Legal Terminology: H To J
Habitual Vehicular Substance Offenders
In Indiana, if you have two (2) or more previous vehicular convictions for drug/alcohol offenses, typically OWI, .08% ACE, .15% ACE or OWI – drugs, which are at least class A misdemeanors or greater, including drinking driving convictions, if they are at least class A misdemeanors, then the prosecutor can choose (he does not have to do this) to charge you with being a habitual vehicular substance offender. If you only have two prior convictions, one of the prior convictions must be within 10 years of your pending charge. If you have three or more prior convictions, there is no time limitation.
If you are charged and convicted of being a habitual substance offender, then the court can enhance your sentence by one to eight additional years on top of the ordinary penalty applicable to the pending underlying or predicate charge. There is a one year mandatory minimum sentence for habitual vehicular substance offenders.
Habitual Traffic Violators
In Indiana, a 10-year habitual traffic violator is a person who accumulates three major traffic violation convictions in a 10-year period – the result is a 10-year driver’s license suspension.
Major traffic violation convictions include OWI/DUI, .08 % ACE, .15% ACE, all drinking driving offenses, some types of driving while suspended, reckless driving, criminal recklessness with a vehicle, drag racing, or leaving the scene of an accident.
Three major traffic violation convictions in a 10-year period will cause the BMV to issue you a notice of suspension for 10 years. After five years, you can apply for a probationary/work license, but you must file a petition with the court for approval of such a license.
There is a habitual traffic violator status that we lawyers refer to as the mini-habitual violator. This habitual violator status requires a five-year license suspension if a person is convicted of 10 minor moving traffic tickets such as speeding, and, the status requires that there is one major traffic conviction within the same 10-year period, e.g., nine speeding tickets and an OWI/DUI within 10 years.
The good news is that as of January 1, 2015, all habitual traffic violator suspensions qualify for specialized driving privilege consideration. You must file a verified petition in your county of residence to obtain a specialized driving privilege.
There are other forms of habitual traffic violators too, though less common. If you are convicted of two or more felony traffic charges such as events with serious bodily injury or death, you will receive a habitual traffic violator suspension.
Reinstatement in all of these habitual cases is dependent upon court permission as part of a specialized driving permit. Ask your attorney if you qualify for a license if you have received any kind of habitual traffic violator notice.
Since the specialized driving privilege law went into effect on January 1, 2015, I have put a half dozen people back on the road who were long-suffering suspended drivers who had turned their lives around. They were not the same people who became habitual drivers and danger to all of us on the road. In each circumstance, the judge assessed that either their lifetime or their 10-year license suspension should be STAYED and they should be given the chance to drive again!
This license was repealed as of January 1, 2015, you must now request a specialized driving privilege.
Horizontal Gaze Nystagmus
A National Highway Traffic Safety Administration standardized test commonly known as the eye test. In theory, an individual’s eyes will display a distinct involuntary jerking called nystagmus when an individual has consumed a sufficient quantity of alcoholic beverages.
This test is very subjective in terms of police officer perception of nystagmus and is the most difficult test to properly administer and evaluate. Some states have not accepted this test as sufficiently supported by scientific data, however, Indiana does accept this test so long as a proper foundation for the test is established.
A device designed to prevent the operation of a vehicle until a sample of air is delivered into the interlock device verifying that there is no alcohol/ethanol present on the breath of the operator. Tampering with an interlock device is a misdemeanor offense in Indiana.
The court has the power, as an alternative to the summary administrative suspension required for chemical test failure or refusal, to order installation of an ignition interlock device that must remain attached to the ignition system of your vehicle until your pending case is concluded.
In Monroe County, Indiana, there is no specific rule on whether a particular judge will or will not grant an ignition interlock alternative to the summary administrative suspension, though I am unaware of whether this has happened in the recent past. This is an issue that can be pursued if you have a company poised to install the device for you.
Ignition interlock is a fast-growing option for judges who are issuing specialized driving privileges under Indiana’s new driver’s license rules effective January 1, 2015.
In past years, more and more clients are visiting Indiana University from Korea, China, India and other countries. Most of these clients are students who are here on student visas with the intent to get an education from a prestigious university to better themselves and relations between our country and theirs. Many attend the Kelley School of Business, nationally renowned as a top business school.
When a noncitizen is charged in state court with a criminal offense, there are additional ramifications that he or she faces beyond contesting the criminal charge in court. As with all students, including Indiana citizens, Indiana University imposes its own rules for student conduct and violation of these rules can result in disciplinary probation, suspension or even expulsion. If a foreign student is suspended or expelled, the consequences can be dire. First, if they are no longer a student, they can be deported or detained by immigration for purposes of deportation pending a hearing. My typical advice is to have them scramble to enroll in another school to maintain the student visa status so that they can remain in our country until Indiana University allows them back for completion of their degree. Second, if a foreign student is convicted of a crime of violence and/or any felony, he or she may not be allowed to remain in the country in any event. Finally, a conviction of certain types, even misdemeanor OWI or some Reckless Driving endangerment convictions can cause countries such as Canada to deny immigration to a person attempting to visit unless they obtain a waiver in advance of the trip to that country. Many hunters and fisherman have been turned away at Canada’s doorstep because they had a misdemeanor OWI type of offense or Reckless Driving type of offense that involved endangerment. These rules are evolving. As we progress in our new world where our borders must be secure and we are vigilant for terror, a person with a criminal record of a certain type is going to be inconvenienced at the least and perhaps denied entry completely by some countries with strict immigration policies. You should consult with an immigration attorney if these issues apply to you. The Indiana Supreme Court has recently held that an immigrant who was convicted and then deported did not receive effective assistance of counsel where he was not warned that his conviction would affect his immigration status.
In Indiana, this is what used to be called your arraignment. Typically, you enter a not guilty plea after being presented with the charges filed against you, and, after an advisement by video, from the court, or in writing, of your constitutional rights.
In most counties, your license will be suspended as of the initial hearing when the judge, acting for the BMV, makes a finding that your alcohol level was .08% ACE or higher, or, that you refused the chemical test. If your license is suspended at the initial hearing, then this is the trigger for either the 180-day summary administrative suspension for chemical test failure if you took the chemical test, or, for the one-year or two-year summary administrative suspension if you refused the chemical test. To avoid the initial license suspension, Indiana law was changed on January 1, 2019, to allow your attorney to file a notice of intent for specialized driving privilege, which prohibits the court from summarily suspending your driving privileges.
At Sam Shapiro Law Office, I can waive your initial hearing and plead not guilty for you in writing if you hire me as counsel before that hearing in order to save you the embarrassment and inconvenience of that first court hearing.
Really a misnomer since there is really no voluntary consent involved. As a condition of obtaining your privilege to drive, the law creates a fiction that you consent to submit to a certified chemical test if offered by a police officer. If you refuse a certified chemical test:
- You lose your driving privilege in Indiana for one year or two years if you have a prior conviction for OWI/DUI.
- The jury is told in some fashion at your trial that you refused the chemical test implying that you had guilty knowledge of your alcohol level.
- The police officer involved in your OWI/DUI investigation can seek a search warrant to draw your blood as evidence without your consent (See Sam Shapiro’s case and challenge to this procedure in a case entitled Brown v. State).
- In Monroe County, Indiana, you will remain in jail for 24 hours before being released to bail/bond because there is no certified chemical test with your alcohol level reported (this is a judicial rule in our county).
The end result of the refusal is that it could result in a one year or two-year summary administrative license suspension along with a blood test that will reveal your alcohol level anyway. At Sam Shapiro Law Office, except in the most unusual of circumstances, I always recommend that our client take the chemical test.
A quasi-criminal proceeding where jail time is not possible, i.e., a speeding ticket or stop sign violation. Each level of infraction, e.g., A, B, C, carries a different maximum fine with itself and your conviction of an infraction becomes part of your driving record.
Nine (9) or more driving infractions coupled with a major driving offense on your driving record within 10 years cause you to be a mini-habitual traffic violator and lose your license for five years. Fines most often range from $75 – $250 in practice although the maximums are far in excess of these amounts.
Infractions can result in a license suspension or points suspension if you accumulate too many tickets within a two-year period. The BMV may require defensive driving school or points probation and may suspend your license for failure to comply.
Another plea bargain device whereby you appear in court, plead guilty or have the judge withhold judgment of sentence pending your compliance with various agreed conditions. If you complete the conditions, then the court will not enter judgment and sentence and you are not convicted of an offense.
Indiana law, as interpreted by our appellate and supreme court, currently provides that judgment-withheld agreements are not in compliance with Indiana law and are void. However, in many counties, judgment withheld is still utilized and is a popular case management device for courts with far too many outstanding cases.
A jury trial is a trial presentation to six or 12 members of the community who sit in judgment of your case and determine if the state can prove beyond a reasonable doubt that you committed the crime.
Misdemeanors and Level 6 felonies require six-person juries; more serious felonies require 12-person juries. Each lawyer may challenge five jurors if the panel is for six jurors, and 10 jurors if the panel is for 12 jurors during the voir dire selection process.
At Sam Shapiro Law Office, I believe a jury trial offers a defendant the best chance to win his case. A trial to a judge, who must face the political pressure of reelection and who can be calloused or indifferent to presentations of reasonable doubt, is far less productive than a trial to a jury in nearly all circumstances. In fact, we lawyers joke that trials to the judge, called bench trials are really just slow guilty pleas!