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Why Defend Drunk Drivers?


As a criminal defense attorney, I frequently hear from friends and acquaintances,... "I don't know how you defend criminals or those drunks on the road". Let me be clear about this. I don't want impaired drivers on the road. I have friends and family that I want to be safe on the road. I don't want any person maimed, injured or killed by a driver operating under the influence of any impairing substances. Impaired driving is and most certainly should be illegal. 

However, the focus of DUI enforcement, sometimes, is not on impairment. It has changed its focus to BAC (Blood Alcohol Concentration). For the most part, the State is not interested in impairment. It is interested in BAC. BAC ignores whether a person is impaired. It convicts solely upon a number.

In Indiana, there are basically 2 ways to convict a person of drunk driving. I think we would all agree that "drunk" is synonymous with "intoxicated". Indiana has defined "intoxicated" as under the influence of alcohol ... so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties. This fits our common understanding of drunk driving.

However, as I have said, the State has 2 opportunities to convict: (1) driving while intoxicated and (2) driving with a BAC in excess of .08. Each of these offenses carries possible jail time and is punishable as misdemeanor offenses. Each of these can be a "1st offense" OWI. In addition, in one case, you can be convicted of each of these offenses. The 2nd offense is called a "per se" offense. What that means is that you are guilty of violating that particular statute and commit a crime solely if your BAC is .08 or more. Your level of impairment, if any, is completely irrelevant. Therefore, the purpose of drunken driving prohibition is ignored. Safe driving and elimination of impaired driving is not even a consideration. Your driving could be completely normal and you still can be convicted of a per se offense with the exact same punishment as a clearly impaired driver (operating while intoxicated).

Therefore, there are multiple people being convicted of "Drunk Driving" when in fact there has been absolutely no evidence that the person was impaired whatsoever. I don't believe such a person should be branded a criminal when the State has not proven the guilt beyond a reasonable doubt.

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