One Crime, Two Charges: Operating While Intoxicated

19225836 - a police officer holds the breath test machine for a suspect to blow into with a police car in the background

Most people charged with drunk driving are facing two charges: operating a vehicle while intoxicated and driving with a blood-alcohol concentration above the legal limit. Two charges for the same crime? Is this America?

The lead charge in 99% of drunk driving cases is “operating a vehicle while intoxicated,” which results when you show signs of mental and physical impairment, like unsteadiness, slurred speech, or red, watery eyes. This charge is not even alcohol-specific. By law, intoxication can result from alcohol, drugs (illegal or prescription), or any combination of the two. If DUI / OVWI is the only criminal charge filed against you, it likely means the arresting officer suspected you were impaired by something other than booze. This offense starts as a C misdemeanor with a maximum punishment of 60 days in jail. If, however, you add “endangerment” to the driving allegations, it jumps to an A misdemeanor, punishable by up to 365 days in jail. The more checkered your criminal history, the worse your sentence is likely to be.

The second charge in 99% of drunk driving cases is “operating with a blood alcohol concentration of .08 (or .15) or greater.” Prosecutors and fancy lawyers call this the “per se” charge. Basically, this means you drove while over the legal limit for intoxication, and it doesn’t matter whether you meant to or not. (See related article, How Many Drinks before I am .08?) In the 1930s, the American Medical Association recommended that the minimum threshold for intoxication be established at a BAC of .15. Indiana’s legal limit was .10 until 2001, when the bar was lowered to .08. The Federal Government wants it even lower, with the National Transportation Safety Board currently taking the position that “states should lower BAC levels to 0.05—or even lower.” The per se charge also starts as a C misdemeanor, and like all misdemeanors, the consequences have the potential to become much more serious, depending on the facts of the case.

The good news is that a conviction cannot be entered on both charges. Basically, even if a Judge or jury finds you guilty of both offenses, Indiana Courts say that the conviction is to be entered on the more serious charge (typically intoxicated driving, as explained above). So even if you’re charged with both of these crimes, you aren’t facing consecutive sentences. In other words, the State is probably going to throw the book at you as hard as it can, but it is legally obligated to stop just short of placing you in double jeopardy.

If you or someone you know is facing two charges for the same (alleged) mistake, call Attorney Marc Lopez at 317-632-3642 for a free consultation.