What You Must Know When Facing A DUI Accusation
Whether a drunk driving prosecution is referred to as a dui,owi,dwi or any other abbreviation, you have deadlines to ensure that your legal rights and defenses are protected. As this page is devoted to the most accurate information as to the procedure taken following an arrest for Operating a Motor Vehicle While Intoxicated (OWI) in Indiana, I have referred to Indiana drunk driving as ”Indiana OWI” as the legal term you are most likely to hear in a court of law. Where I refer to drunk driving as dui or dwi elsewhere, “owi” is the most legally accurate abbreviation of the three for a discussion of drunk driving procedure in Indiana.
An owi is not just another form of criminal defense that can be defended with knowledge of the rules of criminal procedure and evidence alone. A defense attorney must know any and all approved methods as to how field sobriety testing must be properly conducted on the part of one engaged in an Indiana owi investigation according to the dictates of the National Highway Traffic Safety Administration. Further, certifications of all breath test equipment as well as police officers involved in a owi investigation must be thoroughly examined in regard to the potential exclusion of breath test results into evidence. If needed, qualified Indiana toxicologists must be consulted and or retained so as to determine whether based upon factors such as weight and time, one charged with drunk driving could have actually been below the legal limit of .08 BAC at the time operating a vehicle as opposed to when tested.
In cases involving one who has been accused of refusing to properly give a breath sample, it is imperative that your owi attorney understand the ins and outs of what is called “Implied Consent” law in an effort to determine whether refusal to blow into properly certified breath test equipment was done “knowingly.” In cases where an officer has determined a refusal based upon one not blowing hard enough, etc., Department of Toxicology regulations as to the meaning of “invalid” samples versus “insufficient” samples can often carry the day as to whether an additional 1-2 year license suspension based upon a refusal action alone can be legally warranted.
DUI Cases Based Upon Drawing Of Blood
In recent years it has become more common for police officers engaged in owi investigations to seek a court order to draw blood from one suspected of drunk driving. In Indiana, one suspected of owi does not have the right to choose whether one wishes to submit to a breath test or to have blood drawn. Drawing blood has become an option when a police officer accuses one of either refusing to submit to a breath test, claims one is incapable of performing a breath test or suspects one is intoxicated not due to alcohol but to the presence of drugs in one’s system. In such circumstances your owi attorney in Indiana must know how to investigate the validity of the procedure used to obtain a search warrant for blood evidence, how to challenge “proper chain of custody” for the admissibility of a blood draw as well as whether the blood draw was properly obtained and stored in accordance with Indiana law.
Unfortunately for many charged with owi in Indiana as a result of blood test results, a charging decision in court can often take months from the time one has been arrested to the time an Initial Hearing is actually scheduled in a court of law. This is so due to the backlog of cases requiring examination throughout the state of Indiana. Breath test results usually require no such delay and are usually brought to court for an initial hearing far more quickly.
Timing Is Critical Within A DUI Prosecution
After an arrest for an Indiana owi has been made, all proposed evidence is directed to the respective county prosecutor’s office as to charging decisions and options. It is at this stage that an Indiana prosecutor must determine whether charges for owi will be filed and if so, whether the charges will be enhanced to a felony or habitual offender status based upon the facts of the case or prior criminal history of a suspect. If at all possible, all steps should be taken to retain a qualified attorney in Indiana who can address the prosecutor before filing decisions have been made. In doing so, a message can be sent that weak evidence or unreasonably harsh charging decisions will be vigorously challenged. Thus, causing a second look at the evidence and a more reasoned approach as to all available options down the road.
Although a Grand Jury can be convened in Indiana to allow citizens to determine whether evidence is sufficient to bring criminal charges, a grand jury is rarely ever convened when it comes to the filing of criminal charges for drunk driving . As a result, once the county prosecutor has reviewed the evidence and potentially heard from a qualified owi lawyer, a charging decision is made.
Once charges are filed, the first court hearing called, an initial hearing, begins the process of an Indiana owi prosecution. For misdemeanor cases in Indiana, the Initial Hearing can often be, “waived” by your defense lawyer. This simply means that the suspected drunk driver would not have to appear in court for the first hearing. For a felony owi prosecution, the defendant must be present. The initial hearing, also referred to as “an arraignment” in other states, informs the person charged with the maximum and minimum penalties for the owi offense charged. Typically, an initial plea of not guilty is entered on behalf of the Defendant and future court dates are set.
Most significantly, at the initial hearing once the judge has determined that probable cause has been established (not guilt) that the Defendant may have been driving while intoxicated, his or her license will be ordered suspended in the State of Indiana until further notice. If the Defendant has not been accused of refusing to submit to a breath test, all of the time suspended before the charge has been resolved will be credited toward any ultimate driver’s license suspension should the defendant later be found guilty of owi. Although the Indiana Bureau of Motor Vehicles will send notice of suspension to the defendant by mail with a suspension period of one hundred eighty (180) days, this time frame for license suspension will most likely be changed once the owi case has been concluded.
During the course of a prosecution the defense lawyer engages in what is referred to as the “discovery” process; a process that will help to answer all of a client’s questions about their defense and uncover possible weaknesses in the prosecutor’s case. These potential weaknesses can be later be used in trial or to fashion favorable resolutions for a client without the risk of trial. Being allowed to ask for information in this discovery process is far different than knowing what to demand from a prosecutor. Using our experience we know what to ask for in the form of in car videos, jail or police station records and recordings, breath test equipment certifications and maintenance records, officer course completion memos, records and re certifications, Department of Toxicology inspection records and reports, etc. to name but a few modes of inquiry obtained through demands for production of evidence.
In Indiana, the owi prosecution will end either through a dismissal, conviction or plea agreement. Dismissal is always preferred through the filing of what are called pre trial motions based upon objective evidence challenges. In other words, evidence that doesn’t rely on the defendant’s word versus an officer’s, but based upon the rules of law. For our clients this is most preferred not only due to the successful result, but to the significant financial cost savings in not having to secure such a dismissal through the hard work and long hours required of a trial victory. Trials can be heard before a judge often referred to as a “bench trial” or through the more commonly known jury trial where the lawyer and prosecutor simply cannot agree to a suitable case resolution.