood alcohol content (BAC) that is .08 or higher for people 21 or older, or .02 or higher for people younger than 21. To determine BAC, police may use one or more of several chemical tests of the breath, blood or urine. Iowa's implied consent statute establishes the basic rule that a driver impliedly agrees to submit to a test to determine alcohol concentration or presence of a controlled substance in exchange for the privilege of driving on roadways of this state. Iowa Code section 321J .6(1) provides:

A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321 J.2A is deemed to have given consent to the withdrawal of specimens of the person's blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs, subject to this section....However, a person retains the right to withdraw his implied consent and refuse the test.

Iowa Code § 321J.9, however, provides that if the person refuses to submit to the chemical testing, then the test shall not be given.

Under Iowa Code section 321J.8, when a peace officer requests a person to submit to chemical testing, the peace officer must advise the person of the consequences of refusing the test in addition to the consequences of failing the test. Section 321J.9 states that “[i]f a person refuses to submit to the chemical testing ... the department ... shall revoke the person's driver's license ....“ Section 321J.16 further provides: If a person refuses to submit to a chemical test, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motor vehicle [under the influence of alcohol."

Section 321J.6(2) provides:

The peace officer shall determine which of the three substances, breath, blood, or urine, shall be tested. Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit, and section 321J.9 applies. A refusal to submit to a chemical test of blood is not deemed a refusal to submit, but in that case, the peace officer shall then determine which one of the other two substances shall be tested and offer the test. If the peace officer fails to offer a test within two hours after the preliminary screening test is administered or refused or the arrest is made, whichever occurs first, a test is not required, and there shall be no revocation under section 321J.9.

Section 321J.16 provides:

If a person refuses to submit to a chemical test, proof of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating a motor vehicle in violation of section 321J.2 or 321J .2A.


Consequences for DUI Test Refusal in Polk County, Iowa

While you have a right to refuse, Iowa law makes it tough on you. When you drive on Iowa roads, you are giving "implied consent" to being tested for BAC. Refusing a test leads to harsher civil penalties and more limited options if convicted.

If you take a test and fail, your license is revoked for 180 days for a first offense, and you may apply for  a temporary restricted license immediately if your BAC was under .15 and there were no injuries involved. However, if you refuse, your license is revoked for a year for a first offense and two years for a subsequent offense. You will not be able to legally drive at all for 90 days, and then you make seek a restricted permit.

Your Des Moines drunk driving lawyer can request a hearing to appeal the revocation.

If you refuse a OWI / DUI test, you will also be ineligible for a deferred judgment, meaning you'll have to fight the conviction. However, this is likely to be much easier to do, without critical evidence against you. People, however, are still convicted without the test results, and people who failed the tests can be acquitted.


OWI Refusal Attorneys in Polk County, IA

Whether you refused the test or whether you took it, if you face OWI charges, an experienced Des Moines DUI lawyer can fight the charges. At McCarthy & Hamrock, P.C., we represent those accused of drunk driving regardless and vigorously fight for them. We can challenge evidence or demand a dismissal. Contact us today at (515) 279-9700 for a free consultation about your drunk driving charges.

Tell Us About Your Case

How would you like to be contacted?

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

* All fields are required.

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