Arata Law Firm Service 1

I. MISDEMEANOR OWI

A. “.08" & “INTOXICATED” WITH “VEHICLES”

There are now four (4) misdemeanor offenses in Indiana with respect to adults consuming alcohol (or having certain controlled substances in their body without a valid prescription) and operating an automobile. These four (4) basic offenses will be referred to herein as “Operating While Intoxicated Type Offenses.”

1. Two (2) “Per Se” Offenses

a. Class “C” Misdemeanor “Per Se”

The first of the two (2) “Per Se” type misdemeanor offenses is concerned with both the amount of alcohol in a person’s breath or blood and certain controlled substances in the body. IC 9-30-5-1(a) prohibits the operation of a vehicle with at least .08 but less than .15 grams of alcohol by weight in your blood or breath, and operating with certain controlled substances in your body. Both offenses are charged as Class “C” Misdemeanors.

A Class “C” Misdemeanor is punishable by a maximum term of imprisonment of sixty (60) days, a fine of up to Five Hundred Dollars ($500.00), or both. (IC 35-50-3-4)

b. Class “A” Misdemeanor “Per Se”

The second “Per Se” offense is only concerned with the amount of alcohol a person has consumed. IC 9-30-5-1(b) prohibits the operation of a vehicle with .15 or above grams of alcohol by weight in your blood or breath. This offense is charged as a Class “A” Misdemeanor.

A Class “A” Misdemeanor is punishable by a maximum term of imprisonment of three hundred sixty-five (365) days, a fine of up to Five Hundred Dollars ($500.00), or both. (IC 35-50-3-4)

2. Two (2) Operating While “Intoxicated” Offenses

a. Class “C” Misdemeanor “Intoxicated”

The second two (2) statutes, (IC 9-30-5-2), prohibit the operation of a vehicle while intoxicated. "Intoxicated" is defined as under the influence of alcohol, a controlled substance, a drug other than alcohol or a controlled substance, or a combination of these, so that there is an impaired condition of thought and action and the loss of normal control of your faculties. (IC 9-13-2-86)

A person who operates a vehicle while “Intoxicated” commits a Class “C” misdemeanor. [(IC 9-30-5-2(a)]

b. Class “A” Misdemeanor “Intoxicated”

If it is proven that a person operated a vehicle while intoxicated, and in doing so additionally endangered someone, it is a Class “A” Misdemeanor. [IC 9-30-5-2(b)]

II. FELONY OWI

A. Previous Conviction Within 5 Years

(IC 9-30-5-3)

If within five (5) years of the present arrest a person has a previous conviction for an “Operating While Intoxicated Type Offense,” the new offense will be elevated to a Class “D” Felony.

A Class “D” Felony carries a punishment of six (6) months to three (3) years imprisonment. The advisory sentence is one and one-half (1 ½) years. In addition, the person may be fined up to Ten Thousand Dollars ($l0,000.00). (IC 35-50-2-7)

An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.

Additionally, the Court must order the convicted person to serve at least five (5) days imprisonment if they have one previous conviction and ten (10) days imprisonment if they have two (2) or more convictions (without good time credit). (IC 9-30-5-15)

B. Minors in Vehicle

(IC 9-30-5-3)

If the driver of the vehicle is at least 21 years old, with any passenger under 18, and the driver has either 1) a Blood Alcohol Content of .15 or greater, or 2) operates a vehicle while intoxicated, in a manner that endangers a person. The charge is a Class “D” Felony.

An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.

C. Serious Bodily Injury

(IC 9-30-5-4)

Any “Operating While Intoxicated Type Offense” may be elevated and charged as a Class “D” Felony if “serious bodily injury” is inflicted on another person. [IC 9-39-5-4(a)]

However, the offense may be elevated to a Class “C” Felony if serious bodily injury is caused and the person has a previous conviction for an “Operating While Intoxicated Type Offense” within five (5) years of the commission of this new offense. [IC 9-30-5-4(b)]

“Serious bodily injury” is defined in IC 35-41-1-25 as “bodily injury creating a substantial risk of death or causing serious permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the function of a bodily member or organ, or the loss of a fetus.”

Please note that an offense is charged for each person suffering serious bodily injury. Thus, one accident can result in multiple charges being filed for each person injured. [IC 9-30-5-4(b)]

IC 35-50-1-2(b) defines an “episode of criminal conduct” as offenses or a connected series of offenses that are closely related in time, place and circumstance.

According to IC 35-50-1-2(c), the sentencing for this “episode of criminal conduct” can result in consecutive sentences being imposed. Pursuant to IC 35-50-2-1(d), the total of the consecutive sentences “arising out of an episode of criminal conduct,” cannot exceed the advisory sentence of a felony that is one class higher than the most serious felony of which the defendant has been convicted.

The punishment for a Class “C” Felony is two (2) to eight (8) years imprisonment. The advisory sentence is four (4) years. In addition the person may be fined up to ten thousand dollars ($10,000.00). (IC 35-50-2-6)

A Class “B” Felony is one class higher than a Class “C” Felony. The punishment for a “B” Felony is between six (6) and twenty (20 years. The advisory sentence is ten (10) years. In addition the person may be fined up to ten thousand dollars ($10,000.00) (IC 35-50-2-5)

An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.

If a convicted driver does not have a previous conviction of an “Operating While Intoxicated Type Offense”, then the maximum executed sentence is four (4) years.

However, if the convicted operator has a previous conviction of an “Operating While Intoxicated Type Offense” within five (5) years of the commission of this offense, if more than one person suffers serious bodily injury, then the maximum executed sentence appears to be 10 years.

There is a mandatory license suspension of at least two (2) years. The judge may suspend driving privileges up to five (5) years. [IC 9-30-5-10(e)]

D. Death

(IC 9-30-5-5)

A person who causes the death of a person while committing an “Operating While Intoxicated Type Offense,” commits a Class “C” Felony. [IC 9-30-5-5]

An “advisory sentence” is a guideline that the court may voluntarily consider as the midpoint between the maximum and minimum sentence.

The offense is a Class “B” Felony if, within five (5) years before the commission of this offense, the person has a previous conviction for an “Operating While Intoxicated Type Offense.” [IC 9-30-5-5(a)(3)]

The offense is a Class “B” Felony if, the person operated the vehicle when their driver’s license was suspended because of a previous conviction for operating a vehicle while intoxicated. [IC 9-30-5-5(a)(3)]

The offense is a Class ”B” Felony if, the person operating the vehicle is at least 21 years old and has a .15 grams of alcohol by weight in their blood or breath, or operated with certain controlled substances or its metabolite in their BLOOD. [IC 9-30-5-5(b)]

The punishment for a “B” Felony is between six (6) and twenty (20) years. The advisory sentence is ten (10) years. In addition the person may be fined up to ten thousand dollars ($10,000.00) (IC 35-50-2-5)

Even though one accident occurs, each resulting death is considered a separate offense. [IC 9-30-5-5(c)] As discussed previously, a person can receive consecutive sentences for an “episode of criminal conduct.”

“Causing death while operating a vehicle” is defined as a “crime of violence.” [IC 35-50-1-2(a)(14)] Since it is defined as a “crime of violence,” the limitation concerning the imposition of consecutive sentences found at IC 35-50-1-2(c) involving an “episode of criminal conduct” does not apply.

If a person is charged with this offense as a Class “C” Felony, the maximum sentence would be eight (8) years multiplied by the number of persons killed in the accident.

However, if a person has a previous conviction for operating while intoxicated within five (5) years of the present offense, and is charged as a Class “B” Felony, the maximum sentence becomes twenty (20) years multiplied by the number of persons who die in the accident.

There is a mandatory license suspension of at least two (2) years. The judge may suspend driving privileges up to five (5) years. [IC 9-30-5-10(e)]

IV. HABITUAL CONTROLLED SUBSTANCE OFFENDERS

(IC 35-50-2-10)

A "substance offense" is defined as a Class “A” Misdemeanor or a Felony in which the possession, use, abuse, delivery, transportation or manufacturing of alcohol or drugs is a material element of a crime. [IC 35-50-2-10(a)(2)]

An “OWI” Class “A” Misdemeanor charge may result in the State seeking to have your sentence enhanced because you are an “Habitual Substance Offender.”

The Court will sentence a person found to be an habitual substance offender to an additional fixed term of at least three (3) years but not more than eight (8) years imprisonment, to be added to the term of imprisonment imposed for the third Class “A” Misdemeanor offense. [(IC 35-50-2-10(f)]

If it has been three (3) or more years since the date the person was discharged from probation, imprisonment, or parole for the last prior unrelated substance offense conviction, the Court may reduce the additional fixed term period. However, the Court will not reduce the additional fixed term to less than one (l) year. [IC 35-50-2-10(f)]

In Reffett v. State, 844 N.E.2d, (Ind.App 2006), the Indian Court of Appeals ruled that where a person is convicted of an “Operating While Intoxicated Type Offense,” as well as the Habitual Controlled Substance Offender sentencing enhancement, the HCSO statute requires the courts to imposed the mandatory executed prison sentence on the HCSO sentencing enhancement.

V. ADMINISTRATIVE SUSPENSION OF DRIVING PRIVILEGES

A. Suspension for Failing “Chemical Test”

Whenever a law enforcement officer in the State of Indiana has probable cause to believe that a person has committed an “Operating While Intoxicated Type Offense,” the officer will offer the driver a chemical test(s) to determine that person’s blood and/or breath alcohol level. The test(s) may be of the blood, breath, urine, or all three (3). (IC 9-30-6-2) If the results of a chemical test show a blood alcohol concentration of .08 or more, that person will be arrested. Further, the Indiana Bureau of Motor Vehicles (“BMV”) will be notified of the test failure. At your first court hearing, (called an “Initial Hearing”), the Judge should suspend his driving privileges immediately for one hundred eighty (180) days in open court if he failed any of the chemical test(s). If for some reason the Judge doesn’t immediately suspend the driving privileges, but the judge finds probable cause to believe that the driver failed a “chemical test,” paperwork will be sent to the BMV advising it of this. Once the BMV receives this information, the BMV will send notice to the driver at his last known address, advising him that his driving privileges are suspended. This suspension (whether by the Judge or the BMV) is called an "administrative suspension”. This suspension will last for one hundred eighty (l80) days or until the case is disposed of by the Court, whichever occurs first. [IC 9-30-6-9(b)]

B. Suspension for “Refusing”

[(IC 9-30-6-9(b)]

Whenever a law enforcement officer in the State of Indiana has probable cause, he or she will offer the driver a breath, blood, and/or urine test. The tests must be offered within three (3) hours. If any chemical test offered is not taken, whether it be blood, breath, or urine, or all three (3), the police officer will, in addition to charging the driver with a misdemeanor or a felony, as the case may be, remove the driver’s license from his possession and deliver it to the court. The judge, at the first court hearing, will suspend the operator’s driving privileges for one (1) year for refusing to take any or all of the chemical test(s). However, if the person has a previous conviction for operating while intoxicated, the license suspension for refusing will be two (2) years. If the judge fails to advise the driver in open court of the suspension of driving privileges, but finds probable cause to believe that the driver refused to take the “chemical test(s),” the BMV will suspend his driving privileges once it receives the proper paperwork from the Court. The BMV will then mail notice to the suspended driver at his last known address.

Please note that a person who refuses the chemical test is generally not eligible for either a “hardship license” or a “probationary license.” However, “Interlock” devices in lieu of the suspension may be available.

The Court may, at sentencing, terminate all or part of the remaining refusal suspension. However, the Court will only order the termination if to do so would be in the best interests of society.

Ignition Interlock Devices

If a person “refuses” the breath, blood and/or urine test, he/she can petition the court to stay the suspension of his/her license suspension for refusing the breath, blood or urine tests by petitioning the court for permission to install an ignition interlock device. [IC 9-30-6-8(d)]

VI. PETITION FOR JUDICIAL REVIEW

(IC 9-30-6-10)

A person is entitled to prompt judicial hearing to attempt to have an “administrative suspension” or “ignition interlock” order overturned. However, the hearing is limited to two (2) issues:

1) Whether or not the police officer had probable cause to believe that a person had operated a vehicle while committing an “Operating While Intoxicated Type Offense”; or

2) Whether or not the driver refused to take the chemical test(s).

VII. HARDSHIP LICENSE FOR FIRST OFFENSE

(IC 9-24-15-1)

(Before conviction)

If a person has never been arrested or convicted of an “Operating While Intoxicated Type Offense,” has never had their license suspended before, and did not refuse to take a chemical test, he may be eligible for a special restricted license called a “hardship license.”

Please note, however, that if a person possesses a Commercial Driver’s License (CDL), no hardship license can be obtained under federal law and, likewise, no probationary license (post-conviction) can be obtained under Indiana law. [IC 9-30-5-9.5; IC 9-30-9.05; and IC 9-30-10-9)]

If issued by the Court, the probationary license will not go into effect until after the driver has been administratively suspended for thirty (30) days.

The purpose of the “hardship license” is to supersede up to one hundred fifty (150) days of the one hundred eighty (180) day mandatory “administrative suspension” imposed for failing a chemical test.

To obtain this “hardship license,” a petition must be filed with the Court in the County where the driver resides stating that the suspension of the license would work an undue hardship and burden upon his family or dependents. This petition is a civil proceeding separate and apart from any criminal prosecution. There is a required filing fee which is paid when the petition is filed with the court. If the petition is granted, the “hardship license” allows restricted driving to and from work and during the course of one’s employment while the criminal case is pending.

This special hardship license will supersede the one hundred eighty (l80) days administrative suspension of the driving privileges, discussed above. However, it will not become effective until the driver has been administratively suspended for at least thirty (30) days. [IC 9-24-15-6.5(c)]

If, when petitioning for this hardship license, the person is participating in a rehabilitation program certified by either the division of mental health or the Indiana judicial center, the Court must grant you this “Hardship License.” (IC 9-24-15-6.5) Otherwise, it is discretionary with the judge as to whether or not to grant the hardship license request. Many judges will not issue a hardship license unless the driver is already enrolled in an acceptable rehabilitation program.

VIII. MINIMUM LICENSE SUSPENSIONS FOLLOWING CONVICTION

(IC 9-30-5-10)

A conviction for an “Operating While Intoxicated Type Offense” or “Operating a Motorboat While Intoxicated Type Offense” will also result in the suspension of ones driving privileges. This suspension is different from the administrative suspension previously discussed above.

If the convicted person’s driving record and other relevant evidence do not show a “previous conviction” for an “Operating While Intoxicated Type Offense” or “Operating a Motorboat While Intoxicated Type Offense” or shows that the “previous conviction” is at least ten (l0) years old, the judge must suspend the person’s driving privileges for at least ninety (90) days but not more than two (2) years. [IC 9-30-5-10(b)]

“Previous conviction” (IC 9-13-2-130) - is defined as prior conviction in Indiana for an “Operating While Intoxicated Type Offense” or a conviction from another state, IF that state’s “OWI” law was substantially similar to Indiana’s.

If the convicted driver did have a previous conviction for an “Operating While Intoxicated Type Offense” or “Operating a Motorboat While Intoxicated Type Offense” that occurred more than five (5) years but less than ten (l0) years ago, the suspension of his driving privileges will be for at least one hundred eighty (l80) days, but not more than two (2) years. [IC 9-30-5-10(c)]

Where the previous conviction for an “Operating While Intoxicated Type Offense” or “Operating a Motorboat While Intoxicated Type Offense” occurred within five (5) years of the present conviction, in addition to any criminal penalty, the judge must suspend the person's driving privileges for at least one (l) year but not more than two (2) years. [IC 9-30-5-10(d)]

Where the conviction is for:

1) Operating a Vehicle causing serious bodily injury (IC 9-30-5-4);

2) Operating a Vehicle Causing Death (IC 9-30-5-5);

3) Operating a Motorboat causing serious bodily injury [14-15-8-8(b)]; or

4) Operating a Motorboat causing death [14-15-8-8(c)];

in addition to any criminal penalty imposed, the Judge must suspend the person's driving privileges for not less than two (2) years but not more than five (5) years. [IC 9-30-5-10(e)]

A. Pre-Conviction Credit for Administrative Suspension of Driving Privileges

If a person’s driving privileges have been administratively suspended for failing a chemical test, the convicted driver will receive credit for that pre-trial administrative suspension. The time the driver was administratively suspended will count towards the conviction suspension imposed by the court at sentencing. (IC 9-30-5-14)

However, no administrative suspension credit will be given towards the conviction suspension imposed by the court at sentencing for refusing to submit to a chemical test. In this situation, any judicially imposed period of suspension will be consecutive to the one year suspension for refusal to submit to a chemical test. But, the Court may, at sentencing, terminate all or part of the remaining unserved balance of the one (1) year refusal suspension if the Court finds, at sentencing, that to do so would be in the best interests of society.

IX. PROBATIONARY LICENSE FOLLOWING CONVICTION

(IC 9-30-5-12)

A. First Time Offenders

If the convicted driver does not have a “previous conviction” for an “Operating While Intoxicated Type Offense,” or had a “previous conviction” that occurred at least ten (l0) years before his present conviction, and he did not refuse the chemical test, the Court may grant him probationary driving privileges for a period of one hundred eighty (l80) days at sentencing. [(IC 9-30-5-12(a)] The probationary license will override the judicially imposed suspension of driving privileges.

Probationary driving privileges allow the operation of a vehicle only to and from ones place of employment, to and from a Court ordered alcohol or drug treatment program, or for other specified purposes in exceptional circumstances. [IC 9-30-5-11(a)] If the probationary driving privileges are granted, they will only commence after a driver has been administratively suspended for at least thirty (30) days. [IC 9-30-5-11(b)]

If during the probationary period, the court finds that the person violated any traffic law or any other term of his probationary license, the probationary driving privilege may be revoked by the Court. If this occurs, the convicted person’s driving privileges will be suspended according to the length originally imposed by the judge at sentencing. [IC 9-30-5-13(b)]

New legislation in Indiana may require that an ignition interlock device be installed in the motor vehicle when granting probationary licenses [IC 9-30-5-16] If a person has a previous “Operating While Intoxicated Type Offense” that occurred at least ten (10) years before the conviction under consideration, or it is being requested under IC 9-30-5-12(c), or to a person who has a prior unrelated conviction for an offense under this chapter of which the consumption of alcohol is an element, the court must require the installation of the interlock device. However, if the person is participating in a court supervised alcohol treatment program in which the person is taking disulfiram (antabuse) or a similar substance, the court is not mandated to require the installation of the interlock device. [IC 9-30-5-16(b)]

B. Previous Conviction More Than 5 Years From This Conviction

As previously discussed, if a person had a previous “Operating While Intoxicated Type

Offense” that occurred more than five (5) years but less than ten (l0) years ago, the Court must suspend the convicted person’s driving privileges for at least one hundred eighty (l80) days but not more than two (2) years. After the license has been suspended for at least one hundred eighty (l80) days, the Court may grant probationary driving privileges for the balance of the period of suspension. [IC 9-30-5-10(c)]

C. Conviction Within 5 Years of Previous Conviction

If the convicted driver had a previous conviction for an “Operating While Intoxicated Type Offense” that occurred less than five (5) years before the present conviction, the Court must suspend that person’s driving privileges for at least one (l) year but not more than two (2) years. After the license has been suspended for at least one (l) year, the Court may grant probationary driving privileges for the balance of the period of suspension. [IC 9-30-5-10(d)]

D. Death or Serious Bodily Injury

If convicted for an “Operating While Intoxicated Type Offense” causing serious bodily injury or death, the Court must suspend that person’s driving privileges for at least two (2) years but not more than five (5) years. After the license has been suspended for at least two (2) years, the Court may grant probationary driving privileges for the balance of the period of suspension. [IC 9-30-5-10(e)] However, the court must find compelling circumstances warrant the issuance of probationary privileges. [IC 9-30-5-12(d)]

X. “HIGH RISK” INSURANCE (SR 22) FOLLOWING CONVICTION

If a person has been convicted of an “Operating While Intoxicated Type Offense,” he must file proof of financial responsibility with the Bureau of Motor Vehicles. [IC 9-30-6-12(b)] The form used is called an “SR 22.” The person’s insurance agent will file this SR 22 form with the BMV and it must continually be on file with the BMV for a period of three (3) years following expiration of the court imposed driver's license suspension

Upon receipt of the filing from the insurance company, and upon payment of any required reinstatement fees, the convicted driver can again obtain a driver's license.

The convicted driver and his insurance company must keep this SR 22 filing in force with the BMV for the entire three (3) year period. If there is any lapse, the Bureau will re-suspend the person’s driving privileges until another proper filing is made. [IC 9-30-6-12(c)]

XI. IGNITION INTERLOCK DEVICES

The term “Ignition Interlock Device” is defined in IC 9-13-2-76 as a device that can measure blood alcohol concentration and prevents a motor vehicle from being started without first determining the operator’s breath alcohol concentration through the taking of a deep lung breath sample.

Ignition interlock devices require a breath sample in order for the vehicle to operate. During operation the ignition interlock device will require additional breath samples and if alcohol is detected the vehicle will become inoperable.

The court may, as an alternative to the normal administrative suspension of driving privileges, upon an arrest for an “OWI type” offense [IC 9-30-6-8(d)] order that a person cannot operate a motor vehicle unless it is equipped with a functioning certified ignition interlock device.

In addition, when granting probationary driving privileges for “OWI type” offenses, the court may order that a person cannot operate a motor vehicle unless it is equipped with a functioning certified ignition interlock device. [IC 9-30-5-16]

It is a Class “B” Misdemeanor if a person operates a vehicle without a certified ignition interlock device and knew they were required to have a certified ignition interlock device on any motor vehicle they operate. [IC 9-30-6-8.7]

XII. HABITUAL TRAFFIC VIOLATORS

(IC 9-30-10-1)

An even longer period of suspension of driving privileges will be imposed if the BMV determines that a person is a "habitual traffic violator". There are three (3) categories of habitual traffic violators.

A. Category One

The first category of habitual violator involves a driver accumulating ten (l0) or more judgments, not arising out of the same incident, of any moving traffic violator of a type required to be reported to the Bureau, within a ten (10) year period. At least one (1) of the judgments must be for a violation listed in “Category Two” or “Category Three” below. [IC 9-30-10-4(c)] The penalty imposed by the BMV is a five (5) year suspension of a person’s driving privileges. [IC 9-30-10-5(b)(4)]

If a person is notified that he is an habitual violator, the BMV will write him when the suspension will commence. If this occurs, the driver must act quickly because the suspension will commence in thirty (30) days. (IC 9-30-10-5)

If the driver believes that there are errors in his driving record, he may notify the Commissioner in writing of the errors and request reinstatement of his driving privileges. (IC 9-30-10-6)

Indiana law allows the driver to petition the court to review his habitual violator status due to record keeping errors. The burden is on the driver to prove the errors, by a preponderance of the evidence, in order to prevail. The petitioner must pay the Court costs of the judicial proceeding, but he is entitled to a refund of all of his court costs if he prevails. (IC 9-30-10-7)

B. Category Two

A driver may also become a habitual traffic violator if, during the last ten (l0) years, he has accumulated three (3) or more judgments, not arising out of the same incident, for an “Operating While Intoxicated Type Offense,” certain convictions for “Operating a Vehicle While his License has been Suspended or Revoked,” “ Operating a Vehicle without ever having Obtained a License,” “Reckless Driving,” “Criminal Recklessness,” “Drag Racing or Engaging in a Speed Contest,” “Failing to Stop at the Scene when Involved in an Accident,” “Failing to File an Accident Report with the Bureau of Motor Vehicles when Required,” any Felony under the motor vehicle statutes of Indiana, or any Felony in the commission of which a motor vehicle was used. The penalty for this second category of habitual violators is a ten (l0) year suspension of driving privileges. [IC 9-30-10-5(b)(3)]

Note: A “Driving While Suspended” conviction may not count if the suspension giving rise to the offense was due to an administrative type suspension as opposed to a previous “conviction.” [IC 9-30-10-4(b)(5)]

C. Category Three

This (10) year suspension occurs when a person has accumulated, within the last ten (l0) years, two (2) or more convictions not arising out of the same incident, for Reckless Homicide, Voluntary or Involuntary Manslaughter, Leaving the Scene when Involved in an Accident Resulting in Death or Injury to any Person, Operating a Vehicle While Intoxicated Resulting in Death, or Operating a Vehicle with .08 or more Alcohol in the Blood Resulting in Death.

If the driver has two (2) convictions for operating a vehicle while intoxicated resulting in death or operating a vehicle with .08 or more alcohol in the blood resulting in death the license suspension is for life.

D. Restricted Licenses

A driver can immediately petition for a restricted license if they have been declared a Habitual Traffic violator and is in “Category One” above. [(IC 9-30-10-9(b)]

If the driver is a “Category Two" habitual traffic violator, no restricted license will be issued until the person’s driving privileges have been suspended for at least five (5) consecutive years, and the suspended driver has not violated the terms of his suspension by operating a vehicle; and has successfully fulfilled the requirements of a rehabilitation program certified by the division of addiction services of the State Department of Mental Health.

If issued, the restricted license is for a period of not less than three (3) nor more than ten (l0) years and limited to employment related driving, driving to and from rehabilitation programs and other specific purposes in exceptional circumstances. [IC 9-30-10-9(c)]

A “Category Three" habitual traffic violator is not eligible for the restricted license.

E. Violations of “Restricted License”

If a person declared to be a Habitual Traffic Violator violates the terms of the court issued restricted license, it can be revoked, and the original ten (l0) year or five (5) year suspension term will be reimposed. (IC 9-30-10-16) Additionally, the driver may be charged with a Class D Felony for violating the restrictions imposed by the court when it granted the restricted driving privileges. [IC 9-30-10-16(a)(2)]

F. Lifetime Suspension of Driving Privileges

A person who operates a motor vehicle while his driving privileges are suspended due to habitual violator status commits a Class “D” felony. In addition to any criminal penalty for the Class “D” Felony, a lifetime suspension of driving privileges will be imposed. (IC 9-30-10-16)

A person whose driving privileges have been suspended for life may petition a court in a civil action to have his driving privileges reinstated. In addition to other specific requirements that must be met, at least ten (l0) years of the lifetime suspension must have already elapsed. (IC 9-30-10-14)

However, a person convicted of this offense two (2) or more times may not petition for reinstatement of the lifetime suspension of their driving privileges. [IC 9-30-10-14(e)(5)]

Driving after lifetime suspension of one’s driving privileges results in the commission of a Class “C” felony. (IC 9-30-10-17) This conviction mandates a lifetime suspension of driving privileges without the possibility of reinstatement in the future. [IC 9-30-10-14(e)(4)]

A defense to the charge exists if the operation of the vehicle was necessary to save life or limb in an extreme emergency. The defendant must bear the burden of proof by a preponderance of the evidence to establish this defense. (IC 9-30-10-18)

XIII. CIRCUIT COURT ANTABUSE PROGRAM

(IC 9-30-9-1)

The Circuit Court of Allen County has established an “Alcohol Abuse Deterrent Program” (AADP). This program provides for the medical treatment of individuals who have a “previous conviction” for operating vehicles after consuming too much alcohol and/or drugs. The treatment is with Disulfiram, or Antabuse, which is a substance that is a chemical deterrent to the use of alcohol. An individual may be placed in the program either pre or post-conviction.

Under the pre-conviction scheme the Court, with the consent of the defendant and the Prosecuting Attorney, will conditionally defer the proceedings for up to three (3) years. The Court will not defer the proceedings if the offense involves death or serious bodily injury, if there are other criminal proceedings alleging commission of a felony which are pending against the defendant, if the defendant is on probation or parole and the probation or parole authority does not consent to the defendant's participation, or if the defendant fails to meet additional eligibility requirements imposed by the Court. If the proceedings are deferred and the defendant violates the rules of the Antabuse program or other conditions imposed by the Court, the Court can order the criminal proceedings to be resumed. If the defendant fulfills the Antabuse program and other conditions set by the Court, the Court may either dismiss the felony charges or sentence the convicted person as a Class “A” Misdemeanor.

When the Court enters its order conditionally deferring charges, the Court may suspend your driving privileges for at least two (2) years but not more than four (4) years. [IC 9-30-9-5(a)] The Court may only grant probationary driving privileges after a person’s driving privileges have been suspended for one (1) year. [IC 9-30-9-5(b)]

A post-conviction Antabuse program may also be offered as a condition of probation. After conviction, successful completion of the Antabuse program will be a condition of any probation the Court will impose at sentencing. The court will also suspend the defendant's driving privileges for at least ninety (90) days but not more than three (3) years and may grant probationary driving privileges only after the defendant's license has been suspended for at least thirty (30) days. [IC 9-30-9-7(b)]

The court may, as an alternative to a license suspension for either the pre-conviction or post-conviction, issue an order prohibiting the defendant from operating a motor vehicle unless the vehicle is equipped with a functioning certified ignition interlock device. [IC 9-30-9-5(c)] and 9-30-9-7(c)]

A participant in the Antabuse program must pay the Alcohol Abuse Deterrent Program fees. In addition, there is also a cost of the physical examination required before beginning the Antabuse program and a physical examination may be required annually. Counseling is also routinely ordered.

XIV. ALCOHOL OR DRUG TREATMENT PROGRAM

In a misdemeanor case, before conviction, the Court may, with the consent of the defendant and the Prosecuting Attorney, order the defendant to satisfactorily complete an alcohol or drug treatment program. The charges may be dismissed if the treatment program is completed and certain other conditions are met. (IC 12-23-5-1) This program is available to a defendant only one time and may require a suspension of his driving privileges. Prosecutors rarely, if ever, consent to this.

A similar treatment avenue exists, in restricted circumstances, allowing a person charged with or convicted of a felony to seek treatment in lieu of further prosecution. (IC12-23-6-1) In order to qualify for this treatment program, one must be an “alcoholic” or a “drug abuser.” Additionally, one must submit to a substance abuse evaluation conducted by the Division of Mental Health. Arrangements for this testing is made through the Indiana Family & Social Services Administration, through their Office of General Counsel in Indianapolis, Indiana.

XV. FORENSIC DIVERSION PROGRAM

[IC 11-12-3.7-4]

The community corrections advisory board or in counties without a community corrections board, a forensic advisory board determine if a person will be allowed to participate in the forensic diversion program. An individual must have either an “addictive disorder” or a “mental illness” to participate in the program.

An “addictive disorder” means a diagnosable chronic substance use disorder of sufficient duration to meet the diagnostic criteria within the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. (IC 11-12-3.7-1)

A “mental illness” is a psychiatric disorder that is of sufficient duration to meet the diagnostic criteria within the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. (IC 11-12-3.7-5)

A person is not eligible to participate in the program if he was charged with a “violent” offense or a “drug dealing” offense. “Violent Offense” is defined in IC 11-12-3.7-6. A “Drug Dealing Offense” is defined in IC 11-12-3.7-3.

In order to qualify, a recent professional examination is mandatory. Members v. State, Ind. Ct. App. 2006 (decided 12/06)

Courts in Indiana are not required to have a forensic diversion program in their county. Lomont v. State, 52 N.E.2d 1002 (Ind. Ct. App. 2006)

When a person is found to be eligible for the post-conviction forensic diversion program and "has been convicted of an offense that may be suspended," the statute provides that the trial court shall suspend all or a portion of the person's sentence, place the person on probation for the suspended portion of the person's sentence, and require as a condition of probation that the person successfully participate in and successfully complete the post-conviction forensic diversion program. The Court, however, is not required to suspend all the persons executed sentence imposed. Ruble v. State, 849 N.E.2d 165, 169 (Ind. Ct. App. 2006)

Certain convictions in Indiana require mandatory minimum executed sentences. (IC 35-50-2-2) However, if a person qualifies for and is placed into the forensic diversion program, those mandatory executed sentences are not required to be imposed and the sentence can be suspended. [IC 35-50-2-2(b)] See also Ables v. State, 848 N.E.2d 293 (Ind. Ct. App. 2006)

A. Pre-Conviction Forensic Diversion Program

(IC 11-12-3.7-11)

To be eligible for the pre-conviction program the offense a person is charged with must either be a Misdemeanor or a Class “D” Felony that may be reduced to a Misdemeanor. The offense charged can not be a violent offense. Additionally, an individual must not have a conviction of a “Violent” offense in the last 10 years.

In order to participate in the program the person is required to enter a guilty plea to the charged offense. However, the court will not enter the judgment of conviction while the individual is successfully participating in the program. The program may include confinement in an institution, treatment in the community, or a combination of both.

The court will review a report from the forensic diversion program and determine whether an individual successfully completed the program. If an individual successfully completes the program the court will waive entry of the judgment of conviction and dismiss the charges. If the court determines an individual failed to successfully complete the program, the court will enter the judgment of conviction and sentence the person accordingly.

An individual may be required to participate in the program for up to three (3) years. [IC 11-12-3.7-11(b)(3)]

B. Post-conviction forensic diversion program

(IC11-12-3.7-12)

To be eligible for the Post- Conviction program an individual must not have been charged with a “violent” or “drug dealing” offense. Additionally, an individual must not have a conviction of a “Violent” offense in the last 10 years.

A person will be required to participate in the post-conviction forensic diversion program for not more than two (2) years if the person is charged with a misdemeanor, and no more than three (3) years if charged with a felony. [IC 11-12-3.7-12(d)]

Once a judgment of conviction is entered, the court shall suspend all or a portion of the individual’s sentence and place the person on probation for the remainder of their sentence, with a condition of probation being successful participation and completion of the forensic diversion program.

The court can stay execution of all or part of a nonsuspendible sentence pending successful participation and completion of the forensic diversion program. [IC 11-12-3.7-12(c)]

The three year time limit in which an individual may be placed in the forensic program does not limit the amount of time an individual may be placed on probation. [IC 11-12-3.7-12(d)]

If the court determines an individual failed to successfully complete the program, the court shall lift its stay of execution of the nonsuspendible portion of the sentence and have the person remanded to the department of correction. In addition to serving the nonsuspendible portion of their sentence the court may order an individual to serve all or a portion of a person’s previously suspended sentence. [IC 11-12-3.7-12(f)]

If the court determines an individual convicted of an offense that carried nonsuspendible time successfully completed the program, the court shall waive execution of the nonsuspendible portion of the sentence. [IC 11-12-3.7-12(g)]

XVI. COMMERCIAL DRIVERS LICENSE

Please note, that if a person possesses a Commercial Driver’s License (CDL), no hardship license (page 8) can be obtained under federal law and, likewise, no probationary license (page 10) (post-conviction) can be obtained under Indiana law. [IC 9-30-5-9.5; IC 9-30-9.05; and IC 9-30-10-9)]

Furthermore, a commercial vehicle driver is prohibited from operating a vehicle with at least .04 but less than .08 grams of alcohol in his breath or blood. This is a Class “C” Infraction. IC 9-24-6-15

XVIII. AIRLINE PILOTS

Pilots are required to submit a notification letter to the FAA within 60 days of an “OWI type” motor vehicle action. A separate notification letter is required for each action.

An “OWI type” motor vehicle action includes: any suspension, revocation or cancellation of driving privileges and any conviction of an “OWI type” offense.

Notice must be sent when your license is suspended due to an arrest for operating a vehicle type offense. In addition, if at a later date a conviction is entered on your record, for an operating a vehicle type offense, a separate notice must also be sent.

Notice must include:

1) Person’s name, address, date of birth, and airman certificate number;

2) The type of violation that resulted in the motor vehicle action;

3) The date of the conviction or administrative action;

4) The state that holds the record of conviction or administrative action; and

5) A statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously-reported motor vehicle action.

To enhance the efficiency of processing, include:

1) Driver license number;

2) Social Security Number (if different from airman certificate number);

3) Daytime telephone number.

If an “OWI type” offense is reduced to a conviction for Reckless, Careless, or Negligent Driving, notice does not need to be sent. Those convictions are not considered to be reportable motor vehicle actions. However, the initial suspension for the “OWI type” offense must be reported.

Send Notice to:

Federal Aviation Administration

Security and Investigations Division (AMC-700)

P.O. Box 25810

Oklahoma City, OK 73125

Fax to (405) 954-4989

XVII. MINORS

In addition to the criminal statutes that make alcohol consumption illegal to persons under twenty-one (21) years of age, IC 9-30-5-8.5 prohibits persons under the age of twenty-one (21) from operating vehicles with blood or breath test results equaling .02 but less than .08 grams of alcohol in their breath or blood. The offense is a Class “C” Infraction. The maximum fine that can be imposed is five hundred ($500) dollars. [IC 35-28-5-4(c))] No jail time can be imposed.

However, in addition to imposing a fine and court costs, the court may additionally suspend the minor’s driving privileges for up to one (1) year.

XVIII. BOATS

Just as with operating a “vehicle,” Indiana law prohibits the operation of a motorboat with at least (0.08) grams of alcohol by weight in a person’s breath or blood, or while intoxicated. Either of these offenses is a Class “C” Misdemeanor. [IC 14‑15‑8‑8(a)]

The offense can be elevated to that of a Class “D” Felony if the person has a previous conviction for either operating a boat while .08, while “intoxicated,” or the offense results in serious bodily injury to another person. [IC 14-15-8-8(b)]

The offense is a Class “C” Felony if the offense results in the death of another person. [IC 14-15-8-8(c)]

A person who operates a motorboat after the person has been ordered not to operate a motorboat commits a Class “A” Misdemeanor. (IC_14‑15‑8‑9)

In addition to any criminal penalties imposed for a misdemeanor under this chapter, the court shall order the person to not operate a motorboat for at least one (1) year. [(IC 14-15-8-10(a)] If the conviction is for a felony, however, the court shall order the person to not operate a motorboat for at least two (2) years. [IC_14‑15‑8‑10(b)]

Anyone who has been convicted of drunk driving is banned for life from entering Canada. Canada’s Immigration Act classifies anyone with an OWI conviction as a member of an “Inadmissible Class” and their entry into Canada would be a criminal offense. The ban from Canada is for life.

A person convicted of an OWI can apply for a permit to be admitted into Canada, five years after all terms of the OWI sentence have been completed. The applicant must show they have been rehabilitated. The application “Minister’s Permit of Rehabilitation” along with evidence is considered in deciding whether the individual should be allowed to enter Canada.

For information concerning your ability to enter into Canada, contact this web site:

It is very important that a driver keeps the Bureau of Motor Vehicles advised as to his present address at all times.

If you have any questions concerning your driving privileges, you can call the Bureau of Motor Vehicles at (3l7) 232-2840.

This information is reasonably current. However, it is subject to change at any time due to the passage by our legislature of new laws and the ongoing interpretation by our courts of existing laws. This letter should not be considered a substitute for consultation with an attorney.

Last modified: 06/20/05