Legal Terminology: R To Z
Another of the three golden threads of the American Criminal Justice System. Proof beyond a reasonable doubt is a strict and heavy burden. It is not enough to prove that a person is possibly or probably guilty.
Proof beyond a reasonable doubt is proof required in matters of the highest concern such as matters involving your family or your life. If there is just one reasonable doubt, the jury must give the defendant the benefit of that doubt, and find the defendant not guilty. Proof beyond a reasonable doubt is the highest burden of proof in the law.
In Indiana, reasonable suspicion is required before a police officer can stop your vehicle. Typically, this means you have committed a traffic violation, an equipment violation or engaged in some articulable, identifiable bad driving.
Interestingly, In Indiana, police officers must have reasonable suspicion before they may search your trash. In many drug cases, officers search a person’s trash to find evidence of illegal drug use or manufacture.
In federal law, these searches are allowed because the trash is determined to be abandoned property. In this instance, Indiana law offers more protection because Indiana requires a police officer to have reasonable suspicion before he executes a trash search.
The failure to deliver a chemical test sample for analysis. You can refuse by not cooperating, blowing improperly, not blowing at all or not submitting to an offered blood test.
You must submit to as many different certified chemical tests as the police officer offers within a three-hour period in order to avoid the refusal designation. Primarily, the refusal affects your driver’s license and causes you to lose the license for one year or two years if you have a prior conviction.
A refusal also prevents you from receiving any summary administrative license credit for the time your license is suspended before your conviction in court, [unless you have your refusal vacated, see mandatory minimum license suspensions above] and, the refusal itself can be used as some type of evidence at trial – most often to suggest and argue guilty knowledge by yourself of your alcohol level.
The state may also seek out a judge and obtain a search warrant, and, pursuant to that warrant a police officer can direct a medical person to draw your blood even in the face of your express refusal to submit to a certified chemical test. (See Sam Shapiro’s appeal and challenge to the search warrant procedure in the Brown v. State case)
Also, you do not have the right to counsel to assist you in the refusal decision-making when you are making that choice, and the failure to have counsel will not cause the refusal to be vacated. At Sam Shapiro Law Office, I recommend taking the certified chemical test in an OWI/DUI case because refusal can result in the following:
- Longer suspension of your license as part of the summary administrative suspension without any credit for the time your license is suspended as part of the summary administrative suspension.
- A blood test may result pursuant to a search warrant so the refusal does not completely prevent obtaining blood test evidence, which can reveal both alcohol and/or any other substances such as THC, the marijuana component that remains in your blood.
- The fact that you refused is presented to the jury as guilty knowledge evidence, i.e., you knew you had a lot of alcohol in your blood and that is why you refused.
- In Monroe County, you will spend 24 hours in Detox at the jail after your arrest if you refuse, and a much shorter time if you take the test and normal dissipation time of .015% ACE per hour is applied.
The process of obtaining your bodily fluid or breath for chemical test analysis.
A representation of a blood alcohol score without the normal weight of the blood components. Serum scores are routinely about 17-20% higher than whole blood scores. Whole blood scores are the defined measure of blood alcohol level in Indiana.
Specialized Driving Privilege
On January 1, 2015, Indiana law was amended to give trial judges discretion to issue specialized driving privileges to most Indiana drivers whose licenses have been suspended for one reason or another. [there are some exceptions for chemical test refusals, commercial driver’s licenses, serious bodily injury or death cases]
If your license has been suspended by a court for a pending court case, e.g., you failed the breath test and the court suspended your license pre-conviction because you scored .08% or higher, then you may file a verified petition IN THE COURT THAT SUSPENDED YOUR LICENSE, asking the judge to STAY the license suspension so that you can drive under specialized circumstances. Typical examples would include that you drive only for work purposes or school purposes or you must have an ignition interlock on your vehicle or carry SR-22 insurance or drive on certain roads at certain hours etc. The judge is literally free to fashion as specific an order as he or she desires to restrict your driving. As of January 1, 2019, you are eligible for a specialized driving privilege before any pre-conviction summary administrative suspension. You must give the court notice of your intent to have a specialized driving privilege at your initial hearing!
If your license has been suspended by the Indiana BMV, e.g., habitual traffic violator, then you must file a Verified petition for specialized driving privilege in the superior or circuit court in the county in which you reside. Again, you will ask the judge to STAY the license suspension and issue a specialized driving permit with restrictions similar to what I have described above.
You are not eligible for a specialized driving permit if your license was suspended by the court for chemical test refusal or if you have a commercial driver’s license, or if your case involved serious bodily injury or death.
SR-22 insurance, often called ‘high risk’ insurance is a particular type of insurance that provides two features. First, the insurance applies to an individual who purchases it regardless of what vehicle he or she operates. Second, SR-22 insurance has a condition that requires notification to the Indiana BMV if the insurance lapses, is terminated or is cancelled. In many driving instances for reinstatement, or, for a specialized driving privilege, the Court will require proof of financial responsibility insurance in the form of an SR-22 insurance policy as a condition of reinstatement.
Standardized Field Sobriety Tests (SFTs)
The National Highway Traffic Safety Administration Tests, i.e., the one leg stand, the walk and turn test, and the horizontal gaze nystagmus test.
Standardized means a strictly required uniform method to administer, observe and evaluate performance on a field test. It is the standardization of the test that allows the state or police to argue that the test is supported by scientific research.
Without standardization, the test is either invalid or reduced in any credibility for measuring a level of alcohol.
State Department Of Toxicology
The Indiana State Department of Toxicology is in charge of running Indiana’s breath testing program, which includes machine selection, inspection and method of operation.
We obtain repair and maintenance records on Indiana breath testing equipment as part of your defense. The State Department of Toxicology also has a laboratory for blood test analysis.
Typically, in an OWI/DUI case, a Ph.D. with expertise on the effects of alcohol on human behavior, including evaluation of breath or blood testing method, practice and police procedure.
A toxicologist is also versed in alcohol calculations if given sufficient data and can speak to the validity of standardized field sobriety tests. Our office never asks the toxicologist to say a certain thing for us, rather, we present the facts and listen to the opinion of the toxicologist based on those facts.
In Indiana, a police officer must either be in uniform or in a marked car to stop you for a traffic offense. (See Sam Shapiro’s case entitled Miller v. State)
A pool of potential jurors who have not yet been through the jury selection process by the attorneys called voir dire. The venire is the pool of jurors from which the final jury will be selected.
Jury venires are from voter registration lists, BMV registrations, utility registrations or other common pools of citizens from which a fair cross section of citizens can be obtained.
The process of picking the jury for your jury trial. In cases involving Level 6 felonies or less, a six-person jury is required. Each side receives five peremptory challenges to challenge jurors believed to be unfavorable to his or her side. We will have some information about jurors from their jury questionnaires.
In more serious felony cases, juries are 12 persons, with 10 peremptory challenges given to each side for the jury selection process. There is also individual voir dire for sensitive topics such as child molesting, DUI death or rape charges. This allows individual questioning of jurors without embarrassment or contamination in front of the entire jury venire.
While Or With
These are sometimes neglected elements in the OWI or .08/.15% drinking and driving charges.
These words mean that the state must prove that you were either intoxicated or that you had a certain level of alcohol in your blood or on your breath at the time of operating your vehicle. These words are pertinent for the absorption/dissipation defense as well as the post-accident drinking types of defense.