Legal Terminology: A To B
.15%, .10%, .08%
These scores represent the evolution of the standard for ‘drunk driving’ – now called ‘operating while intoxicated’ or OWI. Initially, .15% was the standard by which all persons were believed to be intoxicated. Some would argue that politics and highway funding have caused that standard to be reduced to .08% in all states irrespective of any change in the science of evaluating intoxication or impairment.
Nonetheless, most scientists/toxicologists – now would opine that some impairment is noticeable in everyone at .08%. Whether that impairment amounts to intoxication is often a jury question. Broad legal definition of words like ‘intoxication,’ ‘impairment’ and ‘under the influence’ makes it easier for prosecutors to seek and obtain convictions when a person is charged with drinking and driving.
These new broadened rules and definitions appear to represent a legislative determination that it is better to be safe than sorry when giving a jury guidance on what constitutes illegal behavior, i.e., operating while intoxicated.
Absorption Of Alcohol
Each person absorbs alcohol into his or her bloodstream at a rate determined by the quantity of alcohol/ethanol consumed, the weight of the person, the presence of any food in the person’s stomach, and the time of the person’s last alcoholic beverage consumption.
The pyloric valve in the bottom of the stomach opens when the stomach contents are digested, and most of the absorption occurs as the alcohol/ethanol reaches the intestines. When the valve is closed, e.g., you are eating a large meal and feel full, the effects of the alcohol/ethanol are reduced as it remains in the stomach and your absorption rate is typically slowed.
When the valve is open, e.g., when you drink on an empty stomach, absorption can take place very quickly. If you are in the absorptive phase, your breath or blood score at the time of testing may be higher than at the time of driving. This is a defense to a drinking driving charge in some cases.
In Indiana, the proper designation of this suspension is the “summary administrative suspension” because there is no real due process involved in taking your license, simply a reported score on a probable cause affidavit to the judge, acting as an administrative officer for the BMV. Therefore, the summary administrative suspension is a driver’s license suspension, which results from either the failure of a chemical test (.08% or higher) or the refusal to submit to a chemical test.
These summary administrative suspensions have been in effect in Indiana, since 1983, when, for the first time, our legislature provided that licenses could be suspended prior to any court proceeding such as trial or plea. The rationale given by Indiana courts is the ‘often-uttered phrase’ that driving is a privilege and not a recognizable constitutional right.
The initial summary administrative suspension is for 180 days if you fail the chemical test, that is, if you score .08% alcohol concentration equivalent (ACE) or greater. Since January 1, 2015, there is no longer a mandatory suspension for first-time post-conviction OWI sentences. For second or subsequent offenses, the judge has discretion to suspend your license from one year to two and a half years. You may also qualify for a specialized driving privilege either pre-conviction [if you failed a chemical test] or post-conviction. A specialized driving privilege allows you to drive with restrictions such as time, place, roads, purpose, ignition interlock, SR-22, or other limitations imposed by the Court. [There are still mandatory suspensions for serious bodily injury or death cases] [You are not eligible for a specialized driving privilege if you refused a chemical test or if you have a commercial driver’s license.]
The refusal suspension for refusing to take a chemical test is a license suspension for one year in a first offense and two (2) years if you have a prior DUI or OWI offense on your record. If you refuse, then you are not eligible for a specialized driving permit and you may not receive credit for your pre-conviction suspension time unless the judge allows the refusal to be vacated. You may be eligible for an ignition interlock device to drive-ask Sam Shapiro Law Office.
You do receive license suspension credit toward any post-conviction DUI/OWI suspension for any time your license is suspended on a summary administrative suspension if you failed the chemical test, i.e., you did not refuse the test and scored .08% or higher.
Also, if you refused a chemical test and your refusal is terminated as part of a plea bargain, then the refusal administrative suspension stops as of the sentencing date and the post-conviction suspension begins on that date such that you may be eligible for a shortened sentence or even a specialized driving permit in certain situations. If you can negotiate a withdrawal or a vacating of the refusal suspension, you may be eligible for additional driver’s license suspension credit towards your conviction suspension.
Alcohol Concentration Equivalent
A term in Indiana that expresses the amount of alcohol on your breath or in your blood. A chemical test measures the amount of alcohol in your body and the result of that measurement is expressed as a percentage by weight of alcohol, which is shortened by the law to be called ACE.
Alco-Sensor Or PBT
A portable breath test given in the field by police officers approximates your breath/blood alcohol content so that the officer may quickly determine if further investigation is warranted. These tests are not admissible in a jury trial where the rules of evidence apply because they are not certified chemical tests.
A PBT may be admissible in a proceeding with relaxed rules of evidence, but there is no specific guidance as to the scope or extent that such test would be available to a fact-finder in such a hearing.
Bail Or Bond
In criminal law, when you are arrested, the court has the option of requiring a bail or a bond of some type to guarantee that you will appear at future court proceedings. Therefore, the primary purpose of bail is to ensure your appearance at court proceedings.
The amount of bail is usually determined by a local county bail schedule. In Monroe County, for example, a typical first offense class A misdemeanor bail is $500.00. To make bail then, the court requires that you post $500 in surety and $500 in cash.
In some counties, a probation appointment may be required as a condition of pre-trial release. Indiana counties are trending towards requiring this probation meeting in addition to the posting of bail bonds.
The $500 surety bond is posted by a bondsman who charges you 10% of the amount to post the bail. If you fail to appear, then the court can turn to the bondsman to come and get you or lose the bond that he has posted, kind of like the TV shows such as “Dog – the Bounty Hunter.” The cash component of your bail or bond is required in Monroe County to pay court costs and miscellaneous fees if you are convicted.
Basics Of OWI Offenses
In Indiana, the drinking and driving offenses are divided into a smorgasbord of options for the prosecutor’s charging decisions.
The basic OWI offense begins with a class C misdemeanor charge of Operating While Intoxicated. This charge can be elevated to a class A misdemeanor OWI charge if there is an allegation of the element of endangerment. Endangerment typically requires some act of driving that puts a person or property at risk.
There is also a class C misdemeanor charge of Operating with a .08% ACE – alcohol concentration equivalent – which can be elevated to a class A misdemeanor charge if the ACE – alcohol concentration equivalent is .15% or higher. For marijuana or other drug type cases there are class C misdemeanor charges of Operating with a controlled substance or drug in the blood.
There are several ways that OWI charges can be charged as felonies depending on the facts of your case.
First, and, most typically, any prior conviction for OWI/DUI, regardless of whether such conviction was a class A misdemeanor or a class C misdemeanor, on your record within five years of your current arrest, can enhance the pending charge to a Level 6 felony. The prosecutor has the discretion whether to charge the felony or not under these circumstances, and most counties, although not all, automatically charge the felony if you have a prior OWI/DUI conviction within five years.
***note – If your prior conviction is from another state, then some analysis must be done to determine if that state’s law is “substantially similar” to Indiana law for purposes of enhancing your case to a felony – this is not automatic.
Second, serious bodily injury or death resulting from OWI/DUI will result in serious felony charges, as well as public notoriety and clamors for imprisonment in state prison. The felony death or injury cases are among the most emotional and difficult for prosecutors, courts and lawyers, and is remiss to not understand a certain community outrage or political element that wants the person charged with causing such injury or death to be punished severely. It takes a seasoned OWI/DUI lawyer to handle a case of this sort.
Third, and finally, a felony charge can arise if you are alleged to have operated a vehicle while intoxicated with children (defined as a person less than 18 years of age) in the vehicle.
Boating while intoxicated and boating with a .08% ACE or greater allow for misdemeanor charges to be filed against you. Unfortunately, the boating offenses may also provide for a summary administrative suspension of your driving license. Typically you may obtain specialized driving privileges.
There is an infraction for OWI for minors who should not be consuming alcohol at all, if they are less than 21 years of age and score at least .02% ACE but less than .08% ACE. These cases are all fact-specific and can have major effects on your driving privilege.
A measurement of your blood for the presence of ethanol or drugs. The State Department of Toxicology has a laboratory where basic gas chromatography is performed on your blood. In simple terms, ethanol or drugs are assigned certain peaks or values where they will appear if they are present in your blood during the gas chromatography process.
Typically two tests are done on each person’s blood. If done properly, most scientists agree that blood testing is far more accurate than breath testing. Blood tests are expressed as the amount of alcohol by weight in your blood, usually in grams per milliliter.
Hospitals also use serum testing, which is a basic blood test that will read from 15-20% higher than a whole blood test and some consideration to the value must be given in defending the case. Other hospitals use enzyme testing, which may or may not be as accurate as breath tests but are typically not as accurate as gas chromatography.
BMV License Suspensions
The Indiana BMV will summarily and automatically suspend your driver’s license without any court findings or input if you qualify for designation as a habitual traffic violator. If you qualify for designation as a habitual traffic violator, this would mean that even in the face of your latest OWI/DUI plea bargain, which may have provided for license suspension of a different duration, you will thereafter be suspended by the BMV independently of the court-ordered sentencing suspension for being a habitual traffic violator.
It is your job and the job of your attorney to assess whether you qualify for this treatment or not, BEFORE you enter a plea of guilty so that you are not blindsided by this suspension. Before you ever plead guilty, you simply must know if you qualify for habitual status so that you know what to expect.
Many lawyers do not advise their clients about habitual traffic violator status and there is nothing worse than a client who takes a plea bargain that provides for a one-year license suspension only to find out that subsequently the BMV, on its own and independent of the court, has suspended his or her license for 10 years or five years depending on the circumstances.
A measurement of your breath for the presence of ethanol, which is the alcohol contained in alcoholic beverages. The breath test is designed to approximate your blood alcohol content to help assess whether you are impaired or intoxicated. Breath testing was first invented and developed here in Indiana at Indiana University by Professor Robert Borkenstein, now deceased.
I had the pleasure of meeting Professor Borkenstein before he passed. Proper breath testing can be a useful tool to approximate an individual’s blood alcohol level and to assist in determining intoxication. Older breath test equipment used chemical reagents to measure changes in light and determine alcohol levels from breath.
Breath tests in the modern era are primarily infrared light devices. At the risk of oversimplification, a beam of light is passed through a sample chamber inside the breath test machine. The carbon-hydrogen molecules, which primarily make up ethanol, are known to absorb infrared light. A detector on one end of the sample chamber measures how much light passes through the chamber. The less infrared light that passes through the chamber (because it is absorbed by the carbon-hydrogen molecules), the higher the reported breath alcohol level. Since in theory, less light means that there was an absorption of some of the light by the alcohol/ethanol (carbon-hydrogen molecules) on your breath.
Currently, the breath test machine selected and approved in Indiana is Intox EC/IR II. The Intoximeters have been approved for use in Indiana since early 2014. Unlike the previous BAC Datamaster breath test device, the Intoximeter does in fact collect two (2) samples for analysis and the lower result is reported as the alcohol concentration equivalent of the subject tested. Some consistency between the samples is required and each state has its own approved methods for operating the devices.
For now, inspection and testing records are kept on each machine, and the machines are kept in working order by the State Department of Toxicology. This department must certify the machine before it is acceptable for evidentiary use. Breath tests are expressed as grams per 210 liters of breath, a weight measurement of alcohol.
Breath Test Certifications
Documents kept by the State Department of Toxicology necessary as a foundation for introduction of breath test results. These documents are required to show that the machine was inspected within 180 days of your breath test, that the officer was certified or re-certified within two years of your breath test, and, that the proper technique for operating the breath test was in place.
Primarily these documents are routinely kept at your local County Clerk’s office, and Indiana law, for now, allows judicial notice of the documents at trial, so long as there is no legitimate evidentiary dispute.
Burden Of Proof
In a criminal case, the state or government bears the entire burden of proof to prove the charges filed against you. You have no burden to prove anything (there are some technical exceptions such as an insanity defense where you bear the burden of proving your lack of sanity).
The principle of the burden of proof imposed upon the state or government is one of the three golden threads of American Criminal Justice:
- Burden of proof
- Presumption of innocence
- Proof beyond a reasonable doubt