Recently I was once again reminded as to the potential entanglements within the Indiana Bureau of Motor Vehicles that can often impede reinstatement and/or apply proper credit time calculation for those afflicted with pre conviction dui license suspensions.
Notably within the past year, especially within certain counties, drunk driving lawyers in Indiana have had to contend with sorting out that proper “retroactive ” court imposed suspension dates, never entered by the Indiana BMV, are later honored.
Allow me to best explain in plain english for the non lawyer reader. As explained in more detail within the license suspension procedure section, where an initial hearing judge has determined that there is probable cause to believe that a drunk driving defendant has either failed a chemical test for intoxication in registering at or above .08 bac or have been found to have refused to submit to a chemical test, a court order will be pronounced immeditaely suspending the individual’s license suspension from that point forward during the pendency of the case.
The mechanism behind this suspension procedure can become problematic if the Bureau of Motor Vehicles in Indiana for whatever reason claims to never have received the paperwork from the initial hearing judge recommending the suspension of the individual’s driving priviliges prior to a conviction imposed at a later date.
Ethically, many an attorney practicing within the realm of Indiana dui defense will instruct the client not to be driving from the initial hearing forward in reliance that the judge’s recommendation of suspension will be properly entered and given full force and effect by the Indiana BMV.
However, on some occasions trouble may brew when following a conviction the BMV informs the individual that despite a judge’s recommendation of suspension declared within the client’s initial hearing, the bmv will not in fact give credit relating back to the initial hearing for the the time the individual was not driving in reliance on the court’s admonision. I know many a Greenwood DUI Lawyer has had to deal with this issue within the past year.
This is regrettably the case when the bureau, whether through court error in sending the recommended pre conviction suspension or bureau error in failing to process the judicial recommendation of license suspension for whatever reason (typically they will both blame the other) has never actually suspended the defendant’s driver’s license until conviction.
Should this be the case do not just accept the bureau’s attempt to turn you away without a fight. Court intervention should immediately be requested to correct any erroneous order that could be causing a problem. Critical is the court’s order in such cases to make clear that the retroactive suspension is dated back to the specific date the initial hearing magistrate instructed as to the finding of probable cause for the pre conviction license suspension.
To attempt to limit such circumstances entirely, if charged with owi in Indiana, it is always best to inform your attorney before a case has been settled if you never had received paperwork from the Indiana BMV informing of the license suspension soon after the former Intitial hearing date. If so, the attorney can attempt to take pro active steps to alerting the sentencing judge as to the situation.
In so doing, it is typical to swear the client under oath that she has not in fact been operating a motor vehicle at all during the case proceedings. As such a record can be made to allow for the prosecutor and presiding judge to authorize court paperwork directing that retroactive credit be given despite the fact that the bureau never actuall suspended the license for whatever reason.