STARK LAW OFFICES, P.C.
For a Top Indiana DUI Attorney Anywhere In Indiana
Drunk driving offenses in Indiana are commonly referred to in a number of ways.
Although the legal
language for such offenses is Operating a Motor Vehicle While Intoxicated,
an Indiana DUI
Attorney will commonly refer to these offenses as dui, dwi, owi or drunk driving
offenses. These terms
have become more the standard language that people have come to associate with
drunk driving
offenses in Indiana.
Driving under the influence of alcohol is a criminal offense. As DUI lawyers
in Indiana, we
recognize the need to make one aware that such a criminal charge is more than
a mere traffic
infraction that can be paid by a simple fine. (On the Indiana DUI Lawyer link, you may review the Indiana DUI Code)
An Indiana DUI Attorney can see that with each passing year the penalties and
punishments for drunk
driving offenses are increasing throughout the State of Indiana.
We understand that such an offense may result in potential jail or imprisonment,
loss of driver's license, fines, and a variety of alternative punishments ranging
from work release
(working during the day, in jail by night) to house arrest with electronic monitoring.
In addition, we know to advise that although the courts might not enact
such punishment,
the Indiana Bureau of Motor Vehicles and/or your insurance company may use a
conviction or even
an arrest for such an offense as a basis to increase your insurance rates.
More recently, an Indiana DUI Attorney has had to fight the more widespread
imposition of ignition
interlock devices installed on automobiles and such contraptions as scram alcohol
monitoring
devices attached to the ankles of individuals accused of dui offenses, even before
a finding of guilt. As a result, your Indiana DUI Attorney must have a fundemenatal understanding of proper and effective Indiana Criminal Procedure in an effort to make sure that you or a loved one is legally protected.
Frequently asked questions of an Indiana DUI attorney:
What is a DUI?
Dui is standard language for the offense of Operating a Motor
vehicle While Intoxicated within the State of Indiana. We instruct
our clients that a person is guilty of Operating While Intoxicated in Indiana
if he or she drives or is in actual control over a vehicle while under
the influence of alcoholic beverages or any chemical or controlled substance
to the extent that his or her mental faculties are impaired and/or above
the legal limit of .08 BAC within the State of Indiana.
Does a car have to be moving to be guilty of Operating
While Intoxicated?
No. You can be arrested for Operating While Intoxicated even if
your car is not moving. If a driver has control over a
vehicle that is either running or can be proven circumstantially
to have reached a destination while in a state of intoxication, one can
be found guilty.
What do police officers look for when searching for drunk
drivers?
Most arrests occur at
night and on weekends. The following symptoms are some of the
indicators police officers look for as determined by guidelines of
the National Highway Safety Administration (NHTSA)
- Turning with a wide radius
- Straddling center of lane marker
- "Appearing to be drunk"
- Almost striking object or vehicle
- Weaving
- Driving on other than designated highway
- Swerving
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Drifting
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or oncoming traffic
- Signaling inconsistent with driving actions
- Slow response to traffic signals
- Stopping inappropriately
- Turning abruptly or illegally
- Accelerating or decelerating rapidly
- Headlights off
Interesting to DUI lawyers in Indiana is the fact that speeding has
not been identified by NHTSA as an impairment. However, be aware
of the common prosecution tactic to argue that excessive speed amounts to "risk
taking" suggestive of diminished judgment occasioned by alcohol
consumption.
If the officer asks you, "Have you been drinking" your answer
could be a significant factor in the officer's decision as to
whether to ultimately arrest you and prosecute you for drunk
driving. As an Indiana DUI Attorney office we believe that you should
respectfully decline such questioning in a polite and courteous
manner. We
recommend that a client refer further questioning of this nature
to his or her attention.
A police officer does have the right to inquiries that courts appear
to look upon as routine questions. For example, your name, what
is your address, what is your birth date, etc.
Once the questioning turns to the consumption of alcohol one
should probably request to confer with a DUI lawyer. The
officer will likely suggest that you have no right to a dui attorney
in Indiana at this stage in questioning but you
should continue to respectfully decline further questioning in
this area.
Do I have the right to speak to an Indiana DUI attorney
before taking a field sobriety test?
Your right to speak to a lawyer does not attach
until you are formally put under arrest or placed "in custody."
Field sobriety testing is considered "non testimonial" in nature.
As a result, such testing does not fall within Miranda and the right
to consult with an attorney before such testing may be
requested.
Should I refuse to
submit to field sobriety tests?
You are not legally required to take a field sobriety test.
Unlike a refusal to submit to chemical tests or face mandatory loss
of license, the experienced Indiana dui attorney would often agree
that it might not always be to one's detriment to respectfully
decline to submit to such testing under certain circumstances
and to explain the officer's conduct as well as your own within
a subsequent court proceeding.
What is the officer looking for during the initial
detention?
We counsel all clients as to the factors
that can lead to a drunk driving arrest in Indiana. Police officers
making dui arrests are often trained to note the following "symptoms
of intoxication" within their report:
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Odor of alcohol on breath
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer's questioning
- Staggering when exiting the vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative or argumentative attitude
- Soiled or disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
What happens if I refuse to submit to a chemical breath
test?
We would generally suggest that refusing such
tests is not a good idea. In Indiana, failure to submit to such a
test will result in a mandatory one year license suspension, even if
found not guilty of dui at trial. Unless, one is a habitual offender
who knows to go to trial fearing extensive imprisonment over a
mandatory loss of license for at least one year, an experienced
Indiana dui lawyer would likely state that the implications of a
refusal often outweigh the evidentiary benefits.
By accepting driving privileges the laws of most states have
determined that you have given your consent to submit to such
chemical test of the breath for the purpose of determining your BAC,
this is called implied consent. Therefore, with your name on an
Indiana drivers license you are in effect saying that if stopped for
investigation of drunk driving you will accept to take such a breath
test.
The officer never gave me a Miranda warning. Can I get my
case dismissed?
No. The officer is supposed to give a Miranda warning after one
is arrested. A police officer will often delay the arrest decision
in order to allow one to make numerous incriminating statements.
Only when and if one can prove that incriminating statements were
made after the arrest could such statements be suppressed.
Am Indiana DUI Attorney will always point out that a
suppressed statement does not equal dismissal as field sobriety
testing and chemical test results do not fall within the Miranda
warnings.
Of more consequence is
evidence that an officer did not properly read and advise a
suspected drunk driver of Indiana's "implied consent" law. That
is your legal obligation to take a chemical test and the consequences
of a refusal. If that is the case we may more
positively attack the nature of an alleged refusal and the course
of conduct of an arresting officer.
Potential defenses available to an Indiana DUI Lawyer:
The majority
can be broken down into the following areas:
- Driving. Intoxication is not enough. We must ensure
that the prosecution prove that one's client was actually
in legal operation of a vehicle when intoxicated.
- Probable cause. We will always
look for evidence to be suppressed if the officer did not have
probable cause to (a) stop (b) detain and (c) arrest. Sobriety
roadblocks present particularly complex issues.
- Miranda warnings. Incriminating statements need to be
suppressed if not given at the
appropriate time.
- Under the influence. The officer's observations and opinions
as to intoxication will always be carefully investigated by a
thorough Indiana DUI Attorney. It is imperative that your
lawyer be more trained in the National Highway Traffic
Safety Association manual on field sobriety testing than the
arresting officer. Your lawyer must know to attack
the officer's knowledge, training and experience. Further,
the unique circumstances of each case involving potential,
bias, pre disposed opinion of intoxication and contrary witness
statements and/or observations must be explored and properly
investigated.
- Blood alcohol concentration. (BAC). There exists a wide
range of problems associated with blood, breath and urine
testing. A good Indiana DUI attorney in will check the certifications
of breath test operators and equipment. Breath test operators
must be properly certified and recertified every two years.
Breath test equipment must be properly certified and recertified
every 180 days by the Indiana Department of Toxicology. Further,
your dui lawyer should know proper procedural safeguards
as to proper use of the machinery in administering a valid
test sample. In addition your attorney should always
investigate time place and manner of officer conduct in acquiring
such test readings. These issues should always be strictly
scrutinized by the lawyer in accord
with Indiana Department of Toxicology Regulations.
- Testing during the absorption phase. The breath or blood
test can prove unreliable if done while one is still actively
absorbing alcohol. Thus, an Indiana DUI Attorney knows to rapidly
move for the striking of breath test results taken prior to
being observed for twenty minutes or after three hours of
alleged driving while intoxicated.
- Use of Toxicologist. Where the situation warrants, retain qualified
toxicology experts to challenge the validity of breath test
results. For example, where bac levels are low enough to qualify,
your dui lawyer will demonstrate that the possibility
existed that one could have been below the legal limit of .08
when observed driving only for the level to rise above the
legal limit post observation.
FIELD
SOBRIETY TESTING IN INDIANA
History
Field sobriety tests have been around as long as dui laws have
been enforced. For years, Indiana dui attorneys fought applications
of field sobriety tests that varied from one law enforcement agency
to another. Field sobriety tests were limited only by the officer's
creative imagination. In the late 1970's the United States
Department of Transportation and National Highway Traffic safety
Association (NHTSA) funded for the first time research to evaluate
currently used physical coordination tests which were used to
determine the relationship between intoxication and driving
impairment, to develop more sensible tests which would provide more
reliable evidence of impairment, and to standardize the tests. The
researchers finally concluded that the three test battery which
included the Horizontal Gaze Nystagmus, Walk and Turn and One leg
stand were the most reliable of testing procedures. The next step
was to standardize these tests. Additional research was therefore
conducted to complete development and validation of the sobriety
test battery and to assess the battery's feasibility in the field,
as well as its effectiveness for estimating blood alcohol content of
subjects and facilitating the identification of drivers with blood
alcohol content above the legal limit.
Types of Field Sobriety Tests
Horizontal Gaze Nystagmus
Nystagmus is the involuntary jerking of the eye. It can be an
indication of intoxication. However, a trained Indiana DUI Attorney
knows that the occurance of nystagmus is not dependant upon the presence
of an intoxicant in the body. Substances that would not interfere
with driving ability can produce the nystagmus, and nystagmus may be congenital
or caused by structural or neurologic disease.
Examples of possible indicators of alcohol impairment emerging
from nystagmus tests include the inability to keep the head still,
noticeable swaying and the utterance of incriminating statements.
Defenses available to nystagmus:
Conditions that may interfere with a suspect's performance on the
nystagmus test include a suspect having an artificial eye, weak
vision in one eye, eye irritants such as wind and dust, visual
and other distractions such as rain, traffic lights, etc. can provide
further impediments. Some persons who
are not under the influence may have nystagmus and may also be
caused by certain pathological disorders such as brain tumors,
brain damage and some diseases of the inner ear.
Walk and Turn
This test is always fertile ground for attack by this Indiana DUI Attorney.
In this test, the subject assumes a heel to toe stance with the
subject's arms down to the side. The subject is to maintain this
position until the officer instructs the subject to begin walking.
Instructions given by the officer are read aloud. The subject is
to take 9 heel-to-toe steps along the line.The subject is to walk
the line in a series of small steps. While walking, the subject is to keep
his arms at his side, watch his feet at all times, and count his steps out.
Factors that may interfere with a suspect's performance of the
walk and turn test include wind and weather conditions; the suspect
being over the age of sixty; the suspect being fifty pounds or
more overweight; the footwear of the suspect; and highway traffic.
One Leg Stand
We have often entertained jurors through an
officer's inability to perform such a test sober and/or a general
incompetence as to properly applying such a test, The instructions
for this test are given to the subject while the subject stands
with his feet together, and arms down at his side until told to
start. The instructions which are supposed to be given to the subject
(with accompanying demonstration) are for the subject to stand
on one leg (either leg), holding out the other foot approximately
6 inches off the ground, foot pointed forward so the raised foot
is approximately parallel to the ground. While standing, the subject
may be instructed to maintain this position while the officer estimates
thirty seconds or the subject may be told to count out loud (one
thousand and one, one thousand and two, and so on). Either way,
the subject is to keep his arms at his sides at all times and watch
the raised foot. We will research conditions
which may impede a suspect's ability to perform this test including
a test surface which is not dry and level; the suspect being over
the age of sixty; the suspect being at least fifty pounds overweight;
footwear which impedes the performance of the test, such as heels;
and certain medical problems and disabilities.
Non Standardized Field Sobriety Tests
It is common for a top Indiana DUI Attorney to fight the application of many
other, non-standardized field sobriety tests which have been
approved for use by such organizations as International Association
of Chiefs of Police ("I.A.C.P.") in their "Improved Sobriety
Testing for Boating/Alcohol Enforcement" Student Manual and the U.S.
National Park Service. These tests include, but are not limited
to, the finger to nose test, the finger count test, the hand
pat test, the alphabet test, the reverse counting test, and the
coin pickup test. A good Indiana DUI attorney must strictly scrutinize
the manner in which such testing is conducted when effectively
defending such cases.
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