Indiana classifies the first violation of operating a motor vehicle (including a motorboat) while intoxicated (OVWI or OWI) as a misdemeanor with penalties varying depending on the specific class of misdemeanor. A second or subsequent violation within five years of a prior conviction is classified as a Class D felony with enhanced penalties. The offense is raised to a Class C felony if the prior conviction(s) involved an accident that caused either death or serious bodily injury.
Under section 9-30-5-10 of Indiana's code, a person charged with a DUI who has a previous conviction of operating a motor vehiclewhile intoxicated at least five years prior to the current violation may have his or her license revoked for at least 90 days but not more than two years. If the prior conviction occurred more than five years but less than 10 years, the court may recommend a revocation period of at least 180 days but not more than two years.
At the completion of the minimum period, the court may grant the violator probationary driving privileges for a period of time that is equal to the length of the stay.
Any violation during this probationary period commits a Class C infraction and in addition to other penalties, the driver may have his or her driving privileges suspended for a period of not more than one year.
If the driver has a previous DUI conviction, the court may impose a sentence of at least 10 days imprisonment or alternatively, at least 350 hours of community restitution or service. Additionally, the court may order that the driver receive an drug and alcohol assessment as well as participate and successfully complete an alcohol or drug abuse treatment program.
If the person has two previous convictions within 10 years, any sentence imposed may not be suspended. Also the court may require the driver to serve a term of imprisonment at whatever time or intervals (consecutive or intermittent) that the court determines as long as the sentence provides that:
- at 48 hours of the sentence must be served consecutively; and
- that the whole sentence must be served within 6 months after the sentencing date.
The court considers a prior conviction if it occurred within five years of the current violation. In this case, the court will set penalties for a Class D felony as opposed to a Class C misdemeanor for a first time violation. If the previous conviction within five years involved a death or bodily injury, then the current offense is classified as a Class C felony.
Felony vs. Misdemeanor in Indiana
A DUI misdemeanor for a first-time offense incurs jail time minimum of only five days or the alternative of 180 hours of community service. However, a prior conviction makes the current offense a Class D violation raising jail time to a minimum of 10 days or the alternative of 360 hours of community service.
In the case of a felony or a misdemeanor, the court may issue an order of restitution to any victim as well as restitution to a fund for medical services. A fine for restitution cannot exceed $1,000.
A defendant charged with operating a motor vehicle with levels of a controlled substance in his or her system at the time of the offense may assert a defense that the controlled substance was consumed per the directions of a valid prescription or practitioner's order.
Faulty equipment may also be a defense if the defendant believes that the test results are not correct.
In most cases, a sentence imposed under this section cannot be suspended.
Talk with an Attorney
If you have been charged with a second DUI offense in Indiana, you face mandatory jail time if convicted. The court may also mandate that you do community service and participate in a drug treatment program. Talk with an experienced attorney to defend against the charges or consider mitigating factors to reduce the charges.