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Many people arrested for DUI / OVWI end up facing two charges: 

  • operating a vehicle with a specific alcohol content in the body; and 
  • operating a vehicle while intoxicated.

Two charges for the same crime? Is this America?

The lead charge in most drunk driving cases is operating a vehicle while intoxicated, or OVWI. Police can charge this when they observe signs of impairment in a driver, including unsteadiness, slurred speech, and red, watery eyes.

Its best to remain cooperative and comply with whatever tests the officer asks you to take

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 OVWI is the only criminal charge filed against you, it likely means the arresting officer suspected you were impaired by something other than alcohol.

This offense starts as a Class C misdemeanor, which carries a maximum penalty of 60 days in jail and a $500 fine. If the State adds endangerment to the criminal allegations, the charge jumps to a Class A misdemeanor, which carries a maximum penalty of 365 days in jail and a $5,000 fine. The more checkered your criminal history, the worse your sentence is likely to be.

The second charge in most drunk driving cases is operating a vehicle with an alcohol concentration equivalent to at least .08.* Prosecutors and fancy lawyers call this the per se charge. This means you drove while over the legal limit, regardless of whether you were impaired or not.

In the 1930s, the American Medical Association recommended that the minimum threshold for intoxication be established at a level of .15. Indiana’s legal limit remained at .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 minimum alcohol concentration levels “to 0.05—or even lower.” The per se charge also starts as a Class C misdemeanor. 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 can’t be entered on both charges. Even if you’re found guilty of OVWI and the per se charge, only the more serious charge (typically OVWI, as explained above) is entered as a conviction.

You’re not facing consecutive sentences, and no matter how much the State wants to make an example out of you, it’s not allowed to place you in double jeopardy. If you or someone you know is facing two charges for the same (alleged) mistake, call the Marc Lopez Law Firm at 317-632-3642, and remember—always plead the 5th!

*This measurement refers to the number of grams of ethanol per 100 milliliters of blood or per 210 liters of breath.