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Setting things straight with 'Tailgate legal advice'

BY GUEST OPINION | NOVEMBER 16, 2011 7:20 AM

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I am the supervising attorney at Student Legal Services, and I wish to respond some inaccuracies in an article titled "Tailgate legal advice," which was printed in The Daily Iowan on Oct. 20 and written by Will Mattessich.

Mattessich is an undergraduate student who works at Student Legal Services in the role of undergraduate director. As such, he is responsible for filing documents and compiling statistics. However, he is not a law student nor does he provide legal advice to students. The contents of the article were not approved by me, anyone else at Student Legal Services, or by any University of Iowa employee.

The first error in the article is a reference to a "partial breath test" which the police may offer to drivers whom the police suspect of OWI. The correct term for the test is "Preliminary Breath Test." The second error in the article is the statement that "you should never consent to this test." A person does have the right to not consent to this test, and each person must decide whether to exercise that right. For example, if a person has had absolutely nothing to drink, the test should reflect that, in which case the police officer is likely to not arrest the driver.

Another error in the article is when the writer insinuates that one cannot be convicted of a PAULA if that person is not physically holding the drink. This is a misstatement of Iowa law, which provides that a person under the legal age of 21 shall not individually or jointly have alcoholic liquor, wine, or beer in their possession or control. A person may be in constructive possession of alcohol even if they do not have physical possession of alcohol. Some of the factors which may support constructive possession are if the person exercised control over the drink, knew of its presence, and knew the drink contained alcohol.

Finally, the article states that "police officers even arrest students and cite them for the wrong charge." People sometimes are wrongfully charged, because everyone makes mistakes, even police officers. This is one reason a person charged with a criminal offense should carefully consider whether to plead guilty at the initial appearance. Another reason not to plead guilty right away is that some people charged with PAULA, public intoxication, or possession of marijuana may be eligible for diversion programs that could result in dismissal of the charge. Pleading guilty at the initial appearance may preclude a person from participating in the diversion program and possibly having the charge dismissed. To learn about legal options, University of Iowa students can get free legal advice from Student Legal Services.

Greg Bal is the supervising attorney of the University of Iowa's Student Legal Services.


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