City Council Work Session on 1 April 2014
City officials, local law enforcement, and the County have been exploring ways to eliminate criminal charges for a variety of alcohol related violations. The document below is a PDF to text copy of pages 5-8 in the original packet of documents that were presented as reference materials for a work session to be held on 1 April 2014 at 5:00 PM.
TO: CITY COUNCIL
FROM: ELEANOR M. DILKES, CITY ATTORNEY
TOM MARKUS, CITY MANAGER
RE: SIMPLE MISDEMEANORS/MUNICIPAL INFRACTIONS
Council asked staff to research whether the City can make several City simple misdemeanor violations into municipal infractions. The City Attorney’s office has done the legal research and met with the City Manager, Police Chief, Captain Wyss and Captain Steffen to discuss this matter.
As background information, between January 1, 2013 and March 20, 2014 the Iowa City Police Department (ICPD) issued the following number of criminal citations:
- PAULA (possession of alcohol under the legal age) – 479
- Public intoxication – 1,097
- Under 21 after 10:00 p.m. – 136
- Open container – 144
- Obstruction – 17
Please note that these are only ICPD charges. The monthly bar check report that is issued each month for purposes of keeping track of an establishment’s PAULA rate, which is a factor in the issuance of exceptions to the under 21 ordinance, includes both ICPD and University of Iowa charges.
Simple Misdemeanor vs. Municipal Infraction
It is important to understand the main differences between a criminal charge and a civil infraction.
A criminal charge is a simple misdemeanor punishable by a maximum fine of $625 and 30 days in jail. Some criminal charges are “unscheduled” and the judge sets the fine amount depending on the facts. Others are “scheduled,” meaning they are established by the Code and are always the same. In the last 15 years, staff can recall the City requesting jail time as part of the sentence for a simple misdemeanor only once. In addition to the fine, the person is assessed a state surcharge of 35% of the fine amount and court costs of $60. Procedurally, the person has the right to a jury trial and the right to refuse to testify, and the City must prove the violation beyond a reasonable doubt. Filing a simple misdemeanor with the Court requires no up-front payment by the City. The City pays the court costs only when the City does not prevail.
A civil wrong is enforced through a municipal infraction. Typical municipal infractions issued by the City are those for violations of the housing, building and zoning codes. Generally, the purpose of the municipal infraction is to get a party to comply with the city code after the City’s efforts to get voluntary compliance have failed. Municipal infractions are punishable by a civil penalty which can be set by Council as high as $750 for the first violation and $1,000 for the second and subsequent violations. In addition to the civil penalty the person is also assessed the court costs of $85. Procedurally, the person does not have the right to a jury trial, the person can be required to testify (as long as the City agrees not to file a simple misdemeanor based on any admission made under oath), and the City only has to prove the allegation by “clear, satisfactory and convincing” evidence, which is a lower burden than beyond a reasonable doubt. See Iowa Code Section 364.22(6)(b).
From a time and administrative standpoint, municipal infractions are more difficult for the City to institute (e.g., the $85 filing fee must be paid up front when the City files a municipal infraction with the Court, additional paperwork must be filed with the Court to show proof of service, the police would have to carry an additional form book and it would take them longer to write the charge). The police currently do not issue municipal infractions. The police department estimates that the issuance of a municipal infraction, including the completion of the proof of service form, would take twice as long as the issuance of a uniform criminal citation. The up-front payment of the filing fee would be substantial. For example, in 2013 the City issued 415 PAULAs. Had they all been municipal infractions, the City would have paid over $35,000 in up-front filing fees. If the judge rules in favor of the City, the person will be ordered to reimburse the City for the $85 and pay a civil penalty, but of course, not everyone pays.
Under Section 364.22(3) of the Iowa Code, a municipality may provide that a violation of an ordinance is a municipal infraction except if the violation is a felony, aggravated misdemeanor, or serious misdemeanor or is a simple misdemeanor listed in Chapters 687 through 747. This provision prevents the City from making disorderly conduct, which can be found at Section 723.4 of the Iowa Code, a municipal infraction.
Under 21 and Open Container
Being under 21 in a licensed establishment after 10:00 pm and open containers (except in a motor vehicle) are purely city offenses, and thus, the City could make both of them municipal infractions.
Public Intoxication and PAULA
Only the State prohibits public intoxication as the City has never adopted a similar provision. Both the City and the State prohibit possession of alcohol under the legal age (PAULA). The City Attorney’s Office has concluded there is a good argument that the City could make both PAULAs and public intoxication a municipal infraction (i.e., would not be preempted from doing so).
State law has a provision that allows PAULA and public intoxication convictions to be “expunged” after two years assuming no additional criminal convictions except for traffic tickets. When a conviction is expunged, there is no judicial record of the conviction. Criminal convictions can easily be accessed on the website for the Iowa Judicial Branch by the person’s last name. On the other hand, if a civil judgment was entered in a municipal infraction for PAULA or public intoxication, that judgment could not be expunged or sealed.
Obstruction is not a state code provision and therefore the City could make it a municipal infraction. Obstruction is charged when a person resists, opposes, obstructs or impedes an officer in the discharge of the officer’s duties. This is typically charged when a person has been repeatedly told to do something or not do something and refuses to comply despite the multiple requests.
Ability to Arrest
Staff strongly recommends that public intoxication not be made into a municipal infraction. In almost all cases in which public intoxication is charged the person has already been exhibiting problem behavior. Nearly every person charged with public intoxication is arrested both for the safety of the person and the public. If a person would be given a municipal infraction for public intoxication, the police would not have the ability to arrest the person. Similarly, staff strongly recommends that obstruction not be made into a municipal infraction. The person charged with obstruction is not compliant with the police and poses a safety threat to the officer.
Even if the others are made into municipal infractions, staff strongly suggests that the violation also remain a crime. The police need to be able to have the ability to arrest, or to threaten arrest. For example, if a 19-year old was in a licensed establishment after 10:00 and if the violation was only a municipal infraction, the police could not require the person to leave the establishment. Without the threat of arrest, the person can continue to violate the ordinance with the only consequence being civil penalty and court costs being assessed.
- Disorderly conduct cannot be made a municipal infraction.
- PAULA and public intoxication can be made municipal infractions. Criminal convictions can be expunged after 2 years if the defendant has no additional violations. A judgment in a civil PAULA could not be expunged.
- Public intoxication as a municipal infraction would put the public and the person at risk.
- Obstruction as a municipal infraction would put the officer at risk and prevent the officer from carrying out the officer’s duties.
- Open container and under 21 can be made municipal infractions.
- Administratively it is more difficult for the City to issue a municipal infraction but procedurally easier for the City to prove (and conversely, more difficult for the person to prevail)
With respect to the simple misdemeanors addressed in this memo that could be made into municipal infractions, PAULA and public intoxication account for the majority of the charges (1576 or 84% of the total charges for PAULA, public intoxication, under 21, open container and obstruction between January 1, 2013 and March 20, 2014 (1873)). Staff recommends against the creation of a civil infraction for PAULA principally because PAULA can be expunged after 2 years. Staff recommends ￼￼against the creation of a civil offense for public intoxication both because public intoxication can be expunged after 2 years and nearly all persons charged with public intoxication are arrested for safety reasons and a civil charge does not allow for arrest. With respect to under 21, open container and obstruction, staff recommends against the creation of a civil infraction because we cannot identify a reason to do so that would justify the additional administrative burden. You will recall that upon staff’s recommendation the City Council did make disorderly house into a municipal infraction because the police could not issue a simple misdemeanor without obtaining a search warrant if the person did not open the door. The creation of a civil infraction gave the police another tool to address loud parties when a simple misdemeanor was not practically feasible. Staff is unable to identify a compelling reason for the creation of a civil infraction for the simple misdemeanors addressed in this memo, particularly in light of the availability of expunging the most frequent charges, safety concerns involved when arrest is not an option and the administrative burdens discussed above.
City staff looks forward to speaking with your and answering your questions on this topic during the April 1 work session.
- Thomas M. Markus, City Manager
- Geoff Fruin, Ass’t. City Manager
- Marian K. Karr, City Clerk
- Chief Hargadine
- Captain Wyss
- Captain Steffen
- Alec Bramel, student government liaison