OWI Revocation Hearing
In Iowa, when you get your driver’s license, you are giving implied consent to take a chemical test of your blood, breath or urine if you are arrested for OWI. If you exercise your constitutional right to refuse the test, or you take the test and it shows you exceeding the limit for blood alcohol content (BAC), then your license can be revoked administratively before you even go to court on the criminal charges. You have the right to contest this revocation within 10 days after your arrest.
For this reason, it makes sense to hire an attorney within that 10 day period after the OWI arrest so that your attorney can contest that administrative revocation of your driver’s license. Your Des Moines OWI lawyer can represent you on both matters – the criminal charges and the administrative revocation hearing. At McCarthy & Hamrock, P.C., our drunk driving defense attorneys have more than 40 years of experience, and can represent you on these matters — but you only have a limited time, so it’s important to act fast. Call us today at (515) 279-9700 to set up a free consultation.
We represent people on OWI charges and associated administrative hearings across the Des Moines area and the state of Iowa, including in West Des Moines, Johnston, Ankeny, Urbandale and throughout Polk County and Dallas County.
Attorney for License Revocation Hearings in Iowa
Iowa Code section 321J.12(1) empowers the Iowa Department of Transportation (IDOT) to revoke a person’s license for operating while intoxicated. That statute states:
Upon certification, subject to penalty for perjury, by the peace officer that there existed reasonable grounds to believe that the person had been operating a motor vehicle in violation of section 321J.2, that there existed one or more of the necessary conditions for chemical testing described in section 321J.6, subsection 1, and that the person submitted to chemical testing and the test results indicated the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited by section 321J.2, or a combination of alcohol and another drug in violation of section 321J.2, the department shall revoke the person’s driver’s license or nonresident operating privilege….
Iowa Code § 321J.12(1) (emphasis added).
Iowa Code section 321J.13(2), sets forth the grounds for appealing a license revocation. Section 321J.13(2) provides that the review hearing shall be limited to the follwoing issues:
whether a peace officer had reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321J.2A and one or more of the following:
a. Whether the person refused to submit to the test or tests.
b. Whether a test was administered and the test results indicated an alcohol concentration equal to or in excess of the level prohibited under section 321J.2 or 321J.2A.
c. Whether a test was administered and the test results indicated the presence of alcohol, a controlled substance or other drug, or a combination of alcohol and another drug, in violation of section 321J.2.
Iowa Code § 321J.13(2) (emphasis added).
DUI Testing and License Revocation Under Iowa Law
Under state law, Iowa Code 321J.6, if you are operating a motor vehicle in the state of Iowa, you have given consent to a police officer to request a breath, blood or urine test to determine the presence of alcohol and drugs after a valid arrest for OWI.
Under the Fifth Amendment, you generally have a right not to incriminate yourself, meaning you do not have to willingly turn over evidence. When the officer asks you to take the test, you are fully within your rights to say, “No, thank you.”
However, exercising those rights has a cost. Because of implied consent, your license is administratively revoked if you refuse to submit to a test. If your license has never been revoked before, your license is revoked for a year. You will be able to apply for a temporary restricted license 90 days later. If your license has been revoked before, then the revocation period is two years, and you must wait a year before getting a temporary license. With a temporary license, you must have an ignition interlock device installed.
If you fail at test — blow a .08 BAC, or a .02 if you are under 21 — your license will also be revoked, but for a shorter time period. You will lose your license for 180 days for a first offense or a year for a second offense, with an opportunity to apply for a temporary license immediately if you are older than 21,your BAC was below .15 and no accident or injury was involved. If your BAC was above .1, you must have a ignition interlock device installed. If there was an accident or your BAC was above .15, you must wait 30 days to apply for a temporary permit.
License Revocations for an OWI Conviction
Usually the driver’s license revocations are imposed on an administrative basis by the Iowa Department of Transportation (IDOT), under the implied consent laws of this state depending on whether it is alleged that the driver refused to submit to a chemical test or failed the test. In certain cases, however, no IDOT revocation occurred or the criminal defense attorney will be successful in invalidating the administrative suspension before the criminal case was resolved. This can occur for a variety of reasons including:
- the OWI arresting officer failed to offer a test or failed to offer the test in a timely manner;
- an OWI conviction or deferred judgment was obtained with an alcohol concentration lower than the per se level; or
- an administrative revocation was reversed.
In those cases in which no administrative revocation was imposed and the individual is convicted of OWI, the court must order IDOT to revoke a first-time offender’s driver’s license for 180 days. Iowa Code § 321J.4.
Also, Iowa law requires the following motor vehicle operating restrictions on a first-time offender:
- If the breath or blood alcohol concentration (BAC) is .08 or more but not more than .10 then the driver shall be eligible to apply for a temporary restricted license (work permit) immediately upon revocation if a test was obtained, and shall not be required to install an approved ignition interlock device;
- if the BAC is .08 or more but not more than .10 then the driver shall not be eligible to apply for a work permit for at least 30 days after the effective date of the revocation if a test was obtained and an accident resulting in personal injury or property damage occurred. Also, the driver shall be required to install an approved ignition interlock device on all vehicles owned or operated by the defendant.
- if the BAC is more than .10 but less than .15 then the driver shall be eligible to apply for a temporary restricted license immediately upon revocation if a test was obtained, and shall be ordered to install an approved ignition interlock device on all vehicles owned or operated by the defendant.
- If the drivers BAC is more than .10 and the driver was involved in an accident in which property damage or personal injury occurred or whose BAC exceeded .15 shall not be eligible to apply for a temporary restricted license for at least 30 days after the effective date of the revocation if a test was obtained and shall be required to install an ignition interlock device on all vehicles owned or operated by the defendant. Iowa Code § 321J.4(1).
These revocation periods also apply to a person who receives a deferred judgment, except IDOT has the discretion to revoke the defendant’s driver’s license for a period of not less than 30 days nor more than 90 days. Iowa Code § 321J.4(3).
For a second offense, the court must order IDOT to revoke the driver’s license for two years, and a second-time offender is not eligible for a temporary restricted license for one year, provided the defendant installs an ignition interlock device on the defendant’s vehicle. Iowa Code § 321J.4(2),(8).
For a third or subsequent OWI, the driver faces license revocation for six years and the same eligibility restrictions for a temporary restricted license. Iowa Code § 321J.4(4).
Therfore, Iowa Code § 321.12(4) provides for license revocation periods that depend on the number of prior convictions, not on the level of the current offense (unless death or serious bodily injury resulted from the OWI). In OWI cases causing serious bodily injury to another, the court shall order IDOT to revoke the defendant’s driver’s license for one year in addition to any other revocation already imposed. Iowa Code § 321J.4(5). In OWI vehicular homicide cases, a defendant faces a license revocation period of six years, and is not eligible for a temporary restricted license for two years. Iowa Code §§ 321J.4(6), 707.6A(1)(a).
Hearing for Polk County OWI License Revocation
Clearly, the law is written to provide an incentive to submit to a chemical test of your breath, blood or urine after an OWI arrest. However, if you fail the test, you have given strong evidence to the prosecutor to use against you in the criminal case. In many cases, refusing the test significantly weakens the prosecutor’s case.
Rejecting a DUI test also does not necessarily mean you will lose your license. Your Des Moines OWI lawyer may request a hearing, where the revocation can be contested. If you receive an unfavorable ruling at the hearing, you can appeal that decision to request that it be reversed.
You must request a hearing within 10 days of receiving notice of the revocation, so it is important to act fast.
Polk County Attorney for OWI License Revocation
Whether you refused to take the OWI chemical tests of your breath, blood or urine or whether you took it and it showed the presence of alcohol or controlled substances, you can contest the administrative revocation of your license if you act quickly. Contact a Des Moines drunk driving lawyer today to fight the OWI license revocation. At McCarthy & Hamrock, P.C., we can represent you on all matters stemming from an OWI. Call us today at (515) 279-9700 for a free consultation.