For those contending with dui arrests in Indiana after January 1 of this year, the most recent alterations to owi laws has presented many challenges for lawyers practicing in the realm of owi defense.
For the purpose of this posting, I will state a brief overview on how changes to the legislative code dealing with refusal license suspension relief can be impacted. In so doing, it is my hope to best educate as to potential solutions that may be able to salvage alternatives to otherwise limit a license suspension within such a circumstance.
As has often been suggested throughout other writings on this website, one of the frustrating elements of defense law for people to come to grips with in Indiana, or any state, is the reality that how state laws are interpreted and imposed can vary greatly depending upon the county jurisdiction overseeing the arrest in question.
This reality is never more the case than when centering our focus upon what can be done for people in Indiana who have been alleged to have refused submission to a breath test after January 1 of this year.
In Indiana, implied consent law mandates that if one does not submit to a properly recited request for a driver to submit to a chemical breath test during the course of an owi investigation, the individual in question will have his or her license suspension for one year.
This refusal suspension law has been and presently remains in effect in Indiana, unless the court overseeing the events within the dui prosecution is later to determine;
1.) that Implied Consent law was not properly recited to the individual. In such circumstances the court would vacate the refusal suspension possibility of one year. (Please keep in mind that the dui prosecution can nevertheless proceed with a potential license suspension upon conviction of 0 to 2 years. As a result, competent counsel must do all necessary to maximize all pre trial suspension credit under current law changes), or;
2.) the designated prosecutor in charge of the case is willing, and or compelled to “stipulate to no refusal” during the course of pre trial settlement negotiations. In such circumstances a mandatory license suspension of one year that does not begin until a case conviction is taken off the table allowing for options including no further license suspension or a suspension period less than the former one year mandated by law.
In the majority of cases handled throughout Indiana, refusal suspensions of one year can therefore, in effect, be dealt with through negotiation so as to eliminate the draconian possibilities of a one year suspension even for a first offense under the dictates of present implied consent laws.
However, in some counties of Indiana, prosecutorial policies have unfortunately not been as reasonable in regard to a willingness to negotiate the dismissals of refusal allegations. Although on many occasions such policies can be altered, in circumstances where they could not, a vitally important provision contained within former state law prior to January 1 would nevertheless allow for an attorney’s ability to seek refusal termination.
Under the former “best interests of society provision” within the former Indiana legislative code, in the know attorneys were permitted to seek judicial termination of a refusal suspension irrespective of a prosecutor’s position on the issue, or a judicial finding that a refusal committed by the aggrieved individual was knowingly proven as a matter of law.
As a result, on many valuable occasions over the years I have been formerly in position to demonstrate the need for driving privileges to be restored prior to one year to a judge under the former best interest of society provision.
As is often the case following each legislative session within Indiana, alterations in the law, often by non lawyers, causes a negative ripple effect of unintended consequences within court jurisdictions that strictly adhere to the literal wording of the new laws as opposed to the spirit behind them.
Such is the case presently in regard to the best interest of society provision of the former law that has been omitted from inclusion within the most recent legislative enactments which have begun January 1.
Whether this omission was intentional or an oversight is inconsequential to those aggrieved individuals who may now be compelled to suffer a mandatory one year license suspension for a first offense where a refusal has been proven.
Strategically this reality has given county prosecutors increased leverage within such refusal cases. Whereas former law allowed a judge to become the final say in cases where a designated prosecutor would not relent on the imposition of a one year refusal suspension, those judges who literally interpret omissions within the present statutes as to the best interest of society provision will no longer entertain such relief.
While it is my strong hope that such an omission will be remedied during the course of the next legislative session, for the time being, results will vary as to available options within refusal cases depending upon the county jurisdiction, and/or the judicial interpretation of law of a given jurist.
In the most restrictive of courtrooms in this area I anticipate participating within far more refusal challenge hearings in the event of no pre trial agreement being forthcoming to vacate such a refusal suspension. Further, depending upon circumstance, it may be a procedural strategy to attempt to negotiate a longer license suspension (ex. 120 days) in return for a prosecutorial agreement to vacate a refusal suspension within counties not otherwise inclined to allow for a best interest of society argument before a judge at the present time.
As events in this area unfold, it is my hope to be able to present updated information that will provide better guidance to jurists statewide as to a continued allowance to enable individuals to seek relief in vacating refusal suspensions within counties where prosecutorial policies prevent such relief.