Walking the line
Let’s start with the basics. DUI means driving under the influence, and people commonly use it as a catch-all term. In the same sense that Band Aid can mean bandage and Coke can mean cola, DUI can be used as a generic term to refer to any crime of intoxicated driving. If you get a DUI in Indiana, the formal charge will be for operating a vehicle while intoxicated, or OVWI.
All crimes are composed of elements. If the State can prove each element beyond a reasonable doubt, the defendant is found guilty of the alleged offense. If any element cannot be proven, the prosecution fails. The elements of OVWI are right there in the acronym:
To be operating essentially means to be in control of a vehicle. In many DUI / OVWI cases, there are no police witnesses to operation, and officers are trying to reconstruct what happened based on deductions, generalizations, and assumptions. Sometimes it’s obvious, and sometimes it isn’t.
There are gray areas with regard to operation, including when someone is found sleeping in a vehicle. Any decent defense attorney on a DUI / OVWI case needs to look at the element of operating and make sure the State can prove its case.
Indiana has defined a vehicle as a device for transportation by land or air, but not including an electric personal assistive mobility device (which basically means a Segway-type machine). Pretty much every other transportative device qualifies as a vehicle for DUI / OVWI purposes, including:
If you’re going to beat a DUI / OVWI charge, it probably won’t be by arguing that the machine you were operating technically wasn’t a vehicle. In most scenarios, this is not a good strategy.
A lot of attorneys tend to take this one for granted, but while is a crucial element. It’s not enough to show that someone is drunk now and that they were driving earlier. Intoxication has to be contemporaneous with operation.
The temporal element can be difficult to prove, so the State has written itself a cheat right into the Indiana Code: If law enforcement can obtain certified chemical test results within three hours of the alleged drunk driving, that’s enough to create a rebuttable presumption that operation overlapped with intoxication.
You can try to push back against this presumption, but if the State can show the test was properly administered within three hours of your allegedly intoxicated operation, that’s enough to prove the element of while.
Indiana defines the word intoxicated in a DUI / OVWI context as being under the influence of any substance other than:
so that there is an impaired condition of thought and action and the loss of normal control of an individual’s faculties. Intoxication can be shown through circumstantial evidence.
Police can also make a DUI / OVWI arrest when a chemical test shows an alcohol concentration equivalent to the legal limit of 0.08*—even if you don’t appear to have lost the normal control of your faculties. As a society, we’ve agreed that when the average adult has an ACE of 0.08 or greater, that person is legally intoxicated.
Therefore, if the State has a test result that shows you at 0.08 or above, it doesn’t need to offer circumstantial evidence like unsteady balance or disheveled clothing. The test results alone may be enough to prove both while and intoxicated—the final two elements of the crime.
So that’s a quick rundown of drunk driving law in Indiana, where DUI means OVWI, and OVWI means operating a vehicle while intoxicated. If you have any questions, call the Marc Lopez Law Firm at 317-632-3642 and remember—always plead the 5th!
* grams of ethanol per 100 milliliters of blood or 210 liters of breath