Operating While Intoxicated

Indiana Operating While Intoxicated - Frequently Asked Questions:

Q: What are the Indiana operating while intoxicated laws?

A: The Indiana statutes describe four basic offenses for operating while intoxicated. The first is called operating while intoxicated. It says that if you operate a vehicle while under the influence of drugs or alcohol such that your faculties are impaired, you commit a class C misdemeanor. Secondly, operating while intoxicated is elevated from a class C misdemeanor to a class A misdemeanor if you “endanger” someone. Third is operating a vehicle with a blood or breath alcohol level (sometimes called BAC or ACE) of .08% or higher, a class C misdemeanor. However if your level is .15% or higher, the charge is raised to a class A misdemeanor. The punishment for a class C misdemeanor cannot exceed 60 days of incarceration and fines of $500. The punishment for a class A misdemeanor may be up to 365 days of incarceration and fines of $5,000. Operating while intoxicated can be a felony if you have a child in the car, have a prior conviction, or cause serious injury or death.

Q: When he arrested me, the police officer took my license. What happens to it?

A: The police are supposed to take your license and give you a receipt for it. A police officer does not have the power to suspend your license. You are not suspended until a court or the BMV suspends your license. Of course, in most cases, within days after your arrest, your license will be suspended. The initial suspension is called an administrative suspension and it results from either failing the breath test/blood test or from refusing to take the test. Later, if you are convicted, there will be a different license suspension. If you are found not guilty, the administrative suspension may still be in effect – there are specific procedures for challenging the administrative suspension. Indiana law says that if you are convicted for a first time offense, your license will be suspended for at least 90 days and maybe as long as 2 years. The license suspensions are longer if you’ve previously been convicted. In many cases, it is possible to obtain a conditional license, which will allow you to drive for work purposes.

Q: Is there any way to beat an operating while intoxicated charge?

A: The answer depends on the specifics of your case. Ultimately for you to be convicted, the prosecutor must prove to a jury beyond a reasonable doubt that you violated a specific operating while intoxicated statute.

Some ways to beat the charge are:

1. The prosecutor’s evidence of intoxication is insufficient.

The evidence usually consists of the police officer’s testimony about your breath test result, but machines can be wrong. If you refused the breath test, the evidence against you is limited to the officer’s observations made during field sobriety tests. In many cases, this kind of evidence is not enough to find you guilty. Frequently officers fail to properly administer the tests. This creates the possibility of excluding the test from evidence – or at least can create some significant doubts. If you refuse all tests, the evidence against you is limited to what the officer can say about your appearance and demeanor, such as you smelled like alcohol and had red eyes. Frequently, it just does not add up to proof beyond a reasonable doubt. The prosecutor has to prove that you were intoxicated at the time that you were driving. If a significant amount of time passes prior to taking the breath test – your alcohol level may be much different. Breath tests and even many blood tests can be inaccurate.

2. The prosecutor’s evidence that you operated a vehicle is insufficient.

In some cases – especially when there was a crash and police arrive after the fact, they “assume” that you were driving but the law says the prosecutor has to prove it beyond a reasonable doubt. Very specific facts will be important – who is the registered owner of the vehicle, how much time passed before the police arrived, where were the keys, etc.

3. The evidence against you can be excluded or suppressed at the trial.

Illegal traffic stops are common but a driver cannot be validly pulled over unless the officer has reasonable suspicion of criminal activity that he can articulate or he witnessed a traffic violation. Anonymous tips alone cannot be the basis of a traffic stop. Blood test results can be excluded from evidence if you did not consent to the test and the police did not have a warrant. Breath test machine malfunctions are uncommon but they do happen. Some lawyers do not know how to properly evaluate this and many simply will not take the time to consider it. Improper administration of the breath test is another basis for excluding evidence. The law requires officers to follow very specific procedures and when they mess up, the test results are not admissible in court. If the police have you “in custody,” your statements cannot be used against you with proper Miranda warnings.

When the police improperly administer field sobriety tests, those tests are not scientifically reliable. In some states, unless the tests are properly done, the results are inadmissible. Indiana law on this topic is not yet entirely clear.