Frequently Asked Questions Regarding Traffic And Drunk Driving Violations
What should I do if I am arrested?
- The Constitution of the United States, as well as the state of Indiana, guarantees you a right to counsel, so take advantage of it. Do not speak to the police under any circumstances. It is essential that you assert your right to an attorney before making any statements to any law enforcement agency, or signing any documents produced by a law enforcement agency with the exception of a traffic ticket.
- Never consent to the search of an automobile, home dwelling, person (with the exception of a pat down search for the officer’s safety), purse, or any other item without enforcing your right to speak to an attorney first. Even if you believe the officer may have a right to search, or will search regardless of your consent, be sure to voice your objection. Police officers often depend on your willingness to please them in order to obtain consent.
- Once consent is given, the officer will have a right to search even if he or she otherwise would not. If consent is given, you still have the right to revoke your consent.
- The Implied Consent Law requires you to submit to blood alcohol tests or face the loss of your license as a result of an automatic one-year suspension for failing to comply with the law. The Implied Consent Law is mandatory, and you do not have a right to speak to a lawyer before submitting to, or being asked to submit to, the test.
- If arrested, always be cooperative with the police officer, sheriff’s department, etc., with the exception of answering any questions. Failure to cooperate with the officer, whose primary concern is his own personal safety, could result in a resisting law enforcement charge or disorderly conduct charges, which can only add to your costs and potential penalty. Being cooperative does not mean giving the officer any statements or admissions or consent to search without talking to your attorney.
- Under no circumstances discuss the situation with the police or anyone else for the matter.
- Post bond as soon as possible.
- Contact a lawyer as soon as you post bond, as there are deadlines to file certain motions, which will be waived if you do not contact an attorney in an appropriate amount of time.
What NOT to do if you are arrested.
- Do not speak in detail about the facts of the case with anyone except your attorney.
- Only speak when instructed to speak by your attorney. More often than not, statements given outside the presence of an attorney only assist the police and the state of Indiana in making their case against you.
- Never submit to any type of handwriting, hair, fingernail, blood, urine, polygraph or other examination without first speaking to any attorney. In addition, never agree to submit to a line up or any other identification process without first consulting an attorney.
- Under Indiana law, you are not required to take field sobriety tests, so don’t take them. Anybody who has attempted a field sobriety test sober would fail them more often than not, so there is no point in taking them. A field sobriety test is not required under the Indiana Implied Consent Law and a police officer cannot compel you to take one.
- Under the Indiana Implied Consent Law, you are not required to take an Alco-Sensor or portable breath test. These are devices that police officers carry in their cars and submit to people suspected of driving under the influence. These devices give a preliminary reading, which may or may not be accurate concerning the alcohol level within one’s system. The results of the Alco-Sensor or portable breath test are not admissible in court. As such, there is no reason to take one. If an officer requests that you take an Alco-Sensor or breath test, simply respond that you will agree to take a B.A.C. test at the police station, but you will not take a portable test in the field.
- The only tests covered by the Indiana Implied Consent Law are those tests concerning breath (only a test as approved by the Indiana University Department of Toxicology), urine or blood test.
- If you find yourself being asked questions and you have not been read your Miranda Rights, ask if you are free to leave. Police will often not read the Miranda Rights in a situation under the pretense that you are not in custody. However, they will still attempt to use your statements against you. If you are free to leave, do so.
What is an O.W.I?
O.W.I. stands for Operating While Intoxicated. A person who is charged with Operating While Intoxicated is when his/her blood alcohol content (B.A.C.) is .08 percent or greater. Operating While Intoxicated does not require that a person be driving a vehicle while intoxicated, but simply that a person be in control of the vehicle at the time that the arrest is being made.
What are the penalties for Operating While Intoxicated?
Penalties vary based upon the level of offense in which you are charged. Offense levels can range anywhere from a Class “C” misdemeanor all the way up to a Level 4 felony. The fine can range from $500 to $10,000, with imprisonment from 60 days to twelve years. In addition to penalties set forth above, license suspensions are involved, ranging from 90 days up to two years. If may be possible to obtain a restricted license during a period of suspension.
If this is a first offense, do I really need a lawyer?
There is an old saying that goes something along the lines of, “Only a Fool Represents Himself.” There is a lot of wisdom in that saying. If a person had a heart condition, he or she certainly wouldn’t try to treat it on his or her own. Attorneys are trained in dealing with and handling Operating While Intoxicated cases. In a first offense for Operating While Intoxicated, it is essential that an attorney be involved because of the possible future problems associated with a conviction for Operating While Intoxicated. If a person is convicted of Operating While Intoxicated and then gets another Operating While Intoxicated conviction within the next five years, the second offense would be charged as a Level 6 felony, increasing the possible sanctions and penalties involved.
What is an H.T.V.?
H.T.V. is short for Habitual Traffic Violator. A person can be determined to be a Habitual Traffic Violator under two scenarios. Under the first scenario, if a person has three major offenses within a 10-year period, he or she can be found by the Bureau of Motor Vehicles to be a Habitual Traffic Violator and his/her license suspended for 10 years. Major offenses can include Operating While Intoxicated, Reckless Driving, Leaving the Scene of an Accident with Property Damage in Excess of $200 and other such offenses. Under the second scenario, if a person has nine minor offenses and one major offense within a 10-year period, he or she, too, can be determined to be a Habitual Traffic Violator, losing his or her license with a 10-year suspension. Under either scenario, a person would not be eligible for any type of restricted or probationary license until after five years of the suspension have been served.
How much would it cost for representation?
The cost for representation for an Operating While Intoxicated case will vary based upon the years of experience of the lawyer handling the case, whether or not it is a first offense, whether the case would be handled by Plea Agreement or submitted to the court for trial. Lawyers handle these cases on a flat fee basis. In the cases to be tried, an hourly rate may be imposed. The fees should and will be discussed with your attorney. It should be pointed out that if you post a bond upon arrest, you may use the bond to pay a portion of your attorney fees. If you have a bond, you should also disclose that to your attorney for the purpose of negotiating your fee arrangement.