Frequently Asked Questions about OWI Charges
If you’ve been arrested for drunk driving you need to be sure you’re asking the right questions. Here is a list of common questions. If you’ve been arrested for drunk driving, and you want the justice that you deserve, be sure to contact the Law Offices of Shapiro & Lozano for your free consultation.
Q. “Do I need a lawyer in a drunk driving case?”
A. IT DEPENDS. You should first assess your goal. If that goal can be met without an attorney, then perhaps you do not need a lawyer. Typical goals include some combination of the following:
- You don’t want a drunk driving offense on your record and on your BMV report.
- You don’t want to go to jail.
- You want to get your license back as quickly as possible.
- You feel strongly that you were ‘not guilty’ and you don not want to say you were guilty of something you did not do.
Q. “What happens to my driver’s license when the police arrest me in a drinking driving case?”
A. The policeman is supposed to take your license at the time of your arrest and give you a receipt for it. You are not suspended when the officer takes your license. In fact, you can apply for a duplicate license until your suspension by the Court or the Indiana BMV.
A duplicate license is a great idea for identification purposes to save you humiliation when asked for I.D. Of course, once the Court or BMV tells you that you are suspended, you can no longer drive and your duplicate license is not valid for driving or identification. Suspension voids the receipt.
Q. “What am I really getting if I hire a lawyer in an OWI case?”
A. What you should be getting is as follows:
- An analysis of your case for weaknesses that could mean reasonable doubt. Examples include, a good videotape, a mistake made by the police officer in his report, at a deposition, or at trial.
- Analysis for any failure in the breath test procedure by the policeman, the machine itself, or the science supporting the test.
- Analysis to determine falsely high breath or blood testing, for example serum blood v. whole blood scores.
- A recommendation from your lawyer on whether you should take depositions and contest the case at trial. Or, a recommendation on whether you should plea bargain your case. And, discussion with your lawyer of the terms of any plea bargain. You should examine the goals you set for your case along, with the recommendation from your lawyer, to determine if you should plea bargain or go to trial.
Q. “What guarantees do I get if I hire a lawyer”
A. None. Hiring a lawyer simply protects your rights and gives you ‘BETTER ODDS’ of either winning your case at trial or achieving the plea bargain or goal that you set for the case. This is why the ‘right’ lawyer is so important.
Q. “What happens if I am convicted of drunk driving or if I plead guilty to drunk driving?”
A. The most important consideration is whether you have ever been in trouble before. IN MONROE COUNTY:
First Offenders can expect probation, public restitution, a minimum license suspension and costs. Greene, Brown, Lawrence, and Morgan counties all require jail time even for first offenders, typically an additional weekend.
Second Offenses carry greater penalties. A felony may be imposed and reduced later, jail time may be required, probation, road crew, public restitution, home detention, and increased costs. 6 months to 1 year is a typical license suspension. Indiana law requires a five (5) day jail sentence or 180 hours of community service if a person has a prior OWI type conviction on their record regardless of the age of the prior conviction, e.g. it can be 20 years old and this still applies!
Third or Subsequent Offenses largely depend on the TIMING of your prior offenses. If you are habitual traffic violator eligible, you will lose your license for 10 years, plus anywhere from 3-9 months of non-suspendable jail time and lengthy probation. You may qualify for drug or alcohol court. You may also qualify for home detention or work release in a community corrections setting.
Accidents & injuries usually require jail time to be served.
Q. “Does the State suspend my driver’s license before my case is over?”
A. YES, In 1983, Indiana law changed to allow an administrative suspension of your driver’s license if you either failed or refused a chemical test – defined as a breath, blood, or urine test for alcohol or drugs.
Your summary administrative suspension is for 180 days if you failed a chemical test, or, for 1 year if you refuse a certified chemical test with no prior convictions, and 2 years if you refuse a certified chemical test with at least one prior conviction for OWI/DUI.
Indiana law changed in January 2015 such that if you submitted to a chemical test – breath, blood, or urine – but you failed that chemical test – a .08% result or higher – then you are eligible for a specialized driving privilege. The notion behind the new law effective January 1, 2015 is that our local judges for each individual Indiana county will be given discretion to evaluate persons suspended for chemical test failure – IC 9-30-6-9(c) – and determine if they are reliable to drive for work purposes or school purposes or child care or church or other appropriate activity. The judge now has complete discretion in an OWI case regarding your ability to drive both pre-conviction and post-conviction. The mandatory suspensions from the previous law are mostly repealed! Chemical test refusals and Commercial Driver’s Licenses are the two (2) biggest exceptions to relief under the new law – so, if you refuse or, if you have a commercial driver’s license, you are not going to be eligible for a specialized driving privilege.
Q. “What is the quickest way to be reinstated with a valid license?”
A. Prior law encouraged you to plead guilty, absorb a minimum 30 day license suspension and then driver for probationary purposes for 180 days. As of January 1 2015, though, you may now file a verified petition for a specialized driving privilege with the court that has suspended you for chemical test failure and ask the judge to reinstate your driving privilege with a specialized driving privilege. [Not applicable if you refused the chemical test or if you have a commercial drivers license]
Your judge has the ability to give you anywhere from 0 days to 2 years of driver’s license suspension – there no longer is a mandatory license suspension for OWI cases unless there is serious bodily injury or death. Most judges are still getting used to the new law so many suspensions you see occuring at this time are based on prior law because there has been no decision made about the routine issue of specialized driving privileges. It will take the courts some time to acclimate to this new law and it will take the judges time to forget the old law and be more generous with allowing people to drive for work, school, and other proper purposes.
Q. “If I do not want a drinking driving conviction on my record and want to fight my case in court, is there any license that I do qualify to receive?
A. YES. So long as you did NOT refuse a chemical test, do not hold a commercial driver’s license, and were not involved in a serious bodily injury or death case, then you qualify for a specialized driving privilege. Your attorney will help prepare a verified petition to be filed in the court where your license was suspended asking the judge to give you permission to drive for specific purposes. The judge can place limitations on your driving including roads, times, places, ignition interlock devices, SR-22 insurance requirements, alcohol or drug evaluations and classes to insure that you are a safe driver.
WARNING: Every judge in every county has the discretion to deal with your license issue, some counties may be more lenient and some judges in the same county may be more lenient. Each license issue is up to the individual judge.
There is no filing fee for a specialized driving privilege if your license was suspended by the court for chemical test failure.
Q. “What kind of suspension occurs if I am convicted of drinking and driving?”
A. A pre-conviction suspension for chemical test failure differs from a post-conviction suspension given as part of a criminal sentence. Nonetheless, you are entitled to credit if your license was suspended previously. The sentencing judge has many options:
a. He or she can suspend your license for a time period from 0 days to 2 years – you may be entitled to credit for pre-conviction suspension time served.
b. As of Jan 1, 2015, there is no longer a mandatory license suspension period for first, second, and third time offenses. [There are still habitual traffic violator status offenses if you accumulate too many major offenses within the required time period.] There are still mandatory suspensions for serious bodily injury or death cases.
c. If you refused a chemical test you receive a pre-conviction suspension of 1 year if you have no prior owi type of offenses, or 2 years, if you have one or more prior owi type of offense. If you are convicted of the owi offense where you refused then your refusal can be terminated and/or vacated. If vacated, you may receive credit retroactively for any pre-conviction license suspension served to date, if terminated, you do not receive pre-conviction suspension but, the balance of your 1 year or 2 year refusal suspension is terminated and a new post-conviction license suspension anywhere from 0 days to 2 years can be considered by the Court.
If you have 3 major traffic violations in a 10 year period you may lose your license for 10 years.
If you have 1 major violation, plus 9 or more minor moving violations like speeding etc., then you may lose your license for 5 years.
If you drive after being found a habitual offender, you can lose your license for life.
As of Jan 1 2015, if you are a habitual traffic violator, [whether 5 year, 10 year, or life] you are eligible to apply for a specialized driving privilege. In this situation, because the Indiana BMV has taken your license, you must file a separate verified petition in a circuit or superior court located within the county in which you reside. There is a filing fee. There will be a hearing for the judge to evaluate your driving record and determine if he want to allow you to drive. The judge can STAY your habitual suspension and place you on driving restrictions such as time, place, roads, location, purpose, ignition interlock, SR-22, or others. If you violate a specialized driving permit for habitual traffic violator, you are not allowed another Indiana license.
Q. Can more than one drinking driving charge be filed against me at one time?”
A. Yes. The State always chooses to file the Operating while Intoxicated charge. Additionally, the score reported by your test will determine what additional charge, if any, is filed against you. In most cases, even though you are charged with more than one drinking driving offense, if you lose your case or plead guilty, you can only be convicted of one drinking driving offense. Exceptions to this are accident cases where there may be multiple persons injured or multiple fatalities. In these cases, you may receive consecutive sentences within the discretion of the judge.
Q. “What is the difference between the charge of being intoxicated and the charge of having .08% by weight of alcohol in breath or blood?”
A. Indiana law, like many other state laws, prohibits operation of a vehicle by any person who is either intoxicated [see definition] or, who has a certain amount of alcohol on the breath or in the blood, .08%. The law holds that driving with a certain amount of alcohol is a crime per se, that is, even if you are not intoxicated, the law holds you responsible if your chemical test is .08% or greater. Therefore, it is important to remember that even though you are not intoxicated, you may be criminally liable if you have too much alcohol on your breath or in your blood. And, even if you do not have too much alcohol on your breath or in your blood, you may be criminally liable if you are intoxicated.
Q. “It seems so cut and dry, how can I possibly win a jury trial where the policeman reports a failure of the breath test and the dexterity tests that he gave me?”
A. Here is where the experience and abilities of your lawyer may impact on the facts of your case.
First, the State must prove your guilt beyond a reasonable doubt; the State has the burden of proof; and you are presumed to be not guilty. ‘Not guilty’ does not necessarily mean innocent, rather, it means that the State did not prove its case.
Second, there is a legitimate argument between law and science concerning the definition of intoxication and the measurement of alcohol by breath tests. A toxicologist is a scientist who can help explain these differences to the jury.
Third, the State’s breath test science, although legally admissible, is not necessarily scientifically reliable or accurate.
Fourth, the dexterity tests that most reliably show intoxication are those approved by NHTSA. These are tests that require a police officer to be exact in setting up and grading the test. Most officers are not 100% proficient in these tests and the mistakes they make may be ‘reasonable doubt.’ Click here to see a list of common mistakes that police officers make in an OWI case.
The 3 NHTSA tests are the 1 leg stand test, the horizontal gaze nystagmus eye test, and the walk and turn test.
Finally, there may be a videotape of the police procedure in your case that can be presented to the jury to illustrate errors and to show reasonable doubt.
