OWI/DUI/DWI: MOST COMMON ARREST in the U.S.
Indiana, Our Statute, IC 9-30-5 Delineates the Offense:
Operating a Motor Vehicle While Intoxicated (OMVUIL)
OWI / DUI / DWI: Synonymous Terms, Interchangeable
Various Jurisdictions label ‘Drunk Driving’ differently. They are one and the same Offense
OWI: Operating While Intoxicated, Operating With Endangerment
DUI: Driving Under the Influence
DWI: Driving While Intoxicated.
THE MORE SERIOUS OFFENSES – Stemming from Alcohol and Drug Consumption Include:
- Operating While Intoxicated with Serious Bodily Injury: Level 5 Felony and higher
- Operating Under Controlled Substances: Class A Misdemeanor, and Level 6 Felony
- Operating Under Alcohol/Controlled Substance Causing Death: Level 3-4 Felony
- Reckless Homicide w/Vehicle: Level 4 Felony
- Criminal Recklessness w/ Vehicle: Level 6 Felony
- Criminal Mischief w/ Vehicle: Level 6 Felony
- Resisting Arrest w/ Vehicle: Level 6 Felony
- Involuntary Manslaughter w/Vehicle: Class 3 Felony
- Drug Violation w/Vehicle
- Failing To Yield To Emergency Vehicle w/Injury
FELONY AND MISDEMEANOR PENALTIES:
Specific to Operating Under Influence/ While Intoxicated
Class C Infraction :Persons under 21 years of age with BAC of .02 – .07 .
Loss of license up to one year
Class C Misdemeanors: (Penalty: Up to 60 days in Jail.). Loss of License up to 2 years.
Operating Vehicle with .08 -.15 grams of alcohol in blood or breath
Operating Vehicle with controlled substance or its metabolite
Class A Misdemeanor: (Penalty: Up to 365 days In Jail, and up to $5,000 fine – loss of license up to 2 years)
Operating Motor Vehicle with alcohol concentration of .15 or higher in the persons’ breath or blood.
Operating a Motor Vehicle While Intoxicated, Endangering a Person.
‘Endangerment’ applies also to the driver, even if alone in vehicle.
Felony, Levl 6 : (Penalty: 6 months to 2 & 1/2 years in Jail. Up to $10,000 fine. )
1. If there is a previous conviction for OWI within Past 5 Years
2. If Driver is over 21, operates under influence and one (1) passenger is under 18 years old
Felony: Level 5: (Penalty: 2 – 6 years in Jail. ) Person who causes ‘serious bodily injury’ when operating a
vehicle with at least .08 BAC (or) With controlled substance/ metabolite in one’s blood (or)While Intoxicated
Each victim of said incident will result in multiple counts being filed, with possible consecutive sentences
The Penalties greatly heighten with serious bodily injury and prior offense – To Level 3 and 4 Felonies. .
If a Death Is Involved: Causing death is defined as a crime of violence (I.C. 35-50-1-2 (a) 14 ) Involuntary Manslaughter.
FIELD SOBRIETY TESTING
While there are a number of tests that arresting officers, be they from Indianapolis, Beech Grove or Carmel, can and do ask drivers to perform, it is generally subject to the Officer’s time, patience, creativity and training. They are not designed to help a ‘suspect’ prove his sobriety. They are designed to subtract points from a hypotheitcal perfect performance of each test.
Many Indianapolis OWI attorneys consider them historically unreliable.
The Purpose: To compare your performance on ‘standardized’ testing procedures, with a purported approximate 70% reliability factor to establish intoxication. Unlike the mandatory penalties for Refusing a Breath/Blood test, there is no such license suspension punishment for declining to perform FST’s in Indiana. If it is going to help your situation, you would be foolish to not oblige his invitation to take them. It is becoming more prevalent that these FST’s are on video camera from the officers’ police vehicle and can be very useful at a trial in your case.
The National Highway Traffic Safety Manual dictates how these tests are to be administered.
Any variation by the arresting Officer causes their admissibility to be in question.
SOBRIETY TESTS YOU MAY ENCOUNTER:’ Non Standardized ‘
In DUI / DWI investigation your Indianapolis DUI Defense Attorney should always be prepared to challenge these.
- Reciting Random Sections of the Alphabet…… Backwards: Challenging to perform on one’s best alcohol-free days.
- Balance Test: Being asked to pick a coin off of the street, to assess degree of difficulty in maintaining balance.
- Pupil Contraction to Penlight: Fraught with subjectivity. Designed to be nearly impossible to dispute long after the night in question.
- Finger-to-Nose Test. With points subtracted for numerous imperfections in performance, significant as well as minor.
SOBRIETY TESTS YOU ARE MOST LIKELY TO ENCOUNTER:
In Marion, Hamilton, Johnson, Hendricks & Hancock Counties
It is imperative that your Indianapolis DUI Defense Attorney be as familiar with these tests as the Officer conducting them.
The National Highway Traffic Safety Administration through a series of research determined there is a battery of three (3) field sobriety tests, administered and evaluated in a standardized manner to obtain validated indicators of impairment to establish probable cause for arrest. These have come to be known as the Standard Field Sobriety Tests (SFST’s), and are the most frequently used by virtually all Indianapolis DUI law enforcement today. Though, standardized they are, they have been successfully challenged in Court since their inception. There is a clear subjective element to all of this testing, when an officer meets for the first time the ‘suspect’. Whether that suspect be from Indianapolis, Avon or Anderson, Greenwood or Greensburg, Homecroft or Huntington.
Horizontal Gaze Nystagmus: An involuntary jerking of the eye which occurs naturally as one’s eyes gaze to the side. Often performed while a flashlight is directly in your face. Nystagmus may be exaggerated and may occur at lesser angles when alcohol consumtion is involved. Examiner is looking for three indicators of impairment in each eye.
Walk and Turn: Usually 9-10 steps, heel-to-toe, along a straight line, turn on one foot and return in the same manner the opposite direction. Theory is that impaired persons have hard time following oral instructions while performing simple physical exercises. Examiner looks for eight (8) indicators of impairment. NTSA research indicates that 68% of persons who exhibit two or more indicators in this test will have a BAC of .10% or greater.
One Leg Stand: Suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (one-one-thousand, two-one-thousand, etc.) until told to put one’s foot down. The officer times the subject for 30 seconds. (That we submit, is a long time, though standard.) He is looking for four distinct indicators of impairment. NTSA research, again 68% of the time, says 2 of the 4 indicators, the person will have a BAC over .10%.
The officer has (usually) never met you, and he has no idea what difficulties you would have performing these tests on alcohol or void of alcohol. The officer’s interpretations are obviously subjective, and usually there are no other witnesses while the officer is conducting these. They are generally performed in the headlights of the police vehicle, frequently with the red or blue lights blazing, on the side of the road, often rather late at night, in a setting that any normal human would find stressful to say the least. More and more jurisdictions, in Carmel more so than Indianapolis, are providing cameras for the police vehicle to record much, if not all, of this field testing. These videos are subject to your Indianapolis OWI defense lawyer requesting and obtaining them through the ‘discovery’ process. These are often most helpful in a thorough, proper defense.
On a Second DUI / DWI/ Conviction: By Statute You Must Serve An Actual 5 Day Sentence in Jail. This applies even if the rest of your sentence can be suspended. It is indeed disturbing to watch in Court, in Marion County and so many others, while some Defendant (Not a Client of Ours) is being told for the first time, at sentencing, that he must now go serve his or her 5 day sentence. His or her Indianapolis DUI defense attorney has sometimes never mentioned this eventuality. This is not the optimal time to find this out.
On a Third DUI / DWI Conviction: Though it is often substantially more, by Statute You Must Serve a Minimum 10 Actual Day Sentence in Jail, regardless of the rest of your sentence. This is also regardless of the length of time in between your convictions, which for some clients can span decades. This is in conflcit with another Indiana Statute that requires a minimum of 180 days if there are two prior DUI/DWI/OWI convictions. Many judges believe this 180 day executed sentence to be mandatory. This 180 day minimum is mandatory if current conviction is for a Felony with two prior OWI convictions. (I.C.35-50-2-2(b)(4)(Q) As of 2005 though this mandatory minimum is allowed to be served on Home Detention. (I.C. 35-38-2.6-1)
Habitual Traffic Violater Statute: A Huge Ramification of A DUI / DWI Conviction can result in an additional suspension of one’s driver’s license imposed by the Indiana Bureau of Motor Vehicles and it may never be addressed in Court. It is imposed by the Bureau, not the Court. It is considered an administrative suspension because of your HTV status.
10 Year License Suspension: If there are three (3) violations/convictions within ten (10) years of one another for offenses such as DUI / DWI, Driving While Suspended, Reckless Driving, even the C Misdemeanor of Never Having a License (among others).
5 Year License Suspension: Only one (1) DUI / DWI in conjunction with ten (10) judgments for essentially any moving violation/infraction (i.e. Speeding, Disregarding Stop Sign, etc.) Please Be Aware of this possibility if your Indiana Driving Record is even near 10 infractions.
Habitual Substance Offender: FOR CASES FILED PRIOR TO JULY 1, 2014.
In Marion County, Hamilton County and Johnson County Indiana, as well as others, there has been a resurgence recently in the filing, and/or threat of filing this Habitual Substance Offender Count in DUI / DWI/ Operating with Controlled Substance related cases. Essentially, because of one’s prior criminal history, you can be deemed a Habitual Substance Offender with two prior ‘substance abuse’ related convictions. Those can include Class A misdemeanor minor possessions of marijuana, as well as DUI / DWI prior convictions. This enhanced HSO Count carries an additional 3-8 year sentence, if pursued. Often, it’s used as a powerful bargaining tool by the State to essentially force the Defendant into a guilty plea. Your prior convictions can span your lifetime.
FOR CASES FILED AFTER JANUARY 1, 2015: CHANGES HSO Significantly
HABITUAL VEHICLE SUBSTANCE OFFENDER (I.C. 9-30-15.5-1)
The element of prior substance abuse involving and requiring it to be a prior ‘Vehicle Offense’ has been a fundamental change to the old HSO statute. IT NOW REQUIRES 3 Prior Unrelated Vehicular substance offenses (felony or misdemeanor) WITHIN ANY PERIOD OF TIME. BUT ALSO ALLOWS IT TO BE ONLY 2 Prior Unrelated Vehicular Substance Convictions WITHIN A 10 YEAR PERIOD OF TIME.
This new HVSO Statute REQUIRES the sentencing Judge to impose an ADDITIONAL FIXED TERM OF AT LEAST ONE YEAR to the Offender’s Sentence, BUT NO MORE THAN AN ADDITIONAL 8 YEARS. ( I.C. 9-30-15.5-2(e) ).
Any Indianapolis DWI defense attorney doing DUI / DWI cases must know how this statute ‘s impact, and the changes that have been made to this aspect of the law can be minimized depending on the client’s past record. Though the penalty can indeed be severe, it can be dealt with.
IF YOU FACE THE HABITUAL VEHICLE SUBSTANCE OFFENDER STATUTE
CALL US. WE CAN HELP YOU.