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Frequently Asked Questions about DUI in Indiana

When you can be arrested for DUI in Indiana?

Generally, Indiana police officers may make an arrest for a misdemeanor only when they have a warrant for arrest or when the misdemeanor is committed within the officer’s presence. This second case of committing the misdemeanor within the officer’s presence can mean the officer seeing the violation with one’s eyes, hearing the violation (as in the case of public obscenity) or smelling the violation (as in the case of smoking marijuana). The arresting officer must have probable cause to believe that the driver has committed a misdemeanor or is in the process of committing a misdemeanor.

While an officer need only have a reasonable suspicion to investigate a traffic violation or any other supposed crime, that suspicion must turn into full probable cause prior to the officer exercising any authority to arrest the motorist. Under the old Traffic Code, a police officer could only make an arrest for DUI in Indiana if the DUI was coupled with an accident. Thus, the driver would have had to crash his vehicle into another car, a stationary object or another person in order for the police to be permitted to arrest the driver. Under current Indiana DUI law, no accident is needed to arrest the driver for driving under the influence.   A police officer may arrest a driver for DUI on the strength of the officer having probable cause to believe that the driver was operating the motor vehicle in violation of the state’s DUI laws. In the case of a DUI, a motorist’s failure of a Field Sobriety Test or chemical test, or his refusal to submit to a chemical test is sufficient probable cause for arrest.

Can I receive a DUI for being on prescription drugs?

Similar to the prohibition on driving under the influence of alcohol, likewise, Indiana law prohibits a motorist from driving under the influence of controlled substances.  Unlike the legal BAC limits in which evidence that the driver’s BAC level equaled or exceeded the limit is prima facie evidence of intoxication, evidence of prohibited substances in a motorist’s body fluids, is not conclusive of the motorist’s intoxication. The prosecution must prove that the driver was impaired by the presence of the substances. A valid prescription is a defense to a charge of the driving under the influence of prohibited substances.

Can I be stopped and arrested for DWI even if the vehicle was not moving?

The question of whether or not a motorist may be arrested for driving while intoxicated or driving under the influence even though the vehicle is not moving depends upon the circumstances of the arrest. The DWI statute requires that the motorist “operate” the motor vehicle while intoxicated.  Thus, whether or not the driver can be arrested for DWI while the vehicle is stopped and not moving depends on the definition of operate.

In defining the operation of a vehicle, Indiana courts have looked to the intent of the driver.  If the driver appeared to have driven, or was intending to drive, a court is like to find that the driver operated the motor vehicle.  Several cases involving intoxicated individuals that have been discovered by the police have been decided in Indiana.  The facts of these cases are largely the same.  The investigating police officer discovers the intoxicated driver asleep behind the wheel of the vehicle with the motor running. These cases have turned on the apparent of the driver. In cases where the driver was at an intersection, on the side of the road or even in a snowbank, the courts found that the driver had demonstrated an intent to drive. However, in one case where the driver was found in his car a parking lot near the bar he had just left, the court found that the driver’s intent was not certain beyond any reasonable doubt.  The court noted that the driver could have been sitting in his car, trying to warm up as the effects of his intoxication wore off.  Thus, if a motorist is arrested in the parking lot of a bar they had just patronized, having been found behind the wheel of the car but not moving, there is like to be a conviction. Indiana drivers can be arrested for DWI though they were not actually driving when approached by the police.

Do I have the right to talk to an attorney before I give a sample?

A motorist does not have a right to talk to an attorney before giving a sample.

Do I have to give a blood or urine sample?

A motorist must submit to any chemical test (including blood and urine) that is offered by the investigating officer.  Refusal to submit is a violation of the implied consent laws.

Do I have to submit to a field sobriety test?

Unlike chemical intoxication testing, there is no requirement that a stopped motorist submit to a field sobriety test. Furthermore, the implied consent laws do not apply to field sobriety tests. However, it is very likely that once an officer has asked a driver to perform a field sobriety, he/she has already determined to arrest the driver. Thus, even if the driver refuses the field sobriety test, there is no guarantee that the driver will not be arrested.

What are the open container laws in Indiana?

Similar to the offense of driving under the influence, Indiana law criminally prohibits the possession of an open container of alcohol on a public highway. A person possess in open container of alcohol within the meaning of the statute if, while operating the vehicle or while the vehicle is in the right-of-way on a public highway, the container is located in the passenger compartment and has: (1) been opened, (2) had some of the contents removed or (3) has had its seal broken. The violation of the open container law is a Class C infraction. A violation of the open container law is not considered a moving violation and points are not assessed against a driver’s license.

It is also illegal for a driver to knowingly consume an alcoholic beverage while driving. A driver that knowingly consumes an alcoholic beverage while operating a motor vehicle on a public highway commits a Class B infraction.


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