Glossary C-D
Change of Plea Hearing
In Indiana, this is the hearing time scheduled for your plea agreement to be given to the judge so that he can inspect it, and determine if he will accept it. In Monroe County, Indiana, you will be required to attend a video presentation of your constitutional rights and you must be present no later than 7:45 a.m. the morning of your plea.
Thereafter, attendance is taken and you will be required to fill out a form indicating that you attended and understood the video presentation. Some time after the video presentation, your case will be called before the judge and at that time, he will ask you if you plead guilty pursuant to your agreement.
If the judge rejects your plea bargain, he cannot impose his own sentence on you. He must return you to not guilty and we start again. The judge can only accept the agreement and follow its terms, or reject the agreement and put us back at the beginning of the case. The judge does not have the power to impose his terms on your plea bargain after he rejects your plea bargain contract.
Chemical Test
A measurement of your breath, blood, urine, or other bodily substance for purposes of determining the presence and level of alcohol/ethanol or drugs. In Indiana, a police officer may offer more than one chemical test to a person so long as all chemical tests are completed within a three (3) hour period from the time the officer has probable cause.
In order to avoid a summary administrative suspension for refusing a chemical test, you must submit to every test the police officer offers you in order to comply with the requirements of your driving privilege.
It is not enough to claim that you took a test here or there and therefore did not want or believe you needed to take subsequent tests. Indiana law is all written to favor the police officer’s discretion so long as he acts reasonably with respect to offering you any number of chemical tests.
If you are deemed to have refused a chemical test, a search warrant may be issued for an involuntary blood draw so that in addition to the alleged refusal being used against you in court, there may also be blood test evidence.
Remember, refusal of a chemical test results in either a 1 year or a 2 year summary administrative suspension of your driver’s license. You will not be eligible for a specialized driving privilege. You may not receive credit for any time served towards an OWI /DUI post-conviction license suspension. The police officer MAY get a search warrant to draw your blood anyway. At Shapiro & Lozano, we recommend submitting to the chemical breath test.
Children
For OWI / DUI purposes, in Indiana, if you are accused of operating a vehicle while intoxicated and one of your passengers is less than 18 years old, he/she is a child and you can be charged with a felony for the OWI/DUI, if the prosecutor so chooses.
OR, If you are the driver of a vehicle and you are less than 21 years of age, and, you have a chemical test that shows a blood or breath alcohol level of at least .02% A.C.E. but less than .08% A.C.E., then you are a minor operating a vehicle while intoxicated, a class C Infraction.
Controlled Substance
In Indiana, controlled substances are defined for OWI purposes in Schedules I & II of our drug laws (IC 35-48-1 et. Seq.) and typically include marijuana, valium, xanax, librium etc.
The Indiana Supreme Court has held that even if you are not “high” under the effects of marijuana, for example, (e.g. you smoked less than 30 days ago and the THC is still in your system) that you can be charged and convicted of a ‘drug driving’ offense since marijuana is illegal PER SE and without regard to any impairment or intoxication at the time of driving.
Therefore, the level of marijuana detected does not preclude the prosecutor from charging you and if the jury determines that you fit the statute, your conviction may be upheld. Most prosecutors are more reasonable than this, I recently obtained dismissals where the nanograms (this is how THC is measured) were minimal and not consistent with recent consumption of marijuana.
With respect to drugs other than marijuana, it can be a valid defense that you were on prescription medication at the time of driving so long as you did not violate the terms of taking the medication (re: dosage), other substances mixed with the drug or, an admonition not to operate a vehicle. Abusing your doctor’s instructions for taking a drug is an issue that the jury considers in deciding the case.
Deferred Prosecution
An agreement with the State that your prosecution will be deferred for some set period of time on conditions set forth and agreed upon by the parties, e.g. stay out of trouble for 6 months. At the end of the deferral period, if all conditions are met, the case is dismissed.
Discovery
The process of obtaining the evidence in your case for review before you make your final decisions on whether to plea bargain or take the case to trial. You are entitled to obtain and see [i.e. discover] the evidence against you. Additionally, in Indiana, depositions are allowed as part of the discovery process.
Dissipation of Alcohol
Typically, everyone burns off alcohol absorbed into the body at the rate of .015% per hour. After your body has reached its peak absorption of alcohol, it eliminates the alcohol at about .015% per hour.
If your body is in the dissipation stage, your chemical test score at the time of testing, will be lower than your chemical test score at the time of driving. This means that whatever number is reported by the testing device is a number lower than the level of alcohol you had at the time of driving.
This set of facts can be an aggravating circumstance in your case depending on the alcohol level reported. Also, the bail schedule used by the Monroe County Jail for your release when arrested for OWI uses the reported dissipation of alcohol to determine how many hours you must remain in jail before you are bonded out.
That is… If you refuse a breath test, you must spend 24 hours in jail because your alcohol level may be unknown, however, if you take a chemical test and an alcohol level is determined, then that level will determine how long you stay in jail. For example, a .08 % A.C.E. typically requires 2-4 hours in jail before your release. Higher scores require longer detoxification times.
Driving Record
These are the records kept by the BMV in your state as the relate to your driving history. In Indiana there is no magic time when a driving conviction drops off your record, for your purposes, most convictions remain on your record for life!
Some of Indiana’s habitual statutes allow for use of prior convictions throughout your lifetime, e.g. habitual vehicular substance offender. [IC 9-30-15.5-1 et seq.] To be a habitual vehicular substance offender you simply need 2 prior drug or alcohol convictions involving the operation of a vehicle while intoxicated, in excess of the legal limit [.08%] or with a controlled substance in your system, on your record, both of which are at least as serious as a class A misdemeanor, this includes some OWI/DUI convictions, alcohol or drugs. If you have only 2 prior convictions, then they must be within a 10 year period of the charge pending against you for which the prosecutor wants to charge you with habitual vehicular substance offender. If you have 3 or more prior offenses, no time period applies.
If your pending charge is a class A misdemeanor OWI/DUI or greater, or, a drug charge which is a class A misdemeanor or greater, then the prosecutor can charge you with being a habitual vehicular substance offender by alleging that your 2 or more prior convictions as described above are the predicate offenses to give you the habitual substance status and if proved, the judge must add from 1 to 8 years of prison to any sentence imposed on you. Now that is some serious penalty!
Additionally, Indiana has some mandatory minimum statutes which call for 5 days or 10 days in jail as a mandatory minimum for a 2nd or 3rd OWI/DUI even if the charge pending against you is a misdemeanor and you have not been in trouble for a long long time!
The record of your prior convictions does not magically clear after 7 or 10 years. This is fantasy. A zealous or aggressive prosecutor can dredge up these old convictions to impose very serious penalties against you.
Drug/Alcohol Court/Diversion Programs
In some states and in a very limited number of counties in Indiana such as Vanderburgh County for example, a diversion program is offered for either first time OWI cases or, chronic alcohol or drug abusers. These programs vary in their guidelines on who is eligible for acceptance.
In Monroe County, Indiana, there is no first time OWI diversion program. There is a drug/alcohol court if an OWI type offender meets the criteria of the court, typically chronic alcoholism or drug dependence. The thrust of the drug/alcohol courts is a blind plea of guilty to the offense charged so that the entire sentence is hanging over the defendant’s head conditioned upon his compliance with treatment.
In the event a long process of treatment is successfully completed, the pot-of-gold is dismissal of all charges. In the event the treatment process is failed, then a maximum sentence or other significant jail-type punishment can be brought to bear by the Court without further due process for the participant.
Some counties offer dismissal as the pot-of-gold for successful treatment but others are less generous and may only offer elimination of any jail time punishment. Check with your attorney to see what benefits you get from any particular drug/alcohol program completion.
Driving
Historically, in Indiana, when our OWI/DUI criminal offense was defined as driving under the influence of alcohol, to be convicted, the individual arrested must have been driving a vehicle upon a public road or highway.
In more recent times, our legislature has redefined the drinking driving criminal offense and labeled it: operating while intoxicated. The definition of operating does not require your vehicle to be moving, nor does it require any public road or highway.
It does require some control over your vehicle and an intent to drive or have driven. In a case where you are not behind the wheel when confronted by police there must be some circumstantial evidence that you did drive or operate your vehicle recently, typically within three hours although there are some exceptions to this.
A vehicle can be a lawn mower or a golf cart for OWI/DUI purposes. Intoxicated in Indiana means under the influence of alcohol or drugs or any combination of those, so that there is an impaired condition of thought and action and the loss of normal control of one’s faculties .
DUI
A generic designation for a number of criminal offenses related to drinking and driving. Historically, driving under the influence charges were among the first drinking driving charges in every state both before and after the purported scientific innovation of chemical test scores and breath tests.
Historically, driving meant on a roadway in a moving car, and, under the influence meant a gross loss of motor skills. Simple impairment had not entered the lexicon at that time.
