INDIANA OWI DUI LAW MADE SIMPLE - PART 2

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) day 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)

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