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