If you’ve read our blog on the elements of DUI / OVWI, you know that in order to be convicted in Indiana, the State must prove that you:

  • operated
  • a vehicle
  • while
  • intoxicated

Of these four essential elements, one is objectively the most difficult to prove: while.

In any given DUI / OVWI prosecution, the State may have witnesses who observed erratic driving, and it may have witnesses who can confirm intoxication; it’s unlikely that the State has someone who can truthfully testify that she saw you operating a vehicle at the same time she knew you to be intoxicated.

In many cases, in order to prove the charges, the State has to make some assumptions. When an assumption is codified and grounded in probability, it’s transformed into a statutory presumption, which is a very powerful tool.

What the State May Presume (According to Statute)

In the context of DUI / OVWI, the statutory presumption refers to the easiest and most air-tight way for the State to make its case. According to the statutory scheme, the State is required to show two specific things; if it can do this, it’s entitled to rely on the statutory presumption at trial.

This is a game-changer, because the statutory presumption is that you (the defendant) operated a vehicle while intoxicated. It literally turns the presumption of your innocence into the presumption of your guilt.

How It Works

When you’re being investigated for DUI / OVWI, there are a couple of reasons the State always wants to get a certified chemical test. For one thing, the portable breath test that police administer at the scene is merely a guide—the results aren’t admissible at trial.

If the State wants to be able to prove intoxication using numbers and chemistry, it’s obligated to go step-by-step through a process laid out in the Indiana Administrative Code and obtain a certified sample of your blood or breath. Even more importantly, the certified chemical test is the key to the State being able to access the statutory presumption.

According to Indiana law, the minimum threshold for per se alcoholic intoxication is 0.08., so a test result that’s less than that amount won’t do the State much good. Also according to Indiana law, a certified chemical test must be performed within three hours of your alleged operation—not within three hours of when the police began their investigation.

If the State obtains a result of 0.08 or greater within the three-hour window—this is when the statutory presumption kicks in. The reason this presumption is so powerful is that it has the effect of establishing all four elements of DUI / OVWI, including while.

As long as the certified chemical test (1) was administered within the three-hour window; and (2) produced a result of 0.08 or greater, the State has done enough to convict you of DUI / OVWI. The statutory presumption is still rebuttable, but the fact remains that the burden is now on you to disprove the State’s theory of the case. With this kind of power at their fingertips, it’s no wonder that some prosecutors end up taking it for granted.

are at least a couple of ways to misunderstand the statutory presumption:

How It Doesn’t Work

Let’s say the police discover you at 10:00 p.m., asleep in your vehicle, which is pulled over to the side of the road. They suspect intoxication but have no evidence as to when you might have last operated. They obtain a certified chemical test result by 11:30 p.m. In this case, the State has not done enough to successfully invoke the statutory presumption.

The State has a three-hour window to obtain certified chemical test results, but that window doesn’t open when police begin their investigation—it opens at the last moment of your operation. If the State has no idea when you might have operated, it has no way of determining when the three-hour window closes—or if it’s even still open at all.

When the State doesn’t have an alleged time of operation, it’s forced to work backwards through conjecture and inference. In this example, the State has administered the certified chemical test by 11:30 p.m. In order for the statutory presumption to apply, the State must offer some evidence showing that you had been operating at 8:30 p.m. or later.

If the State can’t show a time of operation, the test results remain admissible, but the statutory presumption will not apply, and the State will have to find another way to prove the overlap of operation and intoxication. This can be accomplished through evidence of vehicle collisions, impaired driving, or traffic infractions.

How It Shouldn’t Work

Let’s say you see a police officer early in the evening, around 8:00 p.m. You’re driving, he’s driving—you both wave hello. By 10:30 p.m., the same officer comes upon you again, but this time you’re in your car, parked in a parking lot, passed out drunk.

If the officer can obtain certified chemical test results by 11:00 p.m., this might look like an open-and-shut case: The defendant was operating at 8:00 p.m., the Prosecutor will argue, his certified chemical test results were obtained by 11:00 p.m., and he was clearly intoxicated. This establishes the presumption that he was operating a vehicle while intoxicated.

The State will be correct on all of these points, and if you were indeed drunk at 8:00 p.m., it may well have you painted into a corner. The statutory presumption, however, is rebuttable.

In this scenario, your only way out is the truth—and this will almost certainly mean taking the stand and testifying in your own defense. You’ll have to set the record straight on the order of operations—first I was driving around and waving to police, then I pulled over and bought a quart of tequila, then I drank the tequila, and then you found me in a deep sleep.

Without your (or another eyewitness’) direct testimony to refute it, the statutory presumption would likely remain in place, and this would result in a miscarriage of justice. Operating a vehicle and then becoming intoxicated is not a crime, and the State shouldn’t be allowed to convict you for conduct that hasn’t been criminalized.

Closing Thoughts

In criminal prosecutions, the deck is always stacked in favor of the State. In DUI / OVWI cases, this frequently leads to some sort of conviction. Sometimes, though, it just leads to an over-confident prosecutor who makes an inferential leap before looking at the actual facts.

This is exactly the sort of situation where you need an experienced criminal defense attorney. If you or someone you love is in trouble, give us a call at 317-632-3642, and remember—always plead the 5th!

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