Glossary H-J
Habitual Substance Offenders
In Indiana if you have two (2) previous convictions for drug/alcohol offenses which are at least class A misdemeanors or greater, including drinking driving convictions, if they are at least class A misdemeanors, in your lifetime, then the prosecutor can choose (he does not have to do this) to charge you with being a habitual substance offender.
If you are charged and convicted of being a habitual substance offender, then the court can enhance your sentence by 3 to 8 additional years on top of the ordinary penalty applicable to the pending underlying or predicate charge.
Habitual Traffic Violators
In Indiana, a 10 year habitual traffic violator is a person who accumulates 3 major traffic violation convictions in a 10 year period – the result is a 10 year driver’s license suspension.
Major traffic violation convictions include OWI/DUI, .08 % A.C.E., .15% A.C.E., all drinking driving offenses, some types of driving while suspended, reckless driving, criminal recklessness with a vehicle, drag racing, or leaving the scene of an accident.
Three major traffic violation convictions in a 10 year period will cause the BMV to issue you a notice of suspension for 10 years. After 5 years, you can apply for a probationary / work license, but you must file a petition with the court for approval of such a license.
There is a habitual traffic violator status that we lawyers refer to as the mini-habitual violator. This habitual violator status requires a 5 year license suspension if a person is convicted of 10 minor moving traffic tickets such as speeding, and, the status requires that there is one major traffic conviction within the same 10 year period, e.g. 9 speeding tickets and an OWI/DUI within 10 years.
The good news is that a mini-habitual violator immediately qualifies to file a petition with the court for a probationary / work license. The bad news is that if you are caught driving as a mini-habitual traffic violator, you may get a felony charge and a lifetime license suspension if convicted.
There are other forms of habitual traffic violators too, though less common. If you are convicted of two or more felony traffic charges such as events with serious bodily injury or death you will receive a habitual traffic violator suspension.
Reinstatement in all of these habitual cases is dependent upon court permission and always requires the carrying of SR-22 Hi risk insurance as a condition of reinstatement. Ask your attorney if you qualify for a license if you have received any kind of habitual traffic violator notice.
Hardship License
In Indiana, for first OWI/DUI cases only, you can file a lawsuit against your local prosecutor to obtain a work only driver’s license. (the statute actually provides for work, church, and visitation or parenting time) You do not qualify for this hardship license if you refused the breath test or if you have any prior OWI convictions or summary administrative suspensions and your petition for the hardship license must be verified which means it is subject to penalty if you commit perjury.
As a condition of receiving the hardship license, you must also be evaluated and participate in a certified alcohol rehabilitation program. The court cannot issue you a hardship license until your license has been suspended for at least 30 days as a result of the summary administrative suspension and the chemical test failure.
Horizontal Gaze Nystagmus
A National Highway Traffic Safety Administration standardized test commonly known as the eye test. In theory, an individual’s eyes will display a distinct involuntary jerking called nystagmus when an individual has consumed a sufficient quantity of alcoholic beverages.
This test is very subjective in terms of police officer perception of nystagmus and is the most difficult test to properly administer and evaluate. Some states have not accepted this test as sufficiently supported by scientific data, however, Indiana does accept this test so long as a proper foundation for the test is established.
Ignition Interlock
A device designed to prevent the operation of a vehicle until a sample of air is delivered into the interlock device verifying that there is no alcohol/ethanol present on the breath of the operator. Tampering with an interlock device is a misdemeanor offense in Indiana.
The court has the power, as an alternative to the summary administrative suspension required for chemical test failure or refusal, to order installation of an ignition interlock device which must remain attached to the ignition of your vehicle until your pending case is concluded.
In Monroe County Indiana, there is no specific rule on whether a particular judge will or will not grant an ignition interlock alternative to the summary administrative suspension, though I am unaware of whether this has happened in the recent past. This is an issue that can be pursued if you have a company poised to install the device for you.
Initial Hearing
In Indiana this is what used to be called your arraignment. Typically, you enter a not guilty plea after being presented with the charges filed against you, and, after an advisement by video, from the court, or in writing, of your constitutional rights.
In most counties your license will be suspended as of the initial hearing when the judge, acting for the BMV, makes a finding that your alcohol level was .08% A.C.E. or higher, or, that you refused the chemical test. If your license is suspended at the initial hearing, then this is the trigger for either the 180 day summary administrative suspension for chemical test failure if you took the chemical test, or, for the 1 year or 2 year summary administrative suspension if you refused the chemical test.
At Shapiro & Lozano, we can waive your initial hearing and plead not guilty for you in writing if you hire us as counsel before that hearing in order to save you the embarrassment and inconvenience of that first court hearing.
Implied Consent
Really a misnomer since there is really no voluntary consent involved. As a condition of obtaining your privilege to drive, the law creates a fiction that you consent to submit to a certified chemical test if offered by a police officer. If you refuse a certified chemical test:
- You lose your driving privilege in Indiana for 1 year or 2 years if you have a prior conviction for OWI/DUI.
- The jury is told in some fashion at your trial that you refused the chemical test implying that you had guilty knowledge of your alcohol level.
- The police officer involved in your OWI/DUI investigation can seek a search warrant to draw your blood as evidence without your consent (See Sam Shapiro’s case and challenge to this procedure in a case entitled Brown v. State).
- In Monroe County, Indiana you will remain in jail for 24 hours before being released to bail/bond because there is no certified chemical test with your alcohol level reported. (this is a judicial rule in our county)
The end result of the refusal is that it could result in both a 1 year or 2 year summary administrative license suspension along with a blood test which will reveal your alcohol level anyway. At Shapiro & Lozano, except in the most unusual of circumstances, we always recommend that our client take the chemical test.
Infraction
A quasi-criminal proceeding where jail time is not possible, i.e. a speeding ticket or stop sign violation. The levels of infraction, e.g. A, B, C, each carry a different maximum fine with them and your conviction of an infraction becomes part of your driving record.
Nine (9) or more driving infractions coupled with a major driving offense on your driving record within 10 years causes you to be a mini-habitual traffic violator and lose your license for 5 years. Fines most often range from $75 – $ 250 in practice although the maximums are far in excess of these amounts.
Infractions can result in a license suspension or points suspension if you accumulate too many tickets within a 2 year period. The BMV may require defensive driving school or points probation and may suspend your license for failure to comply.
Judgment Withheld
Another plea bargain device whereby you appear in court, plead guilty, have the judge withhold judgment of sentence pending your compliance with various agreed conditions. If you complete the conditions, then the court will not enter judgment and sentence and you are not convicted of an offense.
Indiana law, as interpreted by our appellate and supreme court, currently provides that judgment withheld agreements are not in compliance with Indiana law and are void. However, in many counties, judgment withheld is still utilized and, it is a popular case management device for courts with far too many outstanding cases.
Jury Trial
A jury trial is a trial presentation to 6 or 12 members of the community who sit in judgment of your case and determine if the State can prove beyond a reasonable doubt that you committed the crime.
Misdemeanors and class D felonies require 6 person juries, and more serious felonies require 12 person juries. Each lawyer may challenge 5 jurors if the panel is for 6 jurors, and 10 jurors if the panel is for 12 jurors during the voir dire selection process.
At Shapiro & Lozano, we believe that a jury trial offers a defendant the best chance to win his case. A trial to a judge, who must face the political pressure of re-election and who can be calloused or indifferent to presentations of reasonable doubt, is far less productive than a trial to a jury in nearly all circumstances. In fact, we lawyers joke that trials to the judge, called bench trials are really just slow guilty pleas!
