Glossary M-P
Mandatory Minimum License Suspensions
Upon conviction – in Indiana, a first offense OWI/DUI conviction requires a mandatory minimum 30 day license suspension no matter what. After the 30 day mandatory period has passed, a probationary/work license may be issued if you plead guilty and your plea bargain provides for a probationary work license that the court approves.
You will have to carry hi-risk SR-22 insurance whether you choose a 90 day minimum license suspension or a 30 day suspension with 180 days of probationary driving. If the court does not order the probationary work license, then a 90 day license suspension is mandatory and you get credit for any time your license was suspended if you submitted to the certified chemical test.
The mandatory minimum license suspensions are minimums, in all OWI/DUI charges the range of license suspension includes up to 2 years of suspension in any given case. You are not guaranteed the minimums.
If you refused the certified chemical test, then the 1 or 2 year refusal summary administrative suspension can be terminated and a minimum 90 day license suspension following conviction will start on the date of sentencing. The maximum suspension for the OWI/DUI offense is for 2 years unless there is serious bodily injury or death.
If you have a prior OWI/DUI conviction within 5 years of your new conviction, then your mandatory minimum license suspension is 1 year following your conviction with credit for any time previously suspended as a result of the summary administrative suspension if you submitted to the certified chemical test.
If you refused the certified chemical test, you get no credit toward the mandatory minimum driver’s license suspension. If you have a prior OWI/DUI conviction outside of 5 years from your new conviction, but inside of 10 years of your new conviction, then the mandatory minimum license suspension is 180 days.
Mandatory Minimum Jail Time
In Indiana there is no mandatory jail time by statute for a first offense OWI/DUI. However, many rural counties such as Greene, Lawrence, Morgan, Owen, etc. provide local standards that require a weekend in jail upon conviction of a first time OWI/DUI.
Indiana state law does provide for a mandatory minimum jail sentence of 5 real days if you are convicted of an OWI/DUI and if you have 1 prior OWI/DUI conviction in your lifetime. (That’s right, it does not matter how old your prior conviction is, if you have a prior conviction you must do 5 real days in jail as part of your new sentence if you are convicted of the 2nd OWI/DUI. Some counties and judges look the other way and ignore this statute, but it is the law.)
The statute does provide that you may substitute 180 hours of community service in lieu of this jail time if the prosecutor agrees in your plea agreement and if the judge approves this substitution. Indiana law also provides for a mandatory minimum jail time of 10 real days in jail if you have 2 prior OWI/DUI convictions in your lifetime, no matter how old these convictions may be and if you are convicted of your pending OWI/DUI. You may substitute 360 hours of community service in lieu of this jail time with prosecutor and judge approval.
Finally, if your case is charged as an OWI/DUI felony, and if you have two (2) prior OWI/DUI convictions resulting from application of Ind. Code 9-30-5, (this is a timing issue and you should consult with your attorney for applicability to your case) then, the mandatory minimum sentence is 180 days and it is not suspendible.
However, in some cases you can substitute house arrest for all or part of the jail time. Beware however that most community corrections programs will not accept a person sentenced under a mandatory minimum sentencing statute for home detention and you may need a judicial override to participate in these programs.
Marked Police Vehicle
In Indiana, a police officer must either be in a marked police vehicle OR in uniform before he can stop you for a traffic offense. (See Sam Shapiro’s case entitled Miller v. State)
Misdemeanor
In Indiana any offense that carries a potential jail time penalty of one year or less.
Operating
In Indiana, proof of the element of operating means proof of an intent and ability to control/drive your vehicle. It does not require that the vehicle be on a roadway or in motion. Also, the type of vehicle does not matter, it can be a golf cart or a lawn mower.
If the police officer finds you alone on a country road with no one else around, the circumstantial evidence may support the conclusion that you were driving. Jumping out of your vehicle before the police approach you or throwing your keys to show you did not have them do not necessarily mean that you did not operate your vehicle, it becomes a proof issue.
The issue of operating is fact-specific for cases in Indiana with decisions supporting many different positions. E.g. stuck in a snow bank where vehicle cannot move is operating according to one Indiana case, while sleeping in a vehicle with the motor running in a parking lot is not operating. Consult with your attorney if this issue applies to you.
Post-Conviction Relief
In Indiana if you have a prior conviction after you have pled guilty, and, if the legal procedure required to place that conviction on your record was not properly done, then you can challenge the prior conviction and ask that it be removed from your record.
Typically, a procedural mistake by a judge, a prosecutor, or your attorney is required in order for you to prevail. Most often, but not always, the facts of your previous case are not relevant to this procedural analysis because your prior guilty plea confesses the guilty facts. Post-conviction relief is a procedural challenge most often.
Presumption
A legal device created as a stop-gap to allow prosecutors to rebut the legal defense of absorption. This legal device provides that a person’s alcohol level is presumed to remain constant for a 3 hour period from contact with the police officer.
The jury, using this legal device and creation, may presume that a person’s breath alcohol level or blood alcohol level remains constant for 3 hours, without regard to the accepted scientific truths of absorption and dissipation.
When I expose this silly fiction to juries, I often explain by example when I compare this rule to our common knowledge about an electric skillet. When you turn on the electric skillet in your home, it takes a period of time for the electric current to heat the surface of the skillet. We know by touch, that the temperature is not continually constant. When you turn the electric skillet off, it cools over time as well and by touch or by burning your hand you can learn that it takes time for the skillet to dissipate the heat created by the electricity.
If you accepted the silly Indiana presumption created in OWI/DUI cases, then you would say that the temperature of the skillet when first turned on is the same temperature as when it warms up, is fully heated, and is turned off. This example proves the silliness of the presumption.
The presumption is silly and unsupported by science but we are remiss if we do not recognize that for some reason our appellate and supreme court have accepted this presumption. The presumption is a rebuttable presumption and the jury may reject the presumption even if not rebutted.
Presumption of Innocence
Another important thread in the 3 golden threads of American Criminal Justice, burden of proof, presumption of innocence, and proof beyond a reasonable doubt. A defendant is presumed to be innocent and he or she is not required to say or do anything to prove innocence.
The fact that a charge has been filed and a defendant is brought to trial is not evidence of guilt. Jurors should attempt to reconcile the evidence so as to find the defendant not guilty, giving him the presumption of innocence. A defendant is not guilty from the minute he is arrested up until the time the jury considers the case.
The presumption of innocence protects a defendant unless and until the State has that quantity and quality of evidence necessary to prove the defendant’s guilt beyond a reasonable doubt.
Pre-trial Conference
In Monroe County, your attendance is required unless your attorney tells you otherwise; ask us about individual other counties prior to the court date. At the first pretrial, the attorneys discuss:
- The state of the discovery and whether each side has made a production of evidence so that the attorneys may evaluate the evidence to determine the strength or weakness of each other’s case;
- Any potential plea bargains to resolve the case if there is middle ground (sometimes there is no middle ground and a trial is inevitable).
- Any future court dates for additional pretrial conferences, motions to suppress, or trial, if necessary.
Prima Facie Case
A legal device to give prosecutors a leg up in proving an OWI/DUI case. The law allows the jury to combine a certified chemical test score with operating a vehicle and conclude that a person has operated a vehicle while intoxicated.
This is a simplistic formula to allow sufficient evidence to support OWI/DUI convictions and it ignores important evidence such as standardized field sobriety testing, evidence of demeanor such as the lack of slurred speech, the lack of physical or thinking impairment, and the overall appearance of the defendant.
You most often hear this term in jury instructions during trial giving the jury a sense of their power and on appeal in an effort to justify a guilty verdict when the evidence was thin or lacking. I am not a big fan of these legal devices designed to support convictions or make convictions easier.
Probable Cause
A legal quantity of evidence necessary to support an arrest or search or summary administrative license suspension. Probable cause is difficult to define, it is more than suspicion but less than a preponderance of evidence. It is a very low burden of proof.
