Indiana DWI Law
OWI Law Letter
INDIANA DRINKING AND DRIVING LAWS
AND RELATED MATTERS
I. MISDEMEANOR
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."
Please note that the court does not have the authority
to totally suspend the below discussed sentences if the convicted
person has a prior OWI type conviction. If the person has one
previous conviction, the judge must sentence him to at least 5
days in jail without "good time credit." If the person
has two or more prior convictions, there is a mandatory jail sentence
of ten (10) days in jail without "good time credit."
(IC 9-30-5-15)
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 the amount 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 .015 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 ($500.00), or
both. (IC 35-50-3-4)
2. Two (2) Operating While "Intoxicated"
Offenses
a. Class "C" Misdemeanor "Intoxicated"
The second two (2) statutes, (IC 9-30-5-2), prohibit
the operation of a vehicle while intoxicated. "Intoxicated"
is defined as under the influence of alcohol, a controlled substance,
a drug other than alcohol or a controlled substance, or a combination
of these, so that there is an impaired condition of thought and
action and the loss of normal control of your faculties. (IC 9-13-2-86)
A person who operates a vehicle while "Intoxicated"
commits a Class "C" Misdemeanor. [(IC 9-30-5-2(a)]
b. Class "A" Misdemeanor "Intoxicated"
If it is proven that a person operated a vehicle
while intoxicated, and in doing so additionally endangered someone,
it is a Class "A" Misdemeanor. [IC 9-30-5-2(b)]
II. FELONY OWI
A. Previous Conviction Within 5 Years
(IC 9-30-5-3)
If within five (5) years of the present arrest
a person has a previous conviction for an "Operating While
Intoxicated Type Offense," the new offense will be elevated
to a Class "D" Felony.
A Class "D" Felony carries a punishment
of six (6) months to three (3) years imprisonment, a fine of up
to Ten Thousand Dollars ($l0,000.00), or both. (IC 35-50-2-7)
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. 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.
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 presumptive 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 and a fine of not more
than 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 presumptive sentence for
a Class "B" Felony is 10 years imprisonment. (IC 35-50-2-5)
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.
C. 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.
The penalty for a Class "C" Felony is
two (2) to eight (8) years imprisonment, and a fine of not more
than ten thousand ($10,000) dollars. (IC 35-50-2-6)
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 punishment for a Class "B" Felony
is six (6) to twenty (20) years imprisonment and a fine of not
more than 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(b)] 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 not apply.
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.
III. BOATS
Just as with operating a "vehicle," Indiana
law prohibits the operation of a motorboat with at least (0.08)
grams of alcohol by weight in a person's breath or blood, or while
intoxicated. Either of these offenses is a Class "C"
Misdemeanor. [IC 14 15 8 8(a)]
The offense can be elevated to that of a Class "D"
Felony if the person has a previous conviction for either operating
a boat while .08, while "intoxicated," or the offense
results in serious bodily injury to another person. [IC 14-15-8-8(b)]
The offense is a Class "C" Felony if the
offense results in the death of another person. (IC 14-15-8-8(c)
A person who operates a motorboat after the person
has been ordered not to operate a motorboat commits a Class "A"
Misdemeanor. (IC 14 15 8 9)
In addition to any criminal penalties imposed for
a misdemeanor under this chapter, the court shall order
the person to not operate a motorboat for at least one (1) year.
[(IC 14-15-8-10(a)] If the conviction is for a felony,
however, the court shall order the person to not operate a motorboat
for at least two (2) years. [IC 14 15 8 10(b)]
IV. RELATED INFRACTIONS
A. Minors
IC 9-30-5-8.5 prohibits persons under the age of
twenty-one (21) from operating vehicles with blood or breath test
results equaling .02 but less than .08 grams of alcohol in their
breath or blood. The offense is a Class "C" Infraction.
The maximum fine that can be imposed is five hundred ($500) dollars.
[IC 35-28-5-4(c)] No jail time can be imposed.
However, in addition to imposing a fine and court costs, the court
may additionally suspend the minor's driving privileges for up
to one (1) year.
B. Commercial Drivers
IC 9-24-6-15 prohibits a commercial vehicle driver
from operating a vehicle with at least .04 but less than .08 grams
of alcohol in his breath or blood. This is a Class "C"
Infraction. However, the court does not have the additional authority
to suspend the person's driving privileges.
V. ADMINISTRATIVE SUSPENSION OF
DRIVING PRIVILEGES
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)]
VI. PETITION FOR JUDICIAL REVIEW
(IC 9-30-6-10)
A person is entitled to prompt judicial hearing
to attempt to have this "administrative suspension"
overturned. However, the hearing is limited to two (2) issues:
1) Whether or not the police officer had probable
cause to believe that a person had operated a vehicle while committing
an "Operating While Intoxicated Type Offense"; or
2) Whether or not the driver refused to take the
chemical test(s).
VII. REFUSAL OF "CHEMICAL TEST"
[(IC 9-30-6-9(a)]
Whenever a law enforcement officer in the State
of Indiana has probable cause, he or she will offer the driver
a breath, blood, and/or urine test. The tests must be offered
within three (3) hours. If any chemical test offered is not taken,
whether it be blood, breath, or urine, or all three (3), the police
officer will, in addition to charging the driver with a misdemeanor
or a felony, as the case may be, remove the driver's license from
his possession and deliver it to the court. The judge, at the
first court hearing, will suspend the operator's driving privileges
for one year for refusing to take any or all of the chemical test(s).
If the judge fails to advise the driver in open court of the suspension
of driving privileges, but finds probable cause to believe that
the driver refused to take the "chemical test(s)," the
BMV will suspend his driving privileges for a period of one (l)
year once it receives the proper paperwork from the Court. The
BMV will then mail notice to the suspended driver at his last
known address.
Please note that a person who refuses the chemical
test is generally not eligible for either a "hardship license"
or a "probationary license."
VIII. HARDSHIP LICENSE FOR FIRST OFFENSE
(IC 9-24-15-1)
(Before conviction)
If a person has never been arrested or convicted
of an "Operating While Intoxicated Type Offense," has
never had their license suspended before, and did not refuse to
take a chemical test, he may be eligible for a special restricted
license called a "hardship license."
Please note, however, that if a person possesses
a Commercial Driver's License (CDL), no hardship license can be
obtained under federal law and, likewise, no probationary license
(post-conviction) can be obtained under Indiana law. [IC 9-30-5-9.5;
IC 9-30-9.05; and IC 9-30-10-9)]
If issued by the Court, the probationary license
will not go into effect until after the driver have been administratively
suspended for thirty (30) days.
The purpose of the "hardship license"
is to supersede up to one hundred fifty (150) days of the one
hundred eighty (180) day mandatory "administrative suspension"
imposed for failing a chemical test.
To obtain this "hardship license," a petition
must be filed with the Court in the County where the driver resides
stating that the suspension of the license would work an undue
hardship and burden upon his family or dependents. This petition
is a civil proceeding separate and apart from any criminal prosecution.
There is a required filing fee which is paid when the petition
is filed with the court. If the petition is granted, the "hardship
license" allows restricted driving to and from work and during
the course of one's employment while the criminal case is pending.
This special hardship license will supersede the
one hundred eighty (l80) day administrative suspension of the
driving privileges, discussed above. However, it will not become
effective until the driver has been administratively suspended
for at least thirty (30) days. [IC 9-24-15-6.5(c)]
If, when petitioning for this hardship license,
the person is participating in a rehabilitation program certified
by either the division of mental health or the Indiana judicial
center, the Court must grant you this "Hardship License."
(IC 9-24-15-6.5) Otherwise, it is discretionary with the judge
as to whether or not to grant the hardship license request. Many
judges will not issue a hardship license unless the driver is
already enrolled in an acceptable rehabilitation program.
IX. SUSPENSION OF DRIVING PRIVILEGES UPON
CONVICTION
(IC 9-30-5-10)
A conviction for an "Operating While Intoxicated
Type Offense" will also result in the suspension of ones
driving privileges. This suspension is different from the administrative
suspension previously discussed above.
If the convicted person's driving record and other
relevant evidence do not show a "previous conviction"
for an "Operating While Intoxicated Type Offense," or
shows that the "previous conviction" is at least ten
(l0) years old, the judge must suspend the person's driving privileges
for at least ninety (90) days but not more than two (2) years.
[IC 9-30-5-10(b)]
"Previous conviction" is defined
at IC 9-13-2-130.
If the convicted driver did have a previous conviction
for an "Operating While Intoxicated Type Offense" (or
operating a motorboat while intoxicated type offense) that occurred
more than five (5) years but less than ten (l0) years
ago, the suspension of his driving privileges will be for at least
one hundred eighty (l80) days, but not more than two (2) years.
[IC 9-30-5-10(c)]
Where the previous conviction for an "Operating
While Intoxicated Type Offense" occurred within five
(5) years of the present conviction, in addition to any
criminal penalty, the judge must suspend the person's driving
privileges for at least one (l) year but not more than two
(2) years. [IC 9-30-5-10(d)]
Where the conviction is for:
1) Operating a Vehicle causing serious bodily injury
(IC 9-30-5-4);
2) Operating a Vehicle Causing Death (IC 9-30-5-5);
3) Operating a Motorboat causing serious bodily injury [14-15-8-8(b)];
or
4) Operating a Motorboat causing death [14-15-8-8(c)];
in addition to any criminal penalty imposed, the Judge must suspend
the person's driving privileges for not less than two (2) years
but not more than five (5) years.
X. PRE-CONVICTION CREDIT FOR ADMINISTRATIVE
SUSPENSION OF DRIVING PRIVILEGES
If a person's driving privileges have been administratively
suspended for failing a chemical test, the convicted driver will
receive credit for that pre-trial administrative suspension. The
time the driver was administratively suspended will count towards
the conviction suspension imposed by the court at sentencing.
However, no administrative suspension credit
will be given towards the conviction suspension imposed by the
court at sentencing for refusing to submit to a chemical test.
In this situation, any judicially imposed period of suspension
will be consecutive to the one year suspension for
refusal to submit to a chemical test. But, the Court may, at sentencing,
terminate all or part of the remaining unserved balance of the
one (1) year refusal suspension if the Court finds, at sentencing,
that to do so would be in the best interests of society.
XI. PROBATIONARY DRIVING PRIVILEGES
(IC 9-30-5-12)
(After Conviction)
A. First Time Offenders
If the convicted driver does not have a "previous
conviction" for an "Operating While Intoxicated Type
Offense," or had a "previous conviction" that occurred
at least ten (l0) years before his present conviction, and he
did not refuse the chemical test, the Court may grant him probationary
driving privileges for a period of one hundred eighty (l80) days
at sentencing. [(IC 9-30-5-12(a)] The probationary license will
override the judicially imposed suspension of driving privileges.
Probationary driving privileges allow the operation
of a vehicle only to and from ones place of employment, to and
from a Court ordered alcohol or drug treatment program, or for
other specified purposes in exceptional circumstances. [IC 9-30-5-11(a)]
If the probationary driving privileges are granted, they will
only commence after a driver has been administratively suspended
for at least thirty (30) days. [IC 9-30-5-11(b)]
If during the probationary period, the court finds
that the person violated any traffic law or any other term of
his probationary license, the probationary driving privilege may
be revoked by the Court. If this occurs, the convicted person's
driving privileges will be suspended according to the length originally
imposed by the judge at sentencing. [IC 9-30-5-13(b)]
B. Previous Conviction More Than 5 Years
From This Conviction
As previously discussed, if a person had a previous
"Operating While Intoxicated Type Offense" that occurred
more than five (5) years but less than ten (l0) years ago, the
Court must suspend the convicted person's driving privileges for
at least one hundred eighty (l80) days but not more than two (2)
years. After the license has been suspended for at least one hundred
eighty (l80) days, the Court may grant probationary driving privileges
for the balance of the period of suspension. [IC 9-30-12(c)]
C. Conviction Within 5 Years of Previous
Conviction
If the convicted driver had a previous conviction
for an "Operating While Intoxicated Type Offense" that
occurred less than five (5) years before the present conviction,
the Court must suspend that person's driving privileges for at
least one (l) year but not more than two (2) years. After the
license has been suspended for at least one (l) year, the Court
may grant probationary driving privileges for the balance of the
period of suspension. [IC 9-30-5-12(c)]
D. Death or Serious Bodily Injury
If convicted for an "Operating While Intoxicated
Type Offense" causing serious bodily injury or death, the
Court must suspend that person's driving privileges for at least
two (2) years but not more than five (5) years. After the license
has been suspended for at least two (2) years, the Court may grant
probationary driving privileges for the balance of the period
of suspension. [(IC 9-30-5-12(c)] However, the court must find
compelling circumstances warrant the issuance of probationary
privileges. [IC 9-30-5-12(d)]
XII. OPERATING A MOTOR VEHICLE WHILE SUSPENDED
(IC 9-24-18-5)
A person who knowingly operates a motor vehicle
while his driving privileges are suspended, and less than ten
(10) years have passed since he or she was previously convicted
for driving while suspended, commits a Class "A" Misdemeanor.
"Conviction" is defined in IC 35-41-1-19.
The offense is a Class "D" Felony if the
operations results in bodily injury or serious bodily injury.
[IC 9-24-19-4(a)] The offense is a Class "C" Felony
if it results in the death of another person. [IC 9-24-19-4(b)]
In addition to any other penalty, the court must suspend the driving
privileges for another period of not less than ninety (90) days
nor more than two (2) years. (IC 9-24-19-5)
XIII. PROOF OF FINANCIAL RESPONSIBILITY
If a person has been convicted of an "Operating
While Intoxicated Type Offense," he must file proof of financial
responsibility with the Bureau of Motor Vehicles. [IC 9-30-6-12(b)]
The form used is called an "SR 22." The person's insurance
agent will file this SR 22 form with the BMV and it must continually
be on file with the BMV for a period of three (3) years following
expiration of the court imposed driver's license suspension
Upon receipt of the filing from the insurance company,
and upon payment of any required reinstatement fees, the convicted
driver can again obtain a driver's license.
The convicted driver and his insurance company must
keep this SR 22 filing in force with the BMV for the entire three
(3) year period. If there is any lapse, the Bureau will re-suspend
the person's driving privileges until another proper filing is
made. [IC 9-30-6-12(c)]
XIV. HABITUAL TRAFFIC VIOLATORS
(IC 9-30-10-1)
An even longer period of suspension of driving privileges
will be imposed if the BMV determines that a person is a "habitual
traffic violator". There are three (3) categories of habitual
traffic violators.
A. Category One
The first category of habitual violator involves
a driver accumulating ten (l0) or more judgments,
not arising out of the same incident, of any moving traffic violator
of a type required to be reported to the Bureau, within a ten
(10) year period. At least one (1) of the judgments must be for
a violation listed in "Category Two" or "Category
Three" below. The penalty imposed by the BMV is a five (5)
year suspension of a person's driving privileges. [IC 9-30-10-(a)]
If a person is notified that he is an habitual violator,
the BMV will write him when the suspension will commence. If this
occurs, the driver must act quickly because the suspension will
commence in thirty (30) days. (IC 9-30-10-5)
If the driver believes that there are errors in
his driving record, he may notify the Commissioner in writing
of the errors and request reinstatement of his driving privileges.
(IC 9-30-10-16)
Indiana law allows the driver to petition the court
to review his habitual violator status due to record keeping errors.
The burden is on the driver to prove the errors, by a preponderance
of the evidence, in order to prevail. The petitioner must pay
the Court costs of the judicial proceeding, but he is entitled
to a refund of all of his court costs if he prevails. (IC 9-30-10-17)
B. Category Two
A driver may also become a habitual traffic violator
if, during the last ten (l0) years, he has accumulated three
(3) or more judgments, not arising out of the same incident,
for an "Operating While Intoxicated Type Offense," certain
convictions for "Operating a Vehicle While his License has
been Suspended or Revoked," " Operating a Vehicle without
ever having Obtained a License," "Reckless Driving,"
"Criminal Recklessness," "Drag Racing or Engaging
in a Speed Contest," "Failing to Stop at the Scene when
Involved in an Accident," "Failing to File an Accident
Report with the Bureau of Motor Vehicles when Required,"
any Felony under the motor vehicle statutes of Indiana, or any
Felony in the commission of which a motor vehicle was used. The
penalty for this second category of habitual violators is also
a ten (l0) year suspension of driving privileges.
C. Category Three
This then (10) year suspension occurs when a person
has accumulated, within the last ten (l0) years, two (2)
or more convictions not arising out of the same incident,
for Reckless Homicide, Voluntary or Involuntary Manslaughter,
Leaving the Scene when Involved in an Accident Resulting in Death
or Injury to any Person, Operating a Vehicle While Intoxicated
Resulting in Death, or Operating a Vehicle with .08 or more Alcohol
in the Blood Resulting in Death.
D. Restricted Licenses
A driver can immediately petition for a restricted
license if they have been declared a Habitual Traffic violator
and is in "Category One" above. [(IC 9-30-10-9(a)]
If the driver is a "Category Two" habitual
traffic violator, no restricted license will be issued until
the person's driving privileges have been suspended for at least
five (5) consecutive years, and the suspended driver has not violated
the terms of his suspension by operating a vehicle; and
has successfully fulfilled the requirements of a rehabilitation
program certified by the division of addiction services of the
State Department of Mental Health. If issued, the restricted license
is for a period of not less than three (3) nor more than ten (l0)
years and limited to employment related driving, driving to and
from rehabilitation programs and other specific purposes in exceptional
circumstances. [IC 9-30-10-9(b)]
A "Category Three" habitual traffic violator
is not eligible for the restricted license.
E. Violations of "Restricted License"
If a person declared to be a Habitual Traffic Violator
violates the terms of the court issued restricted license, it
can be revoked, and the original ten (l0) year or five (5) year
suspension term will be reimposed. (IC 9-30-10-16) Additionally,
the driver may be charged with a Class D Felony for violating
the restrictions imposed by the court when it granted the restricted
driving privileges. [IC 9-30-10-16(a)(2)]
F. Lifetime Suspension of Driving Privileges
A person who operates a motor vehicle while his
driving privileges are suspended due to habitual violator status
commits a Class "D" felony. In addition to any criminal
penalty for the Class "D" Felony, a lifetime suspension
of driving privileges will be imposed. (IC 9-30-10-16)
A person whose driving privileges have been suspended
for life may petition a court in a civil action to have his driving
privileges reinstated. In addition to other specific requirements
that must be met, at least ten (l0) years of the lifetime suspension
must have already elapsed. (IC 9-30-10-14)
However, a person convicted of this offense two
(2) or more times may not petition for reinstatement of the lifetime
suspension of their driving privileges. [IC 9-30-10-14(e)(5)]
Driving after lifetime suspension of one's driving
privileges results in the commission of a Class "C"
felony. (IC 9-30-10-17) This conviction mandates a lifetime suspension
of driving privileges without the possibility of reinstatement
in the future. [IC 9-30-10-14(e)(4)]
A defense to the charge exists if the operation
of the vehicle was necessary to save life or limb in an extreme
emergency. The defendant must bear the burden of proof by a preponderance
of the evidence to establish this defense. (IC 9-30-10-18)
XV. ALCOHOL OR DRUG TREATMENT PROGRAM
In a misdemeanor case, before conviction, the Court
may, with the consent of the defendant and the Prosecuting Attorney,
order the defendant to satisfactorily complete an alcohol or drug
treatment program. The charges may be dismissed if the treatment
program is completed and certain other conditions are met. (IC
12-23-5-1) This program is available to a defendant only one time
and may require a suspension of his driving privileges. Prosecutors
rarely, if ever, consent to this.
A similar treatment avenue exists, in restricted
circumstances, allowing a person charged with or convicted of
a felony to seek treatment in lieu of further prosecution. (IC12-23-6-1)
In order to qualify for this treatment program, one must be an
"alcoholic" or a "drug abuser." Additionally,
one must submit to a substance abuse evaluation conducted by the
Division of Mental Health. Arrangements for this testing is made
through the Indiana Family & Social Services Administration,
through their Office of General Counsel in Indianapolis, Indiana.
XVI. CIRCUIT COURT ANTABUSE PROGRAM
(IC 9-30-9-1)
The Circuit Court of Allen County has established
an "Alcohol Abuse Deterrent Program" (AADP). This program
provides for the medical treatment of individuals who have a "previous
conviction" for operating vehicles after consuming too much
alcohol and/or drugs. The treatment is with Disulfiram, or Antabuse,
which is a substance that is a chemical deterrent to the use of
alcohol. An individual may be placed in the program either pre
or post-conviction.
Under the pre-conviction scheme the Court, with the consent
of the defendant and the Prosecuting Attorney, will conditionally
defer the proceedings for up to three (3) years. The Court will
not defer the proceedings if the offense involves death or serious
bodily injury, if there are other criminal proceedings alleging
commission of a felony which are pending against the defendant,
if the defendant is on probation or parole and the probation or
parole authority does not consent to the defendant's participation,
or if the defendant fails to meet additional eligibility requirements
imposed by the Court. If the proceedings are deferred and the
defendant violates the rules of the Antabuse program or other
conditions imposed by the Court, the Court can order the criminal
proceedings to be resumed. If the defendant fulfills the Antabuse
program and other conditions set by the Court, the Court may either
dismiss the felony charges or sentence the convicted person as
a Class "A" Misdemeanor.
When the Court enters its order conditionally deferring
charges, the Court may suspend your driving privileges for at
least two (2) years but not more than four (4) years. [IC 9-30-9-5)(a)]
The Court may only grant probationary driving privileges after
a person's driving privileges have been suspended for one (1)
year. [IC 9-30-9-5(b)]
A post-conviction Antabuse program may also
be offered as a condition of probation. After conviction, successful
completion of the Antabuse program will be a condition of any
probation the Court will impose at sentencing. The court will
also suspend the defendant's driving privileges for at least ninety
(90) days but not more than three (3) years and may grant probationary
driving privileges only after the defendant's license has been
suspended for at least thirty (30) days. [IC 9-30-9-7(b)]
A participant in the Antabuse program must pay
the Alcohol Abuse Deterrent Program fees. In addition, there is
also a cost of the physical examination required before beginning
the Antabuse program and a physical examination may be required
annually. Counseling is also routinely ordered.
XVII. MANDATORY JAIL SENTENCES
IC 9-30-5-15 requires that any person be imprisoned
for at least five (5) days, without any "good time credit,"
or perform thirty (30) days of community service if that person
has a "previous conviction" of operating while intoxicated.
However, if the person has at least two (2) prior convictions,
then that person must serve a mandatory ten (10) day executed
sentence or perform sixty (60) hours of community service.
Additionally, IC 35-50-2-2(b)(4)(q) 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." Recent case law does not allow that six (6)
month sentence to be served on "home detention." It
must be either served in jail or in "work release."
XVIII. HABITUAL CONTROLLED SUBSTANCE OFFENDER
(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 additional fixed 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)]
XIX. PRESENT ADDRESS
It is very important that a driver keeps the Bureau
of Motor Vehicles advised as to his present address at all times.
If you have any questions concerning your driving
privileges, you can call the Bureau of Motor Vehicles at (3l7)
232-2840.
This information is reasonably current. However,
it is subject to change at any time due to the passage by our
legislature of new laws and the ongoing interpretation by our
courts of existing laws. This letter should not be considered
a substitute for consultation with an attorney.
Very truly yours,
Patrick J. Arata
© Copyright Patrick J. Arata 2003
