Things You Should Know About OWI and Drug Laws
Public Intoxication
Did you know? – you can do everything the right way. You have a big night planned at the bars and you have walked or you got a ride so you do not drive. Then, on the way home, you appear intoxicated and catch the eye of a policeman who approaches you and ultimately arrests you for public intoxication. *It is important to note that a recent change in our Public Intoxication law requires endangerment of one’s self or others, breath or imminent breach of peace, or harrasssing, annoying, or “alarming” another person.
Unfair? Sure, but that does not solve your legal dilemma. If the policeman had sufficient cause to believe you were intoxicated in public along with the parameters of the above new law, he can charge you with that offense and even arrest you despite your caution earlier in the evening. This is a thing you should know.
Campus Police smell the odor of marijuana from outside your room
Did you know? – If you get that knock on the door and open your door to an RA or police officer standing outside your dorm room and the marijuana smell wafts towards them, that police officer can ask you for consent to search your room and if you give it, you may be charged with Possession of Marijuana, or, even Maintaining a Common Nuisance, a felony.
Additionally, if you do not give consent, the policeman can call a judge for a nighttime search warrant and if the warrant is issued, the policeman can search your room for marijuana. Other than “just say no” to using illegal substances, from a legal perspective, you may want to consider not answering the door if you are using marijuana in your dorm room.
Although this is not a complete legal defense or shield if a warrant is obtained, it does prevent the officer from claiming that when the door was open the odor wafted toward him and that after the door was opened, he could tell that the marijuana was coming from your room. This is a thing you should know.
Your vehicle differs from your residence in that it is mobile. Therefore, if the officer claims to smell or does smell marijuana emanating from your vehicle, in Indiana, he is allowed to search without obtaining a warrant based upon the ‘exigent’ circumstance of the mobility of your vehicle and the potential loss of the evidence associated with that mobility. This is a thing you should know.
I will take a breath test if you let me talk to my attorney first
Did you know? For purposes of Indiana’s implied consent law, you do not have the right to talk to an attorney before deciding whether to take a breath test. The reasoning is that a breath test is non-testimonial evidence, that is, they are not words that are going to be used as evidence but a bodily substance, in this case, breath, and therefore your right to counsel is not applicable at this juncture of the investigation.
At Shapiro & Lozano, we recommend that you submit to the certified chemical test when offered for the following reasons:
- If you refuse, the pre-conviction summary administrative license suspension is much longer than if you simply fail the chemical test.
- Even if you refuse to submit to the chemical test, the police may still obtain your blood alcohol level by asking a night time duty judge for a search warrant, hauling you to the hospital, and if the search warrant is issued by the judge, having the hospital involuntarily draw your blood.
- If you refuse, you do not get credit for the time your license is suspended as part of the pre-conviction summary administrative suspension so that if you are later convicted, you have to start your license suspension all over again. *unless you get the refusal vacated – some judges will allow this.
- The jury in your jury trial is informed that you refused a chemical test and the prosecutor will argue that this proves that you had guilty knowledge about your alcohol level and that you refused the chemical test because you knew you had had too much to drink or were “high” or under the influence of drugs.
- If you refuse a chemical test, according to local Monroe County judicial rule, your detoxification time at the jail is 24 hours in the drunk tank at the jail. This is longer than the time you would ordinarily be held by the jail in the drunk tank because your chemical test score is associated with a number of hours to hold you until that score drops below the legal limit of intoxication. e.g. .11 – held typically 3-5 hours.
Do yourself a favor and take the chemical test. This is a thing you should know.
DUI charges while making a late night stop
Did you know? – Say you partied at the bars for a few hours and on the way home you just can’t resist stopping at Steak N Shake or Taco Bell for that late night topper to satisfy your hunger. Unfortunately, you either fall asleep or get in an argument with the drive-thru workers in the drive-up line.
Many OWI/DUI charges start because police are called to late night fast food drive thru lines becaue of trouble with mouthy or unruly or passed out patrons. This gives police a reason to approach your vehicle for a welfare check. We can argue as to whether it allows them to further investigate or seize you or your vehicle or not, but in any event, that late night stop just cost you an OWI/DUI arrest and that is a thing you should know.
DUI just after arriving home
Did you know? So you say: I made it to my driveway before the police officer arrived. He did not see me driving. They cannot prove that I operated my vehicle. Circumstantial evidence can be used to convict a person of OWI/DUI.
Although it may affect the strength of your case and we may have a good case based on whether it can be proved that you operated your vehicle, if the officer has circumstantial evidence that you were driving, i.e. he saw you at an intersection or, you are the only person in the area within seconds of seeing your vehicle pull in, then you may be arrested and facing and OWI/DUI charge. This is a thing that you should know.
Sexual assault and the influence of alcohol.
Did you know? Say you go on a date with a female friend. She drinks some alcohol or maybe even ingests some drugs or marijuana. You both decide to go to your place for a little intimacy and private time. Your lady friend is in much worse shape than you but she is coming on to you sexually and strongly.
You have to choose whether to succumb to her advances and have sex or not. If your lady friend is so intoxicated or drugged that she has lost the ability to consent to sexual relations, you can be charged with rape or other sex crimes if you engage in any sexual acts with your female friend. This permutation of ‘date rape’ is based on the inability of the lady friend to consent to sexual relations because of her intoxicated state.
The fact that she came on to you earlier or, that the sexual relations occurred at your house carry some evidentiary weight but those facts do not protect you from a charge of rape or improper sexual touching. The proper course of action is to fight off your lustful urge to be intimate with this intoxicated friend and find a safe and comfortable atmosphere for her to regain her intellect and her composure. You are at great risk if you choose to engage the intoxicated female friend in sexual relations regardless of your perception or ‘read’ of what she wants. This is a thing you should know. In Indiana, our Supreme Court has held that voluntary intoxication is no longer a defense in a criminal case!
