IN THE SUPREME COURT OF IOWA

No. 13–1615

Filed April 17, 2015

STATE OF IOWA,

Appellee,

vs.

JOHN PENN-KENNEDY,

Appellant.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Woodbury County, Todd A. 

Hensley, Judge. 

The State seeks further review of a court of appeals decision 

reversing defendant’s conviction for OWI finding the prosecution violated

the speedy indictment rule. DECISION OF COURT OF APPEALS 

VACATED; DISTRICT COURT JUDGMENT AFFIRMED. 

Robert D. Tiefenthaler of Tiefenthaler Law Office, P.C., Sioux City, 

for appellant. 

Thomas J. Miller, Attorney General, Heather R. Quick, Assistant 

Attorney General, Patrick Jennings, County Attorney, and Jacklyn Fox, 

Assistant County Attorney, for appellee. 
2

CADY, Chief Justice.

In this appeal, we revisit the scope and application of the speedy 

indictment rule. The issue presented is whether this rule applies to 

require the dismissal of a prosecution for the crime of operating while 

intoxicated that arose from an arrest and prosecution for the crime of 

public intoxication when the defendant reasonably believed he had also 

been arrested for the crime of operating while intoxicated. The district 

court held that the speedy indictment rule did not require a dismissal of 

the subsequent prosecution for the crime of operating while intoxicated. 

We transferred the case to the court of appeals, which reversed the 

decision of the district court. On further review, we vacate the decision 

of the court of appeals and affirm the decision of the district court. We 

hold that the speedy indictment rule is not triggered for a prosecution of 

a public offense by an arrest that resulted in an earlier prosecution of a 

separate public offense arising from the same incident. 

I. Background Facts and Proceedings. 

During the frigid early morning hours of January 19, 2012, 

Sioux City police officers responded to a report of an intoxicated man 

leaving a restaurant and preparing to operate his motor vehicle parked 

outside the restaurant. When officers arrived, they found John 

Penn-Kennedy, a Nebraska resident, sitting behind the steering wheel of 

his vehicle in the parking lot with the motor running. After questioning 

Penn-Kennedy, one of the officers entered the restaurant to interview the 

person who made the report. Two other officers remained outside with 

Penn-Kennedy. During this time, Penn-Kennedy told the officers he had 

driven to the restaurant from a bar and planned to drive home. An 

officer administered two field sobriety tests and a preliminary breath test. 

Penn-Kennedy failed the tests. 
3

Without informing Penn-Kennedy he was under arrest, the officers 

handcuffed him and transported him to the police station. As the 

arresting officer was walking him into the station, Penn-Kennedy fell and 

injured his foot. The injury was severe enough that the officer 

transported him from the station to the hospital. At the hospital, the 

officer read Penn-Kennedy his Miranda rights and invoked impliedconsent procedures to obtain a body specimen for testing to determine 

his alcohol concentration level. The officer requested a blood test for this 

purpose. Penn-Kennedy refused the test, but consented to provide a 

urine sample. After obtaining the urine sample, the officer told

Penn-Kennedy he was under arrest for public intoxication in violation of 

Iowa Code section 123.46 (2011). Penn-Kennedy was then transported 

back to the station and booked for public intoxication. A criminal 

complaint for public intoxication was filed, and a prosecution for the 

offense followed. Penn-Kennedy was released from custody following an 

initial appearance. 

On February 17, the police received the toxicology report on the 

urine sample provided by Penn-Kennedy. The report showed 

Penn-Kennedy had an alcohol concentration level at the time of his arrest 

in excess of the legal limit to operate a motor vehicle. 

On May 18, the State filed a criminal complaint charging 

Penn-Kennedy with the crime of operating while intoxicated (OWI) in 

violation of Iowa Code section 321J.2. The complaint arose from the 

same incident that resulted in the public intoxication arrest 120 days 

earlier. An arrest warrant was issued, followed by an initial appearance 

on the complaint before a magistrate on July 31. 

On August 7, the State filed a trial information against 

Penn-Kennedy charging him with OWI. The public intoxication charge 
4

was still pending, and the parties agreed to consolidate it with the OWI 

charge for the purposes of trial. Penn-Kennedy then filed a motion to 

dismiss the trial information. He claimed the State was required to 

indict him under the speedy indictment rule for operating while 

intoxicated within forty-five days of his arrest on January 19 because he 

maintained a reasonable belief he had been arrested for OWI at the time. 

The district court denied the motion. 

At a stipulated bench trial, Penn-Kennedy was found guilty of OWI, 

first offense. The public intoxication charge was dismissed. 

Penn-Kennedy appealed from the judgment and sentence for OWI. 

The sole claim raised on appeal is that the trial court erred in failing to 

dismiss the case under the speedy indictment rule. We transferred the 

case to the court of appeals. It found the speedy indictment rule for the 

prosecution of the crime of OWI was triggered by the arrest for public 

intoxication because the State did not have probable cause to arrest him 

for public intoxication, only OWI. It concluded the officers did not 

observe the essential facts to support the public intoxication charge and 

could only have arrested Penn-Kennedy for the crime of OWI. 

Consequently, it concluded the State was required to indict 

Penn-Kennedy for OWI within forty-five days of the arrest and held the 

district court erred in failing to dismiss the prosecution. We granted 

further review. 

II. Standard and Scope of Review. 

We review the district court’s interpretation of the speedy 

indictment rule, Iowa Rule of Criminal Procedure 2.33(2)(a), for errors at 

law. State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997) (per curiam). 

“We are bound by the findings of fact of the district court if they are 
5

supported by substantial evidence.” State v. Wing, 791 N.W.2d 243, 246 

(Iowa 2010). 

III. Application of Speedy Indictment Rule. 

The right to a speedy trial in Iowa is derived from both our State 

and Federal Constitutions and is more specifically defined under the 

Iowa Rules of Criminal Procedure. See id. It is aligned with the 

venerable public policy of this state that “criminal prosecutions be 

concluded at the earliest possible time consistent with a fair trial to both 

parties.” Iowa R. Crim. P. 2.33(2). 

Iowa Rule of Criminal Procedure 2.33(2) divides a criminal 

prosecution into three segments and imposes a time limitation for each. 

The first segment pertains to the filing of an indictment and is also 

known as the speedy indictment rule. “[T]he court must order the 

prosecution to be dismissed” if “an indictment is not found against the 

defendant within 45 days” of an arrest. Id. r. 2.33(2)(a). The second

segment pertains to the trial. “[T]he court must order the indictment to 

be dismissed” if the defendant is not “brought to trial within 90 days 

after indictment.” Id. r. 2.33(2)(b). The prosecution must be dismissed if 

these time limitations are not observed unless good cause is shown or 

the right has been waived. Id. r. 2.33(2)(a)–(b). The third segment

pertains to the entire case. “All criminal cases must be brought to trial 

within one year after the defendant’s initial arraignment . . . unless an 

extension is granted by the court, upon a showing of good cause.” Id.

r. 2.33(2)(c).

As with all three segments of the speedy trial rule, the speedy 

indictment rule serves to “ ‘relieve an accused of the anxiety associated 

with’ ” the suspension of a prosecution, provide for the “ ‘reasonably 

prompt administration of justice,’ ” prevent the loss of evidence, and 
6

maintain a fair process. Wing, 791 N.W.2d 246–47 (quoting State v. 

Delockroy, 559 N.W.2d 43, 46 (Iowa Ct. App. 1996)). In particular, the 

speedy indictment rule protects these objectives during the time period 

provided to file an indictment in a criminal case. Yet, an indictment is 

not normally the initial charging instrument brought against an accused 

that commences the criminal prosecution. Instead, a criminal 

prosecution is commenced upon the filing of the first charging 

instrument, including the filing of a “complaint.” Iowa Code § 804.1 (“A 

criminal proceeding may be commenced by the filing of a complaint 

before a magistrate.”); see id. § 801.4(7) (defining a “criminal proceeding” 

as “a proceeding in which a person is accused of a public offense”); id.

§ 801.4(13) (defining a “prosecution” as “the commencement, including 

the filing of a complaint, and continuance of a criminal proceeding”). The 

speedy indictment time period, however, does not begin with the 

commencement of the prosecution but with an arrest. Wing, 791 N.W.2d 

at 247. An arrest is the triggering event to commence the forty-five-day 

time period to file an indictment under the rule, supplanting the previous 

version of the rule’s use of the date of prosecution as the trigger. Id.; see 

also id. at 255 (Cady, J., dissenting) (explaining the “held to answer”

language from the previous version of the rule related to the initial court 

appearance). 

Normally, the date of an arrest and the date of prosecution follow 

hand in hand. Thus, even though the date of arrest triggers the 

requirement to file an indictment, the arrest date is usually very close in 

time to the date that commences the prosecution. This approach is 

largely due to the procedure and protocol police are required to follow in 

making an arrest. See generally Iowa Code ch. 804. An arresting officer 

“must inform the person to be arrested of the intention to arrest,” the 
7

reason for the arrest, and his or her identity as a police officer. Id.

§ 804.14. The officer must also require the person to submit to the 

officer’s custody. Id. The officer is then required to take the arrested 

person before a committing magistrate for an initial appearance without 

unnecessary delay. Id. §§ 804.21(1), .22; Iowa R. Crim. P. 2.2(1). The 

period of time between the arrest and the initial appearance normally 

must not exceed twenty-four hours. Iowa R. Crim. P. 2.1(2)(d). This 

narrow time frame relates to the broader right to a speedy trial, but is 

more associated with the rights afforded persons following an arrest, 

including the right to be informed of the accusations responsible for the 

arrest. See Iowa Const. art I, § 10 (describing rights of persons accused); 

Iowa Code ch. 804 (regulating arrests); Iowa R. Crim. P. 2.2 (describing 

initial court proceedings). The initial appearance requires a complaint to 

be filed if the person was arrested without a warrant and for the person 

to be informed of the charges and be given a copy of the complaint.1 

Iowa R. Crim. P. 2.2(1)–(2). 

While the complaint commences a criminal prosecution, no person 

may be held to answer for a public offense greater than a simple 

misdemeanor without the additional presentation of a grand jury 

indictment or a trial information. Iowa Const. art. I, § 11 (“[N]o person 

shall be held to answer for [a criminal offense for which the maximum 

imprisonment exceeds 30 days], unless on presentment or indictment

. . . .”); Iowa Code § 903.1(1)(a) (“For a simple misdemeanor, . . . [t]he 

1An arrest can occur with or without a warrant. Iowa Code § 804.7. An arrest 

warrant is issued by a magistrate based on a complaint and affidavit filed before the 

magistrate that supports probable cause for the arrest. Id. § 804.1. When a police 

officer makes an arrest without a warrant, the complaint must be filed with the 

magistrate in conjunction with the initial appearance. Id. § 804.22; see Iowa R. Crim. 

P. 2.2(1). 

 
8

court may order imprisonment not to exceed thirty days . . . .”). Thus, a 

criminal prosecution for an indictable offense must include the filing of 

an indictment or trial information, and the speedy indictment rule 

addresses the time frame during which this constitutional mandate must

take place over the course of the prosecution. See Iowa R. Crim. P. 2.4(2) 

(“Criminal offenses other than simple misdemeanors may be prosecuted 

to final judgment either on indictment or on information . . . .”); id. 

r. 2.33(2)(a). 

Generally, the speedy indictment rule’s time frame is sufficiently 

clear to guide the prosecutor in filing a timely indictment and protect the 

right of the accused to a speedy indictment, but confusion may occur 

concerning the point in time when a police encounter with a member of 

the public transforms into an arrest. See Wing, 791 N.W.2d at 248–49. 

This uncertainty, in turn, can also hinder the arrest and prosecution 

from proceeding hand in hand. See State v. Davis, 525 N.W.2d 837, 838, 

840–41 (Iowa 1994) (finding violation of speedy indictment rule in case in 

which police officers had completed citation and complaint forms, but 

released defendant without filing them with the court to delay 

prosecution). The two events become detached when a person 

reasonably believes a warrantless arrest has occurred during an 

encounter with police, while police assume the encounter ultimately 

ended without an arrest and with the release of the person from police 

custody without being taken before a magistrate for the initial 

appearance. See Delockroy, 559 N.W.2d at 45–46 (finding arrest when

defendant was taken into police custody and transported to station 

following a search of the home but was released without charges after a 

third party negotiated a deal for himself and defendant). Without the 

filing of a complaint and an initial appearance following a warrantless 
9

arrest, no court procedure exists to provide notice to the county attorney 

to file an indictment. If law enforcement officers later pursue the 

prosecution against a person under this circumstance, a question arises 

whether the speedy indictment rule requires the indictment to be filed 

within forty-five days of the time when the person reasonably believes he 

was arrested. 

This question was the subject of our decision in Wing, 791 N.W.2d 

at 244. In that case, the defendant was indicted for possession of 

marijuana with intent to deliver approximately five months after a 

roadside search by police of a motor vehicle he occupied disclosed a brick 

of marijuana in the trunk. Wing, 791 N.W.2d at 244–46. He 

acknowledged ownership of the drugs at the scene and was handcuffed 

and placed in the backseat of a patrol car. Id. at 245. He was later 

released from custody, however, after he expressed an interest in 

cooperating with law enforcement in various drug investigations. Id. The 

defendant was not taken before a magistrate for an initial appearance. 

Instead, the encounter ended after police drove him to his home, 

conducted a consent search of the premises, and reached an 

understanding with him to discuss further his cooperation in future drug 

investigations. Id. Five months later, a criminal complaint for 

possession of marijuana with intent to deliver was filed against the 

defendant. Id. at 245–46. The prosecutor then filed a trial information 

charging the same crime approximately three weeks later. Id. at 246. 

We held the speedy indictment rule was violated because a reasonable 

person in the defendant’s position would have believed he was arrested 

at the roadside encounter, and this arrest triggered the running of the 

speedy indictment rule. Id. at 252–53. 
10

Penn-Kennedy seeks to apply the Wing rule in this case. See id. 

He claims he reasonably believed he was arrested for OWI during his 

police encounter on January 19, 2012, and the speedy indictment rule 

was violated when the indictment for OWI was not timely filed following 

the arrest. He claims the Wing rule applies to preclude the prosecution 

of all crimes a person reasonably believes can be the basis for the arrest 

if that belief is formed before the police inform the person of the specific 

crime of arrest and prosecution is commenced on that crime. See id. 

The Wing rule is tied to the objectives served by the right to a 

speedy indictment. Even though no immediate prosecution followed the 

perceived warrantless arrest under the circumstances in Wing, the arrest 

nevertheless triggered the anxiety and other pitfalls of a suspended 

prosecution sought to be ameliorated by the speedy indictment rule. Id.

at 246–47, 252–53 (recognizing a purpose of the speedy indictment rule 

is to relieve the person of the anxiety associated with a suspended

prosecution). 

In this case, the objectives of the speedy indictment rule were not 

similarly implicated. Penn-Kennedy may have experienced anxiety and 

other pitfalls by waiting to be indicted for OWI, but not because the 

prosecution was suspended awaiting the indictment. Instead, the pitfalls 

faced by Penn-Kennedy were implicated by the power of the prosecutor or 

grand jury to bring a separate indictment charging a different criminal 

offense any time within the statute-of-limitations period. See State v. 

Combs, 316 N.W.2d 880, 882 (Iowa 1982) (indicating the state is not 

required to bring all charges in a single prosecution); see also Iowa Code 

ch. 802 (establishing limitations on actions ranging from one year to no 

limit based on the crime). This consequence was not within the 

protections afforded by the speedy indictment rule. It is a consequence 
11

faced by all persons accused of crimes and is protected by the statute of 

limitations applicable to most crimes. Id. § 802.3 (setting limitations for 

most felonies and aggravated and serious misdemeanors at three years). 

The speedy indictment rule serves to protect against the pitfalls 

associated with a suspended prosecution. The rule does not impinge on

the power of the prosecutor to select the crime to be prosecuted. See 

Dennison, 571 N.W.2d at 497 (noting it is beneficial to limit the rule to 

the crime for which the person was arrested and not require a 

prosecution to commence before crucial evidence is available to the 

prosecutor on other charges). Thus, the reasonable-person rule used to 

determine the time of a warrantless arrest in Wing is narrow and limited 

to those cases in which an arrest is not promptly followed by any 

prosecution. Wing, 791 N.W.2d at 252–53. 

We staked out this approach early in our analysis of the speedy 

indictment rule following the 1978 changes to its present language. In 

State v. Sunclades, we said that the forty-five-day period to bring an 

indictment applies only to the public offense for which the defendant was 

arrested and any lesser included offenses. 305 N.W.2d 491, 494 (Iowa

1981). We specifically held that the time period did not apply “to all 

offenses arising from the same incident or episode.” Id. Thus, in 

Sunclades, the speedy indictment rule applied only to the initial charge 

of attempted murder for which the defendant was arrested and not the 

later-filed separate charges of going armed with intent and assault while 

participating in a felony that arose out of the same incident. Id. at 494–

95; see also State v. Eichorn, 325 N.W.2d 95, 96–97 (Iowa 1982) (holding 

a subsequently filed burglary charge was not precluded by the speedy 

indictment rule when the forty-five days had run for a robbery charge

arising out of the same incident); Combs, 316 N.W.2d at 882–83 (holding 
12

a theft charge arising out of the same facts as a tried charge of false use 

of a financial instrument was permissible). Moreover, public intoxication 

cannot be a lesser included offense of OWI, as the presence of an 

intoxicated person in a “privately owned motor vehicle either on the 

public street or in the public parking lot” is not considered to be public 

for purposes of the offense, and the submission to police authority upon 

removal from the vehicle is not voluntary and cannot support the 

volitional element of the general-intent crime. State v. Lake, 476 N.W.2d 

55, 56–57 (Iowa 1991). Thus, public intoxication and OWI are not 

sufficiently related for the arrest for one offense to serve as the speedy 

indictment trigger for the other offense. 

In this case, unlike Wing, the prosecution following the arrest was 

not suspended or delayed by the failure of the State to proceed to an 

initial appearance based on a complaint charging a public offense. 

Instead, the State pursued a criminal prosecution for public intoxication, 

a simple misdemeanor that did not require an indictment, and 

Penn-Kennedy was in no different position than all other defendants who 

face the possibility of multiple criminal prosecutions arising out of the 

same episode. See Dennison, 571 N.W.2d at 493, 497 (charging OWI 

after arrest for open container and revoked license); State v. Lies, 566 

N.W.2d 507, 509 (Iowa 1997) (per curiam) (charging conspiracy as a 

separate offense rather than a lesser included offense of burglary). 

Furthermore, the state ultimately selects the charges to be prosecuted, 

not the accused. 

Finally, the speedy indictment rule does not look behind the 

charge identified in the complaint filed in conjunction with an arrest to 

make sure it is supported by probable cause. The rule only relies on the 

arrest as a triggering mechanism. A separate rule of criminal procedure 
13

exists that allows an arrested person to challenge the arrest prior to the 

filing of an indictment and to seek a dismissal of the complaint if not 

supported by probable cause to believe the crime charged was committed 

or the defendant committed it. See Iowa R. Crim. P. 2.2(4). 

IV. Conclusion. 

Accordingly, the district court properly denied the motion to 

dismiss filed by Penn-Kennedy. We vacate the decision of the court of 

appeals and affirm the judgment and sentence of the district court. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED.