Iowa Criminal Defense Legal Questions

Your husband needs to contact a local attorney immediately.  If he cannot afford one, an attorney can be appointed to represent him.  He can face going back to prison, so he does need to talk to an attorney who can review his case.  Without a review of the case and discussion with the county attorney, no lawyer should tell you what to expect.... Read More

You didn't state what type of criminal case you had and whether there were any contact restrictions between you two.  If there are restrictions, this would obviously affect whether you can marry or not. Unless you are subject to a no-contact order or prohibited under your probation or parole orders from seeing each other, there should be no restrictions on marriage.  However, I advise contacting your probation officer to verify.  Additionally, probation requires permission for moving (I'm assuming one of you will be moving), so you probably need written permission from your probation officer.  ... Read More

Although this question appears in the Iowa topic list, the question may be more properly answered by an attorney from the State of Georgia.  I am assuming that the defendant was convicted in Georgia, served time in Georgia, and now has a warrant from Georgia.  The question writer needs to contact a Georgia attorney to resolve the issue.  If a warrant has been issued, then the person is subject to arrest at any time in Iowa, and if Georgia refuses to extradite, then the legal issue will not be resolved, with the person continuing to be arrested in Iowa and eventually released after Georgia refuses to pick up the person.  If Georgia does extradite, then the person will be returned to face Georgian justice.  Either way, a Georgian attorney would be the appropriate assistance to resolve the issue. Often probation issues can be resolved by a local attorney.... Read More

Knock and announce is constitutionally required in the absence of some exigency.  Failure to knock and announce may in some circumstances, lead to the exclusion of evidence obtained. No knock entries, require reasonable suspicion that knocking and announcing police presence would be dangerous, futile, or would inhibit the investigation such as destroying evidence.  Knock and announce also does not apply to vacant or abandoned buildings.  No knock does not necessarily apply to any particular type of cases, but only reasonable suspicion that announcing the police presence could be dangerous, futile or inhibiting.... Read More

Search warrants can be issued by a magistrate in one county for a search in another county in Iowa. It is unusual for this to happen, but the magistrates and judges have statewide authority in Iowa. This can often happen with an investigation that starts in one county and crosses county lines during the investigation.  However, it may be improper if the police officer is judge shopping and crosses the county line to get a warrant or is refused a warrant in one county and goes to another county.  I would suggest contacting an attorney to resolve the issue and see if there is a problem with the warrant.... Read More

You need to contact a local attorney to assist you in this matter.  In this case, the issue could be many different issues, but a good attorney should be able to sort out the issues. The statement could be utilized in other ways, but depending upon the court's ruling, if it was not found credible, it is hard to understand how it could be effectively utilized in the court system later. It is not impossible though, depending upon why it was utilized to begin with and how it was determined to be not credible.... Read More

Possession does not necessarily mean ownership.  Possession is knowingly controlling an object.  If the felon knew of the weapon and could control the weapon then he/she may have possession, even if the weapon was the roommates' weapon.  This would be very fact specific in this case. I would suggest contacting an attorney to review the case and the search warrant.  If the police were looking for weapons, why search the computer?  Either the police exceeded the scope of the warrant, or the warrant may have been excessively broad.  ... Read More

Punishment assumes that you either plead guilty or are found guilty in a trial.  You have the right to make the State prove its case beyond a reasonable doubt.  I would suggest contacting an attorney who can discuss the various options, including a possible deferred judgment which would place you on probation and if you successfully complete probation, dismiss the charge. If you cannot afford an attorney, one could be appointed for you by the court. Sentencing involves many factors.  I have a discussion of sentencing on my website www.robertpetersonlaw.com .  Additionally, I have a link to a sentencing grid for most offenses on my website. If you were charged with assault causing injury under Iowa Code section 708.2(2), this is a serious misdemeanor in Iowa.  Prison/Jail varies from a maximum of one year to a minimum of 0 days in jail.  Fines vary from $1875 to $315, with a 35% surcharge on the fine, Restitution for the victim's injuries will probably be ordered, as will court costs and attorney fees if you have a court appointed attorney. The court may also order a course designed to prevent violence in the future.  The judge has discretion to order sentencing within the above ranges, and the sentence will depend upon the circumstances and recommendations of the county attorney.  I would highly suggest obtaining an attorney immediately.... Read More

I would always advise contacting an attorney before admitting to anything. Even though contraband is not on your person, it is possible to be charged with possession if the contraband is in your constructive possession and you knowingly and intelligently had "possession". In this case, I would recommend talking to an attorney to discuss the case with the local county attorney.  Perhaps a deal can be made that would not affect your enlistment.... Read More

In most cases in Iowa, an attorney can appear for the defendant in a misdemeanor case.  In addition, most misdemeanor cases, if admitting guilt, can be handled through written pleas and sentencing.  Some judges in some judicial districts, however, require the presence of the defendant for sentencing. In many orders, the defendant and his/her attorney are required to appear at court hearings. So, it depends upon local custom and orders, but criminal procedures do not normally require the presence of the defendant in misdemeanor cases.  In all felony cases, the defendant must personally appear. It is advisable to contact a local attorney to obtain advice on local rules and procedures. As for probation, a commission of any crime can violate probation.  I would advise contacting your probation officer to determine whether or not he/she would consider the offense as violating probation and what the officer is considering as a result.... Read More

If a felony is plea bargained down to a misdemeanor and a person pleads to the misdemeanor, the defendant would have a misdemeanor conviction on his record. However, it would be advisable to obtain a copy of your conviction from the local court where the conviction occurred to ensure that the conviction was as the defendant believed.  As an alternative, you can contact your previous attorney to obtain a copy.  In many jurisdictions, such as Iowa, the filings are online.  In Iowa, you can obtain a list of filings in your case at the Iowa Judicial website, www.iowacourts.gov .... Read More

When a juvenile commits a crime that would involve restitution, restitution should be ordered as part of the informal or formal juvenile process.  I would suggest contacting the local juvenile court officer to determine the status of the restitution.  Additionally, the county attorney's office has someone designated as Victim Assistance.  You can contact the local county attorney's office as your representative to obtain restitution. As for insurance compensation, you would need to contact your insurance company which would contact the parent's policy to seek restitution.... Read More

Attorney-Client Privilege is discussed in the Rules of Professional Conduct 32:1.6.  Specifically, the rule states: (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer believes is reasonably necessary : (1) to prevent reasonably certain death or substantial bodily harm... As an officer of the court (and a citizen), an attorney cannot allow an innocent party to be killed or seriously harmed. Attorney-Client privilege pertains to confidential representation conversations or actions between the attorney and client.  In this case described, there are no confidential discussions between the attorney and client.  He merely overhead a conversation.  There may be no confidentiality even involved in this case.  However, to be sure, the attorney may not be able to discuss details of the conversation until ordered by the court. A court order may need to be sought to disclose the details.  However, certain elements may still remain confidential if covered by attorney-client privilege.  The attorney in this case, as in the gun case above, should notify law enforcement without disclosing details. Failure to disclose could lead to murder charges against the attorney. ... Read More

I would always suggest contacting an attorney when you are considering a lawsuit, but especially with these types of offenses. To sue a local police department, is not an easy task, and would normally involve some extensive investigation into police training and previous incidents-- thus extensive discovery. An attorney can explain your options and talk to you about the strength of your case.  Just because you were wrongfully accused does not mean that you can win a lawsuit. Elements such as negligence or purpose might be involved in your case. False statements may or may not be protected depending upon whether the person knew they were false, or not.  This would be a case where and attorney would need to discuss technical elements to determine whether or not you even have a case. On the other hand, you can always file a lawsuit without an attorney.  I hope that you will realize though that even supposedly simple cases can have difficult issues that need to have the law reviewed, and an attorney can assist you in that action.  Realize also that you may have time limitations upcoming for your potential lawsuit and may end up being time barred if you fail to meet statutes of limitations.... Read More

Law Enforcement with a search warrant can search whether or not the residents are home. The more important question is if no one is at home, how did the police determine who to charge with a crime.  You need to contact an attorney to determine if the search results can be suppressed and whether your rights were violated in any way.  ... Read More

DUI (Driving under the Influence) is called OWI (Operating While Intoxicated) and is covered under Iowa Code Section 321J.2 http://search.legis.state.ia.us/nxt/gateway.dll/ic?f=templates&fn=default.htm I have an extensive section under my website www.robertpetersonlaw.com covering OWI and OWI defenses. In Iowa, the code provides the following elements for OWI if a person is operating a motor vehicle under any 3 conditions: a. While under the influence of an alcoholic beverage or other drug or a combination of such substances (note that there is not a concentration level mentioned) b. While having an alcohol concentration of .08 or more c. While any amount of a controlled substance is present in the person, as measured in the person's blood or urine. Motor Vehicle is defined in the code as any self-propelled vehicle not on rails.  Thus OWI would include snow mobiles, 4 wheelers, scooters, and could include motorized wheelchairs.  Case law allows conviction even if on private property, and would include any situation where the individual is "operating" the vehicle, including operating the radio, or has control over the vehicle.  Intent to drive is not an element of the offense. Keys don't necessarily need to be in the ignition, but some operation of the vehicle would need to be shown.  Realize that police can always arrest, but you may not meet the elements of the crime and may need an attorney to assist you in your case. If you have any question, contact a local attorney to assist you in your case.... Read More

Anytime that you are arrested on a new offense, you are subject to sentencing on the new offense.  In addition, if you are already on probation, you are subject to having your probation revoked and serving the suspended sentence on your previous sentence. Possession of Marijuana 3rd offense is an aggravated misdemeanor and your are subject to the penalties on this charge.  I've included a sentencing grid on my website http://www.robertpetersonlaw.com/Criminal%20Law%20Issues/Sentencing%20Grid%20for%20Crimes.aspx .  The sentence for marijuana 3rd offense  is 48 hours minimum sentence to 2 years prison, $625- $6250 fine, 35% surcharge on fine, $10 DARE surcharge, $125 Law Enforcement Surcharge, 180 day license revocation, and loss of federal benefits.  The conviction can also have immigration consequences.  This would be in addition to having your probation revoked in the previous case.... Read More

Stop light and speed traffic cameras are allegedly devices to help police high accident locations, but this is debatable.  The cameras are controlled by the cities, not the state, and are a civil not criminal action.  Since these cameras are a civil action authorized by city ordinance, you do not have the constitutional protections for criminal actions. You can pay the penalty or you are entitled to administrative hearings (not criminal court hearings) if you want to appeal the civil penalty. As the cameras are controlled by city ordinances, you will need to review city ordinances and procedures for fighting the ticket. Cedar Rapids municipal code can be found at http://library.municode.com/index.aspx?clientId=16256&stateId=15&stateName=Iowa Cedar Rapids ordinance 61.138 Automated Traffic Enforcement covers the cameras and the procedure for appealing the ticket. Iowa Code section 364.22 covers the procedures that a city can utilize to collect on the fine.  http://search.legis.state.ia.us/nxt/gateway.dll/ic?f=templates&fn=default.htm  Iowa Code authorizes the city to utilize court action to collect as in small claim actions and obtain a judgment.  The Code also authorizes the county to place a lien on property. You must protest the violation according to the city ordinance procedures and within the time frame authorized.  ... Read More

Penalties for most of Iowa drug laws are covered in Iowa Code Section 124.401.  The Iowa Code can be located at the Iowa State Legislature website http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=IowaCode or http://www.legis.state.ia.us/IowaLaw.html .I've included a sentencing grid on my website at www.robertpetersonlaw.com (look under criminal defense section on the left side). In addition, paraphernalia can be a state violation or a city violation depending upon how the ticket is written.  Often the drug charge is a state charge and paraphernalia is a city charge, so the penalty for city charges must be researched through city ordinances. Drug offenses are enhanced depending upon the amount of the substance, whether the possession was for delivery, manufacturing, or counterfeit substances, prior convictions, and whether the marijuana involves flunitrazepam. The penalty for  a small amount of marijuana 1st offense is listed in Iowa Code section 124.401(5).  Possession of a small amount not for delivery or manufacture and not enhanced is a serious misdemeanor.  The maximum punishment is 6 months in jail and the minimum is 48 hours in jail (unless suspended or deferred).  The fine varies from $0 to $1000.  Any fine has a 35% surcharge, a $10 DARE surcharge, and a $125 law enforcement surcharge.  The Driver's License is also revoked for 180 days, and federal benefits can be denied. The individual is often placed on a probation period and must complete substance abuse counseling treatment. As with any criminal offense, the individual should seek local legal counsel.  If there are no previous offenses and the individual is eligible, a first offense for marijuana is often deferred with judgment deferred until the completion of probation (often with charges dismissed).    ... Read More

Assault is defined in Iowa Code Section 708.1 (2011).  Assault is defined as: 1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act. 2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. 3.  Intentionally points a firearm toward another, or displays in a threatening manner any dangerous weapon toward another. The code also indicates that an assault may not be involved if the participants in sports, social or other activities (not criminal) and the act is reasonably foreseeable in such sport or activity.  Also the code states that a school employee breaking up a fight or struggle does not conduct an assault. For the full code view http://www.legis.state.ia.us/IowaLaw.html Basically it is an assault to intentionally touch another person in an insulting or offensive way.... Read More

The codes refer to sections in the Iowa Code.  Chapter 692A deals with Sex Offender Registry. 692A.103 lists which offenders are required to register. 692A.104 lists the registration process 692A.111 refers to the penalties for failure to register. The Iowa Code is available at http://search.legis.state.ia.us/IowaLaw.html  ... Read More

I would suggest contacting an attorney immediately.  The question is not whether the marijuana was yours or your friend's, but whether you "knowingly or intentionally" possessed a controlled substance without a prescription.  Iowa Code section 124.401(5) (2011) covers possession of a controlled substance.  If you knowingly or intentionally had the marijuana in your possession (which includes constructive possession). You can be charged and convicted.... Read More

When a defendant cannot afford a lawyer, one will be appointed to represent him or her at no charge. In most places, this will be a public defender. However, the public defender may have a conflict of interest, particularly in cases with more than one defendant. Generally, a lawyer represents only one client in a case. Courts have differing procedures for the appointment of counsel in cases in which the Public or Community Defender's office has a conflict or otherwise cannot accept the appointment. Many courts maintain a list of attorneys who are qualified and willing to accept such appointments. These lawyers are paid at very reduced rates. Almost always, the court, not the defendant, makes the decision as to which lawyer will be appointed to represent him or her. It is unusual, but not unheard of, for a a court to allow a defendant to choose his counsel in a court-appointment situation, particularly if the attorney is already on the court-appointed list and has been representing the client for a long time. Another option some courts allow is for retained counsel to apply to the court to have expenses but not fees paid by the court if the client becomes indigent during the course of the case. If there is a particular lawyer you would like to represent you, you should call him or her and ask whether this is possible in your jurisdiction.... Read More

Unlike most state courts, federal courts do not allow defendants to move for a reconsideration or reduction of their sentence. The U.S. Sentencing Guidelines that came into effect in 1987 prompted a change in the rule, known as Rule 35(b). Since 1987, the only way to receive a sentence reduction in federal cases is to have the prosecutor request it. Generally, the prosecutor must file the request within one year of the sentencing date. The only permissible grounds for the request are that the defendant provided substantial assistance in the investigation or prosecution of another person after being sentenced. In some cases, the prosecutor can file this motion after the one year time limitation. Examples of such circumstances are cases where the defendant did not learn of the helpful information until more than a year after being sentenced; the information was provided within a year after sentencing but did not become useful to the government until more than a year after sentencing; or if the defendant could not have anticipated the information would be helpful until more than a year after being sentenced. The adoption of the federal sentencing guidelines in 1987 also resulted in the abolition of federal parole. Your friend will have to do 85% of his sentence which computes to a reduction of 54 days a year, after the first year. If your friend has a substance abuse problem, and was not convicted of a violent offense, he may be eligible for a residential drug treatment program while in prison. If he successfully completes it, he can get up to a year taken off his sentence.... Read More

A "suspended sentence" is one which is imposed on a defendant but not implemented or executed--meaning, if the person stays out of trouble, he does not have to serve the sentence. Judges often impose suspended sentences on first time offenders. It is an incentive for the defendant to stay out of trouble. And it preserves scarce jail space for more serious offenders from whom society needs to be protected. Let's say you are charged with shoplifting. You have never been in trouble before, and you decide to plead guilty. Or, you think you have a good defense, and go to trial, but a judge or jury finds you guilty. When it comes time to sentence you, the Judge may feel your offense was not so severe as to warrant jail time. But she may want you to have something hanging over your head so you will think twice before committing another crime. A suspended sentence serves this purpose. The judge imposes a sentence on you, for example, 90 days, but suspends execution of it, provided you do not get in trouble for a usually longer period of time, say a year. At the end of the year, if you haven't gotten in trouble, the sentence is lifted. But if within the year, you do re-offend, the judge can make you go to jail for the length of the suspended sentence, here, 90 days. Again, the sentence is imposed as a deterrent to keep an offender from committing another crime. The thought is that with a suspended sentence hanging over your head, you will think twice before doing something illegal.... Read More