No parent wants to answer a phone call in the middle of the night and learn their child has been arrested for drunk driving. However, parents across northern Indiana occasionally find themselves in this predicament.  Those who have never encountered the criminal justice system are often left wondering, what happens next?  This article answers common questions parents may have should their child be arrested for misdemeanor operating while intoxicated.

What is operating while intoxicated?

All states have laws prohibiting drunk driving. However, this offense is formally given different titles in different states, including: Operating While Intoxicated, Driving Under the Influence, Driving While Intoxicated, etc.  Indiana’s law prohibiting drunk driving is called “Operating While Intoxicated” and is colloquially referred to as “OWI”.

My child was arrested for misdemeanor OWI and is now in jail. What happens next?

An individual arrested for a misdemeanor OWI will likely be released on their own recognizance once their blood alcohol level reaches a certain minimal threshold. In limited circumstances, the arrestee may have to post a cash bond prior to be released from jail.

Our child was released from jail. Does he/she have to appear in court?

This depends upon whether charges were filed against your child while he/she was in custody. If the Prosecutor’s Office filed charges while your child was held in jail, then your child will be given a date to appear in court prior to his/her release from jail.  If your child was not charged by the Prosecutor’s Office while he/she was in jail, then your child does not yet have a court date.

Charges were not filed against my child while in jail and no court date was scheduled. Does this mean the Prosecutor’s Office is not charging my child?

No. Individuals arrested for misdemeanor crimes are frequently released from jail without formal charges having been filed.  This is due to the arrestee either posting a cash bond or being released on his/her own recognizance by the jail prior to the Prosecutor’s Office filing charges.

The Prosecutor has two years to file charges in a misdemeanor case under Indiana’s statute of limitations law. Typically, if the Prosecutor’s Office files misdemeanor charges against an individual that will occur within a few weeks to a few months after the individual is released from jail. The Prosecutor files the “out of custody” charge(s) with the Court, and a summons is thereafter issued to the individual being charged.  The summons is mailed to the individual’s home address and includes the initial court date.

My child has been formally charged with misdemeanor Operating While Intoxicated. Should we hire an attorney?

You should consider hiring an attorney. An individual’s liberty is at stake when they have been charged with a crime.  The possible penalties for Operating While Intoxicated, as a Class A Misdemeanor, can include up to 365 days in jail and a $5,000.00 fine.  The possible penalties for Operating While Intoxicated, as a Class C Misdemeanor, can included up to 60 days in jail and a $500.00 fine.

Aside from a possible jail sentence, those charged with OWI face having their driver’s license suspended.

What constitutes Operating While Intoxicated as a Class A Misdemeanor versus a Class C Misdemeanor?

A bac between 0.08% – .15% is a Class C Misdemeanor.

A bac above .15% is a Class A Misdemeanor.

Additionally, one can be charged with Operating While Intoxicated without evidence of their blood alcohol content. If an individual operates a vehicle while intoxicated, they can be charged with a Class C Misdemeanor.  However, if an individual operates a vehicle while intoxicated and they endanger a person, they can be charged with a Class A Misdemeanor.

What happens at the first court hearing?

The Judge will review the Affidavit of Probable Cause from the arresting officer. If the Judge finds there is probable cause to believe your child operated while intoxicated, the Judge will sign the Affidavit of Probable Cause.  At this point your child’s driver’s license becomes suspended.  Thereafter, the Affidavit of Probable Cause will be sent to the Indiana Bureau of Motor Vehicles.

What happens if you miss your court hearing?

Provided that notice of the hearing was given, the Court will issue a bench warrant for the arrest of your child.

Can my child drive while the case is pending?

Your child cannot drive a vehicle during the pendency of his/her case unless his/her attorney files a motion with the Court requesting special driving privileges during the pendency of the case. Under Indiana law, an individual may exercise restricted driving privileges after their license has been suspended and their case is pending.  By law, such restricted driving privileges mandate that the individual install an ignition interlock device on their vehicle in order to receive this license.

What happens then?

At the first court hearing the case is typically continued for several more weeks, at which point your child’s lawyer will review the police report and charges. In certain instances (although rare), your child may be able to challenge the evidence against him/her or suppress the traffic stop that led to the arrest for Operating While Intoxicated.  Should a motion to suppress or a motion to dismiss not be available, your child’s attorney and the Prosecutor will attempt to work out a plea bargain.  Such plea bargains can include the imposition of a suspended sentence with a period of probation, alcohol education/substance abuse classes, attend a victim impact panel, submit to urinalysis testing (drug testing), have an ignition interlock device installed on the vehicle for the duration of the sentence, and/or perform community service.

The attorneys at May Oberfell Lorber are well versed in Indiana criminal law and are capable of assisting any individual who finds themselves facing OWI charges.

This article is for informational purposes only and should not be relied upon as legal advice.

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