1. DUI and OWI Defined
- DUI – Driving Under the Influence
- OWI – Operating While Intoxicated
The difference between OWI and DUI is whether or not there is a chemical test result regarding drugs or alcohol (or both). No test = DUI. With no test, the state has to prove influence, that you were affected by alcohol, drugs or both in any of the following ways:
- Loss of motor function (balance etc)
- Driving is impaired (bad driving)
- Emotions excited
- Impaired decision making
When there is a test result the question is whether or not the result (either by breath, urine or blood) shows alcohol in excess of .08g/210L, which we call the Blood Alcohol Concentration (BAC). The BAC as determined by the Datamaster/DMT machine at the station is admissible in court and is also used by the Department of Transportation (DOT). With drugs the mere presence of a detectable amount of a controlled substance may be enough to charge you with an OWI.
Cases where there is no test (DUI) can result from a defendant exercising their right not to give a test (refusal; a refusal case), from a test being inadmissible for error, or due to a test being ‘thrown out’ by the judge and excluded from the case. The decision whether or not to consent to a law enforcement request for a body specimen (breath, urine or blood) is important and can have an impact on driving privileges and on available options in resolving the case (ex: refusal bars the defendant from receiving a Deferred Judgment).
2. Drugs Vs Alcohol
Drugs, including prescription drugs, manifest themselves in the human body in different ways, and in ways different than alcohol does. Therefore, detection of “drugged driving” are different than the detection for “drunk driving.” Also, breath test (ex: being asked to blow in the machine on the scene or at the station) does not detect drugs in the system. Drugged driving may lead to a different set of tests than you are used to hearing about (Drug Recognition Examination = DRE), versus the Standardized Field Sobriety Testing (SFST). The latter, SFTSs, include the eye test (HGN – the ‘follow my finger’ test), the walk the line test (Walk and Turn), and the One Leg Stand. The Officer(s) may also offer a test for alcohol called the Preliminary Breath Test (PBT) at the scene, the result of which they do not have to tell you and which is inadmissible in court. But like an OWI involving a breath/urine/blood specimen regarding an alcohol concentration, driving while drugged cases may or may not involve a breath/urine/blood specimen test result (either alcohol or drugs can lead to an OWI or a DUI).
3. Immediate Effects
Most people draw a direct connection between a drunk driving case and losing their driver’s license, and they are right. However, the correlation between the criminal case and the ability to drive is a common area of confusion, as the judge in the courthouse and the County Attorney (prosecutor) do not have anything to do with your driver’s license in the vast majority of OWI cases. Instead, the Department of Transportation (DOT) oversees driving privileges (driving is a privilege and not a right) and the hearing on an appeal of a DOT action (our objection to the DOT taking your license away) is heard by an Administrative Law Judge (ALJ) in Ankeny over-the-phone within ninety-days of the arrest. The driving privileges side of the case happens much more quickly than the criminal side of the case. If your driver’s license is from a state other than Iowa your license revocation may affect your driving privileges differently than an Iowa driver who is charged with an OWI/DUI.
The options for resolution of an OWI cases vary greatly depending on the facts of the case. The reason you were pulled over, the results of the testing, whether or not there are results, how you appear on the video recordings, whether or not there are video recordings, and a great number or other legal technicalities drive the great number of different possibilities in Driving Undernd jail terms, though in some cases the jail time can be avoided, depending on facts and on criminal history, despite the minimum jail term.
The procedural aspect of an OWI case, the hearings, can be summarized as follows:
- Initial Appearance
- Preliminary Hearing
- Pretrial Motion Hearing (if filed by Defense Counsel)
5. Long Term
The long term, big picture concerns include your criminal record, driving record, work permit/reinstatement, and what employers will think. These considerations are important aspects of crafting the individual approach and resolution achieved in each individual case. These questions are best addressed on a case-by-case basis as these questions are too important to generally cover with a blanket statement.
Thomas J. Viner is an attorney and owner of Viner Law Firm PC, www.cedarrapidslaw.com, in Cedar Rapids, IA. Tom has over eight years’ experience as an attorney who handles OWI and DUI as well as many other types of civil and criminal cases.