2009 Iowa Code
Title 8 - Transportation
Subtitle 2 - Vehicles
CHAPTER 321J - OPERATING WHILE INTOXICATED
321J.2 - OPERATING WHILE UNDER THE INFLUENCE OF ALCOHOL OR A DRUG OR WHILE HAVING AN ALCOHOL CONCENTRATION OF .08 OR MORE (OWI).

        321J.2  OPERATING WHILE UNDER THE INFLUENCE OF ALCOHOL
      OR A DRUG OR WHILE HAVING AN ALCOHOL CONCENTRATION OF .08 OR MORE
      (OWI).
         1.  A person commits the offense of operating while intoxicated if
      the person operates a motor vehicle in this state in any of the
      following conditions:
         a.  While under the influence of an alcoholic beverage or
      other drug or a combination of such substances.
         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.
         2.  A person who violates subsection 1 commits:
         a.  A serious misdemeanor for the first offense, punishable by
      all of the following:
         (1)  Imprisonment in the county jail for not less than forty-eight
      hours, to be served as ordered by the court, less credit for any time
      the person was confined in a jail or detention facility following
      arrest or for any time the person spent in a court-ordered
      operating-while-intoxicated program that provides law enforcement
      security.  However, the court, in ordering service of the sentence
      and in its discretion, may accommodate the defendant's work schedule.

         (2)  Assessment of a fine of one thousand two hundred fifty
      dollars.  However, in the discretion of the court, if no personal or
      property injury has resulted from the defendant's actions, the court
      may waive up to six hundred twenty-five dollars of the fine when the
      defendant presents to the court at the end of the minimum period of
      ineligibility, a temporary restricted license issued pursuant to
      section 321J.20.  As an alternative to a portion or all of the fine,
      the court may order the person to perform unpaid community service.
         (3)  Revocation of the person's driver's license pursuant to
      section 321J.4, subsection 1, section 321J.9, or section 321J.12,
      subsection 2, which includes a minimum revocation period of one
      hundred eighty days, and may involve a revocation period of one year.
      A revocation under section 321J.9 includes a minimum period of
      ineligibility for a temporary restricted license of ninety days.
         (a)  A defendant whose alcohol concentration is .08 or more but
      not more than .10 shall not be eligible for any temporary restricted
      license for at least thirty days if a test was obtained and an
      accident resulting in personal injury or property damage occurred.
      The defendant shall be ordered to install an ignition interlock
      device of a type approved by the commissioner of public safety on all
      vehicles owned or operated by the defendant if the defendant seeks a
      temporary restricted license.  There shall be no such period of
      ineligibility if no such accident occurred, and the defendant shall
      not be ordered to install an ignition interlock device.
         (b)  A defendant whose alcohol concentration is more than .10
      shall not be eligible for any temporary restricted license for at
      least thirty days if a test was obtained, and an accident resulting
      in personal injury or property damage occurred or the defendant's
      alcohol concentration exceeded .15.  There shall be no such period of
      ineligibility if no such accident occurred and the defendant's
      alcohol concentration did not exceed .15.  In either case, where a
      defendant's alcohol concentration is more than .10, the defendant
      shall be ordered to install an ignition interlock device of a type
      approved by the commissioner of public safety on all vehicles owned
      or operated by the defendant if the defendant seeks a temporary
      restricted license.
         (4)  Assignment to substance abuse evaluation and treatment, a
      course for drinking drivers, and, if available and appropriate, a
      reality education substance abuse prevention program pursuant to
      subsection 3.
         b.  An aggravated misdemeanor for a second offense, and shall
      be imprisoned in the county jail or community-based correctional
      facility not less than seven days, and assessed a fine of not less
      than one thousand eight hundred seventy-five dollars nor more than
      six thousand two hundred fifty dollars.
         c.  A class "D" felony for a third offense and each subsequent
      offense, and shall be committed to the custody of the director of the
      department of corrections for an indeterminate term not to exceed
      five years, shall be confined for a mandatory minimum term of thirty
      days, and shall be assessed a fine of not less than three thousand
      one hundred twenty-five dollars nor more than nine thousand three
      hundred seventy-five dollars.
         (1)  If the court does not suspend a person's sentence of
      commitment to the custody of the director of the department of
      corrections under this paragraph "c", the person shall be
      assigned to a facility pursuant to section 904.513.
         (2)  If the court suspends a person's sentence of commitment to
      the custody of the director of the department of corrections under
      this paragraph "c", the court shall order the person to serve not
      less than thirty days nor more than one year in the county jail, and
      the person may be committed to treatment in the community under
      section 907.6.
         3. a.  Notwithstanding the provisions of sections 901.5 and
      907.3, the court shall not defer judgment or sentencing, or suspend
      execution of any mandatory minimum sentence of incarceration
      applicable to the defendant under subsection 2, and shall not suspend
      execution of any other part of a sentence not involving incarceration
      imposed pursuant to subsection 2, if any of the following apply:
         (1)  If the defendant's alcohol concentration established by the
      results of an analysis of a specimen of the defendant's blood,
      breath, or urine withdrawn in accordance with this chapter exceeds
      .15, regardless of whether or not the alcohol concentration indicated
      by the chemical test minus the established margin of error inherent
      in the device or method used to conduct the test equals an alcohol
      concentration of .15 or more.
         (2)  If the defendant has previously been convicted of a violation
      of subsection 1 or a statute in another state substantially
      corresponding to subsection 1.
         (3)  If the defendant has previously received a deferred judgment
      or sentence for a violation of subsection 1 or for a violation of a
      statute in another state substantially corresponding to subsection 1.

         (4)  If the defendant refused to consent to testing requested in
      accordance with section 321J.6.
         (5)  If the offense under this chapter results in bodily injury to
      a person other than the defendant.
         b.  All persons convicted of an offense under subsection 2
      shall be ordered, at the person's expense, to undergo, prior to
      sentencing, a substance abuse evaluation.
         c.  Where the program is available and is appropriate for the
      convicted person, a person convicted of an offense under subsection 2
      shall be ordered to participate in a reality education substance
      abuse prevention program as provided in section 321J.24.
         d.  A minimum term of imprisonment in a county jail or
      community-based correctional facility imposed on a person convicted
      of a second or subsequent offense under subsection 2 shall be served
      on consecutive days.  However, if the sentencing court finds that
      service of the full minimum term on consecutive days would work an
      undue hardship on the person, or finds that sufficient jail space is
      not available and is not reasonably expected to become available
      within four months after sentencing to incarcerate the person serving
      the minimum sentence on consecutive days, the court may order the
      person to serve the minimum term in segments of at least forty-eight
      hours and to perform a specified number of hours of unpaid community
      service as deemed appropriate by the sentencing court.
         4.  In determining if a violation charged is a second or
      subsequent offense for purposes of criminal sentencing or license
      revocation under this chapter:
         a.  Any conviction or revocation deleted from motor vehicle
      operating records pursuant to section 321.12 shall not be considered
      as a previous offense.
         b.  Deferred judgments entered pursuant to section 907.3 for
      violations of this section shall be counted as previous offenses.
         c.  Convictions or the equivalent of deferred judgments for
      violations in any other states under statutes substantially
      corresponding to this section shall be counted as previous offenses.
      The courts shall judicially notice the statutes of other states which
      define offenses substantially equivalent to the one defined in this
      section and can therefore be considered corresponding statutes.  Each
      previous violation on which conviction or deferral of judgment was
      entered prior to the date of the violation charged shall be
      considered and counted as a separate previous offense.
         5.  A person shall not be convicted and sentenced for more than
      one violation of this section for actions arising out of the same
      event or occurrence, even if the event or occurrence involves more
      than one of the conditions specified in subsection 1.
         6.  The clerk of the district court shall immediately certify to
      the department a true copy of each order entered with respect to
      deferral of judgment, deferral of sentence, or pronouncement of
      judgment and sentence for a defendant under this section.
         7. a.  This section does not apply to a person operating a
      motor vehicle while under the influence of a drug if the substance
      was prescribed for the person and was taken under the prescription
      and in accordance with the directions of a medical practitioner as
      defined in chapter 155A or if the substance was dispensed by a
      pharmacist without a prescription pursuant to the rules of the board
      of pharmacy, if there is no evidence of the consumption of alcohol
      and the medical practitioner or pharmacist had not directed the
      person to refrain from operating a motor vehicle.
         b.  When charged with a violation of subsection 1, paragraph
      "c", a person may assert, as an affirmative defense, that the
      controlled substance present in the person's blood or urine was
      prescribed or dispensed for the person and was taken in accordance
      with the directions of a practitioner and the labeling directions of
      the pharmacy, as that person and place of business are defined in
      section 155A.3.
         8.  In any prosecution under this section, evidence of the results
      of analysis of a specimen of the defendant's blood, breath, or urine
      is admissible upon proof of a proper foundation.
         a.  The alcohol concentration established by the results of an
      analysis of a specimen of the defendant's blood, breath, or urine
      withdrawn within two hours after the defendant was driving or in
      physical control of a motor vehicle is presumed to be the alcohol
      concentration at the time of driving or being in physical control of
      the motor vehicle.
         b.  The presence of a controlled substance or other drug
      established by the results of analysis of a specimen of the
      defendant's blood or urine withdrawn within two hours after the
      defendant was driving or in physical control of a motor vehicle is
      presumed to show the presence of such controlled substance or other
      drug in the defendant at the time of driving or being in physical
      control of the motor vehicle.
         c.  The department of public safety shall adopt nationally
      accepted standards for determining detectable levels of controlled
      substances in the division of criminal investigation's initial
      laboratory screening test for controlled substances.
         9. a.  In addition to any fine or penalty imposed under this
      chapter, the court shall order a defendant convicted of or receiving
      a deferred judgment for a violation of this section to make
      restitution for damages resulting directly from the violation, to the
      victim, pursuant to chapter 910.  An amount paid pursuant to this
      restitution order shall be credited toward any adverse judgment in a
      subsequent civil proceeding arising from the same occurrence.
      However, other than establishing a credit, a restitution proceeding
      pursuant to this section shall not be given evidentiary or preclusive
      effect in a subsequent civil proceeding arising from the same
      occurrence.
         b.  The court may order restitution paid to any public agency
      for the costs of the emergency response resulting from the actions
      constituting a violation of this section, not exceeding five hundred
      dollars per public agency for each such response.  For the purposes
      of this paragraph, "emergency response" means any incident
      requiring response by fire fighting, law enforcement, ambulance,
      medical, or other emergency services.  A public agency seeking such
      restitution shall consult with the county attorney regarding the
      expenses incurred by the public agency, and the county attorney may
      include the expenses in the statement of pecuniary damages pursuant
      to section 910.3.
         10.  In any prosecution under this section, the results of a
      chemical test shall not be used to prove a violation of subsection 1,
      paragraph "b" or "c", if the alcohol, controlled substance,
      or other drug concentration indicated by the chemical test minus the
      established margin of error inherent in the device or method used to
      conduct the chemical test does not equal or exceed the level
      prohibited by subsection 1, paragraph "b" or "c".  

        &nbsection History: Recent Form

         86 Acts, ch 1220, § 2; 87 Acts, ch 118, § 4; 87 Acts, ch 215, §
      46; 90 Acts, ch 1233, § 20; 90 Acts, ch 1251, § 33; 97 Acts, ch 177,
      §4, 5; 98 Acts, ch 1073, § 9; 98 Acts, ch 1100, §50; 98 Acts, ch
      1138, § 2, 3, 11--13, 37; 99 Acts, ch 96, §36; 2000 Acts, ch 1118,
      §1; 2000 Acts, ch 1135, §1; 2002 Acts, ch 1042, §1; 2003 Acts, ch 60,
      §1, 2; 2003 Acts, ch 179, §120; 2003 Acts, 1st Ex, ch 2, §48, 209;
      2006 Acts, ch 1010, § 90; 2006 Acts, ch 1166, § 1--3; 2007 Acts, ch
      10, §174
         Referred to in § 232.22, 321.12, 321.208, 321.213, 321.279,
      321.555, 321J.2A, 321J.2B, 321J.3, 321J.4, 321J.4B, 321J.5, 321J.6,
      321J.8, 321J.9, 321J.10, 321J.10A, 321J.12, 321J.13, 321J.15,
      321J.16, 321J.17, 321J.20, 321J.22, 321J.24, 321J.25, 602.8102(51),
      707.6A, 804.31, 902.3, 907.3, 910.1, 910.2, 910.3, 915.80
         For provisions relating to third offense OWI driver's license
      revocations and restoration of driving privileges, see 99 Acts, ch
      153, §25