Elements of the Crime: DUI / OVWI

There’s a common misperception that it’s next to impossible to defend a DUI / OVWI charge. This is because when people imagine criminal activity, they tend to imagine it in broad, easily-recognizable terms. If you’re asked to picture a DUI / OVWI scenario, you might think of someone swerving in and out of traffic lanes with a half-empty bottle of whiskey in their lap. If you’re asked how that situation might play out, you’d likely assume that the driver would either crash, get caught red-handed by the police, or both. As far as most people are concerned, only drunk drivers get arrested for drunk driving. This is the sort of common knowledge that seems to be obviously true but is actually an over-generalization.

To be clear, many people who are charged with DUI / OVWI are convicted, but some of them aren’t. Not every rumor is true, and neither is every accusation. Criminal defendants are presumed innocent until proven guilty, and the State has to demonstrate that guilt beyond a reasonable doubt. All crimes can be broken down into elements, and in order to convict, the State must prove each element of a crime. If any element remains unproven, the prosecution will necessarily fail.

OVWI: The Elements

If you’re fuzzy on the DUI / OVWI distinction, you can read more here, but for purposes of clarity, I’ll only be referring to OVWI for the rest of this blog. In Indiana, in order for the State to prove an OVWI charge, it must show that you (1) operated; (2) a vehicle; (3) while; (4) intoxicated. Seems pretty straightforward, right?


You might think you know what it means to operate, but this is criminal law, so we’re talking about statutory definitions. For example, you might be surprised to learn that operating is a broader term that driving. In Indiana, to operate means “to navigate or otherwise be in actual physical control of a vehicle, motorboat, off-road vehicle, or snowmobile.” The vehicle doesn’t even have to move for you to be “in actual physical control of it.” Practically speaking, this means that proving vehicle movement isn’t required for an OVWI conviction.

Here’s another wrinkle: Even when the police didn’t observe you behind the wheel, they’re allowed to make inferences and reasonable assumptions. This is actually pretty common in OVWI cases. If, for example, you’re found soaking wet and your car is discovered nearby in a swimming pool, the police are justified in connecting the dots, even if they weren’t around to see what happened.

Since the late ’80s, Indiana Courts have considered a number of factors in determining whether a stopped vehicle was operated for purposes of an OVWI charge. These factors include:

  • whether the person in the vehicle was asleep or awake
  • whether the engine was running
  • the location of the vehicle when discovered
  • the intent of the person behind the wheel
  • any evidence that the defendant had been observed operating before they were discovered
  • the position of the automatic transmission

This list is not exhaustive, and Indiaa courts are encouraged to consider any evidence that leads to a reasonable inference. Were you found asleep at an intersection with your foot on the brake? You were operating. Did you nod off in the Burger King drive-thru? Operating. Were you found behind the wheel when your vehicle was discovered in a highway median snowbank? Operating. It doesn’t matter if there were no witnesses, because reason tells us your car got there somehow, and it didn’t drive itself. By extension, if you’re in a parking lot (or another place where vehicles would normally park), you have a much better chance of arguing that no operation occurred.

A Vehicle

In an OVWI context, Indiana defines vehicle as “a device for transportation by land or air.” For better or for worse, this encompasses pretty much anything you can think of, so this element is rarely worth challenging. I’ve been an attorney for over a decade, and I’ve never heard of the State losing an OVWI case because it turned out that what the intoxicated defendant was operating wasn’t actually a vehicle. This element is almost always a gimme for the State.


While is the most interesting OVWI element, because it allows the State to combine two permissible acts into an illegal one. Operating a vehicle is legal in Indiana (so long as you’re licensed as needed), and so is being intoxicated (provided you’re at least 21), but operating while intoxicated is a strict liability crime. In order to prove the charge, the State must demonstrate the overlap of intoxication and operation. Without an eyewitness account, the easiest way to accomplish this is with something called the statutory presumption.

In Indiana, if the police are investigating you for OVWI, they want to get a certified chemical test within three hours of the time you’re alleged to have operated. If they do, and the test reveals an alcohol concentration equivalent (ACE) of 0.08 or greater, the State is entitled to rely on the statutory presumption. This is a big deal, because the presumption is that you were legally intoxicated at the time you operated the vehicle. If the police administer the certified chemical test correctly and within the three-hour window, it fundamentally changes the case—it turns the presumption of your innocence into the presumption of your guilt.

Without the statutory presumption, the State can still prove you guilty of OVWI, but with it, the odds are overwhelmingly in the Prosecutor’s favor.


According to the Indiana Code, intoxicated means:

  • under the influence of:
    • alcohol,
    • drugs,
    • a controlled substance, or
    • anything other than food, tobacco or a dietary supplement
  • “so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties”

The State does not need to show any specific ACE in order to establish intoxication. For one thing, it’s possible to be intoxicated on something other than alcohol, in which case ACE would be irrelevant. For another thing, Indiana Courts have consistently held that there are other ways for the State to show impairment. The State also has the option of building its case for intoxication by showing that you had:

  • consumed a significant amount of alcohol
  • impaired attention and reflexes
  • watery or bloodshot eyes
  • the odor of alcohol on your breath
  • unsteady balance
  • slurred speech
  • failed any of the Standardized Field Sobriety Tests

Just in case you’re worried about officers being able to keep track of all their options, I can assure you that police have an official State form that helpfully prompts all of these observations, and then some.

In conclusion, let me reiterate: Anyone who thinks an OVWI case is an automatic slam-dunk for the State is wrong. The State has to prove each element to earn a conviction, and every OVWI has at least three elements worth examining:

  • Operation
    • Were you in actual physical control of the vehicle?
  • Intoxication
    • Were you impaired in thought and action to the point of loss of normal control of your faculties?
  • While
    • Were you in actual physical control of the vehicle, while at the same time being impaired in thought and action to the point of loss of normal control of your faculties?

If the State fails on any one of these points, it hasn’t fulfilled its obligations, and you are NOT GUILTY. This may seem impossible when the odds are stacked so heavily in the State’s favor, but believe me—I’ve seen it happen, and I’ve made it happen. Sometimes the police get it wrong, and sometimes the State charges people who don’t deserve it. For these reasons and others, please don’t say more than you have to when talking to law enforcement. When in doubt, Plead the 5th!

If you or a loved one has been arrested for the crime of Operating a Vehicle while Intoxicated (DUI / OVWI) give us a call at 317-632-3642 or send me an email.