Most people charged with drunk driving are facing two separate 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? Sometimes I’m not sure.
The lead charge in 99% of drunk driving cases is operating a vehicle while intoxicated (DUI / OVWI), which results when you show signs of mental and physical impairment—like unsteadiness, slurred speech, or watery eyes. This charge isn’t even alcohol-specific. Under Indiana law, you can be “intoxicated” by alcohol, drugs, or “any other substance” that’s not food, tobacco, or a dietary supplement.
This offense starts as a Class C misdemeanor with a maximum of 60 days in jail. If the allegations refer to “endangerment,” however, the charge becomes an A misdemeanor, punishable by up to one year in jail. The more checkered your criminal history, the worse your sentence is likely to be. If the general 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.
The secondary charge in 99% of drunk driving cases is what prosecutors and fancy lawyers call the per se count—operating with a blood alcohol concentration (BAC) of .08 or greater (click here to learn more about how BAC is calculated). 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 formally 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, but it has the potential to become much more serious, depending on the facts of the case. Aggravating factors can include an accident resulting in injury, prior DUI / OVWI convictions, a BAC of greater than .15, and the presence of minors in the vehicle.
The good news is that you can’t be convicted of both charges. Even if a Judge or jury finds you guilty of both offenses, Indiana Courts insist that conviction is to be entered only on the more serious count. The Fifth Amendment prohibits what’s known as double jeopardy. In other words, the State is probably going to throw the book at you as hard as it can, but it’s constitutionally obligated to stop just short of punishing you twice for the same crime.
As a defense lawyer who regularly takes DUI / OVWI cases to trial, Attorney Marc Lopez has found it much easier to fight the general intoxication charge than the per se count. Why? Because the State proves the per se count with chemical analysis, while general intoxication must be demonstrated through observable and reportable human behavior. An officer may characterize you as intoxicated, but you can counter that with your own witnesses who insist otherwise.
The Marc Lopez Law Firm has won trials using this very strategy. When it comes to a certified chemical test, however, there’s no common understanding of the science behind it. As a result, unless you’re an expert, there’s no arguing with the number—it is what it is. Your only options are to have the test invalidated or to live with the result.
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!
