WHY IS MY SECOND DRUNK DRIVING OFFENSE CHARGED AS A FELONY?

If you have previously been arrested for drunk driving, or Operating While Intoxicated as it is referred to in Indiana, you may have been charged with a Level 6 Felony. According to Indiana law, if you have a prior drunk driving conviction within the five-year period preceding your arrest, you may be charged with a felony for a second offense. While this may be the most common way clients are charged with a felony for a second offense, it is important to note that there are multiple ways under Indiana law that you could be charged with a felony offense of operating while intoxicated.

Many clients who have been arrested and convicted of a prior offense of operating while intoxicated in another state often ask whether a prior conviction from another state counts as a prior conviction sufficient to enhance their second arrest from a misdemeanor to a felony. The answer to this question is complex and hinges upon a thorough legal analysis of whether or not the prior conviction from another state arose out of a statutory scheme “substantially similar” to Indiana’s Operating While Intoxicated statute. The outcome of this analysis depends heavily upon where the conviction was from and the statutory scheme in place at the time of the offense.

This issue was recently addressed in the recent Court of Appeals case State v. Bazan 45 N.E.3d 856 (Ind. Ct. App. 2015). In Bazan the defendant filed a motion to dismiss felony charges of operating while intoxicated. The felony operating while intoxicated charges were based upon a prior conviction for operating while intoxicated out of the State of New York. Bazan argued in his motion to dismiss that the 2014 conviction out of the State of New York was not “substantially similar” to the offense of operating while intoxicated in the State of Indiana because the Indiana statute required a greater showing of impairment than the New York statute. The Court of Appeals affirmed the trial court’s dismissal of the charges.

If you have been charged with operating while intoxicated and this is your second offense it is important to seek counsel familiar with OWI law in the State of Indiana. More importantly, if you have a prior conviction from another state, it is critical that you ensure your attorney engages in a proper analysis of whether or not your case is ripe for a motion to dismiss.

If you have been arrested and are facing charges for operating while intoxicated give us a call at 317-564-0016 to have your questions answered. You may also fill out a contact form on our website www.ctglaw.com and we will return your inquiry.