OWI Appeal - Iowa Bars Use of Prior Arrests Unless Convicted

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In State of Iowa v. Figueroa, Slip Copy, 2011 WL 2090020 (Table) (Iowa App.), the defendant was charged as a 3rd time offender and pleaded guilty. A pre-sentence report revealed multiple charges and offenses for which she had been arrested but not convicted. The trial court, specifically stating that it took into account the arrests, sentenced the defendant to 5 years in jail. In vacating the sentence and remanding, the appeals court stated:



"In imposing her sentence, the district court stated that it reviewed the PSI and addendums attached and that Figueroa had been arrested twenty-two times in the past ten years. See State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct.App.1991) (finding the sentencing court “considered matters which it legally should not have considered, such as the defendant's record of arrests without convictions”). Where a sentencing court makes a specific reference to unprosecuted and unproven charges it is an affirmative showing the district court considered those charges. State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Consequently, we find the district court abused its discretion by considering unprosecuted and unproven charges. Compare id. (“When considered in context with the remainder of the court's explanation for imposing sentence, the reference to ‘additional crimes' is not ‘an affirmative showing’ that the court considered unproven charges.”), with State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (“The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption that his discretion was properly exercised.”). We are required to vacate Figueroa's sentence and remand for resentencing. State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct.App.1994). We note that the district court also considered permissible factors, such as Figueroa's extensive record of convictions, probation violations, and being found in contempt. By vacating and remanding, we do not imply that permissible factors would not support the sentence imposed and make no judgment as to what the sentence should be."



Editor's notes: Most states prohibit the use of bald arrests as a factor for sentencing. Instead, these states require the prosecutor to 'prove up' the arrests with reliable evidence, before they can be used.





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