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A habitual vehicular substance offender—not to be confused with a habitual traffic violator—is someone who’s facing a criminal sentencing enhancement based on a history of DUI / OVWI convictions. Attorneys Matt Kroes and Zac Bailey recently discussed how this works. What follows is a lightly edited transcript of their conversation.

Matt Kroes
Today we’re going to talk about the habitual vehicular substance offender sentencing enhancement. Here in Indiana, the letters H-V-S-O are four of the scariest in the English language, especially when it comes to DUI / OVWI charges. Zac, how does someone become HVSO-eligible?

Zac Bailey
There are a couple of ways this can happen. First, if you’re arrested for your third DUI / OVWI, and at least one of your two priors was within the last 10 years, the State can file the HVSO.

Same goes if you have three priors and pick up a fourth DUI / OVWI. All three of your priors could have happened 40+ years ago, and it wouldn’t matter. If this is your fourth DUI / OVWI, you are eligible for the HVSO enhancement.

Matt Kroes
What does the word enhancement mean here? Is this a different charge?

Zac Bailey
It’s a sentencing enhancement, which means it increases what your maximum penalty could be. According to statute, for example, the maximum sentence on a misdemeanor is one year. For a Level 6 felony, it’s two-and-a-half years.

The HVSO enhancement allows the State to add anywhere from one to eight years onto your sentence. That means a misdemeanor plus HVSO has you facing nine years. A Level 6 felony plus HVSO can push that to over a decade.

Matt Kroes
Which is kind of crazy. HVSO is not to be taken lightly. It’s a very scary thing if you’re charged with a DUI / OVWI.

Zac Bailey
That’s why it’s so important to hire an attorney as soon as possible—so they can start working with the prosecutor and try to get that sentencing enhancement taken off.

HVSO is not automatic. It’s a discretionary filing by the prosecutor’s office. So it’s possible to negotiate with prosecutors on behalf of a client to see that the HVSO isn’t filed on their case.

Matt Kroes
Zac, you’re a former prosecutor. If there’s a defendant who’s HVSO-eligible, but he’s eager to get the case resolved, how often is the prosecutor going to file the enhancement?

Zac Bailey
I think a prosecutor who can save themselves a trial is much more likely to consider not filing the HVSO.

Matt Kroes
And if the defendant isn’t interested in a plea agreement and insists on taking the case to trial?

Zac Bailey
The HVSO is definitely getting filed.

Matt Kroes
If you’re facing an HVSO enhancement, you need to speak to an attorney to discuss your options. Give us a call at 317-632-3642 and remember—always plead the 5th!