If you have been charged with an OVWI, it is time to lawyer up. Since OVWI cases are criminal in nature, you have the Constitutional right to a DUI attorney. Contact DUI attorney Chris Martindale today at 765-716-6213 or chris.martindale86@gmail.com. Consultations are always free.
What is an OVWI?
OVWI stands for “operating a vehicle while intoxicated.” The basic elements of an OVWI charge include the following: [1] a person; [2] operated; [3] a vehicle; [4] while intoxicated. The State has the burden of proof in a criminal case, which means they have to prove each of these elements beyond a reasonable doubt.
1. Operation
I.C. 9-13-2-117.5 defines operate as “means to navigate or otherwise be in actual physical control of a vehicle, watercraft, off-road vehicle, or snowmobile.” Navigation means actually moving and traveling from point A to point B: this is fairly straight-forward. A person has actual, physical control of a car when they are sitting in the driver’s seat, able to insert the key into the ignition and turn the car on, moving the steering wheel, and stepping on the brake and gas pedals. If somebody is in the passenger seat or back seat, then it would be impossible for the State to charge this person with an OVWI.
The definition is a little interesting because somebody who is in actual, physical control of a vehicle may not be moving or traveling anywhere: they may be stopped and parked. Can somebody who is in the driver’s seat of a parked car be convicted of an OVWI? The typical lawyer answer is “it depends.” Courts look at several factors, including:
- (1) whether or not the person in the vehicle was asleep or awake;
- (2) whether or not the engine was running;
- (3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location;
- (4) the intent of the person behind the wheel;
- (5) any observations of operation; and
- (6) whether the car was in drive or park.
2. Vehicle
I.C. 9-13-2-196 defines vehicle for OVWI purposes as “a device for transportation by land or air. The term does not include an electric personal assistive mobility device.” This definition is pretty broad and appears to include any transportation device other than an electric personal assistive mobility device. The definition is interesting because Title 9 of the Indiana Code, which includes the OVWI Chapter, is entitled “Motor Vehicles”: one would think that only a vehicle with a motor in it would be included in the definition. The definition is even further interesting because the Indiana Code’s definition for vehicle begins by excluding the following: (1) a device moved by human power; (2) a device that runs only on rails or tracks; (3) a wheelchair; and (4) an electric foot scooter. It may seem bizarre that a person riding a skateboard or a bicycle could be charged with an OVWI, but it is possible.
3. Intoxication
I.C. 9-13-2-86 defines intoxication as under the influence of alcohol, controlled substance, or drug so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties. The Courts have stated that impairment for alcohol can be established by evidence of the following:
- (1) the consumption of a significant amount of alcohol;
- (2) impaired attention and reflexes;
- (3) watery or bloodshot eyes;
- (4) the odor of alcohol on the breath;
- (5) unsteady balance;
- (6) failure of field sobriety tests; and
- (7) slurred speech.
IC 9-13-2-131 states that “Prima facie evidence of intoxication” includes evidence that at the time of an alleged violation the person had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per: (1) one hundred (100) milliliters of the person’s blood; or (2) two hundred ten (210) liters of the person’s breath. This means that if somebody has a BAC of .08, then it can be legally assumed that the person is intoxicated. However, a common misconception is that the State has to prove a person’s BAC, such as .08 or .15, in order to prove intoxication. A person’s BAC is just one of the factors of intoxication, and a prosecutor can charge a person with OVWI without alleging a certain BAC. One such charge is OVWI while endangering a person, and this almost always charged by the State. Technically, the State could charge somebody with a BAC less than .08 with an OVWI.
The OVWI Law Enforcement Process
The process of being arrested and charged with an OVWI normally begins with a traffic stop, which requires a police officer to have probable cause or reasonable suspicion to stop your vehicle. Common probable cause or reasonable suspicion includes an accident, speeding, weaving, etc. The police can stop a person for any traffic infraction, and the list of traffic infractions is pretty long.
At this point, a police officer will know if a person is operating a vehicle or not. So, law enforcement’s next major effort will be looking for signs of intoxication, and they know what they are doing. There is a standard form that all police officers use for OVWI cases, which includes signs of intoxication (slurred speech, unsteady balance, etc.), standardized field sobriety tests, portable breathalyzer results, and chemical test. The police officer will then start going through the list and building their case for OVWI against you.
1. Signs of Intoxication
Law enforcement’s OVWI form includes the following signs of intoxication:
- Odor of alcoholic beverage;
- Alcohol beverage containers in view;
- Speech was slurred;
- Eyes were glassy;
- Manual dexterity poor;
- Abusive attitude;
- Balance was unsteady;
- Soiled/disorderly clothing;
- Left vehicle in gear;
- Failed to shut off vehicle;
- Could not open door;
- Pulled self from vehicle;
- Staggered from vehicle
- Leaned against vehicle
Police officers use most of their senses to observe for signs of OVWI. As you can see from the progression of the list, the police officers will have the driver exit the vehicle after completion of some observing, questioning, and even smelling. One of the purposes for making the driver exit the car is a request to perform their standardized field sobriety tests.
2. Standardized Field Sobriety Tests (SFST’s)
Police officers may then request that a person perform three (3) Standardized Field Sobriety Tests, which include Horizontal Gaze Nystagmus (HGN), the Walk and Turn, and the One Leg Stand, to gather evidence of intoxication: however, there is no legal requirement for a person to perform these tests. The Horizontal Gaze Nystagmus consists of an officer asking the person to follow a stimulus, normally a pen, with their eyes from left to right and right to left. The reason for the HGN test is there is a connection between alcohol consumption and the involuntary jerking of one’s eye when looking sideways: however, there are other causes for HGN. The other two SFST’s are just like they sound. The Walk and Turn involves a person taking a number of steps on a straight line both forwards and backwards, and the One Leg Stand involves a person standing on one leg for a number of seconds. I think a number of police officers would fail the Walk and Turn and One Leg Stand when sober, and one may wonder what walking or standing on one leg has to do with driving a vehicle.
3. Chemical Test
The Indiana Code states that a person who operates a vehicle impliedly consents to submit to a chemical test as a condition of operating a vehicle in Indiana. Chemical tests include [1] a breathalyzer test and [2] a blood test, and they must be administered within three (3) hours after law enforcement develops probable cause of an OVWI offense. Police officers possessing probable cause that an OVWI offense has occurred can literally make a suspect perform a chemical test. Since police officers cannot make a person blow into the breathalyzer tube, they will pursue a warrant for a blood draw and have medical personnel draw a person’s blood, possibly against this person’s will. A blood draw is the chemical test of choice in a vast majority of the OVWI cases I have seen, and this is because of the three (3) hour time constraint, ability to draw a person’s blood against their will if necessary, and blood analysis performed by State scientists is better evidence than a breathalyzer performed by law enforcement.
An breathalyzer chemical test involves a machine that looks like an old printer and is normally located at a police station. These breathalyzer machines and the process of administering a breath test have to meet the standards and procedures of the Indiana Department of Toxicology (IDOT). A police officer’s individual portable breathalyzer test is not a legitimate chemical test because it does not comply with the IDOT, and these tests are not admissible evidence. However, a police officer’s portable breathalyzer is a factor that can be used to find probable cause of intoxication. Technically, a person does not have to perform a police officer’s portable breathalyzer test since it is not a chemical test.
Unfortunately, the Indiana Code states that a person that refuses to submit to a chemical test shall have their license suspended: one (1) year for no prior DUI convictions, and two (2) years for prior DUI convictions, and the refusal is admissible evidence. A person who refuses to submit to a chemical test is also not allowed to pursue specialized driving privileges. A person whose chemical test shows they are intoxicated and who did not refuse a chemical test shall have their license suspended for 180 days or less (as opposed to 1-2 years for a refusal): however, they are eligible to pursue specialized driving privileges. While it may seem counterintuitive to submit to a chemical test and help the State’s case against you, the law provides an incentive to submit to chemical tests.
4. Arrest and Prosecution
Following a chemical test, law enforcement will either arrest you for an OVWI or not. If a person fails a chemical test, Indiana Code states that the person must be arrested. Generally, people are arrested after an OVWI. Prosecutors then have the discretion to charge a person with an OVWI if they have probable cause to do so. An initial hearing for criminal cases generally occurs two (2) days after an arrest. People tend to be released on their own recognizance or have a reasonable bail amount following their initial hearing due to OVWI offenses being on the lower end of the criminal offense scale (normally, misdemeanors). Common OVWI charges include the following:
- OVWI;
- Class C Misdemeanor
- OVWI with BAC of .08 to .15;
- Class C Misdemeanor
- OVWI with BAC of .15 or higher;
- Class A Misdemeanor
- OVWI in a manner that endangers a person;
- Class A Misdemeanor
- OVWI with a previous OVWI conviction in the past seven (7) years;
- Level 6 Felony
- OVWI with a passenger eighteen (18) years of age or less;
- Level 6 Felony
- OVWI and causes serious bodily injury, catastrophic injury, or death;
- Level 4 or 5 Felony
- OVWI while twenty-one (21) years or younger with BAC of .02 to .08.
- Class C Infraction (Infractions are civil, not criminal, offenses)
At this point, a person needs to lawyer up and officially start their defense.
Possible Outcomes
The options to dispose of a criminal case include a trial, plea agreement, or a dismissal. There are many places in the process stated above to challenge an OVWI, and everybody has the right to their day in court. There is a lot of science connected with the chemical tests, especially a blood test, and science can get complicated. The State has their own lab and scientists, and the State uses them to conduct blood tests. If you decide to fight your OVWI, I would absolutely recommend that you hire your own private toxicologist expert. I have toured the Indiana Department of Toxicology and am familiar with the breathalyzer and blood test processes and the testing equipment.
The sentencing range for misdemeanors and felonies can be found on my sentencing page located here. Unfortunately, a pretrial diversion agreement with the State is not available for OVWI offenses. In a select few counties, Court deferral of the OVWI charge is an option. Other common terms and conditions of an OVWI sentence include probation, driving privileges suspension for a set term, fees, completion of an alcohol treatment program, drug testing, and alcohol classes.
Suspension of Driving Privileges
In general, a court may suspend the driving privileges of a person convicted of an OVWI for up to the maximum allowable period of incarceration under the penalty for the offense. A person that did not refuse a chemical test is entitled to credit for any BMV suspension related to chemical test results.
Since an OVWI generally results in some type of suspension of driving privileges, a common concern people have is what they can do about their suspension and getting back on the road. Fortunately, Specialized Driving Privileges (SDP’s) exist and are available for people to pursue if their driving privileges have been suspended. Specialized Driving Privileges are an order from a Court permitting somebody to operate a vehicle with terms and conditions set by the Court, such as increased insurance coverage, a set time period when one can drive, where one can drive, ignition interlock device, etc. As stated above, people who do not consent to a chemical test cannot get SDP’s. But, the possibility of an ignition interlock device instead of SDP’s may be a possibility for those who do not consent to a chemical test.
OVWI convictions accumulated during a period of time can contribute to a person being a Habitual Traffic Violator (HTV) and experiencing a HTV suspension. Two (2) convictions of an OVWI resulting in death or three (3) OVWI convictions during a ten (10) year period qualifies somebody as a HTV and a related ten (10) year suspension of driving privileges. A person who has accumulated at least ten (10) judgments within a ten (10) year period for any traffic violation, including OVWI’s, qualifies as a HTV and a related five (5) year suspension of driving privileges. Good news: SDP’s are also available for HTV suspensions.
If you have been charged with an OVWI/DUI, contact DUI lawyer Chris Martindale today at 765-716-6213 or chris.martindale86@gmail.com and we can start working on your defense.