General Assembly: 83 (2010 Regular GA) - Chapter 1124 - Operating-while-intoxicated — miscellaneous changes


Published: 2010-04-10

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457 LAWS OF THE EIGHTY-THIRD G.A., 2010 SESSION CH. 1124

CHAPTER 1123 CEDAR RIVER BOAT DOCK REQUIREMENTS

H.F. 2484

AN ACT exempting certain boat harbors from certain dock requirements and including effective date provisions.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. NEW SECTION. 462A.27A Dock requirements — exemptions. 1. A dock in a boat harbor located on the Cedar river in a city with a population of more

than one hundred twenty-five thousand located in a county with a population of more than two hundred thousand is exempt from all dock requirements of the department of natural resources if the dock is in compliance with local city regulations for a dock in such a boat harbor except as provided in subsection 2. 2. A dock in a boat harbor located on the Cedar river in a city with a population of more

than one hundred twenty-five thousand located in a county with a population of more than two hundred thousand that meets the requirements of subsection 1 and that uses containers as dock flotation devices that were not originally manufactured as dock flotation devices, may continue to use such containers as dock flotation devices if the containers were in use on or before the effective date of this Act. At the time that such containers are replaced, the replacement dock flotation devices shall be dock flotation devices that comply with the rules of the department of natural resources. However, if the ownership of the dock is transferred, the new owner shall have six months from the date of transfer to replace such containers with dock flotation devices that comply with the rules of the department of natural resources.

Sec. 2. EFFECTIVE UPON ENACTMENT. This Act, being deemed of immediate importance, takes effect upon enactment.

Approved April 10, 2010

CHAPTER 1124 OPERATING-WHILE-INTOXICATED — MISCELLANEOUS CHANGES

S.F. 431

AN ACT relating to the reorganization of operating-while-intoxicated criminal offenses, making related changes, and providing an effective date.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. Section 321J.2, Code 2009, is amended by striking the section and inserting in lieu thereof the following: 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.

CH. 1124 LAWS OF THE EIGHTY-THIRD G.A., 2010 SESSION 458

b. An aggravated misdemeanor for a second offense. c. A class “D” felony for a third offense and each subsequent offense. 3. A first offense is punishable by all of the following: a. A minimum period of imprisonment in the county jail of forty-eight hours, but not to

exceed one year, 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. b. (1) With the consent of the defendant, the court may defer judgment pursuant to section

907.3 and may place the defendant on probation upon conditions as it may require. Upon a showing that the defendant is not fulfilling the conditions of probation, the court may revoke probation and impose any sentence authorized by law. Before taking such action, the court shall give the defendant an opportunity to be heard on any matter relevant to the proposed action. Upon violation of the conditions of probation, the court may proceed as provided in chapter 908. Upon fulfillment of the conditions of probation and the payment of fees imposed and not waived by the judicial district department of correctional services under section 905.14, the defendant shall be discharged without entry of judgment. (2) A person is not eligible for a deferred judgment under section 907.3 if the person has

been convicted of a violation of this section or the person’s driver’s license has been revoked under this chapter, and any of the following apply: (a) 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. (b) If the defendant has previously been convicted of a violation of subsection 1 or a statute

in another state substantially corresponding to subsection 1. (c) 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. (d) If the defendant refused to consent to testing requested in accordance with section

321J.6. (e) If the offense under this chapter results in bodily injury to a person other than the

defendant. c. 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. (1) Upon the entry of a deferred judgment, a civil penalty shall be assessed as provided in

section 907.14 in an amount not less than the amount of the criminal fine authorized pursuant to this paragraph “c”. (2) As an alternative to a portion or all of the fine, the courtmay order the person to perform

unpaid community service. However, the court shall not order the person to perform unpaid community service in lieu of a civil penalty or victim restitution. Surcharges and fees shall also be assessed pursuant to chapter 911. d. Revocation of the person’s driver’s license for a minimum period of one hundred eighty

days up to a maximum revocation period of one year, pursuant to section 321J.4, subsection 1, section 321J.9, or section 321J.12, subsection 2. If a revocation occurs due to test refusal under section 321J.9, the defendant shall be ineligible for a temporary restricted license for a minimum period of ninety days. (1) 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

459 LAWS OF THE EIGHTY-THIRD G.A., 2010 SESSION CH. 1124

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. (2) 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. 1 e. 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 section 321J.24. 4. A second offense is punishable by all of the following: a. A minimum period of imprisonment in the county jail or community-based correctional

facility of seven days but not to exceed two years. b. Assessment of a minimum fine of one thousand eight hundred fifty dollars and a

maximum fine of six thousand two hundred fifty dollars. Surcharges and fees shall be assessed pursuant to chapter 911. c. Revocation of the defendant’s driver’s license for a period of one year, if a revocation

occurs pursuant to section 321J.12, subsection 1. If a revocation occurs due to test refusal under section 321J.9, or pursuant to section 321J.4, subsection 2, the defendant’s license shall be revoked for a period of two years. d. 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 section 321J.24. 5. A third offense is punishable by all of the following: a. Commitment to the custody of the director of the department of corrections for an

indeterminate term not to exceed five years, with a mandatory minimum term of thirty days. (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 “a”, 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 “a”, 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. b. Assessment of a minimum fine of three thousand one hundred twenty-five dollars and

a maximum fine of nine thousand three hundred seventy-five dollars. Surcharges and fees shall be assessed pursuant to chapter 911. c. Revocation of the person’s driver’s license for a period of six years pursuant to section

321J.4, subsection 4. d. Assignment to substance abuse evaluation and treatment, a course for drinking drivers,

and, if available and appropriate, a reality education substance abuse program pursuant to section 321J.24. 6. To the extent that section 907.3 allows, the courtmay impose additional sentencing terms

and conditions. 7. a. 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. The court shall order the person to follow the recommendations proposed in the substance abuse evaluation as provided in section 321J.3. b. 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.

1 See chapter 1193, §50, 81 herein

CH. 1124 LAWS OF THE EIGHTY-THIRD G.A., 2010 SESSION 460

c. 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, paragraph “b” or “c” 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. 8. 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. 9. 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. 10. 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. 11. 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 personmay 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. 12. 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. 13. 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

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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. 14. 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”.

Sec. 2. Section 321J.3, subsection 1, paragraph a, Code 2009, is amended to read as follows: a. In addition to orders issued pursuant to section 321J.2, subsection 3 subsections 3, 4,

and 5, and section 321J.17, the court shall order any defendant convicted under section 321J.2 to follow the recommendations proposed in the substance abuse evaluation for appropriate substance abuse treatment for the defendant. Court-ordered substance abuse treatment is subject to the periodic reporting requirements of section 125.86.

Sec. 3. Section 707.6A, subsection 6, Code 2009, is amended to read as follows: 6. Except for the purpose of sentencing under section 321J.2, subsection 2 subsections 3, 4,

and 5, a conviction or deferral of judgment for a violation of this section, where a violation of section 321J.2 is admitted or proved, shall be treated as a conviction or deferral of judgment for a violation of section 321J.2 for the purposes of chapters 321, 321A, and 321J, and section 907.3, subsection 1.

Sec. 4. Section 902.3, Code 2009, is amended to read as follows: 902.3 Indeterminate sentence. When a judgment of conviction of a felony other than a class “A” felony is entered against

a person, the court, in imposing a sentence of confinement, shall commit the person into the custody of the director of the Iowa department of corrections for an indeterminate term, the maximum length of which shall not exceed the limits as fixed by section 902.9, unless otherwise prescribed by statute, nor shall the term be less than the minimum term imposed by law, if aminimum sentence is provided. However, if the court suspends a person’s sentence under section 321J.2, subsection 2 5, paragraph “c” “a”, the court shall order the offender to serve time in the county jail as provided in section 321J.2, subsection 2 5, paragraph “c” “a”, notwithstanding any provision to the contrary in section 903.4.

Sec. 5. Section 907.3, subsection 3, paragraph c, Code Supplement 2009, is amended to read as follows: c. A mandatory minimum sentence of incarceration imposed pursuant to a violation of

section 321J.2, subsection 1; furthermore, the court shall not suspend any part of a sentence not involving incarceration imposed pursuant to section 321J.2, subsection 2 3, 4, or 5, beyond the mandatory minimum if any of the following apply: 2

2 See chapter 1193, §70, 81 herein

CH. 1124 LAWS OF THE EIGHTY-THIRD G.A., 2010 SESSION 462

Sec. 6. Section 910.1, subsection 4, Code 2009, is amended to read as follows: 4. “Restitution” means payment of pecuniary damages to a victim in an amount and in

the manner provided by the offender’s plan of restitution. “Restitution” also includes fines, penalties, and surcharges, the contribution of funds to a local anticrime organization which provided assistance to law enforcement in an offender’s case, the payment of crime victim compensation program reimbursements, payment of restitution to public agencies pursuant to section 321J.2, subsection 9 13, paragraph “b”, court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender, and the performance of a public service by an offender in an amount set by the court when the offender cannot reasonably pay all or part of the court costs including correctional fees approved pursuant to section 356.7, or court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender.

Sec. 7. Section 910.2, unnumbered paragraph 1, Code 2009, is amended to read as follows: In all criminal cases in which there is a plea of guilty, verdict of guilty, or special verdict

upon which a judgment of conviction is rendered, the sentencing court shall order that restitution be made by each offender to the victims of the offender’s criminal activities, to the clerk of court for fines, penalties, surcharges, and, to the extent that the offender is reasonably able to pay, for crime victim assistance reimbursement, restitution to public agencies pursuant to section 321J.2, subsection 9 13, paragraph “b”, court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender, when applicable, or contribution to a local anticrime organization. However, victims shall be paid in full before fines, penalties, and surcharges, crime victim compensation program reimbursement, public agencies, court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expenses of a public defender, or contributions to a local anticrime organization are paid. In structuring a plan of restitution, the court shall provide for payments in the following order of priority: victim, fines, penalties, and surcharges, crime victim compensation program reimbursement, public agencies, court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender, and contribution to a local anticrime organization.

Sec. 8. Section 910.3, Code 2009, is amended to read as follows: 910.3 Determination of amount of restitution. The county attorney shall prepare a statement of pecuniary damages to victims of

the defendant and, if applicable, any award by the crime victim compensation program and expenses incurred by public agencies pursuant to section 321J.2, subsection 9 13, paragraph “b”, and shall provide the statement to the presentence investigator or submit the statement to the court at the time of sentencing. The clerk of court shall prepare a statement of court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender, and court costs including correctional fees claimed by a sheriff or municipality pursuant to section 356.7, which shall be provided to the presentence investigator or submitted to the court at the time of sentencing. If these statements are provided to the presentence investigator, they shall become a part of the presentence report. If pecuniary damage amounts are not available at the time of sentencing, the county attorney shall provide a statement of pecuniary damages incurred up to that time to the clerk of court. The statement shall be provided no later than thirty days after sentencing. If a defendant believes no person suffered pecuniary damages, the defendant shall so state. If the defendant has any mental or physical impairment which would limit or prohibit the performance of a public service, the defendant shall so state. The court may order a mental or physical examination, or both, of the defendant to determine a proper course of action. At the time of sentencing or at a later date to be determined by the court, the court shall set out the amount of restitution including the amount of public service to be performed as restitution and the persons to whom restitution must be paid. If the full amount of restitution

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cannot be determined at the time of sentencing, the court shall issue a temporary order determining a reasonable amount for restitution identified up to that time. At a later date as determined by the court, the court shall issue a permanent, supplemental order, setting the full amount of restitution. The court shall enter further supplemental orders, if necessary. These court orders shall be known as the plan of restitution.

Sec. 9. EFFECTIVE DATE. This Act takes effect December 1, 2010.

Approved April 12, 2010

CHAPTER 1125 AGGRAVATED THEFT

S.F. 2250

AN ACT creating the criminal offense of aggravated theft, and providing a penalty.

Be It Enacted by the General Assembly of the State of Iowa:

Section 1. NEW SECTION. 711.5 Robbery — application. This chapter does not apply if section 714.3A applies.

Sec. 2. NEW SECTION. 714.3A Aggravated theft. 1. A person commits aggravated theft when the person commits an assault as defined in

section 708.1, subsection 1, that is punishable as a simple misdemeanor under section 708.2, subsection 6, after the person has removed or attempted to remove property not exceeding two hundred dollars in value which has not been purchased from a store or mercantile establishment, or has concealed such property of the store or mercantile establishment, either on the premises or outside the premises of the store or mercantile establishment. 2. a. A person who commits aggravated theft is guilty of an aggravated misdemeanor. b. A person who commits aggravated theft, and who has previously been convicted of an

aggravated theft, robbery in the first degree in violation of section 711.2, robbery in the second degree in violation of section 711.3, or extortion in violation of section 711.4, is guilty of a class “D” felony. 3. In determining if a violation is a class “D” felony offense the following shall apply: a. A deferred judgment entered pursuant to section 907.3 for a violation of any offense

specified in subsection 2 shall be counted as a previous offense. b. A conviction or the equivalent of a deferred judgment for a violation in any other states

under statutes substantially corresponding to an offense specified in subsection 2 shall be counted as a previous offense. The courts shall judicially notice the statutes of other states which define offenses substantially equivalent to the offenses specified in this section and can therefore be considered corresponding statutes. 4. Aggravated theft is not an included offense of robbery in the first or second degree.

Sec. 3. Section 808.12, subsections 1 and 3, Code 2009, are amended to read as follows: 1. Persons concealing property as set forth in section 714.3A or 714.5, may be detained

and searched by a peace officer, person employed in a facility containing library materials, merchant, or merchant’s employee, provided that the detention is for a reasonable length of time and that the search is conducted in a reasonable manner by a person of the same sex and according to subsection 2 of this section. 3. The detention or search under this section by a peace officer, person employed in a

facility containing library materials, merchant, or merchant’s employee does not render the person liable, in a criminal or civil action, for false arrest or false imprisonment provided the person conducting the search or detention had reasonable grounds to believe the person