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I am on formal probation in Iowa for a 2nd OWI for 2 years.

Dyersville, IA |

I recieved a ticket for a open container as a passenger 6 months into formal probation. The driver was also issued a open container and passed all sobriety tests including blowing zeros on a breathalyzer. I am not to drink alcohol. I am wondering what the chances are my probation will be revoked or me going to jail. No prior violations

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Attorney answers 3

Posted

That will depend on if the PO has cause to believe you consummed (which as I understand is a probationary condition). Receiving a ticket for open container does not mean you actually consummed and there might be a defense there. Good luck.

Asker

Posted

If found guilty would I be facing serious time?

Ethan Patrick Meaney

Ethan Patrick Meaney

Posted

That will depend on your history on probation, i.e., prior violations, etc. Best to contact your attorney to discuss if you have one. Good luck.

Posted

It's definitely possible that you could be violated. That being said it also sounds like you might have somewhat of a defense. You will probably have to wait and see how it shakes out but I would consult with a local attorney about how best to proceed. Good luck.

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Asker

Posted

Is there a better fight since the driver blew zeros and I did not blow at all.

Wade J. Skalsky

Wade J. Skalsky

Posted

It's a good fact there is no evidence of you having an alcohol concentration. I don't practice in your jurisdiction so I don't know how strict the PO's are. I would try to chat with a local attorney in your area who can give you specific insight.

Asker

Posted

I make all my meetings. I have all my substance abuse treatment completed. Been making my fine payments and attending aa weekly. I was seeing my p.o. every month but two weeks ago he changed it to me seeing him every two months.

Posted

If there was only one open container, then you may have a defense to possessing it based on the law of constructive possession. In Iowa, mere proximity is not enough. If you admitted the open container was yours or if there are no other defenses, then a guilty plea will not necessarily result in your probation being revoked. Your probation officer could simply recommend did you be held in contempt of your court ordered probation. You might be sentenced to some jail time, but still remain on probation without being
revoked.

Asker

Posted

There were two emptys underneath my seat.

Asker

Posted

Is this a serious situation? It is worrying me. I was doing so good.

Asker

Posted

What does be held in contempt of court mean?

Colin Christopher Murphy

Colin Christopher Murphy

Posted

Arguably, empties do not fit the definition of "open container" under Iowa Code section 321.284 because the do not contain any alcoholic beverage. The fact that they were under your seat may be circumstantial evidence that you possessed it, but the same could be said of anyone in the vehicle. Were there any admissions made by you that you drank from those containers? That could be a probation violation by itself. If you have been doing well while on probation, then contempt may be an alternative to revocation. It's a way to punish you for committing another offense in violation of a court order to remain from committing any new law violations while on probation. Contempt is punishable by up to 30 days. If your aggravated misdemeanor OWI is revoked, then that could be up to 1 year in jail or 2 years in prison. Does your probation officer know about the recent charge? Better have that conversation with the PO. Notice of new law violations is probably in the agreement you signed.

Asker

Posted

My po is on vacation until tomorrow but I did leave a voicemail stating I had received a ticket.

Colin Christopher Murphy

Colin Christopher Murphy

Posted

That's the right thing to do.

Asker

Posted

Will there most likely be a warrant for my arrest?

Asker

Posted

I called my p.o. This morning and told him of the charge and told him I was drinking. He said he will give me one more chance and I also told him I will attend more AA meetings. He said to get my act together by the next meeting which is Aug. 23

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