QUESTIONS AND ANSWERS TO
COMMON QUESTIONS

Q.  "Do I need a lawyer in a drunk driving case?"
A.  IT DEPENDS. You should first assess your goal. If that goal can be met without an attorney, then perhaps you do not need a lawyer. Typical goals include some combination of the following:

I don’t want a drinking driving offense on my record and on my BMV report.

I don’t want to go to jail.

I want to get my license back as quickly as possible.

I strongly feel that I was ‘not guilty’ and I do not want to say I was guilty of something I did not do.

 

Q. “What happens to my driver’s license when the police arrest me in a drinking driving case?”

A.  The policeman is supposed to take your license at the time of your arrest and give you a receipt for it.  YOU ARE NOT SUSPENDED when the officer takes your license. In fact, you can apply for a duplicate license UNTIL YOUR SUSPENSION by the Court or the Indiana BMV.  A duplicate license is a great idea for identification purposes to save you humiliation when asked for I.D.  Of course, once the Court or BMV tells you that you are suspended, you can no longer drive and your duplicate license is not valid for driving or identification.

Suspension voids the receipt.

 

Q.     “What am I really getting if I hire a lawyer in an OWI case?”

A.  What you should be getting is as follows:

 

1. An analysis of your case for weaknesses that could mean reasonable doubt. Examples include, a good videotape, a mistake made by the police officer in his report, at a deposition, or at trial.

 

2. Analysis for any failure in the breath test procedure by the policeman, the machine itself, or the science supporting the test.

 

3. Analysis to determine falsely high breath or blood testing, for example serum blood v. whole blood scores.

 

4. A recommendation from your lawyer on whether you should take depositions and contest the case at trial. Or, a recommendation on whether you should plea bargain your case. And, discussion with your lawyer of the terms of any plea bargain.  You should examine the goals you set for your case along, with the recommendation from your lawyer, to determine if you should plea bargain or go to trial.

 

Q.  “What guarantees do I get if I hire a lawyer”
A.  None. Hiring a lawyer simply protects your rights and gives you ‘BETTER ODDS’ of either winning your case at trial or achieving the plea bargain or goal that you set for the case. This is why the ‘right’ lawyer is so important.

 

Q.  “What happens if I am convicted of drunk driving or if I plead guilty to drunk driving?”
A.  The most important consideration is whether you have ever been in trouble before. IN MONROE COUNTY:

FIRST offenders can expect probation, public restitution, a minimum license suspension and costs. [There is 1 judge giving jail time in Monroe County for first offenders with .15% BAC]. Greene, Brown, Lawrence, and Morgan counties all require jail time even for first offenders, typically an additional weekend.

 

SECOND offenses carry greater penalties. A felony may be imposed and reduced later; jail time may be required; probation; road crew; public restitution; home detention; and increased costs. 6 months to 1 year is a typical license suspension.

 

THIRD or subsequent offenses largely depend on the TIMING of your prior offenses. If you are habitual traffic violator eligible, you will lose your license for 10 years, plus anywhere from 3-9 months of non-suspendable jail time and lengthy probation. You may qualify for drug or alcohol court.

 

Accidents & injuries usually require jail.

 

Q.  “Does the State suspend my driver’s license before my case is over?”
A.  YES, In 1983, Indiana law changed to allow an administrative suspension of your driver’s license if you either failed or refused a chemical test - defined as a breath, blood, or urine test for alcohol or drugs.

 

Your administrative suspension is for 180 days if you failed a chemical test, or, for 1 year if you refuse a chemical test.

 

Q.  “What is the quickest way to be reinstated with a valid license?”
A.  For a first offender, PLEAD GUILTY. From 1983 to the present, Indiana law has been written to coerce you to plead guilty if you want a quick and easy solution to license suspension.

 

A guilty plea in a first offense case typically will allow you to choose either a 90 day license suspension with high risk insurance SR-22 required, or, a 30 day license suspension to be followed by 180 days of probationary driving for work, school, or other proper purposes.  High risk SR-22 insurance may not be required if you select a probationary license.

 

Q.  “If I do not want a drinking driving conviction on my record and want to fight my case in court, is there any license that I do qualify to receive?
A.  YES. For your first offense, you do qualify for a ‘hardship’ license. You must file a lawsuit in the Circuit court of your home county. You do not qualify for a hardship license if you refused a chemical test.

 

WARNING: this license is the most restrictive in Indiana by statute, its enforcement depends on the leniency of your judge.

 

A separate attorney fee is charged to file this lawsuit and there is a filing fee.

 

Q.  “What kind of suspension occurs if I am convicted of drinking and driving?”
A.  All suspensions for convictions are different from administrative suspensions because you have been found guilty by plea bargain or jury.

First offenders who failed a chemical test typically may choose a 90 day license suspension or the 30 day suspension and 180 day probationary license. There will be some administrative suspension credit.

First offenders who refused a breath test are suspended for 90 days from the date of the sentence imposed, there is no credit for the administrative suspension

 

For repeat offenders, assuming you are not habitual offender eligible, if your prior conviction is less than 5 years from your current conviction, a mandatory 1 year license suspension is required. If your prior conviction is more than 5 years but less than 10 years from your current conviction, a mandatory 180 day license suspension is required. If your prior conviction is greater than 10 years from your current conviction, a 90 day suspension is the minimum.

 

In all cases, the above suspensions are mandatory minimums, the judge may increase those suspensions.

 

If you have 3 major traffic violations in a 10 year period you may lose your license for 10 years.

 

If you have 1 major violation, plus 9 or more minor moving violations like speeding etc., then you may lose your license for 5 years.

 

If you drive after being found a habitual offender, you can lose your license for life.

 

If you drive suspended after a drunk driving conviction suspension, there is a mandatory 60 day jail sentence.
 

                
 

Q.  Can more than one drinking driving charge be filed against me at one time?”
A.  Yes. The State always chooses to file the Operating while Intoxicated charge. Additionally, the score reported by your test will determine what additional charge, if any, is filed against you. In most cases, even though you are charged with more than one drinking driving offense, IF YOU LOSE YOUR CASE OR PLEAD GUILTY, YOU CAN ONLY BE CONVICTED OF ONE DRINKING DRIVING OFFENSE.

 

Q.  “What is the difference between the charge of being intoxicated and the charge of having .08% by weight of alcohol in breath or blood?”
A.  Indiana law, like many other state laws, prohibits operation of a vehicle by any person who is either intoxicated [see definition] or, who has a certain amount of alcohol on the breath or in the blood, .08%. The law holds that driving with a certain amount of alcohol is a crime per se, that is, even if you are not intoxicated, the law holds you responsible if your chemical test is .08% or greater. Therefore, it is important to remember that even though you are not intoxicated, you may be criminally liable if you have too much alcohol on your breath or in your blood. And, even if you do not have too much alcohol on your breath or in your blood, you may be criminally liable if you are intoxicated.

 

Q.  “It seems so cut and dry, how can I possibly win a jury trial where the policeman reports a failure of the breath test and the dexterity tests that he gave me?”
A.  Here is where the experience and abilities of your lawyer may impact on the facts of your case.

 

First, the State must prove your guilt beyond a reasonable doubt; the State has the burden of proof; and you are presumed to be not guilty.

 

Second, there is a legitimate argument between law and science concerning the definition of intoxication and the measurement of alcohol by breath tests.  A toxicologist is a scientist who can help explain these differences to the jury.

 

Third, the State’s breath test science, although legally admissible, is not necessarily scientifically reliable or accurate.

 

Fourth, the dexterity tests that most reliably show intoxication are those approved by NHTSA. These are tests that require a police officer to be exact in setting up and grading the test. Most officers are not 100% proficient in these tests and the mistakes they make may be 'reasonable doubt.'

 

The 3 NHTSA tests are the 1 leg stand, the horizontal gaze nystagmus eye test, and the walk and turn test.

 

Finally, there may be a videotape of the police procedure in your case that can be presented to the jury to illustrate errors and to show reasonable doubt.