Indiana, like its sister states, makes it illegal to drive a vehicle while under the influence of alcohol or drugs. However, the driving under the influence (DUI) statutes in this state have details that set it apart, like calling the offense OWI or OVWI, the initials standing for operating a vehicle while intoxicated. In addition, Indiana is one of the few states that has a "per se" statute for drugs, that is, a violation based on results of chemical testing rather than on actual impairment. Anyone driving in Indiana should get an overview of the OWI laws and the penalties for violating them.
Indiana's OWI Laws
So many states call their drunk driving offenses DUIs (for driving under the influence) that it's become a common abbreviation for the charge, and other states call it driving while intoxicated, or DWI. But certain states, like Indiana, use other terms. Indiana's drunk/impaired driving laws are found in the 2019 Indiana Code at Title 9 Motor Vehicles, Article 30, Chapter 5. The law is entitled Operating a Vehicle While Intoxicated, and courts use OVWI or OWI to refer to the offense. However, many commentaries and individuals still refer to an Indiana conviction as a DUI.
The OWI statute sets out a number of different driving offenses. These include four misdemeanor offenses that apply to adults who drive after consuming alcohol or while having certain controlled substances in their body without a valid prescription. Some of these are per se offenses, based on the results of chemical tests; others are based on evidence of intoxication or impairment rather than on testing.
Indiana Per Se OWIs
Per se, from Latin, means "in and of itself." A per se OWI violation is one that is based on the results of chemical testing. If the testing determines that a driver has more than the legal limit of a substance in their system, they are presumed to be guilty of the crime.
Like all states, Indiana has a per se drunk driving statute. The law makes it a violation for a driver to operate a motor vehicle in the state while having a blood alcohol concentration (BAC) of 0.08 percent or higher. How many drinks does it take to reach this BAC limit? That varies considerably between individuals, based in part on gender, weight and circumstances like how much the person has eaten, what type of alcohol was consumed and even the person's state of fatigue. The legal BAC limit is considerably lower for commercial drivers at 0.04 percent.
A person driving with a BAC limit of at least 0.08 and not more than 0.15 percent is a Class C misdemeanor. If the driver's BAC is 0.15 percent or higher, it is a Class A misdemeanor and carries greater penalties.
Indiana's Per Se Drug OWI
Indiana is one of the few states that imposes a per se drug OWI in addition to the alcohol-based per se OWI. The statute makes it an OWI for an individual to operate a motor vehicle in the state while having any amount of certain controlled substances in their system. The law references schedule I and II controlled substances, which are set out at some length in the state statutes.
The extensive list of controlled substances under these classifications includes cocaine, opiates, heroin, hallucinogenic drugs, marijuana and methamphetamine. If a chemical test reveals even the smallest amount of any of these substances in the driver's system, the person can be charged with a Class C misdemeanor OWI.
However, unlike most other states, Indiana laws mention a defense to this type of OWI charge. They state explicitly that it is a complete defense if the driver consumed the controlled substance in accordance with a valid prescription from a doctor or other medical professional.
Indiana's Impairment OWIs
The remaining two types of misdemeanor OWIs prohibit the operation of a vehicle while intoxicated and do not depend on chemical testing. The term intoxicated means being under the influence of alcohol, a controlled substance, a different drug or any combination of these substances. The prosecutor must show that the driver used one or more of these substances, resulting in an impaired condition of thought and action and the loss of normal control of the driver's faculties. Often the criminal case turns on police officer testimony about the person's erratic driving or sloppy field sobriety testing results.
A person who drives a motor vehicle while intoxicated is charged with a Class C misdemeanor. However, if the person drove while intoxicated and, in doing so, endangered another person, the charge becomes a Class A misdemeanor.
Penalties for Misdemeanor OWIs
Each class of misdemeanor carries a particular range of punishments that a court can impose. A person convicted of a Class C misdemeanor can be sanctioned by the criminal court to a term of imprisonment of up to 60 days and/or a fine of up to $500. If the charge is a Class A misdemeanor OWI, the maximum jail time is one year. The fine remains the same at $500.
Felony OWIs in Indiana
Felonies are the more serious types of crimes in Indiana, while misdemeanors are the less serious. Generally, a crime is described as a misdemeanor or a felony based on the maximum potential imprisonment term that it carries. A crime that can only be punished by imprisonment of one year or less is a misdemeanor; a crime that can be punished by one year or more is a felony. Felony convictions carry considerable stigma and can result in loss of various opportunities and rights, including the right to carry a firearm and to hold certain jobs. It can even affect a person's chances at getting housing.
While most Indiana OWIs are categorized as misdemeanors, some are treated as felonies. Perhaps the most common felony OWI in this state involves prior OWI convictions. If the driver has been convicted of an OWI or similar crime in the previous five years before the current arrest, the current offense is a Level 6 felony.
Felony OWI for Having Child Passengers
Likewise, if the driver is at least 18 years old and, during the OWI, had a passenger in the car who was under 16 years old, it can also be a felony, but only if certain conditions are met. That is, it is a felony to have a young passenger during an OWI only if the driver's BAC is 0.15 percent or higher or if the driver operates the vehicle in a way that endangers the passenger.
Felonies for OWI Causing Injury or Death
Finally, any OWI offense can be elevated to a Level 6 felony if another person suffers serious bodily harm as a result of the OWI driving. And if the OWI driver causes the death of another individual, it is also a felony.
The level of felony for killing someone during an OWI depends on the circumstances of the case. If the use of substances by the driver results in the death of another person, it's a minimum Level 5 felony. If the driver had a previous conviction for OWI within the past five years, their license was suspended, or they had a BAC of 0.15 percent or above, the crime will be classified as a Level 4 felony. Note that for each person injured or killed the felony can be charged as a separate offense.
Penalties for Felony OWIs
Penalties for felony OWIs in Indiana depend on the level of felony. A Level 6 felony is the least severe, while a Level 5 felony is more serious and a Level 4, yet more serious.
If a driver is convicted of a Level 6 felony in Indiana, the court can impose a sentence of between six months and 30 months of imprisonment. The advisory sentence is one year. This is a guideline sentence that the criminal court may choose to impose as the midpoint between the maximum and minimum sentence. Fines can run high for felonies, up to $10,000.
A Level 5 felony conviction can carry a prison sentence of between one year and six years. A Level 4 felony conviction carries prison time of up to 12 years.
Implied Consent in Indiana
Most of the drivers convicted of OWIs in Indiana are those charged with per se OWIs, that is, violations of the law based strictly on the results of chemical testing. These types of violations are much easier to prosecute, since evidence of actual impairment is not necessary. That means that a driver who has imbibed or used controlled substances illegally has every reason to consider refusing to take a chemical test.
To dissuade drivers from this defensive strategy, Indiana has joined with most other states in enacting an implied consent law. This law is premised on the idea that driving on the roads in the state of Indiana is a privilege, and that, in exchange for that privilege, a driver must consent to chemical testing if stopped for an OWI violation. This exchange is not an agreement made directly or explicitly with each driver, but is set out in the statutes. Consent to a chemical or breath test is implied from the fact that the person elected to drive on the state's roads.
Administrative Penalties for OWIs
Refusing to take a breath or blood test when asked to do so by law enforcement results in administrative penalties imposed by the Indiana Bureau of Motor Vehicles (BMV). Anyone who refuses testing will have their driving privileges revoked for one year for a first offense; an offender with a prior conviction will face a two-year driver's license suspension. In addition, the driver who refuses a test is not eligible for a hardship license to travel to work or school.
If a driver does take the demanded test and fails it, the Indiana BMV can also suspend or revoke the driver's license. However, those who fail the test are eligible for hardship licenses so that they can continue to drive for limited purposes, but conditions can be imposed for hardship licenses.
For example, the hardship license is usually conditioned on the installation of an ignition interlock device (IID) in the drivers' vehicles. This is a breathalyzer-type device that requires a person to blow into the device to prove that they are not intoxicated while behind the wheel. If their breath registers alcohol in their system, the vehicle won't start. However, not everyone is eligible for an IID, for example, if they were convicted of a previous OWI.
Underage Drivers in Indiana
Drivers under the age of 21 years must abide by special drinking and driving rules. These individuals are too young to legally buy or consume alcohol, so the state has a zero tolerance policy when it comes to drinking and driving. An underage driver can be picked up by the police if they have a blood alcohol concentration of 0.02 percent or higher. They will have their license suspended and may be required to attend an alcohol abuse program.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.