DUI / OWI Frequently Asked Questions
Driving Under Influence / Operating While Intoxicated Law
Q. What are the possible penalties associated with an OWI charge in Indiana?
A. A first offense misdemeanor may be punishable by up to 1 year in jail and a $5,000 fine. A Felony OWI (Level 6) is punishable anywhere from six months on probation to 2 1/2 years in prison and a $10,000 fine. If the case involves a Serious Bodily Injury and/or Death, the penalty and fine increases significantly.
Q. What will happen to my license if I am charged with OWI?
A. In the majority of cases, the Defendant’s license is suspended by the court at the initial hearing. If the Defendant failed a certified chemical test, the BMV issues a 180 day administrative license suspension. If the Defendant “refused” the certified chemical test/blood draw, the BMV will issue a 1 year administrative license suspension. The refusal suspension may be increased to two years if the driver has a previous conviction for OWI.
Q. What will happen to my license if I am convicted of OWI?
A. A conviction will require a license suspension ranging anywhere from zero (0) days up to two (2) years.
Q. Do multiple convictions bring about more severe license suspensions?
A. Yes. A second and subsequent conviction will likely bring about longer driver's license suspensions. However, two (2) years is the maximum suspension that you can receive as punishment for an OWI conviction. Note: Any suspension handed down by the Court as a result of conviction may possibly run consecutive to any administrative suspension handed down by the Bureau of Motor Vehicles.
Q. Do multiple convictions require mandatory jail time?
A. Yes. A second conviction requires a mandatory minimum sentence of 10 days in jail. A third conviction requires a mandatory minimum sentence of 20 days in jail and the possibility of an additional 6 months on some form of community corrections.
Q. Can I get a probationary or restricted license while my case is pending?
A. Effective February 1, 2015, Indiana Law passed the specialized driving privilege statute (I.C. 9-30-16-4). If you are arrested for OWI and suspended by the Bureau of Motor Vehicles (administrative suspension) for failing a breath test, you may petition the Court and request specialized driving privileges. The Court has full discretion as to whether or not to grant the privileges. If the privileges are granted, this may include the installation of an ignition interlock device on your vehicle. If the Court finds probable cause that you have refused a chemical test, you are not eligible to apply for specialized driving privileges under any circumstances. If the Court grants specialized driving privileges, typically, the privileges would involve driving to and from work and possibly to carry out some of the other necessities in life. However, it is primarily intended to allow individuals to drive and from work.
Q. Will a conviction have an impact on my insurance rates?
A. Yes. Indiana law requires anyone who is convicted of OWI to obtain a high risk insurance bond for two years.
Q. Do out-of-state convictions count as prior convictions in Indiana?
A. Yes. In many cases, out of state convictions will enhance the sentence and license suspension associated with your Indiana case.
Q: Why do I have two OWI/DUI charges arising out of the same incident?
A: The most common approach to charging individuals with OWI/DUI in Indiana is to lodge two counts; 1) Operating a Vehicle While Intoxicated, and 2) Operating a Vehicle with a BAC of .08 or Greater. The OWI charge alleges that you operated a motor vehicle while impaired. To prove this charge, the State would rely mostly on observations made by the officer such as slurred speech, unsteady balance, and poor performance on the field sobriety tests. Technically, the OWI charge really has nothing to do with the chemical test result. In contrast, the BAC charge requires the state to prove only that the accused operating a vehicle, took the certified test w/in 3 hrs, and that the certified testing machine was functioning properly. Technically, evidence of impairment is not relevant to the proof of the BAC charge, often times making the BAC charge easier to prove by the State.
Q: Why did the officer ask me to follow a pen with my eyes, stand on one leg, and walk a straight line?
A: Most OWI roadside investigations will involve the officer requesting the driver participate in some standard field sobriety tests. These tests were designed over 30 years ago and adopted by the National Highway Traffic Safety Administration (NHTSA). Officers are trained how to administer these tests during their training at the law enforcement academy. Officers rely heavily on the results of these tests to support their decision to arrest, but in reality, the tests are typically administered improperly and the results are unreliable. In order to successfully defend OWI/DUI cases, your defense attorney must be able to challenge the administration of these tests.
Important information regarding license suspension:
It is important to understand that there are two separate types of license suspensions associated with OWI cases: administrative suspension and punative suspension. The first type of suspension is an administrative suspension. An administrative suspension is handed down by the Bureau of Motor Vehicles because the Defendant either failed a breath test and/or blood draw (180 days) or failed a chemical test (1 year or 2 years if prior conviction). This suspension is typically in place while the case is pending. In addition to the administrative suspension, the Court may issue a suspension if you are found guilty as a form of punishment. The suspensions associated with guilty findings can range anywhere from zero (0) days up to two (2) years. This could be consecutive to any administrative suspension that has been issued. Often times with refusals, this is the case. However, it is worth noting that you may negotiate to receive credit for any time that you already served under the administrative suspension.
Alcohol Breath Testing in Indiana
First, it is important to understand that you will likely be offered two different types of breath tests during a DUI investigation. The Officer will first request that you submit to portable breath test (PBT). No one is required to submit to such a test and there is no penalty at law for not doing so. The actual result of the PBT is not admissible at trial against you, but the mere fact that a positive reading for alcohol occurred is admissible. In other words, the investigating officer cannot testify that you were .15 on the PBT, but he/she can testify that the instrument detected the presence of alcohol in the system. The PBT is used by officers to help establish probable cause to detain you and further the DUI investigation.
At some point during the traffic stop, the officer will likely request that you submit to a certified chemical test. This is the instrument that is typically located at the county jail/Sheriff’s Dept. and is the machine that provides the official reading which will support a DUI charge against you.
Generally speaking, there are two different certified chemical testing machines used across the state of Indiana, the Datamaster and Intoximeter EC IR2. Each county may choose which machine they desire to utilize. They each have their own mechanical differences but both basically function under the same “scientific” theories. The primary difference between the two instruments is that the Intoximeter requires the accused to provide two breath samples and records the lowest of the two samples as the official reading, whereas the Datamaster requires and records one sample.
If the certified machine generates a reading of .08 or greater you will likely be charged with the formal charge of Operating a Vehicle with a BAC of .08/.15 or greater, depending on the amount in system. If the officer believes you exhibited other indicators of intoxication/impairment, you may be charged with the formal charge of Operating While Intoxicated.
The most important aspect of understanding the significance of a “failed” breath test (.08 or greater) is to understand that the State must prove that your blood alcohol level was .08 or greater at the time you last operated the vehicle. This could be several minutes and even more than an hour before the time of the test, depending on the circumstances. If the test is completed within 3 hours of the time you last operated the vehicle, the State is entitled to an instruction that essentially tells the jurors that they may presume your blood alcohol level (per the machine result) was the same at the time you drove. This shifts the burden of proof to the accused to raise reasonable doubt that the amount of alcohol in his/her system at the time of operation did not equal or exceed .08. This brief review of the nuances of alcohol breath testing demonstrates the complexity of DUI law in Indiana.