License Suspension Procedure Within A DUI Case
In the State of Indiana when arrested and charged with an Indiana DUI, the individual’s right to drive in Indiana will be suspended until further notice. The suspension procedure is as follows: by mail prior to or at the Defendant’s initial hearing where he or she is informed of the dui charge(s) against them, the judge will suspend the individual’s drivers license without a finding of guilt to the dui offense charged. This initial suspension imposed prior to a determination of guilt being established, is based upon the “probable cause” that the individual either failed a chemical breath test for intoxication or refused to take such a test.
This probable cause determination is sent to the Indiana Bureau of Motor Vehicles who has the duty to send by mail notice of the suspension to the person’s last reported Indiana address listed with the bureau. If sent to an old address not updated with the bureau, the individual is legally culpable irrespective of whether they receive this notice. Further, in such circumstance notice will be proven should the court record of initial hearing demonstrate judicial notice to the defendant of the suspension.
Court Ordered License Suspensions In Indiana For DUI Convictions
In Johnson County a court ordered license suspension will be for a maximum of two (2) years. For one with no prior dui convictions or for a conviction occurring beyond ten years earlier one can expect a minimum license suspension of ninety days at the present time. For felony dui prosecutions a court ordered license suspension can be up to five years.
In practice, should one have a prior conviction for dui after five years but within ten, a minimum one hundred eighty day court ordered license suspension to a maximum of two years has become the standard practice within Johnson County courts.
One dealing with a felony dui for a prior conviction within five years usually incurs a minimum court ordered suspension of one year to a maximum of two years.
Potential Perils of Judicial License Suspensions
As a DUI Attorney, I receive many unfortunate calls from people who have come to me from other local or non specialized attorneys wanting to know why they have received a “double” license suspension imposed by the Indiana BMV in addition to the court ordered suspension the person thought was negotiated and ordered by the court.
Speaking for court cases in Indiana, but a potential lesson in any state is the fact that a plea agreement dealing with the length of one’s drivers license suspension following a dui conviction is strictly an agreement as to a court ordered license suspension. As a result, too many lawyers do not make people aware that an Indiana driver can face an additional “administrative” license suspension imposed by the Indiana Bureau of Motor Vehicles in certain circumstances:
Did your dui case in Indiana involve evidence submitted of a “refusal” to take a breath test for intoxication?
Refusal Suspensions to Indiana Drivers Licenses occur If it has been determined within a court of law by a “Preponderance of Evidence” (less than the “Beyond a Reasonable Doubt” standard to be found guilty of an Indiana DUI) that one refused to submit to a test for intoxication. In such cases the Indiana BMV will suspend one’s drivers license for a minimum of one year (or two years for one who found to have refused with a prior dui conviction) with no eligibility for a probationary license. This minimum one year refusal suspension would be consecutive or in addition to the court ordered drivers license suspension.
As a result, one can be found not guilty of a DUI in Indiana yet still suffer a mandatory loss of license if a refusal has been determined. With a refusal suspension the BMV in Indiana and not the county court would be suspending the Indiana drivers license. If one has two (2) or more prior DUI convictions and is found to have refused or been uncooperative in providing a valid test sample for intoxication, a minimum two (2) year drivers license suspension will be imposed in addition to any applicable court ordered suspension. If a case is to be resolved by plea agreement, it is critical that the issue of a refusal allegation be noted within written plea terms.
An Indiana dui lawyer has the ability to “terminate” the additional refusal suspension imposed by the BMV but only if specifically noted and agreed to by a prosecutor as evidenced within a written plea agreement and on record with the court. Failure to properly address the issue of a separately imposed BMV refusal suspension has resulted in far too many people suffering additional license suspensions that they were not aware would be imposed.
If a criminal dui prosecution in Indiana involves an assertion by the officer that a Defendant “refused” the breath test offered, your Indiana dui attorney must specifically address within negotiated settlement terms or through a designated hearing with the sentencing court that a separate driver’s license suspension for a “refusal” will “terminate” by court order. Without such a court order, a separate drivers’s license suspension for the refusal of up to 2 years can be imposed by the Indiana BMV in addition to the specific term of suspension ordered by the judge.
On the date being sentenced for an Indiana dui conviction does your ten year driving history contain either 2 other major driving violations or 8 or more minor moving violations?
In Indiana, even with a negotiated plea agreement to a driver’s license suspension of up to 2 years for a dui conviction, the convicted driver’s license can be further restricted by the Indiana Bureau of Motor Vehicles for 10 additional years if the convicted driver has accumulated 3 major moving violations (DUI, Reckless Driving, Driving While Suspended by court order) within a ten year time frame. If one has accumulated 8-9 minor moving violations (speeding tickets, etc.) in combination with even one DUI or Reckless Driving conviction during a ten year window, the Indiana BMV can order that the driver’s license be restricted for 5 additional years. These back to back license suspensions are labeled “Habitual Traffic Violator” suspensions and are not always focused on with sufficient detail by attorneys or judges within dui court.
Do not allow yourself to suffer the fate of too many caught unaware of additional administrative license suspensions before it’s too late. When challenging a dui prosecution be aware of these potential additional license suspensions and be pro active in assessing your potential for a Habitual status before potential agreements are worked out on your behalf. If being prosecuted for a dui arrest with an out of state driver’s license, make sure that your state will accept the court ordered suspension imposed for a dui conviction in the State of Indiana.
While most states will accept the length of driver’s license suspension imposed on one with an out of state license for a dui conviction in the State of Indiana, some states will not. It is therefore crucial that before entering into an agreement on an Indiana dui conviction that an experienced dui attorney in one’s home state be consulted to insure that the home state’s department or bureau of motor vehicles will accept the terms of the Indiana imposed dui driver’s license suspension.
Pre Conviction License Suspensions In DUI Cases
A license suspension in Indiana imposed before guilt is called an “administrative license suspension” and is not imposed by the court. Rather, the suspension is imposed by the Indiana Bureau of Motor Vehicle’s administrative rules suspending an Indiana drivers license if probable cause that one either failed a chemical test for intoxication or refused to submit to such a test. In Indiana, one holding an Indiana driver’s license will presumably receive in the mail notice of license suspension, usually effective on the date of initial hearing or otherwise when probable cause was judicially determined. This time lag between the initial hearing and receipt of mailed suspension notice can often be perilous, for it is not uncommon for people to believe that they can still drive irrespective of whether or not they have received this mailed notice.
To be clear, from the time a judge orders the individual not to drive the individual can be guilty of driving while suspended even if notice from the bureau of motor vehicles never arrives in the mail or arrives weeks later. Unless someone has been alleged to have refused a chemical breath test, any time suspended during a case may be credited toward the person”s ultimate license suspension in Indiana.
For example, if one is found guilty at a plea hearing and has agreed to serve a ninety day (90) license suspension, all time suspended up to the date the bureau reinstates the license could be “retroactively” credited. One who had their license suspended for probable cause on January 1 and had case resolved March 1 would therefore be entitled to sixty days (60) of credit time toward the ninety (90) day suspension as of March 1. Such person would continue to accumulate credit toward the ninety days until reinstatement. If someone is judicially found to have refused a chemical breath test for intoxication, they are not entitled to credit for any suspension time imposed to the license from the initial hearing date forward.
In such cases, a dui attorney will often attempt to “terminate” a refusal suspension. This means that for a first offense, instead of a mandatory one year license suspension for a refusal being added to a minimum ninety day period, the one year in addition would be eliminated. However, credit toward the ninety day suspension in this hypothetical would not begin until the case has been concluded in court. Optimally, it is best to determine whether an agreement can be reached to “stipulate to no refusal” with a prosecutor whereby not only would a minimum one year suspension be lifted, but credit from the initial hearing suspension forward could be applied.
For someone with an out of state license who has been arrested for dui in Indiana, the process of license suspension and reinstatement can be trickier. Although the out of state resident is instructed the same as someone in Indiana, the holder of an out of state license can avoid having the administrative suspension affect their out of state license while their case is pending.
Unlike the holder of an Indiana Driver”s license, the Indiana Bureau of Motor Vehicles does not have power nor jurisdiction over the suspension and/or reinstatement of an out of state license. As a result, many out of state dui residents charged with dui in Indiana are often at an advantage. For such individuals, the out of state license is likely to continue to show valid during the dui case. Consequently, should the individual be found guilty, he too could get retroactive credit for the license suspension from the date of initial hearing forward. However, unlike the holder of an Indiana drivers license, such an individual”s license most likely was valid through the prosecution, in effect, a win win situation for the out of state resident.
Once the dui case is concluded for the out of state license holder, the court order will in fact be directed to the issuing state suspending the license under the terms mandated by the Indiana court. However, please know that the out of state Bureau or Department of Motor Vehicles would ultimately have to agree to the suspension imposed by the court in Indiana. Although most of state license bureaus will accept the judicial findings for the suspension imposed in Indiana, some states will not. It is always a good idea in such a situation to confer with an experienced dui attorney in the license holder”s state as to whether that state will accept the suspension terms imposed by the Indiana court.