Two-Hour Window: An OWI Stop With a Refusal and an Open Container
At 0142 hours you stop a pickup on a four-lane arterial for a burned-out taillight. The driver, a 34-year-old man, has bloodshot, watery eyes, and a strong odor of an alcoholic beverage comes from the cab. He says he had 'two beers at the ballgame' and that the game ended 'a while ago.' He performs poorly on the standard field sobriety tests, and when you offer a preliminary breath test he blows 0.121, then refuses to sign the implied consent form. Once handcuffed he says, 'I want a lawyer. I'm not blowing into anything.' While he is being placed in the patrol car you see, through the open driver's window, an open 12-pack on the passenger floorboard with three cans missing. Booking time is 0207. The nearest certified breath-testing instrument is at the county jail, a 22-minute drive, and the jail's Intoxilyzer operator is on duty until 0400. Your agency's policy requires a tow inventory of any vehicle you take into custody.
1. The driver refuses the breath test. Walk through what you must do in the next 30 minutes, including the implied consent advisement, the two-hour timeline, and what happens if he maintains the refusal.
Read the worked answer
Treat the clock as the controlling fact. In Iowa, a chemical test result is tied to the two-hour window running from the time of operation, not from the time of arrest, so the 22-minute drive and the jail's booking process together consume most of your remaining window.
Steps, in order:
- Read the current implied-consent advisory verbatim from the approved form and record the exact time it was given and the exact words of the refusal. Do not paraphrase on the report.
- A request for counsel does not excuse testing, but you should note the request, give a brief reasonable opportunity to use a phone consistent with agency policy, and never let that courtesy push you past the window.
- Transport immediately. Once the refusal is clear and documented, offer nothing further that looks like repeated coaxing; note whether he said it once or repeatedly.
- Do not re-advise him in an attempt to 'fix' the refusal. If he later changes his mind and the test can still be completed within the window, most agencies will honor the change of mind; document the refusal time, the change-of-mind time, and the sample time so the record is clean.
- If the refusal stands, complete the implied-consent refusal report, and consider a search warrant for a blood draw. Under Birchfield v. North Dakota, blood requires a warrant; breath does not. Your probable cause is the totality: driving, odor, eyes, speech, field sobriety results, the PBT reading, and the open container.
Confirm current forms and county attorney practice before you rely on memory.
2. May you seize the open cans and photograph the passenger compartment without a warrant? Explain the legal basis and any limits you must respect.
Read the worked answer
You have at least three independent theories, and you should be clear in the report about which one you are using.
Plain view. You were lawfully standing where you had a right to be, at the driver's open window during a valid traffic stop. The cans were immediately visible, and their incriminating character was apparent given the open-container statute. Seizing and photographing them is lawful.
Automobile exception. Odor of alcohol, admissions, driving behavior, field sobriety results, and the PBT reading add up to probable cause that evidence of the offense - open alcohol - is inside the passenger compartment. That justifies a warrantless search of the passenger compartment and containers within it that could hold alcohol. It does not, by itself, justify opening a locked trunk or disassembling panels.
Tow inventory. Your policy requires an inventory. It is a valid third basis only if it is done by standardized criteria, is genuinely for inventory rather than investigation, and is documented. An inventory conducted as pretext is not a lawful basis and can taint the evidence.
Limits to respect: photograph before moving anything; record can condition, liquid level, and location; maintain chain of custody; keep the search contemporaneous with the arrest; and word the report as fact, not conclusion.
3. At the jail the driver says, 'Fine, I'll blow now.' Do you administer the test, and what must you document?
Read the worked answer
Conditionally yes - the answer turns entirely on time.
Check the clock against the time of driving. If the sample can be collected and completed within the two-hour window, honoring the change of mind is generally the better practice and the stronger case. If the window has closed, a sample taken now may be inadmissible on the two-hour issue and may create a false appearance that the refusal was never made.
What to document either way:
- The exact time of the original request and the words of the refusal.
- The exact time he changed his mind and what prompted it (for example, the jailer explaining the revocation).
- Any delay that the refusal itself caused.
- The sample time, the operator's name, and the instrument's certification.
- Whether any department policy or county attorney instruction addresses withdrawal of a refusal.
Reasoning note: the refusal is an administrative consequence under implied consent, not a criminal punishment, so obtaining a late sample does not 'erase' the refusal. The reverse is also true - a documented refusal does not prevent you from seeking a warrant. The record must show that nothing the officers did caused the sample to fall outside the window, because that is the fact a defense attorney will attack.