What is Operating Without Owner’s Consent?

  This is a bit of an addendum to our previous posts about theft.  Iowa has a statute that is relatively unique regarding the taking of an automobile.  Iowa Code §714.7 criminalizes operating a motor vehicle without its owner’s consent.  The main distinction between Operating without Owner’s Consent and Theft of a Motor Vehicle [which is a violation of either Iowa Code §714.2(1) or (2) depending on the value] is the intent to permanently deprive the owner of the vehicle.  The statute also takes the unusual step of explicitly defining Operating without Owner’s Consent as a lesser included offense of Theft when the object of the theft is a motor vehicle.  (Note:  To those who may not know, a lesser included offense is a somewhat complicated concept, which most simply stated, is a crime that lacks a single element of the original crime.  For instance, assault would be a lesser included offense for domestic assault.) 

   This has the interesting effect of requiring that the State prove in a car theft case that the defendant intended to permanently deprive the owner of the vehicle, in addition to the normal elements of theft.  If you’ve been charged with Operating without Owner’s Consent, or been charged with Theft, when you feel you should have been charged with Operating without Owner’s Consent, you may need the help of an Iowa Criminal Law Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

Happy Fourth of July!

   Van Cleaf & McCormack Law Firm is closed today and tomorrow for the Fourth of July.  However, rather than forego a blog post today, we thought it’d be fun to post about the law a whole bunch of Iowans will be breaking this weekend by using fireworks!

  Iowa Code §727.2(2) criminalizes the sale or use of “fireworks.”  What constitutes fireworks is defined in subsection 1 as “any explosive composition, or combination of explosive substances, or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation, and includes blank cartridges, firecrackers, torpedoes, skyrockets, roman candles, or other fireworks of like construction and fireworks containing any explosive substance.”  The subsection goes on to specifically exclude wire sparklers (assuming they don’t contain magnesium, chlorate, or perchlorate) flitter sparklers in paper tubes no more than 1/8^th of an inch in diameter, toy snakes without mercury, and the caps for cap pistols.

  The use or sale of fireworks is a simple misdemeanor, with a minimum fine of $250.00.  Cities are permitted to authorize shows (Here’s a list of those being offered thisyear).  It is worth noting that, despite what many believe, possession of fireworks by itself is not a crime, so long as they are not being used in the state.

 

  We hope everyone has a happy and safe Fourth of July.  However, if you find yourself in criminal trouble, be it for fireworks, other celebration related activities, or anything else, you may need the help of an Iowa Criminal Law Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call us on Monday to schedule a free consultation.

What are the Degrees of Theft?

   In Iowa, each type of Theft is not a single crime, but rather five separate crimes.  The five degrees of theft are defined in Iowa Code §714.2, and are largely distinguished by the value of the property stolen.  If the property is under $200 in value, the crime is Theft in the Fifth Degree [Iowa Code §714.2(5)] and is a simple misdemeanor.  If the property is between $200 and $499.99, the crime is Theft in the Fourth Degree [Iowa Code §714.2(4)] and is a serious misdemeanor.  If the property is between $500 and $999.99, the crime is Theft in the Third Degree [Iowa Code §714.2(3)] and is an aggravated misdemeanor.  If the property is between $1000 and $9,999.99, the crime is Theft in the Second Degree [Iowa Code §714.2(2)] and is a Class D Felony.  If the property exceeds $10,000, the crime is Theft in the First Degree [Iowa Code §714.2(1)] and is a Class C Felony.

   However, the value of the property is not the only thing that matters for purposes of classifying a theft.  If a person has been twice convicted of Theft prior, that person can be charged with Theft in the Third Degree regardless of the value of the property.  If a person steals a car, that person can be charged with Theft in the Second Degree regardless of the value (assuming they can establish that the person intended to permanently deprive).  Looting (taking property from the scene of a disaster or riot) is always Theft in the First Degree, regardless of value. 

   If you’ve been charged with any degree of theft, you may need the help of an Iowa Criminal Law Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

What is Theft? (Part 2)

   Iowa Code §714.1(3) criminalizes “obtain[ing] the labor or

services of another, or a transfer of possession, control, or ownership of the property of another, or the beneficial use of property of another, by deception.  Examples of this would include the proverbial “dine & dash” or any situation where a person promises payment later for a good or service without intention of later payment (Whimpy from Popeye would definitely be guilty of this).

   Iowa Code §714.1(4) is Iowa’s statute banning possession of stolen property.  It criminalizes “exercis[ing] control over stolen property, knowing such property to have been stolen or having reasonable cause to believe that such property has been stolen, unless the person’s purpose is to promptly restore it to the owner or deliver it to an appropriate public officer.”  Perhaps the most interesting part of this statute is that the appellate courts have interpreted this as a single crime, not an ongoing offense.  This is mostly relevant for questions of venue (where the accused would be tried) and statute of limitations (how late a person can be tried).

   The remaining six sections are all considerably more obscure, so we’ll go over them quickly:

·         IowaCode §714.1(5) criminalizes taking, destroying, concealing, or disposing of “property in which someone else has a security interest (think mortgage or car loan), with the intent to defraud the secured party.”
·         IowaCode §714.1(6) criminalizes knowingly passing bad checks.
·         IowaCode §714.1(7) criminalizes stealing public utilities (gas, electricity, or water) or cable TV or telephone service.
·         IowaCode §714.1(8) is basically an anti-hacking statute.
·         IowaCode §714.1(9) criminalizes stealing from video rental services.
·         IowaCode §714.1(10) is a catch all provision for any other act declared to be theft by any other area of the Iowa Code.

  If you’ve been charged with any alternative of theft, you may need the help of an Iowa Criminal Law Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

What is Theft? (Part 1)

   While it might seem obvious what constitutes theft, Iowa has grouped numerous crimes which, in other states, might be their own crime, as alternatives of theft.  Iowa Code §714.1 defines the ten different ways a person can commit theft.  The next several posts will explain these alternatives.

   Iowa Code §714.1(1) is what most people would think of when they think of theft.  This alternative (colloquially referred to as “Theft by Taking”) criminalizes “tak[ing] possession or control of the property of another, or property in the possession of another with the intent to deprive the other thereof.”  This could range from simple shoplifting to stealing a car.  One thing that is important to note here is that, in Iowa, Theft is a general intent crime.  It is not necessary for a person to have intended to steal an item (which is usually most relevant in the context of intoxication).  Further, while intent to deprive is an element, this can be inferred by actions (acting recklessly and resulting in the loss or substantial damage for instance).

   Iowa Code §714.1(2) is Iowa’s embezzlement statute. It criminalizes “misappropriate[ion of] 

property which the person has in trust, or property of another which the person has in the person’s possession or control, whether such possession or control is lawful or unlawful, by using or disposing of it in a manner which is inconsistent with or a denial of the trust or of the owner's rights in such property, or conceal[ing] found property, or appropriate[ion of] such property to the person's own use, when the owner of such property is known to the person.”  It is worth noting that property here can extend to things such as money, but would also include, for instance, property being held as collateral for a loan, such as by a pawn shop.

   Tomorrow, we’ll continue explaining theft, but if you’ve been charged with any alternative of theft, you may need the help of an Iowa Criminal Law Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

What is Public Intoxication?

    If there is a crime that otherwise law abiding people have a tendency to commit most frequently, it is public intoxication.  Iowa Code §123.46 defines public intoxication as being "intoxicated or simulat[ing] intoxication in a public place."  Public Intoxication is a simple misdemeanor. 
     
   Unlike Iowa Code §321J.2 (Iowa's OWI statute) there is no minimum amount of alcohol which needs to be present in the system to qualify as intoxicated.    Furthermore, implied consent does not apply in cases where a motor vehicle is not being operated, so the police cannot compel a person to provide a sample (although subsection 3 does state that a law enforcement officer must inform someone being arrested for public intoxication that they can receive a chemical test at their own expense).

   Perhaps the most interesting part of this statute is that it also criminalizes "simulat[ing] intoxication."  This would effectively mean that the State does not need to prove that a person charged with public intoxication has consumed any drugs or alcohol.  Merely acting as though you were intoxicated is sufficient for a conviction.

   Finally, it is also worth noting that public intoxication is one of only two crimes in Iowa that can be expunged from your record under certain conditions (the other being underage possession of alcohol).  Unlike many other states, Iowa does not permit general expungement of criminal records.  However, Iowa Code §123.46(5) permits the expungement of a conviction for public intoxication after two years assuming the person has not committed any further criminal offenses (excluding minor traffic offenses).  While this is supposed to be available as a matter of law, not all courts do these expungements automatically, and they sometimes must be requested.

   If you have been charged with public intoxication or are seeking to have a public intoxication expunged from your record, you may need the help of an Iowa Criminal Law Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

What is OWI? (Part 2)

    Today we'll be discussing the different levels of OWI and the punishments a person could face if found guilty of, or they plead guilty to, an OWI charge.  Iowa divides OWIs into three levels:  First, Second, and Third Offense.  Each level has its own classification and penalties.

   OWI First Offense [See Iowa Code §321J.2(2)(a)] is a serious misdemeanor, punishable all of the following:

      1.      Imprisonment of no less than 48 hours and no more than 1 year
      2.      Fine of $1,250 (Can be reduced to $625 if not personal or property injury occurred and defendant obtains a temporary restricted license)
      3.      License revocation for between 180 days and one year
      4.      Assignment to substance abuse evaluation and treatment and a course for drinking drivers.

   OWI Second Offense [See Iowa Code §321J.2(2)(b)] is a aggravated misdemeanor, punishable by imprisonment of no less than seven days and no more than two years and a fine between $1,875 and $6,250.

   OWI Third Offense [See Iowa Code §321J.2(2)(c)] is a class D felony, punishable by imprisonment of no less than thirty days and no more than five years and a fine between $3,125 and $9,375.

   County Attorneys have a good deal of discretion in charging OWI Second and Third Offense and it is possible for a person to obtain multiple convictions on a lower offense level.  However, it should also be noted that judges cannot suspend or defer the minimum imprisonment sentences for any level of OWI, although the sentences may be satisfied by time served or, in the case of OWI First Offense, completion of a court-selected weekend course, typically offered by local community colleges at the defendant’s expense.  It’s also worth noting that there are several restrictions on when an OWI qualifies for a deferred judgment, with the most common obstacle being a BAC of .15 or over.

   OWI law is complicated, and, if you’re charged with OWI, you may need an Iowa Criminal Defense Attorney, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

 

What is OWI? (Part 1)

    OWI stands for Operating While Intoxicated, and is the term Iowa and some other states use for driving while drunk or under the influence of drugs.  You may be more familiar with DUI (Driving Under the Influence) which is used in other states and is used more commonly in popular culture.

   Iowa’s OWI law can be found in Section 321J of the Iowa Code.  The section is quite lengthy and has multiple subparts.  For the purpose of defining OWI, we will go to Section 321J.2(1), which is the section that specifically criminalizes OWI.  To quote the statute:
“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.”

   As laws go, this is pretty simply worded, but there are a couple things worth mentioning.  First, subsection (a) is a sort of catch all provision that gives the state a great deal of leeway in charging.  Under this section, a particular level of blood alcohol need not be proven.  This means that, despite what many people think, beating a breathalyzer is not the most important thing in these cases.  Second, note that any amount of a controlled substance is sufficient for an arrest under this statute.  Also note that the term is “controlled” substance, not “illegal.”  A person can be convicted of OWI for having perfectly legal prescription drugs in their system.

   Our next post will continue discussing OWI, but if you’ve been charged with OWI, don’t wait. You may want to contact an Iowa Criminal Defense Attorney today, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

 

Should I talk to the Police?

   No.





















   Okay, perhaps that needs a little more explanation.  However, the answer is just that simple.  I could try to explain why, but, someone else has done it perfectly:

James Duane is a professor at Regent University School.  If you haven't seen this video, take the time to watch it.  Professor Duane explains in detail why, no matter whether you've done anything wrong or not, you should never consent to being questioned by the police.  If you haven't followed Professor Duane's advice, you may want to contact an Iowa Criminal Defense Attorney today, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.

Why Hire A Private Attorney?

    Welcome to the Van Cleaf & McCormack Law Firm Criminal Defense Blog.  This blog’s purpose is to provide general information about criminal defense in Iowa, including descriptions of various offenses, discussion of relevant case law, and information that we feel would be useful to people in the position of needing an Iowa Criminal Defense Attorney.  As a brief disclaimer:  This blog and any response to comments by Van Cleaf & McCormack Law Firm or any of its employees are not intended as a substitute for professional legal advice or services.  Nothing here is intended to or does form an attorney-client relationship between the reader and Van Cleaf & McCormack Law Firm.  We strongly urge you to contact an attorney if you are facing criminal charges, be that an attorney with our firm or another.  We also urge you to review the full disclaimer at the bottom of the page.
     
    Let’s start with what is, for many, the most pertinent question people have when looking at private criminal attorneys:  Why not just take a court-appointed attorney?  We’ve all heard the Miranda Warning on TV and in movies, with its famous line, “If you cannot afford an attorney, one will be appointed for you.”  This is true.  Iowa Code §815.9 provides that any person at or below 125% of the U.S. poverty level (in 2013, for a single person, this is $14,362.50, or a little over 38 hours/week at minimum wage) is entitled to be appointed an attorney by the court.  People up to 200% of the U.S. poverty level can have an attorney appointed if the judge decides that to not appoint one would cause “substantial hardship” and people above 200% can only have an attorney appointed if they are charged with a felony AND not appointing an attorney would cause “substantial hardship.”

   However, it is important to note what isn’t said in any of these statutes or in the Miranda warning.  They never say that the appointed attorney is a free attorney, and that’s because Iowa Code §815.9(4) specifically provides that a person is required to reimburse the state for court appointed attorney’s fee.  While the court is technically required to rule on whether the person has the ability to pay said fees, experience has shown us that most judges will always assess the full amount.  This is true even if the person is acquitted or the charges are dismissed.

 

   If you’re going to pay for a criminal defense attorney either way, why wouldn’t you pay for an attorney of your choice?  Consider having a consult with an Iowa Criminal Defense Attorney today, like those found at Van Cleaf & McCormack Law Firm.  You can call today to schedule a free consultation.