Indiana State Delegates

State Delegate


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DUI Laws

I. MISDEMEANOR OWI

 
A. “.08″ & “INTOXICATED” WITH “VEHICLES”
 
There are now four (4) misdemeanor offenses in Indiana with respect to adults consuming alcohol (or having certain controlled substances in their body without a valid prescription) and operating an automobile. These four (4) basic offenses will be referred to herein as “Operating While Intoxicated Type Offenses.”
 
 
1. Two (2) “Per Se” Offenses
 
a. Class “C” Misdemeanor “Per Se”
 
The first of the two (2) “Per Se” type misdemeanor offenses is concerned with both theamount of alcohol in a person’s breath or blood and certain controlled substances in the body. IC 9-30-5-1(a) prohibits the operation of a vehicle with at least .08 but less than .15 grams of alcohol by weight in your blood or breath, and operating with certain controlled substances in your body. Both offenses are charged as Class “C” Misdemeanors.
A Class “C” Misdemeanor is punishable by a maximum term of imprisonment of sixty (60) days, a fine of up to Five Hundred Dollars ($500.00), or both. (IC 35-50-3-4)
 
b. Class “A” Misdemeanor “Per Se”
 
The second “Per Se” offense is only concerned with the amount of alcohol a person has consumed. IC 9-30-5-1(b) prohibits the operation of a vehicle with .15 or above grams of alcohol by weight in your blood or breath. This offense is charged as a Class “A” Misdemeanor.
A Class “A” Misdemeanor is punishable by a maximum term of imprisonment of three hundred sixty-five (365) days, a fine of up to Five Hundred Dollars ($500.00), or both. (IC 35-50-3-4)
 
2. Two (2) Operating While “Intoxicated” Offenses
 
a. Class “C” Misdemeanor “Intoxicated”
 
The second two (2) statutes, (IC 9-30-5-2), prohibit the operation of a vehicle whileintoxicated. ”Intoxicated” is defined as under the influence of alcohol, a controlled substance, a drug other than alcohol or a controlled substance, or a combination of these, so that there is an impaired condition of thought and action and the loss of normal control of your faculties. (IC 9-13-2-86)
A person who operates a vehicle while “Intoxicated” commits a Class “C” Misdemeanor. [(IC 9-30-5-2(a)]
© Copyright Patrick J. Arata 2006
 
 
 
 
b. Class “A” Misdemeanor “Intoxicated”
 
If it is proven that a person operated a vehicle while intoxicated, and in doing so additionally endangered someone, it is a Class “A” Misdemeanor. [IC 9-30-5-2(b)]
 
 
 

II. FELONY OWI

 
A. Previous Conviction Within 5 Years
(IC 9-30-5-3)
 
If within five (5) years of the present arrest a person has a previous conviction for an “Operating While Intoxicated Type Offense,” the new offense will be elevated to a Class “D” Felony.
A Class “D” Felony carries a punishment of six (6) months to three (3) years imprisonment. The advisory sentence is one and one-half (1 ½ ) years. In addition the person may be fined up to Ten Thousand Dollars ($l0,000.00. (IC 35-50-2-7)
 
An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.
 
Additionally, the Court must order the convicted person to serve at least five (5) days imprisonment if they have one previous conviction and ten (10) days imprisonment if they have two (2) or more convictions (without good time credit). (IC 9-30-5-15)
 
 
B. Minors in Vehicle
(IC 9-30-5-3)
 
If the driver of the vehicle is at least 21 years old, with any passenger under 18, and the driver has either 1) a Blood Alcohol Content of .15 or greater, or 2) operates a vehicle while intoxicated, in a manner that endangers a person. The charge is a Class “D” Felony.
 
A Class “D” Felony carries a punishment of six (6) months to three (3) years imprisonment. The advisory sentence is one and one-half (1 ½ ) years. In addition, the person may be fined up to Ten Thousand Dollars ($l0,000.00), or both. (IC 35-50-2-7)
 
An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.
 
© Copyright Patrick J. Arata 2006
 
 
C. Serious Bodily Injury
(IC 9-30-5-4)
 
Any “Operating While Intoxicated Type Offense” may be elevated and charged as a Class “D” Felony if “serious bodily injury” is inflicted on another person. [IC 9-39-5-4(a)]
 
However, the offense may be elevated to a Class “C” Felony if serious bodily injury is caused and the person has a previous conviction for an “Operating While Intoxicated Type Offense” within five (5) years of the commission of this new offense. [IC 9-30-5-4(b)]
 
“Serious bodily injury” is defined in IC 35-41-1-25 as “bodily injury creating a substantial risk of death or causing serious permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the function of a bodily member or organ, or the loss of a fetus.”
Please note that an offense is charged for each person suffering serious bodily injury. Thus, one accident can result in multiple charges being filed for each person injured. [IC 9-30-5-4(b)]
IC 35-50-1-2(b) defines an “episode of criminal conduct” as offenses or a connected series of offenses that are closely related in time, place and circumstance.
According to IC 35-50-1-2(c), the sentencing for this “episode of criminal conduct” can result in consecutive sentences being imposed. Pursuant to IC 35-50-2-1(d), the total of the consecutive sentences “arising out of an episode of criminal conduct,” cannot exceed the advisory sentence of a felony that is one class higher than the most serious felony of which the defendant has been convicted.
The punishment for a Class “C” Felony is two (2) to eight (8) years imprisonment. The advisory sentence is four (4) years. In addition the person may be fined up to ten thousand dollars ($10,000.00). (IC 35-50-2-6)
A Class “B” Felony is one class higher than a Class “C” Felony. The punishment for a “B” Felony is between six (6) and twenty (20 years. The advisory sentence is ten (10) years. In addition the person may be fined up to ten thousand dollars ($10,000.00) (IC 35-50-2-5)
An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.
If a convicted driver does not have a previous conviction of an “Operating While Intoxicated Type Offense, then the maximum executed sentence is four (4) years.
However, if the convicted operator has a previous conviction of an “Operating While Intoxicated Type Offense” within five (5) years of the commission of this offense, if more than one person suffers serious bodily injury, then the maximum executed sentence appears to be 10 years.
There is a mandatory license suspension of at least two (2) years. The judge may suspend driving privileges up to five (5) years. [IC 9-30-5-10(e)]
© Copyright Patrick J. Arata 2006
 
 
D. Death
(IC 9-30-5-5)
A person who causes the death of a person while committing an “Operating While Intoxicated Type Offense,” commits a Class “C” Felony. [IC 9-30-5-5]
The punishment for a Class “C” Felony is two (2) to eight (8) years imprisonment. The advisory sentence is four (4) years. In addition the person may be fined up to ten thousand dollars ($10,000.00). (IC 35-50-2-6)
An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.
The offense is a Class “B” Felony if, within five (5) years before the commission of this offense, the person has a previous conviction for an “Operating While Intoxicated Type Offense.” [IC 9-30-5-5(a)(3)]
The offense is a Class “B” Felony if, the person operated the vehicle when their driver’s license was suspended because of a previous conviction for operating a vehicle while intoxicated. [IC 9-30-5-5(a)(3)]
The offense is a Class”B” Felony if, the person operating the vehicle is at least 21 years old and has a .15 grams of alcohol by weight in their blood or breath, or operated with certain controlled substances or its metabolite in their BLOOD. [IC 9-30-5-5(b)]
The punishment for a “B” Felony is between six (6) and twenty (20) years. The advisory sentence is ten (10) years. In addition the person may be fined up to ten thousand dollars ($10,000.00) (IC 35-50-2-5)
Even though one accident occurs, each resulting death is considered a separate offense. [IC 9-30-5-5(c)] As discussed previously, a person can receive consecutive sentences for an “episode of criminal conduct.”
“Causing death while operating a vehicle” is defined as a “crime of violence.” [IC 35-50-1-2(a)(14)] Since it is defined as a “crime of violence,” the limitation concerning the imposition of consecutive sentences found at IC 35-50-1-2(c) involving an “episode of criminal conduct” does notapply.
If a person is charged with this offense as a Class “C” Felony, the maximum sentence would be eight (8) years multiplied by the number of persons killed in the accident.
However, if a person has a previous conviction for operating while intoxicated within five (5) years of the present offense, and is charged as a Class “B” Felony, the maximum sentence becomes twenty (20) years multiplied by the number of persons who die in the accident.
There is a mandatory license suspension of at least two (2) years. The judge may suspend driving privileges up to five (5) years. [IC 9-30-5-10(e)]
 
 
© Copyright Patrick J. Arata 2006
 

III. MANDATORY JAIL SENTENCES

 
A. Misdemeanor with a Prior “OWI type” Conviction
 
Please note that, even if the present charge is a misdemeanor, if the person has one previous conviction for an “OWI type offense”, the judge must sentence him to at least 5 days in jail without“good time credit.” The judge does have the option of allowing the person to perform 180 hours of community service in lieu of the executed jail sentence. (IC 9-30-5-15 (a))
If the person has two (2) OR MORE prior “OWI type convictions,” there is a mandatory jail sentence of ten (10) days without “good time credit.” The judge has the option of ordering the person must perform 360 hours of community service in lieu of the executed jail sentence. (IC 9-30-5-15(b))
Indiana law does permit the person to serve the mandatory jail sentence on home detention in these particular situations if the person is approved by the home detention agency and the sentencing judge.
 
B. Felony and Two Previous “OWI type” Convictions
35-50-2-2(b)(4)(Q)
 
Indiana law requires a mandatory minimum executed sentence of six (6) months if a person is convicted of a felony and has two prior “Operating While Intoxicated Type Offenses.”
As of July 1, 2005, Indiana Law allows this six (6) month sentence to be served on Home Detention. [IC 35-38-2.6-1]
 
 
 
 
 
 
 
 
 
© Copyright Patrick J. Arata 2006
 
 
 

IV. HABITUAL CONTROLLED SUBSTANCE OFFENDERS

(IC 35-50-2-10)
A “substance offense” is defined as a Class “A” Misdemeanor or a Felony in which the possession, use, abuse, delivery, transportation or manufacturing of alcohol or drugs is a material element of a crime. [IC 35-50-2-10(a)(2)]

An “OWI” Class “A” Misdemeanor charge may result in the State seeking to have your sentence enhanced because you are an “Habitual Substance Offender.”
The Court will sentence a person found to be an habitual substance offender to an additionalfixed term of at least three (3) years but not more than eight (8) years imprisonment, to be added to the term of imprisonment imposed for the third Class “A” Misdemeanor offense. [(IC 35-50-2-10(f)]
If it has been three (3) or more years since the date the person was discharged from probation, imprisonment, or parole for the last prior unrelated substance offense conviction, the Court may reduce the additional fixed term period. However, the Court will not reduce the additional fixed term to less than one (l) year. [IC 35-50-2-10(f)]
 
In Reffett v. State, 844 N.E.2d, (Ind.App 2006), the Indian Court of Appeals ruled that where a person is convicted of an “Operating While Intoxicated Type Offense,” as well as the Habitual Controlled Substance Offender sentencing enhancement, the HCSO statute requires the courts to imposed the mandatory executed prison sentence on the HCSO sentencing enhancement.

V. ADMINISTRATIVE SUSPENSION OF DRIVING PRIVILEGES

A. Suspension for Failing “Chemical Test”
Whenever a law enforcement officer in the State of Indiana has probable cause to believe that a person has committed an “Operating While Intoxicated Type Offense,” the officer will offer the driver a chemical test(s) to determine that person’s blood and/or breath alcohol level. The test(s) may be of the blood, breath, urine, or all three (3). (IC 9-30-6-2) If the results of a chemical test show a blood alcohol concentration of .08 or more, that person will be arrested. Further, the Indiana Bureau of Motor Vehicles (“BMV”) will be notified of the test failure. At your first court hearing, (called an “Initial Hearing”), the Judge should suspend his driving privileges immediately for one hundred eighty (180) days in open court if he failed any of the chemical test(s). If for some reason the Judge doesn’t immediately suspend the driving privileges, but the judge finds probable cause to believe that the driver failed a “chemical test,” paperwork will be sent to the BMV advising it of this. Once the BMV receives this information, the BMV will send notice to the driver at his last known address, advising him that his driving privileges are suspended. This suspension (whether by the Judge or the BMV) is called an “administrative suspension.” This suspension will last for one hundred eighty (l80) days or until the case is disposed of by the Court, whichever occurs first. [IC 9-30-6-9(b)]
 
© Copyright Patrick J. Arata 2006
 
 
B. Suspension for “Refusing”
[(IC 9-30-6-9(b)]
Whenever a law enforcement officer in the State of Indiana has probable cause, he or she will offer the driver a breath, blood, and