GLOSSARY

Let’s now spend some time in the following pages learning some terms and concepts that are applicable in Indiana OWI law so that we can communicate better about the issues that may apply to your case.

Glossary of Terms

.15%, .10%, .08% - these scores represent the evolution of the standard for ‘drunk driving’ throughout most states. Initially, .15% was the standard by which all persons were believed to be intoxicated. Some would argue that politics and highway funding have caused that standard to be reduced to .08% in all states irrespective of any change in the science of evaluating intoxication. Nonetheless, most scientists now would opine that impairment is noticeable in everyone at .08%. The semantics of broadly defining "under the influence" , "impaired", and "intoxicated" have also added support to the lower standards. The new rules appear to represent a better safe than sorry approach.

Absorption of Alcohol - Each person absorbs alcohol into his or her bloodstream at a rate determined by the quantity of alcohol/ethanol consumed, the weight of the person, the presence of any food in the person’s stomach, and, the time of the person’s last alcoholic beverage consumed. The pyloric valve in the bottom of the stomach opens when the stomach contents are digested and most of absorption occurs as the alcohol/ethanol reaches the intestines. When the valve is closed, e.g. you are eating a large meal and feel full, the effects of the alcohol/ethanol are reduced as it remains in the stomach and your absorption rate is typically slowed. When the valve is open, e.g. when you drink on an empty stomach, absorption can take place very quickly. If you are in the absorptive phase, your breath or blood score at the time of testing may be HIGHER THAN AT THE TIME OF DRIVING. This is a defense to a drinking/ driving charge in some cases.

Administrative suspension - a driver’s license suspension which results from either the failure of a chemical test (.08% or higher) or the refusal to submit to a chemical test. Indiana, since 1983, has provided that your driver’s license can be suspended based on probable cause with the chemical test result or chemical test refusal without the opportunity to wait and determine if you will win the case on the facts or law. The rationale utilized in the law is that driving is a privilege, not a right. The initial administrative suspension is for 180 days if you fail the chemical test, but can be shortened if you plead guilty or file for a hardship license if you qualify. The refusal suspension is for 1 year and no hardship license is allowed. You receive credit for any time your license is suspended on an administrative suspension if you failed the chemical test, i.e. you did not refuse the test and scored .08% or higher. However, you will not receive credit for any time your license is suspended if you refused the chemical test. For example, if the judge ultimately gives you a 90 day license suspension and you have already served 120 days of that suspension, you are entitled to immediate reinstatement of your license AS SOON AS THE BMV RECEIVES YOUR PAPERWORK AND MAKES YOU ELIGIBLE FOR REINSTATEMENT.

Alco-Sensor or PBT - a portable breath test given in the field by police officers which approximates your breath/blood alcohol content so that the officer may quickly determine if further investigation is warranted. These tests are not admissible in a jury trial where the rules of evidence apply because they are not certified chemical tests. A PBT may be admissible in a non-evidentiary rule case.

Basics of OWI offenses - in Indiana, the drinking driving offenses are divided into a smorgasbord of options for the prosecutor. The basic offense begins with class C misdemeanor Operating While Intoxicated, which can be elevated to class A misdemeanor OWI if there was endangerment present. There is class C misdemeanor driving with .08% breath or blood alcohol level which can be elevated to class A misdemeanor if the breath or blood alcohol level is .15% or higher. There is class C misdemeanor Operating with a controlled substance or drug in the blood. These offenses in various ways can become felonies. Typically, any prior drinking driving offense, whether class A misdemeanor or class C misdemeanor, enhances the current pending offense to a class D felony if that prior offense occurred within 5 years of the current arrest and if the prosecutor chooses to charge the felony, he or she does not have to charge the felony but most prosecutors do. Serious bodily injury, death, and children in the car all allow for felony charges. Boating while intoxicated and boating with .08% or greater allow for misdemeanor charges as well.

Blood test - a measurement of your blood for the presence of ethanol or for drugs. The State Department of Toxicology has a laboratory where basic gas chromatography is performed on your blood. In simple terms ethanol or drugs are assigned certain peaks or values where they will appear if they are present in your blood during the gas chromatography process. Typically two tests are done on each person’s blood. If done properly, most scientists agree that blood testing is far more accurate than breath testing. Blood tests are expressed as the amount of weight of alcohol in your blood.

BMV License Suspensions - the Indiana BMV will automatically suspend your license without any court findings if you qualify for habitual traffic violator status. This means that even if your plea bargain provides for a 1 year or 90 day or whatever license suspension is provided for, you may still become a habitual traffic violator if you have enough offenses to qualify for that status. Before you ever plead guilty, you simply must know if you qualify for habitual status so that you know what to expect. Many lawyers do not advise their clients about habitual traffic violator status and there is nothing worse than a client who takes a plea bargain that provides for a 1 year license suspension only to find out that subsequently the BMV on its own suspended his or her license for 10 years.

Breath test - a measurement of your breath for the presence of ethanol which is the alcohol contained in alcoholic beverages. The breath test is designed to approximate your blood alcohol content to help assess whether you are impaired or intoxicated. Breath testing was first invented at Indiana University by Professor Robert Borkenstein now deceased. Proper breath testing can be a useful tool to approximate an individual’s intoxication. Breath tests in the modern era are primarily infrared light devices. At the risk of oversimplification, a beam of light is passed through a sample chamber inside the breath test machine. The carbon hydrogen molecules which primarily make up ethanol are known to absorb infrared light. A detector on one end of the sample chamber measures how much light passes through the chamber. The less infrared light the higher the breath test score since in theory, less light means that there was an absorption of some of the light by the alcohol/ethanol on your breath. The only breath test machine selected and approved in Indiana is the DataMaster breath test machine. Inspection and testing records are kept on each machine and the machines are kept in working order by the State Department of Toxicology. This department must certify the machine before it is acceptable for evidentiary use. Breath tests are expressed as the amount of weight of alcohol in your breath.

Breath test certifications - documents kept by the State Department of Toxicology necessary as a foundation for introduction of breath test results. These documents are required to show that the machine was inspected within 180 days of your breath test, that the officer was certified or re-certified within 2 years of your breath test and that the proper technique for operating the breath test was in place. Primarily these documents are routinely kept at the Clerk’s office and Indiana law allows judicial notice of the documents so long as there is no evidentiary dispute.

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. To avoid the driving privilege loss penalty of one year license suspension for chemical test refusal, you must submit to each properly offered chemical test in order to comply with Indiana’s implied consent law. A refusal to submit to a chemical test may be admissible as evidence against you but Indiana law is still developing and defining the proper role that refusal evidence plays in an evidentiary presentation.

Children - In Indiana, if you either [operate your vehicle with .15% or more by weight of alcohol in your blood or on your breath], or, if you [operate your vehicle while intoxicated such that you endanger yourself or others], and, if you are 21 years of age or older, and, if there is passenger in your vehicle less than 18 years of age, the ordinary class A misdemeanor designation of these crimes is enhanced to a class D felony because of your age [21 or older] and, the presence of your passenger less than 18 years of age.

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 in its inception, without regard to any impairment or intoxication at the time of driving. Therefore, the level of marijuana detected does not preclude the charge or conviction. With respect to other drugs it can be a valid defense that you were on prescription medication if your doctor prescribed the drug for you. Of course, if you abuse his instructions for taking the drug, that issue may become one 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 breath test or blood test score will be lower than your score at the time of driving. This can be an aggravating circumstance in your case depending on the score. Also, the bonding schedule for your release when arrested for OWI uses the dissipation of alcohol to determine how many hours you must remain in jail before you are bonded out.

Driving Record - In Indiana there is no magic time when a driving offense drops off your record, it is always there. Some of our habitual statutes allow for use of prior convictions throughout your lifetime, e.g. habitual substance offender, and, some Indiana mandatory minimum statutes also allow for use of lifetime records. The record does not magically clear after 7 or 10 years. This is fantasy.

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, alcoholic 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.

Driving - Historically, in Indiana, when our offense was defined as ‘driving under the influence of alcohol’, the individual arrested must have been driving a vehicle upon a public road or highway. In modern times, our legislature has redefined the drinking driving offense as ‘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.

DUI - a generic designation for a number of 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. Typically, 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 this time.

Earned Dismissal - a device generally contained in a plea agreement whereby you are convicted of an offense but earn a dismissal of that conviction by successfully completing probation or doing community service etc. The net result is an order from the court dismissing the conviction from your record meaning no conviction.

Elements - the method by which crime is defined by our legislature. In a drinking driving case, typically one of the charges is Operating while Intoxicated. The elements that the State must prove beyond a reasonable doubt are that 1. The defendant, 2. Operated a vehicle 3. While 4. Intoxicated. The State must also prove that the case occurred within a particular county but this burden is simply by a preponderance of the evidence. A second charge often alleged in Indiana is that a person operated a vehicle with .08% or greater by weight of alcohol in the breath or blood. Hence, the elements that must be proved beyond a reasonable doubt are that 1. The defendant 2. Operated a vehicle, 3. With .08% or greater by weight of alcohol in the breath or blood.

Endangerment - to prove the element of endangerment in Indiana, the State must prove that the defendant’s condition or manner of operating his vehicle was such that he could have endangered himself, police, or public. Typically, a traffic infraction such as speeding or left of center will be sufficient to meet this burden on appeal.

Enhancement - in Indiana, our law provides for more serious penalties for repeat or recidivist criminal behavior. In order to avoid double punishment issues directed toward punishing someone more than one time for the same offense, [that is, you have already served the sentence for your prior conviction, how can you be punished again just for having it on your record] the legal lexicon is now that there does not exist double punishment, rather, your new pending case, called the predicate offense is ‘enhanced’ to a higher level of punishment based on the prior conviction. Common sense says it is double punishment, legal jargon allows it to punish repeat offenders. The bottom line is that it is the law and it has been upheld constitutionally by the Indiana Supreme Court. In OWI law, a misdemeanor OWI or drinking driving offense is enhanced to a felony offense if you have a prior conviction within 5 years.

Expungement - in Indiana, the expungement statute provides that your arrest record can be expunged whenever you are arrested but not charged with a crime, when any charges against you are dropped because of a mistake in identity, an absence of probable cause, or because no offense was every committed. You must petition the court for an expungement and the prosecutor and State Attorney General are given the opportunity to respond. If successful, the records of your arrest are ordered destroyed both at the local level, city, state, university, or county police, and at the State Police Repository for Records. Expungement is very difficult to obtain in light of the low standard of proof that probable cause represents.

Felony - a crime charged where the maximum sentence exceeds one year.

Field Tests - dexterity or divided attention tests from which a police officer uses his judgment to determine if a person is impaired or intoxicated. Not all field tests are supported by scientific data as reliable tests. The National Highway Traffic Safety Administration [NHTSA] in the early 1980's has attempted to develop standardized field sobriety tests which offer some percentage of probability in measuring possible impairment. The 3 NHTSA tests are the one leg stand test, the walk and turn test, and the horizontal gaze nystagmus test. The accuracy of the tests in measuring a predicted quantity of .10% or .08% of alcohol in the body is claimed to be anywhere from 65% to 88% when properly administered and evaluated individually or collectively.

Final Pre-Trial Conference - a second or subsequent pretrial conference to the first pretrial conference held in your case. The final pretrial is the last checkpoint before your case proceeds to trial. In Monroe County, no plea agreements will be accepted, in theory, after the final pretrial conference if the judge enforces that rule. In addition, if you want a trial, in Monroe County, you must attend the final pretrial and inform the court of that desire in person, my office, will of course be with you. If we tell the court you want to plead guilty at the final pretrial conference and a plea agreement is tendered by that date, then the case will be scheduled whereby you will have to watch a video of your rights prior to pleading guilty, and, then, go to court and plead guilty usually that same day. My office will not be with you when the video is shown but we will be there when you offer your plea of guilty pursuant to our plea bargain contract. 

Gas Chromatography - a scientific process for measuring the amount of alcohol in the blood, typically more accurate than breath testing if there are quality control standards and chain of custody guidelines in place.

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 offenses if they are at least class A misdemeanors, in your lifetime, there is no time limit on your past, the prosecutor can charge you with being a habitual substance offender and the court, if convicted, 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, the most common habitual traffic violator is that person who accumulates 3 separate major traffic violations in a 10 year driving period. Major traffic violations include OWI, .08, .15, 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. These things in combination of 3 within a 10 year period will cause the Indiana BMV to issue a letter to you suspending your driver’s license for 10 years.

There is also a 5 year license suspension for 10 moving traffic tickets including one major conviction accumulated within a 10 year period, e.g. 9 speeding tickets and an OWI within 10 years. Two or more events with serious bodily injury or death also result in habitual traffic ramifications.

Hardship License - in Indiana, for first offenders only, a lawsuit can be filed petitioning the court to allow an employment driving only license if your license is suspended as a result of chemical test failure. You do not qualify for this license if you refused the breath test or if you have any prior OWI convictions or administrative suspensions. You must also be evaluated and participate in a certified alcohol rehabilitation program to qualify for this license. You cannot have a hardship license until your license has been suspended for at least 30 days as a result of the chemical test failure.

Horizontal Gaze Nystagmus - a National Highway Traffic Safety Administration standardized test. In theory, an individual’s eyes will display a distinct involuntary jerking called nystagmus when an individual has consumed sufficient 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 administrative suspension required for chemical test failure or refusal to order installation of an ignition interlock device which must remain on your vehicle until the case is concluded. Additionally, 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 administrative suspension. 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 your plea after an advisement of your rights. In most counties your license will be suspended as of the initial hearing when the judge, acting for the BMV, finds that your score was .08% or higher or that you refused the chemical test. We can waive your initial hearing and plead not guilty for you in writing if you hire us as counsel before that hearing.

Implied Consent - really a misnomer since there is really no ‘consent’ issue involved. In theory, you agree to take a chemical test if properly offered as a condition of your privilege to drive. If you refuse the chemical test, you lose your driving privilege in Indiana for 1 year and the jury can be told in some fashion that you refused the chemical test. However, in Indiana, refusal of the chemical test does not prevent the State from applying for and obtaining a search warrant to draw your blood as evidence without your consent. [See Sam Shapiro’s case entitled Brown v. State]. Therefore, the refusal could result in both a 1 year license suspension and a forced blood test. Where is the ‘consent’ in that, implied or otherwise???

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. 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.

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 the law and are void, but they are still popular and in use in many counties.

Jury Trial - this is the only kind of trial that I do in drinking driving cases because judges are political creatures, they are calloused to reasonable doubt, and they do not give your side of the case much, if any, consideration when measured against the holy grail of the breath test machine or other chemical test. Your jury trial will be to a jury of 6 people and will last about 1-2 days. I have 5 peremptory challenges so that I can strike 5 jurors from the juror pool for no reason, so does the prosecutor, and we then have a jury left after we exhaust those challenges or agree to a particular jury.

Mandatory License Suspensions upon conviction - in Indiana, a first offense drinking driving conviction requires a mandatory minimum of a 30 day license suspension. After the 30 day period has passed a probationary/work license may be issued if you plead guilty and the court awards this type of license. Opinion is divided at the Indiana BMV but you may not have to carry SR-22 high risk insurance if you are awarded a probationary/work license. If you are not given the probationary work license, a 90 day license suspension is mandatory with credit for any time your license was suspended if you failed the chemical test. If you refused the chemical test, the refusal suspension can be terminated and your 90 day suspension will start on the date of sentencing. The maximum suspension is for 2 years. If you have a prior offense within 5 years, then your license suspension minimum is 1 year with credit for any time previously suspended as a result of the administrative suspension if you took the chemical test, and without such credit if you refused the chemical test. If you have a prior offense outside 5 years but inside 10 years the mandatory minimum suspension is 180 days.

Mandatory Jail Time - in Indiana there is no mandatory jail time by statute for a first offense drinking driving offense. 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 drinking driving offense. Indiana state law does provide for a 5 real days mandatory jail time sentence if you have 1 prior drinking driving conviction in your lifetime. You may substitute 180 hours of community service in lieu of this jail time. Indiana law also provides for 10 real days of jail time if you have 2 prior drinking driving offenses in your lifetime. You may substitute 360 hours of community service in lieu of this jail time. Finally, if your case is charged as a felony, and if you have two (2) prior drinking driving offenses resulting from application of Ind. Code 9-30-5, then the mandatory minimum sentence is 180 days and it is not suspendible nor can you substitute house arrest, road crew, community service etc. In fact, most community corrections programs will not accept a person sentenced under a mandatory minimum sentencing statute.

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. 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.

Post-Conviction Remedies - in Indiana if you have a prior offense and if the legal procedures required to place that conviction on your record were not properly done, then your attorney can challenge the prior offense and ask that it be removed from your record. Typically, a procedural mistake by a judge, a prosecutor, or your lawyer 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.

Presumption - another legal device created as a stop-gap to allow prosecutors to rebut the legal defense of absorption. This legal device completely ignores any scientific data and provides that within a 3 hour period from your contact with the police officer, the jury may presume your breath or blood alcohol content or level to be constant without regard to the absorption and dissipation that we know scientifically is occurring. My explanation or example to the jury is to compare this rule to a electric skillet. When you turn on the skillet it takes a while for the current to heat the surface. When you turn it off, it cools over time as well. In Indiana this silly presumption would have you believe that the skillet when first turned on is the same temperature as when it warms up, and remains at that temperature for 3 hours even if turned off. This is ludicrous, but it reflects the extent that our legislature, accommodated by some very interesting appellate and supreme court rulings, goes to insure guilty verdicts or guilty pleas in drinking driving cases. The presumption is a rebuttable presumption and the jury may reject the presumption even if not rebutted.

Pre-trial Conference - in Monroe County, your attendance is not required, ask us about individual other counties prior to the court date. At the first pretrial, the attorneys discuss the state of the discovery production of evidence, any potential plea bargains to resolve the case, and future court dates if necessary.

Prima Facie Case - a legal device to give prosecutor’s a leg up in proving drunk driving cases. The law allows a chemical test score combined with operating your vehicle to constitute sufficient evidence to support most drinking driving convictions despite serious gaps in the evidence that may exist outside the score and the driving.

Probable Cause - a legal quantity of evidence necessary to support an arrest or search or license suspension. Probable cause is difficult to define, it is more than suspicion but less than a preponderance. It is a very low standard of proof.

Reasonable suspicion - in Indiana, reasonable suspicion is required before a police officer can stop your vehicle. Typically, this means you have committed a traffic violation, an equipment violation, or engaged in some articulable, identifiable bad driving.

Refusal - the failure to deliver a chemical test sample for analysis. You can refuse by not cooperating, blowing improperly, not blowing at all, or not submitting to an offered blood test. You must submit to as many different chemical tests as the police officer offers within a 3 hour period in order to avoid the ‘refusal’ designation. Primarily, the refusal affects your driver’s license and causes you to lose the license for 1 year, however, it also prevents you from receiving any administrative credit for the time your license is suspended administratively, and, the refusal itself can be used as some type of evidence at trial. Finally, in Indiana, if the State seeks out a judge and obtains a search warrant, they can draw your blood even in the face of your express refusal to submit to a chemical test. See Sam Shapiro’s appeal in the Brown v. State case. Also, you do not have the right to counsel to assist you in the refusal decision-making when you are making that choice, and the failure to have counsel will not cause the refusal to be vacated.

Sample Delivery - the process of obtaining your bodily fluid or breath for chemical test analysis.

Serum blood - a representation of a blood alcohol score without the normal weight of the blood components. Serum scores are routinely about 17-20% higher than whole blood scores. Whole blood scores are the defined measure of intoxication in Indiana.

Standardized Field Sobriety tests (SFTs) - the National Highway Traffic Safety Administration Tests, i.e. the one leg stand, the walk & turn test, and the horizontal gaze nystagmus test. ‘Standardized’ means a strictly required uniform method to administer, observe, and evaluate performance on a field test. It is the standardization of the test which allows the State or police to argue that the test is supported by scientific research. Without standardization, the test is either ‘invalid’ or, reduced in any credibility for measuring a level of alcohol.

State Department of Toxicology - the Indiana State Department of Toxicology is in charge of running Indiana’s breath testing program which includes machine selection, inspection, and method of operation. We obtain repair and maintenance records on Indiana breath testing equipment as part of your defense. The State Department of Toxicology also has a laboratory for blood test analysis.

Toxicologist - typically, in a drinking/driving case, a Ph.D with expertise on the effects of alcohol on human behavior, including evaluation of breath or blood testing method, practice, and police procedure. A toxicologist is also versed in alcohol calculations if given sufficient data and can speak to the validity of standardized field sobriety tests. Our team toxicologists are from the American Institute of Toxicology, AIT. Dr. Evans and Dr. McCoy have combined to testify in more than 2 dozen jury trials for Sam Shapiro with not guilty verdicts in all but a handful of those cases. Our office never asks the toxicologist to say a certain thing for us, rather, we present the facts and listen to the opinion of the toxicologist based on those facts.

Uniform - in Indiana, a police officer must either be in uniform or in a marked car to stop you for a traffic offense. [See Sam Shapiro’s case entitled Miller v. State].

Voir Dire - the process of picking the jury for your jury trial. In cases involving class D felonies or less, a 6 person jury is required. Each side receives 5 peremptory challenges to challenge jurors believed to be unfavorable to his or her side. We will have some information about jurors from their jury questionnaires.

"While" or "With" - these are sometimes neglected elements in the OWI or .08/.15 drinking driving charges. These words mean that the State must prove that you were either intoxicated or that you had a certain level of alcohol in your blood or on your breath AT THE TIME OF OPERATING YOUR VEHICLE. These words are pertinent for the absorption / dissipation defense as well as the post-accident drinking types of defense.