If you are accused of committing a drunk driving offense in Indiana, you will be facing two charges: Operating a Vehicle while Intoxicated (“OVWI”) and Operating with a Blood-Alcohol Concentration of .08 or Greater. The BAC charge, or “Chemical Test” charge, is considered a strict liability offense. This means that you don’t need to have any intent to commit this crime to be found guilty of it; if your BAC is higher than .08, you are guilty of this offense. While this sounds like a situation where there is no hope, there are still errors that can be found with the Chemical Test charge, and we will help you find them.
Under Indiana law, if an officer has probable cause to believe that you are driving while intoxicated, you are required to submit to a Certified Chemical Test. There are two types of Certified Chemical Tests: a Breath Test and a Blood Test. If you refuse to submit to a Certified Chemical Test when asked, the Bureau of Motor Vehicles will suspend your driver’s license for one year. It is a widely held myth that you can and should refuse a Chemical Test. Do NOT refuse this test.
A Certified Breath Test measures the weight of alcohol on a person’s breath, and displays the results as grams of alcohol per 210 liters of the person’s breath. This test is taken on a stationary machine usually located at a police station or jail. It is different from the portable breathalyzer test that the officer may ask you to take when he pulls you over. A Certified Blood Test measures the weight of alcohol in the person’s blood, and displays the result as grams of alcohol per 100 milliliters of the person’s blood. The officer is required by law to offer you a choice of which test you would like to take.
Both tests have their problems, and both tests can be attacked at trial. The breathalyzer machines used by the police are extremely sensitive, and capable of malfunctioning. On average, unless the breathalyzer machine was recently cleaned and calibrated prior to your test, it can be incorrect by as much as .03 grams of alcohol per 210 liters of your breath. With a low BAC reading, this could mean the difference between guilt and innocence. Blood tests are even more prone to error due to the number of people involved in the collection, preservation, and testing of the sample. Additionally, in order to deliver results quickly, crime labs will often test serum, or plasma, rather than whole blood. The BAC results from testing serum can be up to 20% higher than whole blood results.
Most people who are convicted of a drunk driving offense are convicted because of the results of the Chemical Test. We will aggressively fight on your behalf to ensure that the Chemical Test was performed in the manner required by law, and fight even more aggressively to preserve your innocence if the test is invalid.