A troubling issue when it comes to DUI procedure for many drivers centers around the complicated issues related to the suspension of a motorists’ license. Most people conditioned with the concept of “innocent until proven guilty,” often have a hard time accepting the fact that their license can be suspended in Indiana following a dui arrest despite the fact that they have not been found guilty. This issue is not limited to dui procedure, as most states have various forms of license suspensions before a finding of guilt has been established.
When discussing an Indiana OWI one must be aware that there are two separate forms of drivers license suspensions following an owi arrest;
1.) an “Administrative” License Suspension and 2.) a Court Ordered License Suspension.
A fundamental understanding of the differences between the two forms of suspensions can go a long way toward explaining how and why a license can be suspended for different periods and at different times. Whether a citizen or an attorney not experienced in OWI procedure, failure to understand the potential differing suspension ramifications can often lead to crippling consequences for one not advised properly.
Following a dui arrest an Administrative License Suspension is imposed not by the criminal court where the case will be heard, but by the Indiana Bureau of Motor Vehicles (BMV). What makes the situation all the more confusing is that although it is the bureau suspending the license, it is usually the court who instructs of the suspension at one’s Initial Hearing in court. This quite reasonably makes the individual accused of a DUI believe that somehow the criminal court is handing down a punishment against them after a not guilty plea has been entered for them at such a hearing on the Defendant’s behalf.
What actually is taking place within the Initial Hearing of a DUI case in Indiana is that the court is pronouncing a finding of “Probable Cause” to determine that the Defendant “More likely than not” failed the certified breath test offered to the Defendant when registering at or above .08 BAC. In accordance with most Bureau or Department of Motor Vehicle Administrative rules throughout the nation, an alleged failure to test below the national legal limit of .08 BAC will result in an automatic drivers license suspension. In the State of Indiana this administrative license suspension is for a period of one hundred eighty (180) days or until the criminal case is resolved, and is most often served while the dui or owi charges are pending in Indiana.
For example, let’s say probable cause that one tested at or above .08 was determined at an Initial Hearing, January 1. On or about January 10 let’s presume notice by mail is received informing of a one hundred eighty day license suspension that took effect on the date probable cause was established at the Initial Hearing. Basically, this means that if a ninety day suspension were to be imposed following a first offense conviction, the one hundred eighty day administrative suspension would be cut short, with the ninety day suspension “retroactively” begun on January 1. If the case were to be resolved on March 1, in effect 60 days of the 90 day suspension would already be served.
However, it is always so important to keep in mind that despite a court order as to the reinstatement eligibility for a license, a driver’s license will not be re issued until the court order has been received and processed by the Bureau of Motor Vehicles (sometimes up to two weeks or more from the date the order is issued) and that proper “sr-22” (high risk) insurance has been obtained and received by the bureau.
Several years back in order for all individual states to secure needed federal funding for transportation and infrastructure projects within their respective states, all states wanting federal funds were ordered by the federal government to lower the legal limit for alcohol intoxication to .08 BAC or lose such relied upon tax dollars. In short order all states eventually fell into line in adapting a uniform national standard of .08 BAC as the legal threshold to determine a “presumption” that someone had operated a motor vehicle while in a state of intoxication.
While this presumption is not enough as a matter of law to find someone guilty “beyond a reasonable doubt” to sustain a criminal conviction for dui or owi in Indiana, this presumption is enough to suspend a driver’s license in Indiana until such time as guilt or innocence is established in a court of law within a window of one hundred eighty (180) days. The Indiana Bureau of Motor Vehicles like most state license departments is considered an “administrative” agency of the state. Thus, the term “administrative” license suspension. What is happening at the Initial Hearing if listening closely is that the judge is finding probable cause to determine the failure of a certified breath test, such that a court finding is sent to the Indiana BMV in order to “recommend” the administrative suspension to be imposed by the Indiana BMV from that time forward.
In Indiana, as in states throughout the nation, one is in effect agreeing that in return for the “privilege” (not the right) to operate a motor vehicle in the state of Indiana, a driver will submit to a breath test for intoxication if asked by a law enforcement officer. Refusal to submit to such a test will result in a mandatory administrative license suspension from 1-2 years depending upon the criminal history of the defendant and on top of whatever court ordered license suspension is imposed should a defendant be found guilty.
Even if found not guilty of the dui offense alleged, the mere failure to submit to a breath test will result in a 1-2 year administrative suspension in Indiana if probable cause is established “by a preponderance of evidence” that the defendant refused to take the breath test. Again, this is possible due to the fact that a refusal suspension is an administrative suspension and not court ordered.
Although the judge would be the trier of fact as to whether a defendant refused the breath test, it is the bmv who carries out this additional license suspension. In the same manner that an administrative license suspension for refusal can be imposed separate and above the court ordered ability to suspend a drivers license for up to two years, the bureau will suspend the drivers license for one hundred eighty days until further notice of the court merely for testing at or above a BAC of .08 before guilt has been established for the dui charged.
The issue of when the actual drivers license suspension for a dui in Indiana goes into effect has often been yet another contentious issue for both defendants, lawyers and judges alike throughout Indiana. Technically, since the administrative license suspension is just that, many lawyers have taken the position that unless and until the bureau has heeded the court’s recommendation to suspend an Indiana drivers license based upon an alleged failed breath test, an individual can operate a vehicle legally until such time as notice has been received by the Defendant by way of mail. However, this advice is risky and all too often puts the client in legal jeopardy should he or she be stopped driving upon such a recommendation.
This risk exists based upon the fact that many Indiana DUI judges take the position that despite the Indiana BMV’s ultimate authority to issue an administrative license suspension while a case is pending, the dui court’s ability to order credit for any time served toward any court license suspension upon a later finding of guilt is premised upon the Defendant not driving a motor vehicle from the time that probable cause for the failure of the BAC test has been established. Further, one must always recognize that the Indiana Bureau of Motor Vehicles, not unlike other government agencies, is a huge bureaucracy. It is not uncommon for bureau employees to process an order of suspension of one’s driver’s license only to send the individual notice by mail at a time of their convenience. Any overlap between the time that the bureau processes an order of suspension and the time within which the person actually receives notice by mail of the administrative suspension from the bureau can be fraught with danger for a person improperly advised that they can drive unless and until the notice has been received.
All too often an dui lawyer must fulfill his or her legal obligation to instruct a client following probable cause being established that they are not to be driving a motor vehicle until further notice. Quite reasonably, such an individual has a reasonable belief that he or she will be entitled to credit time for this suspension being served during the case proceedings. While in most cases this is so, it has not been uncommon for an attorney to have to conduct a hearing before a sentencing judge to order credit from the Initial Hearing forward where for whatever reason the Indiana BMV had not, in fact, ever suspended the drivers license. In such troubling circumstances even where a judge will order “retroactive” (dated back to a finding of probable cause) credit toward the court ordered suspension, it will be the Indiana BMV who can sometimes impose a power play as to whether they will in fact grant the judge’s order for retroactive credit where the Bureau never actually suspended the driver’s license.