Being arrested and charged with operating a vehicle while intoxicated (OVWI, commonly called DUI for driving under the influence) is a stressful and frightening event in anyone’s life. The repercussions can affect your job, your wallet, your personal relationships, and more. To complicate matters further, the sentence for a DUI offense may be enhanced if you have accumulated multiple DUIs. Understanding the scope of the penalties you could face if convicted and strategies for avoiding enhanced sentencing is vital to helping you make informed decisions about your defense.
If you’re facing a DUI charge and a habitual vehicular substance offender enhancement (HVSO), you need an Indiana DUI lawyer who is thoroughly experienced in DUI defense. At Keffer Hirschauer LLP, our clients benefit from our experience as former prosecutors with in-depth handling of DUI cases. You have too much at stake. Insist on defense from an Indiana DUI lawyer with the knowledge, skills, and passion to fight for your rights.
How a Habitual Vehicular Substance Offender Enhancement Increases Your Sentence
A habitual offender enhancement is an additional sentence added to the end of the sentence for an offense, which can significantly extend your total sentence. An HVSO enhancement is possible only if you are convicted of a vehicular substance offense—any DUI or OVWI offense—and have a history of two or more previous DUI or OVWI convictions. The current and past convictions must have substance use as a material element.
To help protect yourself against an HVSO sentence enhancement, you need to consult an experienced Indiana DUI lawyer as early as possible. At Keffer Hirschauer LLP, we can help you determine your exposure to an enhanced sentence and identify possible ways to avoid that risk.
DUI Levels and Basic Sentencing
The level of DUI or OVWI charge depends on several factors:
- The underlying factual circumstances alleged
- Your prior criminal history, if any
- Your alleged blood alcohol content (BAC)
- The nature of the intoxicating substance if not alcohol
- The nature of any injuries sustained by another
- Previous DUI convictions
Any of these factors can increase the level of the offense charged.
The lowest level of DUI in Indiana is a Class C misdemeanor, but the factors above can elevate the charge to a Level 4 felony at the highest level. To be convicted of a particular level of DUI or OVWI, the state must prove certain elements beyond a reasonable doubt:
- Class C misdemeanor
- BAC of at least .08 but less than .15 gram of alcohol per 100 milliliters of blood (or 210 milliliters of breath), or
- Operating a vehicle with a Schedule I or II controlled substance or its metabolite in the blood
- Class A misdemeanor
- BAC of .15 gram or greater of alcohol per 100 milliliters of blood (or 210 milliliters of breath), or
- Commits OVWI as a Class C misdemeanor in a manner that endangers a person
- Level 6 felony
- Commits OVWI as defined by the Class A or Class C misdemeanor, and
- Has a prior OVWI conviction within seven years of the offense, or
- Both
- Defendant is at least 21 years old, and
- One or more passengers was less than 18 years old, or
- Commits OVWI as defined by the Class A or Class C misdemeanor, also causing the death of a law enforcement animal
- Commits OVWI as defined by the Class A or Class C misdemeanor, and
- Level 5 felony
- Commits OVWI as defined by the Class A or Class C misdemeanor, and
- Causes serious bodily injury to another, or
- Has a previous conviction for OVWI causing death or catastrophic injury under Indiana Code § 9-30-5-5, or
- Has a previous conviction for OVWI causing serious bodily injury under Indiana Code § 9-30-5-4
- Commits OVWI as defined by the Class A or Class C misdemeanor, and
- Level 4 felony
- Both
- Commits OVWI as defined by the Class A or Class C misdemeanor, and
- Has a previous OVWI conviction within five years of the offense, or
- Commits OVWI as defined by the Class A or Class C misdemeanor causing the death or catastrophic injury of another
- Both
How an HVSO Enhancement Works
The sentence imposed for a DUI or OVWI depends on the level of the offense for which you are convicted and other factors the court may consider in determining your sentence. Misdemeanor sentence ranges are:
- A Class A misdemeanor sentence can include imprisonment for one year or less and a maximum fine of $5,000
- A Class C misdemeanor sentence can include imprisonment for 60 days or less and/or a maximum fine of $500
Felony sentence ranges are more severe:
- A Level 4 felony sentence can include imprisonment for two to 12 years and a maximum fine of $10,000
- A Level 5 felony sentence can include imprisonment for one to six years and a maximum fine of $10,000
- A Level 6 felony sentence can include imprisonment for six months to two and one-half years and a maximum fine of $10,000
In determining an appropriate sentence within the range provided, Indiana courts also consider factors such as these, which are set out under Indiana Code § 35-38-1-7.1:
- Your history of criminal or delinquent behavior
- The age of the victim, if any
- Recent violation of probation, parole, community correction, or terms of pretrial release
- The likelihood of a positive response to a short term of probation or imprisonment
Your sentence could be further enhanced or lengthened if the court determines you are a habitual vehicular substance offender. Under Indiana Code § 9-30-15.5-2, depending on your circumstances, the court can add as few as one and as many as eight years to your DUI sentence if you are found to be a habitual vehicular substance offender. In other words, even though you might be sentenced to a minimal or no term of imprisonment for the underlying DUI conviction, an HVSO enhancement would add between one and eight years to your sentence.
The Trial Process for Charges Including an HVSO Enhancement
In Indiana, the State makes formal criminal charges by filing an information (the charging document) in the local court. The information lists the criminal offense or offenses the State alleges that you have committed. If the State wishes to seek a habitual vehicular substance offender enhancement, the prosecutor must file a separate information alleging that you meet the definition of a habitual vehicular substance offender under Indiana Code § 9-30-15.5-2.
A trial generally occurs in two phases. In the first stage, the prosecutor will offer evidence in support of your OVWI charge or charges, and you or your attorney may offer evidence in your defense. A judge or a jury will evaluate the evidence and determine whether the State proved all of the elements of the charged offense. If you are convicted of OVWI, the case proceeds to the next phase: sentencing.
In the sentencing phase, the prosecutor may offer evidence to support a particular sentence to be imposed for your OVWI conviction and evidence to show that you are a habitual vehicular substance offender. To be adjudicated a habitual vehicular substance offender, the prosecutor must establish the following beyond a reasonable doubt:
- You have accumulated three or more prior unrelated OVWI convictions, or
- You have accumulated two previous unrelated OVWI convictions, at least one of which occurred within ten years of the offense for which you were just found guilty
You or your attorney will also have an opportunity to present evidence in your defense regarding the HVSO allegation and in support of a lesser sentence. After considering all of the evidence in this phase, the court or jury will decide whether the State has demonstrated that you are an HVSO, and the court will enter a sentencing order accordingly.
Limitations and Defenses to a Habitual Vehicular Substance Offender Enhancement
An experienced Indiana DUI lawyer knows the limitations and reasonable defenses to an HVSO enhancement that can achieve a better result for clients. For example, the following cannot be used to show that you are a habitual vehicular substance offender:
- You were previously charged with OVWI, but the charges were dismissed or you were acquitted at trial
- You have been charged with OVWI and other offenses, but you were only convicted of non-substance offenses
- You were previously convicted of OVWI, but the conviction was reversed on appeal
- You were previously convicted of another offense and intoxication played a role but was not a material (required) element of the offense
Even if you are not currently facing a DUI charge, you may benefit from a consultation with an Indiana DUI lawyer. In some cases, you may be able to get an expungement, which would remove your prior OVWI convictions from public access. Convictions that are expunged are unavailable for use for an HVSO enhancement.
Call Keffer Hirschauer for an Indiana DUI Lawyer to Fight Your Habitual Vehicular Substance Offender Enhancement
Consultation with a criminal defense attorney thoroughly vetted in defense against DUI charges and HVSO allegations is critical to protecting your future. An experienced Indiana DUI lawyer can evaluate your past record, the facts alleged in pending charges, and advise you on how best to proceed to limit your exposure.
At Keffer Hirschauer, we use our years of experience as former prosecutors—including our significant experience prosecuting DUI cases—to fight for your rights. If you’re facing DUI charges or a habitual vehicular substance offender enhancement, call today to learn how we can help. You can reach us at (317) 857-0160 or by completing our online contact form.
