Lowering the Legal Limit

Calls to lower the drunk driving limit from .08 to .05 are all over the news. But is this really necessary? Not in Indiana. Hoosier Prosecutors already have the option to charge you with drunk driving if you have a .05 blood alcohol concentration (BAC).

Indiana actually has two legal limits for intoxication. The first is straightforward: If you blow a .08 or greater at the station, then the officer has no discretion and must arrest you for DUI / OVWI. The second legal limit is a bit more complicated.

The officer does have discretion if you blow as high as .05 (but under .08) at the police station. In this case, the officer can consider a number of factors when deciding whether to arrest you for DUI / OVWI, including: 

1) your performance of field sobriety tests; 2) your demeanor while interacting with police; and 3) the presence or absence of a vehicular collision.

If after consulting the experience and wisdom of his or her law enforcement experience and training, the officer decides not to arrest you, you might think that’s the end of the story. You’d be wrong. A .05–.07 stop that does not produce an arrest still results in a report that’s typically filed with the Prosecutor’s Office. The Prosecutor then makes the final decision on whether to charge you with DUI / OVWI, depending on many of the same considerations that the police used when evaluating you.

While it’s a separate crime to blow .08 or above, the big difference between doing that and blowing .05–.07 is how the evidence will be interpreted by the Judge or jury.

When you blow .08 or more, and multiple other conditions are met, the Judge or jury is entitled to presume that you were operating with a BAC of at least .08, even if the chemical test was provided as many as three hours after the last moment you drove. In this situation, the law explicitly allows the Judge or jury to presume intoxication. This presumption is rebuttable, but it’s not easy to overcome.

There’s no such statutory presumption when you have a BAC of .05–.07. The Judge or jury is allowed to consider BAC results in this range as “relevant evidence of intoxication”—no more, no less. The Prosecutor can still admit the .05–.07 BAC results into evidence, and the Judge or jury gets to decide if this proves beyond a reasonable doubt that your were intoxicated while operating a vehicle.

Our State and Federal legislatures have so many pressing matters to address: an opioid crisis of epic proportions, high-profile immigration issues, and a State Department of Child Services that needs a serious overhaul, just to name a few. There’s no need to manufacture a drunk driving panic by forcing states and prosecutors to do what they already have the discretion to do when the situation is appropriate. This is a public relations solution to a non-existent problem, and there are better ways for us to allocate our time and resources.

Attorney Marc Lopez represents people accused of drunk driving across central Indiana. If you would like to talk with Attorney Marc Lopez give him a call at (317) 632-3642. Or send him an email.

Other topics:

What is the difference between a DUI and OVWI? Hint – there is no difference.

What is the Habitual Vehicular Substance Offender? Hint – it is bad.

Is Attorney Marc Lopez a Specialist in DUI / OVWI Law? Short answer – Indiana doesn’t allow an attorney to call themselves a “specialist” in DUI / OVWI Law.