What To Know About Drunk Driving In Indiana
DUI, OVWI, OWI, and Per Se, are all abbreviations for what are commonly called drunk or drug driving offenses. Most of the difference in the terminology is historical. First, ‘driving’ ‘under the influence’ had a specific meaning. Often the driving required the vehicle to be on a roadway or on a public roadway, and, the vehicle had to be in motion. ‘Under the influence’ was broadly equated with loss of balance and the inability to do simple tests such as touch-your-nose, or walk-a –line, or count backwards, or say your ABC’s. Breath testing was in its infancy.
As time passed, so did terminology, sophistication, and politics.
The standard drunk driving charge has evolved into three (3) basic forms:
- Operating while Intoxicated – Operating does not require you to be on a roadway or in motion, rather you simply have to be in the vehicle with the intent and the capability of operating it; it can be a crime to operate the vehicle on private property; and, a vehicle can include a golf cart, an ATV, or even a scooter. Intoxicated means that you are under the influence of alcohol or drugs or a combination of those substances such that there is an impaired condition of thought and action and the loss of normal control of your faculties. If your driving posed a danger to yourself or others, the charge is elevated from a class C misdemeanor to a class A misdemeanor, though for most first offenders the difference between the 2 charges is almost meaningless. [one meaningful exception for a first offender is that the C misdemeanor only carries up to a 60 day license suspension, while the A misdemeanor carries up to a 1 year license suspension.]
- Operating with a Controlled Substance in the Body or Blood. In death cases the allegation of controlled substance must involve a blood draw. In serious bodily injury or all other cases, the evidence of controlled substance can be from urine or other bodily fluid testing. Indiana is not Colorado. Our legislature has not done a good job of differentiating between those people who smoked marijuana 3 weeks ago and drove their vehicle from those people who smoked marijuana and drove immediately thereafter or within the time that the effects of the marijuana were still active. Some states require a specific nanogram level of THC for conviction which would be consistent with the active metabolite of marijuana affecting a person’s driving and/or judgment. Indiana law makes no distinction between the active and inactive metabolite and, does not require proof of impairment for conviction of this offense.
Sam Shapiro has handled several death cases where inactive marijuana metabolite placed a person’s liberty at risk despite the fact that they were not high or impaired at the time of the accident. Put that experience to work for you – these are cases that can cost you your freedom and end in tragic prison sentences and life changing punishment.
- Operating ‘per se’. This offense in Indiana was put into place in At that time, Mothers Against Drunk Drivers [MADD] was wielding great political clout throughout the country. On the national level of politics, new punishments and statutory schemes were developed to address the drunk driving problem in our country. Operating ‘Per Se’ means that irrespective of whether a citizen is drunk or not, if that citizen has a certain amount of alcohol in their body, breath, blood, or urine – then that is a crime. In 1983 that level was .10 – TODAY THE LEVEL IS .08%. Therefore, whether you are intoxicated or not, if the evidence of testing reveals a score in excess of .08% g/ 210 liters of breath or 100 ml of blood, you can be convicted of a drunk driving type of offense. This is particularly challenging at your jury trial where your lawyer must seek to prevent the jury from compromising its verdict by finding you guilty of the ‘per se’ offense but not guilty of the OWI offense. This compromise yields nothing but a conviction and punishment to the defendant despite the good intentions of the jury. Let Sam Shapiro explain how he handles this problem at trial and how he has achieved many not guilty verdicts on all of the drunk driving charges filed.
- The standard offense above are typically misdemeanor offenses, either C misdemeanor, or A misdemeanor. However, these offenses can be elevated to a felony in Indiana if : (a) you have a prior conviction for OWI within 5 years; (b) you have a minor child in the vehicle with you when you are charged with OWI; or, (c) you are involved in a serious bodily injury or fatal accident. These are cases that can lead to mandatory minimum jail sentences, license suspensions and prison time. If your lawyer has not handled these cases before, you are paying him to learn on your case. Better to have the Knowledge and Experience of Sam Shapiro – who has handled prior conviction, serious bodily injury, and death cases in all of their forms.
- There are habitual offender ramifications for repeat drunk driving. (1) A habitual vehicular Substance Offender is a sentencing enhancement in Indiana that can add 1-8 years to any sentence that a drunk driver would receive upon conviction. You qualify to be a habitual vehicular substance offender if you have two (2) prior OWI convictions IN YOUR LIFETIME. THERE IS NO 10 YEAR LIMITATION ON THIS ENHANCEMENT IN INDIANA. (2) Habitual Traffic Violators are people who have accumulated three (3) major traffic offenses – drunk driving, driving while suspended, reckless driving, leaving the scene of an accident within a 10 year period. The penalty is loss of license for 10 years. If you drive after being adjudged a habitual traffic violator – you may lose your license for life, and, you are charged with another felony. (3) Ordinary habitual offenders. In some cases a drunk driving felony may be used to make you a habitual felon for sentencing enhancement purposes. All of these habitual scenarios involve significant jail time, usually prison, and license suspension. They also put you in a hole in life where you cannot improve your condition because of the lack of a driver’s license.
- In most cases, the police officer is required to read you the ‘implied consent’ advisement which informs you that he believes he has probable cause that you have operated a vehicle while intoxicated and that he must offer you the opportunity to submit to a chemical test. A chemical test is an analysis of your breath, blood, or urine for the presence of ethanol [alcohol] or controlled substances. The police officer may offer you as many tests as he wishes within three (3) hours of his probable cause to believe you operated while intoxicated and you must submit to all of the testing to be in compliance with ‘implied consent’.
- TAKE THE CHEMICAL TEST IN NEARLY EVERY SITUATION – DO NOT REFUSE!!!
Sometimes law is interpreted in ways that do not favor the rights of citizens. One such instance is an alleged ‘refusal’ to submit to a chemical test. A person can refuse by either verbally informing the officer that he will not take a chemical test, or, by engaging in conduct such as ‘pretending to blow’ or ‘not blowing hard enough’ such that he is not cooperating with the chemical test. The officer is given great discretion in these cases to opine ‘refusal’ and the consequence is the loss of a person’s license for 1 or 2 years with no specialized driving privilege allowed. If you refuse a chemical test, the officer has the right to seek a search warrant for your blood, and if granted by a judge, can force you to give blood so that the evidence of alcohol or controlled substance is retrieved from you without consent.
Sam Shapiro fought against this involuntary blood draw in a significant Indiana case entitled Brown v. State. In that case, Sam argued that the Indiana drunk driving statutory laws as written made no provision for drawing blood, and, neither did the search warrant statutes. Nonetheless, the Indiana Appellate Court cited the public safety aspect of enforcing drunk driving laws and despite the absence of statutory authority, allowed the involuntary search warrant for the blood draw. Our Indiana Supreme Court declined transfer by a 3-2 vote and this process became law. NOT EVERY COUNTY USES THE SEARCH WARRANT BLOOD DRAW, — BLOOMINGTON DOES [MONROE COUNTY] [LAWRENCE COUNTY DOES, MORGAN COUNTY, BROWN COUNTY AND GREENE COUNTY TO NAME A FEW]
Therefore, if your county does a blood draw without consent by search warrant to get your blood alcohol score – your refusal is meaningless and, can be used against you at trial, and, results in loss of your driving privilege with no specialized driving privilege allowed.
I REPEAT, IN MY CASES, TAKE THE CHEMICAL TEST – DO NOT REFUSE.
- A chemical test result can be obtained in 3 ways. (1) You consent to a breath, blood, urine analysis; (2) A search warrant is obtained and your blood is examined without your consent pursuant to Court Order; and, (3) You consent to necessary treatment at a hospital. In Indiana, when you consent to necessary treatment, you waive your privacy rights to your medical records. This means a prosecutor can issue a prosecutor subpoena [court approval is required but nearly always given] to obtain your medical records, most often toxicology lab records. If the hospital lab discovered marijuana or alcohol or other substances in your system, that information becomes available to the prosecutor and can be the basis of a criminal charge in Indiana. Blood tests sent to the Indiana Department of Toxicology can take as long as 3-6 months to return with results.
- Many times your lawyer must know the ‘science’ of drunk driving. The breath test used in Indiana is the Intoximeter EC-IR II [electro-chemical – infrared device II] manufactured near St. Louis Missouri. Forensic toxicology experts are almost always necessary to properly defend a drunk driving case whether the case involves breath, blood, or urine.
Call Sam Shapiro Law Office for help navigating this complicated area of law, science, and defense.
DRUNK DRIVING PROCESS.
- As with other cases, the drunk driving case typically starts with an arrest. Sometimes the arrest is postponed pending a blood test, but generally after interaction with a police officer there is an unpleasant jail experience in the ‘drunk tank’ awaiting you. IF YOU REFUSE A CHEMICAL TEST THE JAIL WILL HOLD YOU FOR 24 HOURS IN THIS HORRIBLE ENVIRONMENT! DO NOT REFUSE. In most cases, you are held in the ‘drunk tank’ for a number of hours based on your alcohol level – the jail will use a chart to release you along with offering you portable breath tests which are only used to determine your time of release – take the test even though it is not a certified chemical test so that you get out of jail sooner.
- You next must either call a bondsman to post bail or pay a 10% cash alternative bail to secure your release.
- In Monroe County you must meet with probation to determine the terms of your release on bail, usually just telephonic notification of your court dates. Counties that do not have a probation meeting following release simply go straight to the initial hearing.
- Your first court hearing is called an ‘initial hearing’. It used to be called an arraignment and it serves the same function. The initial hearing is designed to insure that you understand your rights, that you receive a copy of the charges filed, and that you enter a plea to the charges, NOT GUILTY. A ‘not guilty’ plea simply says you want to see the State’s proof against you. It can be changed later if you so desire.
- Your lawyer can ‘waive’ your initial hearing and enter a written ‘not guilty’ plea to avoid this court appearance in many cases, be sure to ask – save the inconvenience and embarrassment of this hearing.
- Unlike other cases, in a drunk driving case, the judge can suspend your driving privilege at the initial hearing pre-conviction unless you file a notice of intent for specialized driving privileges * see the our web content on specialized driving privileges* and obtain a STAY of your suspension and the ability to drive.
- Next is a pretrial conference. Ignore the word ‘trial’ in pre-trial conference. There is no trial at the pretrial conference so you can quit fretting over what will happen. Rather, the pretrial conference is a court hearing where (1) usually a plea offer is made, (2) the judge will check on the discovery process to make sure the parties are exchanging information and working the case to resolution, and (3) a scheduling discussion for a future pre-trial, a motions hearing, or even a jury trial is held with prosecutor, lawyer, and judge all participating. Your attendance can be excused from pre-trial conferences in some cases if necessary, let your attorney know if you cannot be there and a motion can be filed to excuse your attendance.
- The primary evidence we need to analyze in a drunk driving case is (a) video if it exists – there is no State law requirement for video, though there should be; (b) police reports and any witness statements; (c) photos if they apply, and , (d) the chemical test result, breath, blood, or urine score for alcohol and/or drugs. Then we assess the case!
Plea Bargains and Jury Trials.
- Sometimes your lawyer can reach an agreement to resolve your case by plea bargain. A plea bargain is an agreement between the State and the defense to resolve the case. A plea bargain will set forth the charge to which you must plead guilty, the penalty the court will impose, and the duration of any probation. Typical terms of probation are (1) you may not commit another offense of any type – misdemeanor or felony; (2) you may not consume alcohol or controlled substances without a prescription – marijuana is still illegal in Indiana! – you may be screened (3) you must report as directed to your probation officer and participate in any program deemed needed by you e.g. a substance abuse program, anger management, a batterer’s program etc. Obviously you want your lawyer to get the ‘best’ plea bargain possible with the least penalty possible. By the way, ‘no’ you cannot just pay more money and get less punishment; hopefully the discovery process uncovers favorable things that can be used to get the best plea bargain possible.
- Your lawyer gives you advice, options, and explains the law. However, the case is yours. We work as a team but in the end, you must decide what is best for you! I would NEVER tell someone that they must plead guilty! If you tell me that you are ‘not guilty’ it is my job to develop the best strategy to have a jury find you to be ‘not guilty’. It is also my job to show you the strength of the State’s case and if applicable, show you why not everyone would agree that you are not guilty. Nonetheless, you are entitled to a trial and regardless of anyone else’s belief, if you are willing to take the risk of trial, your lawyer must do everything in his power to assist you in achieving your not guilty goal! The case is yours and the important decisions are ultimately, yours!
- Some cases just cannot be worked out and have to go to trial. Death cases for example, or, cases where a conviction will forfeit a person’s CDL license to make a living, or his immigration status, or, cost the loss of a job because a security clearance of secret or top secret is lost. In these cases, unless the State and prosecutor are willing to make a ‘special circumstance’ exception and allow a plea bargain to a lesser charge not involving drunk driving then you may have no choice but to take it to trial.
Call Sam Shapiro – his trial experience in both large and small cases can make all the difference for your plea bargain or for your trial if you have no other options. Knowledge and Experience are your best weapons in the courtroom.
Drunk driving cases can get serious very quickly, the emotion, and drama of a drunk driving death case rivals those of more serious violent cases like murder and rape. You need to have someone who has ‘been there and done that’ so that you get the best strategy for success in these cases.
Indiana is an ‘old school’ state. We are very conservative and we take a very traditional approach to drug cases. Unfortunately, this includes jail time instead of treatment in many situations. We still have many counties surrounding Monroe County – Bloomington that impose jail time for personal use marijuana right down to the last of the ‘shake’ in the baggie!
It makes sense to treat marijuana cases differently from ‘drug crimes’ generally. Most counties will have some form of pre-trial diversion for first-time marijuana possession – though as stated above, there are still those places that impose a weekend in jail for any marijuana use. Indiana has not de-criminalized marijuana at all. Marijuana’s active ingredient of THC remains in a person’s system for about a month. It is a large molecule that is hard for your body to metabolize. Even though you are not high, the inactive metabolite of marijuana remains in your system and potentially subjects you to criminal liability. There are several Indiana cases involving driving deaths where the person driving had the inactive metabolite in their body and was not high, yet was sent to prison because they caused an accident with the inactive THC metabolite on board. Our Supreme Court refuses to interpret the law to require intoxication or impairment. We impose strict liability for the THC in your system regardless of impairment.
In university communities such as Monroe County, Vigo County, Vanderburgh County, Marion County, Allen County, and St. Joseph County – you can also receive more progressive treatment in your marijuana case. Diversion programs, substance abuse programs and other non-jail options are often utilized in these more progressive communities.
Most marijuana charges are misdemeanors. However, if you have a sufficient quantity of marijuana 30 grams or more and you have a prior drug offense of any kind, a marijuana charge can be a felony. Also, if you possess 10 pounds of marijuana and/or have evidence consistent with growing or dealing marijuana – felony offenses can apply.
Methamphetamine, Cocaine, Heroin, MDMA [ecstasy], Mushrooms, Pills – hydrocodone, xanax, oxycodone etc.
Generally the quantity of drugs involved controls how serious the crime is for these substances. There are some class A misdemeanor Possession offenses but for the most part, because of the addictive character of these substance and/or their effect on a person’s body and ultimately on their life, e.g. methamphetamine – our statutes begin at a level 6 felony level and go up from there. It is not unusual for a level 2 felony to be charged where there is sufficient quantity of a drug and the addition of evidence of dealing such as scales, baggies, surveillance cameras, and ledgers or cell phones documenting deals. A level 2 felony is very serious and carries a 10 year minimum, a 17.5 year advisory and a 30 year maximum sentence. These are prison sentences.
Drug case penalties mirror the penalties for violent crimes or sex offenses and you must serve 75% of any time you receive if you are convicted of a level 5 felony or higher.
Level 6 Felony – 6 month minimum – 1 year advisory – 2.5 year maximum sentence
A level 6 Felony may be reduced to a class A misdemeanor and you serve 50% of any time, the rest of the felonies require 75% of time imposed to be served:
Level 5 Felony – 1 year minimum – 3 year advisory – 6 year maximum
Level 4 Felony – 2 year minimum – 6 year advisory – 12 year maximum
Level 3 Felony – 3 year minimum – 9 year advisory – 16 year maximum
Level 2 Felony – 10 year minimum – 17.5 year advisory – 30 year maximum
Level 1 Felony – 20 year minimum – 30 year advisory – 40 year maximum
The best drug defenses revolve around 4th Amendment, Ind. Constitution Art. I Sec. 11 constitutional violations. If you find a significant constitutional violation, you can ask the Court to suppress or exclude the evidence from the criminal proceeding and the prosecutor is often left with no evidence and the case is dismissed. Typical examples for filing a motion to suppress include a lack of probable cause to search, the lack of a warrant to search, the failure of the officer to give a reasonable articulable basis to support a search or a temporary detention, the failure to establish the reliability and credibility of an informant, and the behavior of the police in exceeding the scope of the warrant itself.
Our Supreme Court has also given Indiana’s Constitution a vitality and energy of its own, separate from that of the 4th Amendment to the United States Constitution. Two obvious examples of this are 1. The Pirtle Rule – which requires a person in custody to be able to speak with an attorney before giving consent to a search without a warrant; and, 2. The Litchfield Rule – which requires that there be reasonable suspicion before a police officer can search a citizen’s trash; 3. We have an Indiana statutory rule that night time search warrants done by telephone must be recorded so that the probable cause testimony is preserved – I had a case dismissed for lack of recording!
Knowledge and Experience with both the federal and Indiana rules of search and seizure are vital to an effective drug charge defense.
Other drug charge defenses can include 1. Entrapment, 2. Failure of the chain of custody, 3. Lesser offense arguments such as possession v. dealing; 4. Laboratory or analysis errors; and, 5. Insufficient Evidence.
If you are suffering from a substance abuse addiction, regardless of the substance, you should seek treatment for this problem. Regardless of whether you prevail in your legal case, your life is worth more than the ingestion of these substances which can permanently damage both your health and your family lifestyle. The illegal use of substances inevitably leads to one place – the criminal justice system – and that road often times leads to jail and/or prison.
Winning your legal case is one thing, finding a long-term solution that keeps you out of trouble must also be considered to prevent a revolving door of arrests, criminal charges, legal fees, and potential loss of liberty.
Call Sam Shapiro, let me use my Knowledge and Experience to give you options for both your short term legal problem and any long-term or chronic addiction issues you may have.