Indiana prohibits any person from operating a vehicle while intoxicated (OWI) by drugs or alcohol. Indiana law specifically defines OWI (also sometimes called, "DUI") and outlines mandatory conviction penalties.
This article explains in simple terms what constitutes operating while intoxicated, summarizes the penalties for a first, second, and third OWI conviction, and includes information about possible options for reducing penalties or completely avoiding a conviction.
In order to prove an OWI charge in court, prosecutors generally must show the defendant was operating a vehicle:
In other words, an OWI conviction can be based on the amount of alcohol or drugs in the driver's system or actual impairment.
Indiana defines operation as driving or being in "actual physical control" of a motor vehicle. Generally, cruising down the highway will certainly satisfy the driving requirement but "actual physical control" is more nebulous.
Generally, a person is considered to be in actual physical control of the vehicle if he or she has taken substantial steps to engage the vehicle. While movement of the vehicle is not required, the prosecutor must show more than just a running engine. For example, proof that the driver placed the vehicle in gear would likely suffice to prove the driving element.
Under Indiana's OWI laws, a person is intoxicated if he or she has an impaired condition of thought and action due to the consumption of drugs or alcohol. Generally, a prosecutor will use officer testimony to show that the driver was unsteady or otherwise lacked coordination. An expert might also testify as to how certain drugs can affect a driver's mental capabilities.
The fact that the driver had a prescription for the medication or was legally authorized to use the marijuana is not a defense to an intoxicated driving charge.
Instead of proving actual intoxication, the prosecution can show the driver had an unlawful BAC or drugs in their system. An OWI based on drug or alcohol concentration is called a "per se" offense.
As previously noted, a BAC of .08% or more is sufficient to prove driver intoxication. The same is true where the prosecution can show the driver had any amount of a schedule I or II controlled substance in his or her system.
However, a driver who has a valid prescription can't be convicted of a per se OWI based on the use of that medication.
Generally, an OWI is a misdemeanor, and the penalties are set by statute. If the violation involves aggravating factors such as a prior OWI conviction, a high BAC, or a minor passenger, the penalties are increased.
The chart below outlines the jail time and fines for a first, second, and third OWI conviction.
Up to 60 days (minimum 5 days or 240 hours community service)
Up to 60 days (minimum 10 days or 480 hours community service)
60 days (48-hour minimum before release)
Up to $500
Up to $500
Up to $500
In most cases, the court can suspend part or all of the jail sentence and place the offender on probation.
All persons convicted of an OWI must complete a substance abuse assessment. Based on the assessment, the court can order an appropriate treatment and/or alcohol deterrent program.
Certain aggravating factors can lead to penalty enhancements for an OWI conviction.
An impaired driver who endangers others can be charged with a level A misdemeanor (more serious than a standard OWI). Endangering others might include things like crossing over the median or running a red light. A conviction with this aggravating factor carries a maximum one year in jail and up to $5,000 in fines.
A driver with a BAC of .15% or more can be charged with a level A misdemeanor. Convicted drivers face up to one year in jail and a maximum $5,000 in fines.
Offenders who are conviction of a third OWI conviction within ten years are considered "habitual violators." The driver will face a minimum five-year license suspension. A third-offense OWI can also result in vehicle forfeiture.
While a standard OWI is a misdemeanor, certain factors can elevate an OWI to a felony.
An OWI that results in the injury of another can be charged as a level five felony. A conviction carries one to six years in prison and up to $10,000 in fines. The penalties are further increased for each person injured or if the offender has a prior OWI within the last five years. Any future OWI convictions will be charged as level five felonies.
Impaired driving that leads to the death of another person can be charged as a level four felony. A conviction will result in two to 12 years in prison and up to $10,000 in fines. The driver can be charged with a separate felony for each fatality.
An impaired driver who was transporting a passenger under the age of 18 can be charged with a level 6 felony OWI. A level 6 felony conviction carries six months to two and a half years in prison and up to $10,000 in fines.
A second OWI in a seven-year period can be charged as a class 6 felony and carries the same penalties as a DUI involving a minor passenger.
An OWI offense will often lead to license-related penalties. These penalties vary based on the driver's cooperation and level of impairment, as well as the number of previous impaired driving offenses.
License-related penalties can result from a chemical test failure or refusal.
During an OWI investigation, the officer will generally request the driver to submit to a breath, blood, or urine test. Drivers can always refuse to comply with the officer's requests but doing so can result in additional license penalties.
A driver who submits to testing and produces either a BAC result over .08% or a drug test positive for controlled substances will face license suspension. The officer will forward the results to the prosecuting attorney, who will present the results to the court at the first criminal hearing (often called a "probable cause hearing"). At the probable cause hearing, the court will order the driver's license to be suspended for up to 180 days or until the criminal proceedings are finalized.
A driver who refuses to submit to chemical testing will also have his or her license immediately seized, and the officer will similarly send a report to the prosecutor. The driver's license will be suspended for:
At sentencing, the judge can order the offender to serve a period on probation and include an ignition interlock device requirement. This device prevents the vehicle from turning on if the driver has a certain BAC. The duration is generally 60 days to one year.
A driver suspended for a test failure or refusal can generally petition the court for restricted driving privileges. If approved, the court will order that the driver only operate a vehicle with an installed IID.
A driver who's under the age of 21 and has a BAC of .02% but less than .08% can be convicted of an underage OWI.
An underage OWI is a class C infraction and carries up to $500 in fines. The driver's license will also be suspended for up to one year.
Indiana does allow "diversions" for misdemeanor OWI charges. As part of a diversion agreement, the offender is generally required to complete a substance abuse course, install an IID, and abstain from other violations for up to four years. If the driver completes all requirements, the OWI charge will be completely dismissed (though it may be considered for future OWI charges).
If you've been arrested for an OWI, it's always a good idea to get legal assistance. An experienced OWI lawyer can explain how the law applies in your case and help you decide on the best course of action.