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OPERATING WHILE INTOXICATED – OWI Lafayette IN

  • 31 January 2017
  • Author: Earl McCoy
  • Number of views: 2219
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OPERATING WHILE INTOXICATED – OWI Lafayette IN

If you have been arrested for Operating While Intoxicated (commonly known in Indiana as OWI), this is a very serious matter and you should call McCoy Law to speak to one of our attorneys as quickly as possible.  An Operating While Intoxicated conviction has far reaching effects.  If you are charged with an OWI, which is the same as a DUI, in Lafayette IN, you are facing several penalties such as:

•    A Driver’s License Suspension
•    Possible Jail Time and a Fine
•    Possible Work Release and/or House Arrest (Home Detention)
•    Probation
•    Community Service Hours
•    Alcohol and Drug Counseling
•    Higher Auto Insurance Costs
•    A Felony Conviction in some cases

You should at least take advantage of a free consultation with an experienced criminal defense attorney at McCoy Law who regularly handles cases of OWI (DUI) in Lafayette, IN.  It is usually in your best interest to hire an attorney due to the serious penalties which may be imposed and the complexity of the criminal justice system.  If you try to act on your own behalf, the Court is supposed to hold you to the same standard as an attorney – a standard you most likely will not be able to meet without extensive legal training.

How soon should you consult with an attorney?

You should consult a Lafayette, IN defense attorney as quickly as possible.  An experienced criminal defense attorney may be able to offer advice that can help prepare your defense or minimize your penalties if you are convicted.  Unfortunately, memories may fade quickly, but if you meet with an attorney quickly they may be able to help you take steps to preserve key elements of your defense.  There may also be things you can begin doing immediately to minimize any penalties imposed by the Court such as signing up for an appropriate counseling program and/or making restitution arrangements if there was an accident involved.  An experienced attorney can advise you as to what type of counseling, if any, is appropriate and how to go about making restitution if necessary.  There may also be important legal deadlines that pass without your knowledge if you do not consult with an attorney.  If these deadlines expire, you may be denied a jury trial or be prevented from raising certain defenses.

What is the difference between an OWI, DWI or a DUI in Lafayette IN?

There is no difference.  DWI stands for “Driving While Intoxicated.”  DUI stands for “Driving Under the Influence.”  OWI stands for “Operating While Intoxicated.”  Each of these terms can be and are used interchangeably.  Technically, OWI is the appropriate abbreviation to use in Indiana because the Indiana Legislature has labeled the relevant crime in Indiana as “Operating While Intoxicated.”  Other states have labeled their criminal statutes differently, and that is why you often hear the other abbreviations which are more appropriately used in other states that have labeled their criminal statutes as “Driving While Intoxicated” or “Driving Under the Influence.”  Any time there are different labels for the same thing it can be confusing, but OWI, DUI, and DWI all mean the same thing and can be used interchangeably based on personal preference.

The Crime of Operating While Intoxicated (OWI) Lafayette Indiana

There are different levels of OWI in Lafayette, Indiana.  At the basic level, Operating While Intoxicated in Indiana is a Class C misdemeanor.  There are two basic ways to commit this offense in Indiana.  The most common way is to operate a motor vehicle after consuming alcoholic beverages.  The second way is to operate a motor vehicle after consuming some other kind of intoxicating drug such as marijuana, prescription painkillers, or methamphetamine.  First, we will address the most common OWI: operating after consuming alcoholic beverages.  Indiana law defines this type of OWI as follows:

A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per:

(1)    One hundred (100) milliliters of the person’s blood; or 
(2)    Two hundred ten (210) liters of the person’s breath;

Commits a Class C misdemeanor.  Ind. Code § 9-30-5-1(a).
 

Thus, it is easy to see why people commonly say that the legal limit for OWI in Lafayette, Indiana is .08, because if you submit to a breath or blood alcohol test that shows your alcohol concentration is .08 or higher, you have committed the offense of Operating While Intoxicated.  However, it would be more accurate to say that .08 is the ILLEGAL limit because if your test comes back at exactly .08 you are going to jail and you are going to be charged with a crime.  If your test comes back .0799, you should not be charged under this section.  There is still a possibility of being arrested and charged even if your alcohol number comes back lower than .08 if the officer believes you are intoxicated as a result of consuming any other intoxicating drugs.  That part of the statute provides as follows:

A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s body commits a Class C misdemeanor.

Indiana Code § 9-30-5-1(c).  

Please note that there is no required level of concentration required to convict someone of this version of OWI in Lafayette, Indiana.  If you submit to a chemical test and the test is positive, you can be convicted under this statute.  This is particularly troubling for drugs that remain findable in your system long after the effects of the drug have worn off, such as marijuana.

We actually have a second legal limit in Indiana for OWIs involving alcohol.  If a blood test or a breath test shows your alcohol concentration equivalent to be 0.15 or higher, the crime of Operating While Intoxicated increases from a Class C misdemeanor to a Class A misdemeanor.  This means the potential jail time and fine that could result from a conviction increases significantly.  Further, Indiana has a second statute that elevates an OWI from a Class C misdemeanor to a Class A misdemeanor “if the person operates a vehicle in a manner that endangers a person.”  Indiana Code § 9-30-5-2.  The real problem with this is that most Prosecutors believe that anyone who operates a vehicle while intoxicated endangers at least himself or herself and therefore, every OWI endangers “a person” even if the only person is the Defendant.  For this reason, some counties never file OWIs as Class C misdemeanors.

Why are some OWI charges filed as a Felony?

There are actually several facts that will elevate an OWI from a misdemeanor to a felony.  The first and most common reason an OWI is elevated from a misdemeanor to a felony is because the person charged has a prior conviction for an OWI that was entered within five (5) years of the person’s arrest for another OWI.  It is important to remember that the relevant date is the date of conviction on the first OWI; not the date the person was arrested.  The conviction normally occurs months after the person’s arrest.  If the person’s arrest on the second OWI is within five years of their conviction date on the first OWI, the second OWI will be elevated to a Level 6 felony.  

An OWI can also be elevated to a Level 6 felony based on who else is in the vehicle with you.  If you are twenty-one (21) or older and you operate a vehicle while intoxicated while you have anyone under the age of eighteen (18) in the vehicle with you, then you will be charged with OWI as a Level 6 felony even if this is your first offense and your blood alcohol concentration is only at the .08 legal limit.  This means if you have anyone under the age of 18 in the vehicle with you, the level of the charge will jump from a Class C misdemeanor to a Level 6 felony.  

An OWI that would otherwise be a Class C misdemeanor can even elevate to a Level 5 felony if the person charged has a prior conviction for an OWI that either caused death or serious bodily injury.  It is important to remember that for purposes of this statute there is no time limit.  There is no requirement that the prior conviction happened within five (5) years of the current offense.  If a person has ever been convicted of an OWI that resulted in death or serious bodily injury, then their next OWI will automatically be elevated to a Level 5 felony even if the next OWI happens forty (40) years after the one that resulted in death or serious bodily injury.  

OWI Lafayette IN resulting in Serious Bodily Injury

An OWI in Lafayette, IN that results in serious bodily injury to another person will be charged as a Level 6 felony even if the Defendant has no prior convictions for operating while intoxicated.  The offense will be elevated to a Level 5 felony if the Defendant has a prior OWI conviction within five (5) years of this offense even if the first OWI conviction was only entered as a Class C misdemeanor.  It is important to note that Indiana’s statute specifically provides that anyone who commits an OWI that results in serious bodily injury “commits a separate offense for each person whose serious bodily injury is caused by [the OWI].”  Indiana Code § 9-3-5-4(b).  This means that you could be facing multiple felony charges based on one (1) incident if multiple people sustain serious bodily injury.  

OWI resulting in Death

An OWI in Lafayette, IN resulting in death is a Level 5 felony.  However, the offense is elevated to a Level 4 felony if the person has a prior conviction for OWI within five (5) years of the current offense.  An OWI resulting in death can also be elevated to a Level 4 felony if the Defendant’s driver’s license was suspended as the result of a prior OWI at the time this offense occurred.  

If a person who is twenty-one (21) years of age or older and has a blood alcohol equivalent of 0.15 or higher and they commit OWI resulting in death, the offense will be elevated to a Level 4 felony.  This elevation occurs even if the person has no prior convictions for Operating While Intoxicated.  

If a person’s OWI causes the death of a law enforcement animal, the offense will be elevated to a Level 6 felony even if the person has no prior OWI convictions.

Further, just as we noted above with OWIs resulting in serious bodily injury, a person who commits OWI resulting in death or the death of a law enforcement animal commits a separate offense for each person or law enforcement animal that dies.  Therefore, a person can be charged with multiple felonies arising out of one incident if multiple people or law enforcement animals die as a result.

Indiana’s Zero Tolerance OWI Statute for People Under 21 Years of Age

Indiana’s “Zero Tolerance” OWI law applies to anyone under the age of 21 who operates a motor vehicle under the influence of alcohol and can be found at Indiana Code § 9-30-5-8.5.  This statute makes it illegal for anyone under the age of 21 to operate a motor vehicle with a blood alcohol concentration equivalent of 0.02 but less than 0.08.  This offense is a Class C infraction.  Obviously, if the person’s blood alcohol concentration equivalent is higher than 0.08, the person will be charged under Indiana’s other OWI statutes.  

There is one Defense built into Indiana’s OWI statutes

Indiana has provided for one defense in its OWI statute.  The statutes specifically provide that if you have been charged with OWI in Lafayette, IN as a result of consuming a controlled substance, it is a defense if the accused person consumed the controlled substance under a valid prescription or order of a practitioner who acted in the course of the practitioner’s professional practice.  However, this defense is tenuous at best because most prescriptions that can cause intoxication specifically say not to operate a motor vehicle while you are taking the medication and the State will use that information to try to obtain a conviction.

Indiana’s statutes specifically provide that it is NOT a defense that the accused person was operating the vehicle in a place other than on a public highway.  This means you can get an OWI for driving a golf cart while intoxicated on a private golf course or a motorized riding lawn mower in your own yard if you are intoxicated at the time.  It is also possible to get an OWI on a vehicle that does not require a driver’s license such as a moped.

Suspension of Driving Privileges as a Result of an OWI

 In addition to any criminal penalties such as jail time, work release, house arrest, and community service, the Court is required by statute to recommend a suspension of the person’s driving privileges within the ranges established by statute.  If the person does not have any prior OWI convictions or any prior convictions are more than ten (10) years prior, the Court can recommend a license suspension of no more than two (2) years.  If the person has a prior conviction that occurred more than five (5) years prior but less than ten (10) years prior, the Court may recommend a suspension of up to two (2) years.  The Court may also stay the executed part of the suspension and grant the person Specialized Driving Privileges for a period of time equal to the length of the stay.  If the person has a prior OWI conviction within five (5) years of the current offense, the Court may recommend a suspension between of up to two (2) years, but the Court may still grant Specialized Driving Privileges and stay a portion of the executed license suspension so long as Specialized Driving Privileges are granted for the length of the stay.  If the current OWI resulted in serious bodily injury or death, the Court may recommend a suspension of no more than five (5) years.  Also, if the current OWI is based on the person’s use of a controlled substance rather than alcohol, then the Court is required to recommend a license suspension of at least six (6) months.  

Required Jail Time or Community Service for Repeat Offenders

If someone is convicted of Operating While Intoxicated and they have a prior OWI conviction, they are required to serve either five (5) real days in jail or one hundred eighty (180) hours of community service AND submit to a drug and alcohol assessment and complete an alcohol or drug abuse treatment program.  It should be noted that if the person serves the jail time rather than performing the community service, the person does not receive “good time credit.”  This means that they must serve five (5) actual days in jail.  If the person has more than one prior OWI conviction, they are required to serve either ten (10) real days in jail or three hundred sixty (360) hours of community service.  While the statute authorizes the Courts to allow the jail time to be served in forty-eight (48) hour increments, many Courts or jails will not allow this due to overcrowding.  The apparent purpose for allowing the sentence to be served in 48-hour increments was to allow people to serve this portion of their sentence on weekends.  However, many jails in Indiana are overcrowded on weekends because more people are arrested on weekends than through the week.  For this reason, jails and Courts in larger communities refuse to allow defendants to serve their sentences on weekends while many smaller communities do allow this option.

Field Sobriety Tests

It should be noted that Indiana’s OWI statute does not contain any reference to Field Sobriety Tests.  That is because you are not required to submit to Field Sobriety Tests.  While you are required to submit to chemical tests such as a blood test, urine test, or a certified breath test, you are not required to submit to Field Sobriety Tests.  When asked by a police officer to submit to a Field Sobriety Test, you should always respectfully decline.  You must, however, submit to the breath test, urine test, or blood test upon request because that is required by Indiana law and your failure to submit to the required chemical tests will lead to a longer license suspension.  

 

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