Stark Law Offices, P.C. INDIANA DUI ATTORNEYS

Drunk driving offenses in Indiana are commonly referred to in a number of ways. Although the legal language for such offenses in Indiana is Operating a Motor Vehicle While Intoxicated, Indiana dui attorneys commonly refer to these offenses as Indiana dui or drunk driving offenses. These terms have become more the standard language that people have come to associate with drunk driving offenses in Indiana.

In Indiana, driving under the influence of alcohol is a criminal offense. As Indiana DUI attorneys, 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.

Indiana DUI Attorneys see that with each passing year the penalties and punishments for drunk driving offenses are increasing throughout the State of Indiana.

An Indiana dui lawyer understands 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, as Indiana DUI attorneys 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, Indiana DUI attorneys have 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.

Frequently asked questions of an Indiana DUI lawyer:

What is a DUI?

Dui is standard language for the offense of Operating a Motor vehicle While Intoxicated within the State of Indiana. As Indiana DUI attorneys 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 in Indiana 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?

Experienced Indiana DUI Attorneys know that 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)

1. Turning with a wide radius
2. Straddling center of lane marker
3. "Appearing to be drunk"
4. Almost striking object or vehicle
5. Weaving
6. Driving on other than designated highway
7. Swerving
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or oncoming traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off

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 Indiana DUI Attorneys we believe that you should respectfully decline such questioning in a polite and courteous manner. As a result, a knowledgeable Indiana dui lawyer would often suggest that a client refer further questioning of this nature to his or her attention.

However, as Indiana DUI attorneys we would advise you that 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 an Indiana DUI lawyer. The officer will likely suggest that you have no right to a dui attorney in Indiana at this stage in questioning. At this point, most Indiana dui attorneys would likely agree that you should continue to respectfully decline further questioning in this area.

Do I have the right to speak to an Indiana DUI lawyer before taking a field sobriety test?

Your right to speak to an Indiana DUI 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 Indiana dui lawyer before such testing may be requested.

Would Indiana DUI Attorneys suggest that 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 lawyer 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?

As Indiana DUI attorneys 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?

Indiana DUI Attorneys 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. From a practical standpoint, Indiana DUI Attorneys know that 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.

However, as Indiana DUI attorneys we 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 to a well trained Indiana DUI lawyer 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. It is in this area that Indiana DUI attorneys 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:

There are many potential defenses available to Indiana DUI Attorneys. The majority can be broken down into the following areas:

• Driving. Intoxication is not enough. An effective Indiana dui lawyer must ensure that the prosecution prove that one's client was actually in legal operation of a vehicle when intoxicated.
• Probable cause. Capable Indiana DUI attorneys 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 by your Indiana dui lawyer 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 lawyer. It is imperative that your Indiana dui lawyer be more trained in the National Highway Traffic Safety Association manual on field sobriety testing than the arresting officer. The Indiana dui 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. Indiana DUI attorneys know to check the certifications of breath test operators and equipment. In Indiana, 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 Indiana dui lawyer should know proper procedural safeguards as to proper use of the machinery in administering a valid test sample. In addition Indiana dui attorneys should always investigate time place and manner of officer conduct in acquiring such test readings. These issues should always be strictly scrutinized by the experienced Indiana DUI 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, Indiana DUI Attorneys know 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, Indiana DUI Attorneys know to retain qualified toxicology experts to challenge the validity of breath test results. For example, where bac levels are low enough to qualify, the effective Indiana 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 lawyer 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 the Indiana dui lawyer as 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. Indiana dui attorneys know that 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 on the part of an effective Indiana dui lawyer. 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

An Indiana dui lawyer has 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. Indiana dui attorneys need to 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

Indiana dui attorneys know 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. The Indiana dui lawyer must strictly scrutinize the manner in which such testing is conducted when effectively defending such cases.

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