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Introduction to Operating a Vehicle While Intoxicated Law in Indiana
Drunk Driving law goes by many different names and abbreviations, including DUI, driving under the influence, DWI, driving while impaired, OWI, and operating while intoxicated.
In Indiana, the legal term for drunk driving is operating a vehicle while intoxicated, often abbreviated to OVWI. Indiana uses “operating” rather than “driving” because Indiana law differs from the law in many other States. In most States, merely putting the key in the ignition meets the legal definition of “driving” and is enough for a conviction. Indiana law has a higher burden, as explained below, and merely putting the key in the ignition (and sometimes even turning the vehicle on) is not always enough for a conviction.
Operating a vehicle while intoxicated law is simple and highly complex at the same time. It is simple in that in order to be convicted, the State of Indiana must prove that an individual:
(3) the individual was intoxicated.
This may seem straightforward and simple, and in some cases, it is. However, operating a vehicle while intoxicated law can also be a highly complex, technical, and scientific area of law, as discussed more below:
In my experience as an Indiana criminal defense attorney, when a defendant is acquitted on a charge of operating a vehicle while intoxicated, this is most often because the State is unable to prove the element of “operating.”
In a case where a police officer makes a standard traffic stop (speeding, failing to signal, no license plate, etc…) it is generally very easy for the State of Indiana to prove operating. However, in cases where there is an accident, where the officer does not actually see the vehicle moving, or where the defendant is sleeping in the drivers seat, it can be much more difficult for the State to prove the element of operating. There are even some Indiana Court cases where the defendant admitted to driving the vehicle, and the Court still found that the evidence was insufficient for a conviction. Several key Indiana cases are discussed below:
Hampton v. State, 681 N.E.2d 250 (Ind. App. 1997)
– The criminal defense attorney argued that the evidence was insufficient to show that the defendant had operated a vehicle while intoxicated. The Indiana court explained: “The operator of a motor vehicle is a person who drives or is in actual physical control of a motor vehicle upon a highway.” The Court went on to explain that in determining whether evidence was sufficient to show operating, the following factors should be considered:
(1) the location of the vehicle when discovered,
(2) whether the vehicle was in movement when discovered,
(3) additional evidence that defendant was observed operating the vehicle before he was discovered,
(4) the position of the automatic transmission, and
(5) any evidence that leads to a reasonable inference.
Clark v. State, 611 N.E.2d 181 (Ind. App. 1993)
– A police officer observed a vehicle in an apartment complex. The vehicle was partially in a parking space and partially in the roadway. The engine and lights were running. The vehicle was in park. The defendant was sleeping in the driver seat of the vehicle. The criminal defense attorney argued that this was insufficient to show that the defendant had operated a vehicle while intoxicated. The Indiana Court agreed and found the defendant not guilty of operating while intoxicated. The Court explained that “it is not sufficient for the State to show that the defendant merely started the engine.” While the defendant’s vehicle was partially in the roadway, this is not sufficient for a conviction.
Mordacq v. State, 585 N.E.2d 22 (Ind. App. 1992)
– An Indianapolis police officer saw a vehicle running in Marion County. The defendant was sleeping in the driver seat. The vehicle was running, but was in park. The vehicle was not in the travel portion of the roadway. The defendant admitted that she had driven the vehicle, approximately two hours ago, but was uncertain of the actual time. The defendant tested above the legal limit for blood alcohol concentration. The Indianapolis, Marion County criminal defense attorney argued that this evidence was insufficient to show that defendant had operated a vehicle while intoxicated. The Indiana Court agreed, noting that blood alcohol concentration can vary over time. The State failed to prove when the vehicle had actually been driven, so the evidence was not sufficient for a conviction.
There are several ways that the State can attempt to show intoxication. Some of the most common clues for intoxication are the odor of alcohol, slurred speech, unsteady balance, and red watery eyes.
Some police officers use portable breathalyzer tests. These portable breathalyzer tests are inaccurate. The officer can testify that the test was positive or negative, but the officer can not testify as to the actual numeric result of the portable breathalyzer test.
The strongest evidence for the State is generally a certified test. This can be done by blood or breathalyzer. This is far more accurate than a portable breathalyzer test and the numeric result of the test can generally be used as evidence. A chemical test is the most powerful piece of evidence for the state, but these tests are sometimes not admissible, as explained below in Chemical Tests.
Hoornaert v. State, 652 N.E.2d 874 (Ind. App. 1995)
– Police were dispatched after receiving a complaint that a van was four wheeling in someone’s front yard. Police later received a second call, explaining that the van had become stuck in the mud and two men had abandoned the vehicle. Police located the two men. The defendant admitted to being the driver of the vehicle. The defendant had red, glassy eyes, his speech was slow, and his clothes were dirty. The officer could also smell a slight odor of marijuana. The defendant admitted that he had smoked marijuana 5 days before hand. The criminal defense attorney argued that this evidence was insufficient to show that there was THC in the defendant’s blood. The Indiana Court agreed. While it was possible that there was THC in the Defendant’s blood, this was too hypothetical since 5 days had passed. The defendant was found not guilty.
More information relating to the legal definition of “intoxication” is available on the Public Intoxication page.
Field Sobriety Tests
Field Sobriety tests were developed by the National Highway Traffic Safety Administration, in an effort to establish standardized scientific tests for intoxication.
In reality, the field sobriety tests have very little scientific reliability. When developed, the only testing that was done was by police officers on other police officers. Additionally, the testers were told before hand whether the subject had consumed alcohol, which prevented a double blind study. Allowing a tester to know the expected result prior to conducting a scientific experiment would never be acceptable in a true scientific experiment. Also, the test subjects were allowed to practice the tests before hand. This type of inaccurate testing would never be allowed for most scientific journals or for FDA approval of drugs. Additionally, even under ideal conditions, and even when the test administrator knew the results before conducting the test, the field sobriety tests are still surprisingly inaccurate – sometimes little more accurate than flipping a quarter. Even the National Highway Traffic Safety Administration Preface admits that the reliability of the field sobriety tests can suffer outside of ideal laboratory conditions: “The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.”
In my opinion, as an Indiana criminal defense attorney, the majority of the field sobriety tests lack any real scientific reliability. Additionally, the tests are sometimes performed incorrectly by the actual officers on the street. However, even when the tests are done incorrectly, this does not necessarily result in acquittal. If there are independent clues for intoxication and a certified breath or blood test shows a blood alcohol concentration over the legal limit, this is often adequate in Court to make up for the deficiencies of the field sobriety tests.
The National Highway Traffic Safety Administration has specifically recognized that many other tests, such as counting backwards or saying the alphabet backwards, have not been tested and are not scientifically reliable: “The SFST 3-test battery is the only scientifically validated and reliable method for discriminating between impaired and unimpaired drivers.”
Each individual field sobriety test for operating a motor vehicle while intoxicated is discussed more below:
Walk and Turn
The walk-and-turn test is a divided attention test consisting of two stages: an instructions stage and a walking stage.
In the instruction stage, the subject must stand with their feet in heel-to-toe position, keep their arms at their sides, and listen to the instructions. The instructions stage is designed to divide the subject’s attention between a balancing task (standing while maintaining the heel-to-toe position) and an information processing task (listening to and remembering instructions).
In the walking stage the subject takes nine heel-to-toe steps, turns in a prescribed manner, and takes nine heel-to-toe steps back, while counting the steps out loud, while watching their feet. During the turn, the subject keeps their front foot on the line, turns in a prescribed manner, and uses the other foot to take several small steps to complete the turn. The walking stage divides the subject’s attention among a balancing task (walking heel-to-toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions). Officers are instructed to watch for eight clues:
(1) ca not balance during instructions;
(2) starts too soon;
(3) stops while walking;
(4) doesn’t touch heel-to-toe;
(5) steps off line;
(6) uses arms to balance;
(8) takes the wrong number of steps.
According to the National Highway Traffic Safety Administration, if the individual shows two or more clues, this shows intoxication 68% of the time. In other words: in ideal testing, where the subject has had an opportunity to practice before taking the test, and where the evaluator already knows if the subject has consumed alcohol, this “test” has little more reliability than flipping a quarter.
The one-leg stand test consists of two stages: an instruction stage and a balance and counting state.
In the instruction stage, the subject must stand with feet together, keep their arms at their sides, and listen to instructions. This is supposed to divide the subject’s attention between a balancing task (maintaining a stance) and an information processing task (listening to and remembering instructions.)
In the balance and counting stage, the subject must raise one leg, either leg, with the foot approximately six inches off the ground, keeping the raised foot parallel to the ground. While looking at the elevated foot, the subject subject should count out loud in the following manner: “one thousand and one”, “one thousand and two”, “one thousand and three” until told to stop. This is designed to divide the subject’s attention between balancing (standing on one foot) and small muscle control (counting out loud).
The timing for a thirty-second period by the officer is an important part of the one-leg stand test. According to the National Highway Traffic Safety Administration, the original research has shown that many impaired subjects are able to stand on one leg for up to 25 seconds, but that few can do so for 30 seconds.
Officer’s are instructed to watch for four specific clues:
(1) swaying while balancing;
(3) hopping; and
(4) putting a foot down.
According to the National Highway Traffic Safety Administration, if the individual shows two or more clues, this indicates intoxication 65% of the time. In other words: in ideal testing, where the subject has had an opportunity to practice before taking the test, and where the evaluator already knows if the subject has consumed alcohol, this “test” has little more reliability than flipping a quarter.
Horizontal Gaze Nystagmus
The horizontal gaze nystagmus test looks primarily for an involuntary jerking of the eye prior to 45 degrees. As an Indiana criminal defense attorney, I have seen this test administered first hand, and I will admit that it is the most reliable of the field sobriety tests. An Indianapolis, Marion County police officer once admitted (off the record) that this is the only test he relies upon when evaluating whether an individual has operated a vehicle while intoxicated. This test appears to be the most scientifically reliable because an individual can not practice for this test. Additionally, factors such as weight and balance do not affect an individual’s ability to perform the test.
“Nystagmus” is a scientific term that means an involuntary jerking of the eyes.
Horizontal gaze nystagmus refers to an involuntary jerking that occurs as the eyes gaze toward the side. In addition to being involuntary, the person experiencing the nystagmus is unaware that the jerking is occurring.
Involuntary jerking of the eyes is more noticeable when a person is impaired. As a person’s blood alcohol concentration increases, the eyes will begin to jerk when they move to the side.
In administering the horizontal gaze nystagmus test, the officer has the suspect follow the motion of a small stimulus (generally a pen) with their eyes. The subject should not move their head.
When the horizontal gaze nystagmus test is administered, the officer should always begin with subject’s left eye. Each eye is examined for three specific clues.
(1) as the eye moves from side to side, does it move smoothly or does it jerk noticeably? (As people become impaired by alcohol, their eyes exhibit a lack of smooth pursuit as they move from side to side.)
(2) when the eye moves as far to the side as possible and is kept at that position for several seconds, does it jerk distinctly? (Distinct and sustained nystagmus at maximum deviation is another clue of impairment.)
(3) as the eye moves toward the side, does it start to jerk prior to a 45-degree angle? (Onset of nystagmus prior to 45-degrees is another clue of impairment.)
As a person’s blood alcohol concentration increases, it becomes more likely that these clues will appear.
The maximum number of clues that may appear in one eye is three. The maximum total number for any suspect is six. The original research shows that if four or more clues are evident, it is likely that the suspect’s blood alcohol concentration is above 0.10. With four-or-more clues present, this test is 77% accurate.
In order to receive a presumption in the favor or the State, a chemical test (breathalyzer or blood) must be administered within 3 hours of operating. Indiana law explains:
IC 9-30-6-2 – Probable cause; offer of test; alternative tests; requirement to submit
(a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter, IC 9-30-5, or IC 9-30-9, or a violation under IC 9-30-15 shall offer the person the opportunity to submit to a chemical test.
(b) A law enforcement officer:
(1) is not required to offer a chemical test to an unconscious person; and
(2) may offer a person more than one (1) chemical test under this chapter.
(c) A test administered under this chapter must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5 or a violation under IC 9-30-15.
(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.
Several Indiana cases explain this requirement:
State v. Edmund, 616 N.E.2d 377 (Ind. App. 1993)
– A police officer arrived at the scene of a two car accident. The defendant was taken to the hospital. The police officer went to the hospital and observed the defendant sleeping in the emergency room. The officer woke the defendant and administered a certified test. The criminal defense attorney argued that the result of the test should not have been admitted into evidence, as more than 3 hours had passed. The Indiana Court found that no presumption should arise, but that the test itself need not be excluded from evidence. The Court explained: “The only effect of the failure to perform the test within the statutory timeframe is that the State is deprived of the rebuttable presumption provided in Section 15(b). Thus, the delay is relevant only to the rebuttable presumption, not the admissibility of the chemical test.”
Mordacq v. State, 585 N.E.2d 22 (Ind. App. 1992)
– An Indianapolis police officer saw a vehicle running in Marion County. The defendant was sleeping in the driver seat. The vehicle was running, but in park. The vehicle was not in the travel portion of the roadway. The defendant admitted that she had driven the vehicle, approximately two hours ago, but was uncertain of the actual time. The defendant tested above the legal limit for blood alcohol concentration. The Indianapolis, Marion County criminal defense attorney argued that this evidence was insufficient to show operating a vehicle while intoxicated. The Indiana Court agreed, noting that blood alcohol concentration can vary over time. Because there was inconclusive evidence of the time period that had passed, the evidence was insufficient for a conviction.
Lastly, urine tests are generally not sufficient to show intoxication. This was explained by the Indiana Courts:
– The defendant was stopped for speeding. Prior to coming to a stop, the driver and passenger switched seats. The defendant admitted to smoking marijuana and a urine test showed that the defendant had THC in his urine. The criminal defense attorney argued that a urine test was not sufficient evidence for a conviction for operating while intoxicated. The Indiana Court agreed, explaining that Indiana law clearly makes it illegal to have THC in the blood while driving. While there was THC in the urine, there was no evidence that THC was actually in the blood. The defendant was found not guilty.
Nurse Blood Draws
A nurse blood draw is generally admissible as evidence. However, the State must show that the blood draw complied with Indiana law. This was explained by the Indiana Court of Appeals:
State v. Hunter, 898 N.E.2d 455 (Ind. App. 2008)
– The defendant was arrested and charged with operating while intoxicated. The criminal defense attorney argued that the nurse blood draw should be excluded from evidence. The Indiana Court agreed, stating: “Under IC 9-30-6-6, the State failed to present evidence that [the nurse] was acting under the direction of or under a protocol prepared by a physician [and] the State failed to present any evidence that [the nurse] was a person trained in obtaining bodily samples.” Because the State failed to show that the requirements of Indiana law had been complied with, the blood results were not admissible as evidence.
DUI checkpoints are controversial. Many criminal defense lawyers argue that these checkpoints are unconstitutional searches and seizures because there is no warrant, no probable cause, and no reasonable suspicion. In other words, a DUI checkpoint allows the police detain an individual without any suspicion of wrongdoing. Both the Supreme Court of the United States and the Indiana Supreme Court have found that checkpoints are not per se unconstitutional, but that certain protocols must be followed, as discussed below:
Brown v. Texas, 443 U.S. 47 (1979)
– A criminal defense attorney argued that DUI checkpoints were unconstitutional, as they allowed law enforcement to detain an individual without any suspicion of wrongdoing. The United States Supreme Court balanced three factors: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. After weighing these 3 factors, the US Supreme Court found that DUI checkpoints are not per se unconstitutional.
Indianapolis v. Edmond, 531 U.S. 32 (2000)
– This case was argued by Ken Faulk, with the Indiana ACLU. The case originated in Indianapolis and eventually made its way to the US Supreme Court. The City of Indianapolis and Marion County conducted stops at a DUI checkpoint. While the vehicle was stopped, one officer would speak with the driver of the vehicle. This had previously been held to be constitutional. However, a second officer would conduct a K9 sniff of the vehicle to check for the odor of drugs. The US Supreme Court held that the justification for a DUI checkpoint was permitted only by the need to combat drunk driving. Extending the search by using a K9 went beyond this justification and is not constitutional under the 4th Amendment.
Subtlett v. State, 815 N.E.2d 1031 (Ind. App. 2004)
– A defendant was stopped at a DUI checkpoint and arrested for operating a motor vehicle while intoxicated. The criminal defense attorney argued that the DUI checkpoint was unconstitutional, under both the Federal and Indiana Constitution. The Indiana Court of Appeals explained that in deciding whether the checkpoint violated the Indiana Constitution, the following factors must me considered.
(1) a neutral plan approved by appropriate officials
(2) the objective, location, and timing of the roadblock
(3) the level of police discretion
(4) the degree of intrusion
(5) whether the roadblock was conducted safely, and
(6) the roadblock’s effectiveness.
State v. Gerschoffer, 763 N.E.2d 960 (Ind. 2002)
– A defendant was convicted of operating a vehicle while intoxicated after being stopped at a DUI checkpoint. He appealed and the criminal defense attorney argued that this specific checkpoint did not meet the requirements of the Indiana Constitution. The Indiana Supreme Court found that this particular checkpoint was unconstitutional. The Court explained “Article 1, Section 11 must be liberally construed to protect Hoosiers from unreasonable police activity in private areas of their lives. . . It may safely be said that Hoosiers regard their automobiles as private and cannot easily abide their uninvited intrusion. . . A minimally intrusive roadblock designed and implemented on neutral criteria that safely and effectively targets a serious danger specific to vehicular operation is constitutionally reasonable, unlike the random and purely discretionary stops we have disapproved.” The Court found this roadblock was unconstitutional because:
(1) The officers testified that they had followed a written guideline, but did not disclose what this guideline actually was.
(2) The purpose of the checkpoint was vague. The officers explained that the sole purpose was not merely to prevent drunk driving. The officers admitted they also hoped to prevent speeding, were looking for seat belt and child restraint violations, and wanted to make sure that vehicles had proper paperwork. The Court explained “this sounds more like a generalized dragnet than a minimally intrusive, neutral effort to remove impaired drivers from the roadways before they hurt someone.”
(3) The officers used this site because they had done a previous DUI checkpoint at this location and wanted to compare statistics. This decision had nothing to do with the danger of that location.
(4) Police discretion was not carefully controlled. Officers were told to be professional and courteous, but “received no specific directive on how to approach and screen motorists.”
(5) The average stop was 4 minutes. In Sitz, the average detention was only 25 seconds.
(7) Police sent press releases to 4 TV stations, but not to radio stations, local newspapers, or other print media. It was unclear whether the TV stations had actually reported that the DUI checkpoint was going to occur.
Based on these factors, the Indiana Supreme Court agreed with the criminal defense attorney, that the DUI checkpoint was not constitutional under the Indiana Constitution.
If the State can prove “endangerment,” this can elevate a Class C Misdemanor to a Class A Misdemanor. This can result in higher penalties. Several Indiana Courts have looked at the legal definition of “endangerment.”
Outlaw v. State, 918 N.E.2d 379 (Ind.App. 2009)
– The defendant was stopped for having his license plate light out. The criminal defense attorney argued that there was no evidence of endangerment. The Indiana Court agreed, finding that the traffic stop was based on an equipment violation. There was no evidence of erratic or unlawful driving. There was no evidence that the defendant endangered himself, his passengers, or any other person.
State v. Krohn, 521 N.E.2d 374 (Ind. App. 1988)
– The defendant was arrested for operating while intoxicated. While the defendant’s driving behavior was dangerous, there was no one else on the road at the time. The criminal defense attorney argued that this was insufficient for a conviction, since no one was endangered by the defendant’s driving behavior. The Indiana Court disagreed, explaining that endangerment applied to any person, including the defendant himself.
– The defendant was stopped for speeding. The defendant’s blood alcohol concentration was well above the legal limit. However, the defendant showed no poor driving behavior other than speeding. The criminal defense lawyer argued that this evidence was not sufficient to show endangerment. The Indiana Court disagreed, stating that any traffic violation relating to the operation of the vehicle (not including a mere equipment violation) is sufficient to show endangerment.
Prior Convictions and Minimum Jail Time
Having a prior conviction can result in a mandatory jail time or a misdemeanor charge being elevated to a felony.
Generally, if there is a prior conviction within 5 years, a misdemeanor case will be automatically charged as a level 6 felony.
Additionally, if you have a prior conviction (irregardless of when the prior conviction occurred), there will be a minimum of 5 actual days in jail. If you have 2 prior convictions, there is a minimum of 10 actual days in jail. The minimum jail time can technically be avoided, but this requires several hundred hours of community service and is not a realistic option for most people.
The question of whether there is a prior conviction may seem relatively straightforward, but it is not always easy for the State to prove the prior conviction, as explained below:
Indiana Code 9-13-2-130 states:
“Previous conviction of operating while intoxicated” means a previous conviction:
(1) in Indiana of:
(A) an alcohol related or drug related crime under Acts 1939, c.48, s.52, as amended, IC 9-4-1-54 (repealed September 1, 1983), or IC 9-11-2 (repealed July 1, 1991); or
(B) a crime under IC 9-30-5-1 through IC 9-30-5-9; or
(2) in any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a crime described in IC 9-30-5-1 through IC 9-30-5-9.
Indiana Courts have looked at what evidence satisfies the requirement of a prior conviction, as explained below:
– The defendant was convicted of operating a vehicle while intoxicated. He had a prior conviction in Michigan within 5 years. The criminal defense attorney argued that the Michigan conviction was not “substantially similar.” The Indiana Court agreed, finding that the Michigan statute required “visible impairment” while the Indiana statute required “endangerment.” Therefore, the Michigan statute was not substantially similar and the Defendant was found not guilty of the felony charge.
Hardship Licenses and Specialized Driving Permits
Indiana law previously made it very difficult to obtain a hardship license. A hardship license could be obtained, but only to drive for work. This did not include driving to school, for childcare, for healthcare, or even for court.
Recently, Indiana lawmakers created the Specialized Driving Permit, which allows significantly more driving. In most cases, obtaining a specialized driving permit is fairly typical and routine. Most Judges and Prosecutors realize that, as a practical matter, people are going to have to drive one way or the other, and they would prefer that people be able to do so legally. However, if you have a prior alcohol offenses, it can be come more difficult to obtain specialized driving privileges and a Judge might require that an alcohol monitor be installed in your vehicle. Additionally, you can not get a hardship license for a CDL. A specialized driving permit also does not apply outside of the State of Indiana, because an Indiana Judge can not order another state to allow you to drive. Lastly, it can be more difficult to obtain a specialized driving permit if the Judge determines that you refused to take a chemical test. Click here for more information about obtaining a hardship license or specialized driving privileges.
If a Judge finds that you refused to take a certified breath test, this can result in a refusal suspension of your license. The refusal suspension applies even if you are found not guilty of operating a vehicle while intoxicated. A refusal also can make you ineligible for a hardship license or specialized driving permit.
If you have already refused a certified test, this doesn’t mean that you are without options. First, prosecutors will often agree to terminate the refusal suspension as a term of the plea agreement. Second, even if the Prosecutor does not agree to terminate the refusal suspension, the Judge has discretion to over ride this decision as long as it is in the best interest of society.
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