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Many customarily ask information as to whether my defense practice is limited to Hamilton County. The answer is no. A large number of my cases as a dui lawyer include people charged from surrounding counties, including, but not limited to Hendricks, Marion, Madison, Grant, Delaware, Boone & Tipton Counties.

This cross section of counties and communities served is significant in regard to the defense of dui cases, as there is a dramatic disparity as to the pre trial options made available to those facing dui charges where a charge cannot be dismissed.

For example, Delaware, Madison & Grant Counties are presently in the minority of Indiana counties that will on occasion allow for the pre trial dismissal of first offense dui cases should specific facts warrant such treatment.

These pre trial agreements allowing for ultimate dismissal have been referred to as Title 12, diversions and/or agreements to withold prosecution. Courts allowing such treatment for first offenses at present include Pendleton, Elwood & Edgewood town courts in Madison County, Muncie City Court in Delaware County, as well as Grant Superior Court in Marion.

From the perspective of a statewide dui lawyer, I have found such counties to be far more reasonable to deal with in terms of exploring potential pre trial resolutions that can prove favorable to one’s future.

By contrast, the courts of Hamilton County, Marion & Boone are generally much more harsh in regard to seeking potential punishment for one targeted with a drunk driving criminal prosecution. Such counties will rarely if ever offer a first offender diversion or witheld prosecution treatment noted above unless a case against a client is weak. On such occasions I would be prone to recommend to a client that we move for an outright dismissal of a prosecution with weak evidence as opposed to a pre trial agreement in any form.

This difference as to the treatment of one facing an Indiana dui prosecution can be confusing, not to mention frustrating for one in the cross hairs of a prosecutor seeking far more punitive sentencing options than one in another county. However, a large part of my role as a defense attorney is to not only know the common practice of a specific county court, but just as importantly, how to seek the best options for a client based upon the particular county prosecutor assigned to a clients’s criminal prosecution.

Generally, those counties that offer first time dismissal resolutions and those that do not are indicative of the potentially applied options made available for increased punishments for multiple offenders. Knowing how to protect a client from the potential of unreasonably applied punishment no matter what county or court we’re in together will always be my first and foremost priority.

I would encourage one facing a dui prosecution anywhere in the state of Indiana to feel free to contact me at any time. Your call to me will always be free . With a wealth of experience defending dui cases in almost every county in Indiana, I’ll be pleased to help advise you in your legal defense based upon the specific court you case prosecution is in.

Of major significance to the outcome of a case can often become what judge has been assigned to hear a case in question. In Hamilton County all dui cases are first filed before the “Magistrate” Court, sometimes referred to as Hamilton Superior Court 7.

The judge presiding over a first court appearance within this court is not the judge who will ultimately be assigned to the case. Rather, the case will eventually be randomly assigned to be heard within one of the three superior courts (Hamilton County Superior Court 4, 5 or 6) where all other court dates and legal action will commence. The judge within initial hearing court in Noblesville will merely serve to communicate the charge(s) filed, determine counsel assigned to represent a given defendant and where applicable, inform an individual of the suspension of his or her driving privileges from the initial hearing date forward until a case resolution.

So as to preserve impartiality in the disposition of all criminal cases filed, neither a prosecuting attorney nor defense attorney is empowered to alter the course of which court and judge will be given the authority to preside over the prosecution in question. As a result, it is essential that the defense attorney in Hamilton County understand not only the unique rules governing the particular court, but also the most effective strategies to employ when seeking the most advantageous result before a given judge.

Although sensible people would make the assumption that all courts are uniform in the procedures and standards by which rulings are administered, in Hamilton County such is not often the case. This can be unfortunate, as it is often offensive to notions of justice for one individual to be subjected to harsher punishment due to the random assignment before one particular judge over another.

Most criminal courts within a given community strive to maintain a sense of uniformity in court procedures and/or sentencing among judges in order to guard against random court assignments wielding divergent outcomes. However, at the present time within Hamilton County not only do the courts employ different procedures by which prosecutions are governed, but more significantly, Hamilton County judges often impose different criteria by which to assess punishment in the event a dui prosecution cannot be dismissed.

For example, in the event that a client is best served by a pre trial agreement to resolve a case before trial, it will be necessary to secure the approval of the respective judge in order to allow such an agreement to be effectuated. Where many judges will rarely intervene to reject the desired and agreed outcome put forth between the prosecutor and defense attorney, judge(s) in Noblesville are far more willing to intervene to reject such an agreement if contravening dictated standards by the particular judge.

Knowing the standards of each of the 3 superior judges in Hamilton County is therefore essential in the dispensing of a client’s case in the most favorable manner possible. Depending upon the severity of the case in question, knowing how to secure the pre approval of sentencing options such as home detention and/or work release as an alternative to incarceration is often dependent upon understanding each of the three Hamilton County dui judge’s unique standards by which to administer what is permissible within the Indiana criminal code.

Far too frequently I have had to take control over the representation of cases initially handled by attorneys from counties other than Hamilton where counsel has made erroneous assumptions as to court procedure and potential outcomes based upon a limited understanding of local rules and custom of given Hamilton County Superior Court judges.

Potential inconsistencies in procedure and outcome is less than ideal for experienced defense attorneys working diligently for the best outcome for a given client. With that said, it is essential that the attorney assuming the responsibility of providing a capable defense understand the realities of how to guide a client to the best outcome possible based upon understanding and experience before the given judge assigned within Hamilton County.

Prior to the determination of guilt or innocence within an Indiana dui prosecution, the person charged will have his or her license suspended by the Indiana Bureau Of Motor Vehicles if mere probable cause exists to suggest a failed or refused test for intoxication.

Within dui cases in Hamilton county and elsewhere, once probable cause has been found by a judge that one has registered above a .08 through a breath test or blood draw submission or if a judge has determined that an individual had refused to submit to a breath test, an administrative drivers license suspension usually begins at or near the time of the Defendant’s initial hearing for dui in court.

Unless a refusal has been determined, the driver will receive credit toward any ultimate license suspension imposed by the court should guilt for a dui ultimately be determined. In Indiana, for dui convictions, a court can order a driver’s license suspension for a dui for a minimum period of 90 days to a maximum of 5 years depending upon the criminal history of the person being convicted, with what is called “retroactive” credit dated back to the administrative suspension date imposed by the Indiana BMV before guilt has been established. (usually the initial hearing date)

More significantly for the purpose of this discussion, for first time misdemeanor offenders, the court has the authority to grant a “probationary” license which is only good for work, school or probation requirements for those with Indiana licenses who live within the state of Indiana.

Therefore, should a case not be able to be dismissed, and assuming the minimum options are obtained for the client, the first time dui offender in Indiana has the capability of resuming driving after 90 days or obtaining a probationary license which may enable limited driving prior to the expiration of 90 days.

This “probationary” license is one that requires at least 30 days of a straight or complete license suspension to have been served, followed by the 180 day probationary license and can be granted in combination with a criminal plea agreement presented to the criminal court judge.

However, in reality this probationary license cannot halt the continued straight suspension of a license beyond 30 days until your court case has been concluded & the Indiana BMV:  

1.) has received and processed the court order for the probationary license,

2.) received proof of sr 22 high risk insurance obtained by the driver and

3.) received payment of reinstatement fee for the issuance of the probationary license.

Unlike the probationary license where credit is only given toward a thirty day straight suspension, and not toward the one hundred eighty day restricted period, with a straight ninety day suspension credit continues to accrue allowing one to get their license back free and clear after 90 days if court ordered. For this reason most people I represent prefer the ninety day straight suspension although initially a probationary license may sound more attractive.

For example, assuming a case has not been dismissed,  let’s say that one has suffered from an administrative license suspension begun at an Initial Hearing 50 days prior to the dui case being resolved in court.

Let us next presume that the client has chosen to proceed with an option to allow for a one hundred eighty day probationary license at his or her sentencing hearing.  At this stage the individual would have served a straight fifty day license suspension.

Despite the court ordered probationary license, the straight license suspension continues until the court order, insurance paperwork and re instatement fee has been received and processed by the Indiana BMV only upon the case conclusion.

In our example let us assume that it has taken twenty days for the Indiana BMV to receive and process the court’s probationary license order and for the person to provide proof of SR 22 insurance and pay the reinstatement fee to the Bureau. In such a scenario the person will actually have a 70 day straight license suspension imposed followed by a six month probationary license.

There is a difference between what a lawyer can and should do in the client’s best interests. While a client may want a probationary license at all costs, it is the attorney’s obligation to explain the real world application of probationary licenses in Indiana so as to determine whether such a license is most advantageous when considering the above referenced realities.

A most common question asked of me in my capacity as a dui lawyer is whether a drunk driving case can be moved to another county. This concept is called a “change of venue,” and is reserved for a limited amount of criminal cases that qualify. A change of venue within the Indiana criminal statutes is contemplated for cases where a fair administration of justice cannot be had in one area due primarily to media exposure potentially prejudicial to a defendant on trial.

Many clients of mine have heard that a neighboring county or differing location may prove to be more lenient toward their potential dui punishment. This is in many instances quite true, and can have an important an differing outcome depending upon the location of where one’s dui case may be heard. Some counties (although limited) offer deferral options to the resolution of dui cases where a first offense drunk driving case can be dismissed without trial dependent upon completion of certain agreed upon conditions. Where some counties are more inclined to file “habitual substance offender” charges against a dui defendant with a multitude of dui convictions, other county prosecutors have never filed such an enhancement.

As a result, from a tactical standpoint, it would be a major advantage for me to be in position to take advantage of a specific prosecutorial policy in a different county from the one my client has been charged. Unfortunately, the ability to move a case out of one county to another is reserved not for pre trial negotiation but for a potential unprejudiced jury pool empaneled to hear a case where one seeks trial by jury.

The most common dui prosecutions do not rise to the level of significant media scrutiny allowing for a change of venue motion to succeed. Unless the dui arrest is against one who is a public official or other individual of public note or renown, change of venue requests will often fall on deaf ears before the judge empowered to rule upon such a motion. However, for the dui prosecution against one who for example may have caused the death of other(s) in a manner that has garnered the attention of television, radio and/or internet, a change of venue may be an appropriate motion for a defense attorney and client to consider. Once again, this motion is not contemplated as a means by which to change the location of a case in order to take advantage of  pre trial negotiation, but simply to empanel potential jurors who may have been unexposed to media exposure about the case they must decide.

In instances within a county where a judge may have an inherent bias against a client, a motion to remove the judge within the county may be considered. However, for the dui client who has been arrested, the location of the arrest will ultimately dictate the communal standard of potential punishment should a case not be in position to be dismissed.

When a dui case has been concluded, many intelligent people who have been sentenced believe it reasonable to rely upon the judge’s sentencing order as it relates to the length of their driver’s license suspension.

However, additional license suspensions imposed by the Indiana Bureau of Motor Vehicles and not the sentencing judge can often lead to unanticipated consequences for one not properly advised.

For a dui in Hamilton county it is therefore essential that you communicate the present status of your driving record to your lawyer as soon as possible. In so doing, you are taking action to potentially avoid the possibility of an additional 5-10 year Indiana driver’s license suspension imposed as a result of a Noblesville dui conviction. This additional license suspension is the result of what is called a “Habitual Traffic Violator” designation within the State of Indiana.

Apart from a judicially ordered license suspension, a Habitual Traffic Violator is a licensed driver who has accumulated either three “Major” moving violations within a ten year period or one or two major moving violations and eight to nine “Minor” moving violations in combination within a ten year period.

On many occasions one convicted of a dui is not even notified for months after a dui conviction of “HTV” status. Such individuals learn by mail as they near the end of their court ordered suspension that an additional five year or ten year driver’s license suspension has later been tacked on by the bureau of motor vehicles due to the later determined HTV designation.

A “Major” moving violation in Indiana includes but is not limited to dui, driving while suspended with suspension the result of a court order, reckless driving, etc.

“Minor” moving violations include, but are not limited to, speeding tickets, driving while suspended as an infraction and not as the result of a court order, and other moving offenses not subject to jail time.

Within Hamilton county cases where an HTV determination could later lead to tragic consequences, the lawyer representing you must scrutinize all angles to address the situation prior to the case’s conclusion.

For example, on some occasions if the ten year mark for the first calculable offense for HTV can be within reach, tactically postponing resolution of a criminal case and subsequent conviction can prevent the imposition of as much as an additional ten year license suspension!

Unfortunately, on too many occasions, well meaning general practice lawyers not familiar with the possibility of a consecutive additional HTV suspension could have easily prolonged case proceedings so as to prevent an HTV designation with the proper knowledge and experience to draw upon.

Following an HTV status designation determined by the Indiana Bureau of Motor Vehicles one is at the mercy of the Indiana BMV and not the court as to proceedings by which to reinstate or allow for minimized driving ability.

At present following an HTV determination the recourse in Indiana by which to drive on a limited basis is for a petition for probationary license for work purposes in two prescribed circumstances, 1.) If one has gone at least five years without a driving offense from the time the HTV status was determined for cases with a ten year HTV suspension or 2.) once the court ordered suspension has elapsed and the court finds sufficient grounds for the allowance of a probationary license for HTV five year suspensions.

Short of that, the only additional alternative is the filing of a “Petition For Post Conviction Relief” (PCR) a costly undertaking that attempts to have one of the underlying moving violations dismissed. In such cases the successful petitioner is eligible for potential full reinstatement of license if successful.

This is customarily done by initiating a request for transcript of any former guilty plea hearings leading to a prior conviction. Based upon the review of the transcript , or lack thereof, the attorney would attempt to determine whether any legal grounds for overturning the prior conviction exist.

Despite any legal options in the wake of an HTV designation, the lesson needs to be made clear: If you have any doubt as to the possibility of prior moving violations prompting an HTV designation, you must communicate these thoughts to your attorney prior to any conclusion to any case proceedings within your dui case in Hamilton county.

A troubling issue when it comes to DUI procedure for many drivers centers around the complicated issues related to the suspension of a motorists’ license. Most people conditioned with the concept of “innocent until proven guilty,” often have a hard time accepting the fact that their license can be suspended in Indiana following a dui arrest despite the fact that they have not been found guilty. This issue is not limited to dui procedure, as most states have various forms of license suspensions before a finding of guilt has been established.

When discussing an Indiana OWI one must be aware that there are two separate forms of drivers license suspensions following an owi arrest;

1.) An “Administrative” License Suspension and 2.) A Court Ordered License Suspension

A fundamental understanding of the differences between the two forms of suspensions can go a long way toward explaining how and why a license can be suspended for different periods and at different times. Whether a citizen or an attorney not experienced in OWI procedure, failure to understand the potential differing suspension ramifications can often lead to crippling consequences for one not advised properly.

Following a dui arrest an Administrative License Suspension is imposed not by the criminal court where the case will be heard, but by the Indiana Bureau of Motor Vehicles (BMV). What makes the situation all the more confusing is that although it is the bureau suspending the license, it is usually the court who instructs of the suspension at one’s Initial Hearing in court. This quite reasonably makes the individual accused of a DUI believe that somehow the criminal court is handing down a punishment against them after a not guilty plea has been entered for them at such a hearing on the Defendant’s behalf.

What actually is taking place within the Initial Hearing of a DUI case in Indiana is that the court is pronouncing a finding of “Probable Cause” to determine that the Defendant “More likely than not” failed the certified breath test offered to the Defendant when registering at or above .08 BAC. In accordance with most Bureau or Department of Motor Vehicle Administrative rules throughout the nation, an alleged failure to test below the national legal limit of .08 BAC will result in an automatic drivers license suspension. In the State of Indiana this administrative license suspension is for a period of one hundred eighty (180) days or until the criminal case is resolved, and is most often served while the dui or owi charges are pending in Indiana.

For example, let’s say probable cause that one tested at or above .08 was determined at an Initial Hearing, January 1. On or about January 10 let’s presume notice by mail is received informing of a one hundred eighty day license suspension that took effect on the date probable cause was established at the Initial Hearing. Basically, this means that if a ninety day suspension were to be imposed following a first offense conviction, the one hundred eighty day administrative suspension would be cut short, with the ninety day suspension “retroactively” begun on January 1. If the case were to be resolved on March 1, in effect 60 days of the 90 day suspension would already be served.

However, it is always so important to keep in mind that despite a court order as to the reinstatement eligibility for a license, a driver’s license will not be re issued until the court order has been received and processed by the Bureau of Motor Vehicles (sometimes up to two weeks or more from the date the order is issued) and that proper “sr-22” (high risk) insurance has been obtained and received by the bureau.

Several years back in order for all individual states to secure needed federal funding for transportation and infrastructure projects within their respective states, all states wanting federal funds were ordered by the federal government to lower the legal limit for alcohol intoxication to .08 BAC or lose such relied upon tax dollars. In short order all states eventually fell into line in adapting a uniform national standard of .08 BAC as the legal threshold to determine a “presumption” that someone had operated a motor vehicle while in a state of intoxication.

While this presumption is not enough as a matter of law to find someone guilty “beyond a reasonable doubt” to sustain a criminal conviction for dui or owi in Indiana, this presumption is enough to suspend a driver’s license in Indiana until such time as guilt or innocence is established in a court of law within a window of one hundred eighty (180) days. The Indiana Bureau of Motor Vehicles like most state license departments is considered an “administrative” agency of the state. Thus, the term “administrative” license suspension. What is happening at the Initial Hearing if listening closely is that the judge is finding probable cause to determine the failure of a certified breath test, such that a court finding is sent to the Indiana BMV in order to “recommend” the administrative suspension to be imposed by the Indiana BMV from that time forward.

In Indiana, as in states throughout the nation, one is in effect agreeing that in return for the “privilege” (not the right) to operate a motor vehicle in the state of Indiana, a driver will submit to a breath test for intoxication if asked by a law enforcement officer. Refusal to submit to such a test will result in a mandatory administrative license suspension from 1-2 years depending upon the criminal history of the defendant and on top of whatever court ordered license suspension is imposed should a defendant be found guilty.

Even if found not guilty of the dui offense alleged, the mere failure to submit to a breath test will result in a 1-2 year administrative suspension in Indiana if probable cause is established “by a preponderance of evidence” that the defendant refused to take the breath test. Again, this is possible due to the fact that a refusal suspension is an administrative suspension and not court ordered.

Although the judge would be the trier of fact as to whether a defendant refused the breath test, it is the bmv who carries out this additional license suspension. In the same manner that an administrative license suspension for refusal can be imposed separate and above the court ordered ability to suspend a drivers license for up to two years, the bureau will suspend the drivers license for one hundred eighty days until further notice of the court merely for testing at or above a BAC of .08 before guilt has been established for the dui charged.

The issue of when the actual drivers license suspension for a dui in Indiana goes into effect has often been yet another contentious issue for both defendants, lawyers and judges alike throughout Indiana. Technically, since the administrative license suspension is just that, many lawyers have taken the position that unless and until the bureau has heeded the court’s recommendation to suspend an Indiana drivers license based upon an alleged failed breath test, an individual can operate a vehicle legally until such time as notice has been received by the Defendant by way of mail. However, this advice is risky and all too often puts the client in legal jeopardy should he or she be stopped driving upon such a recommendation.

This risk exists based upon the fact that many Indiana DUI judges take the position that despite the Indiana BMV’s ultimate authority to issue an administrative license suspension while a case is pending, the dui court’s ability to order credit for any time served toward any court license suspension upon a later finding of guilt is premised upon the Defendant not driving a motor vehicle from the time that probable cause for the failure of the BAC test has been established. Further, one must always recognize that the Indiana Bureau of Motor Vehicles, not unlike other government agencies, is a huge bureaucracy.  It is not uncommon for bureau employees to process an order of suspension of one’s driver’s license only to send the individual notice by mail at a time of their convenience. Any overlap between the time that the bureau processes an order of suspension and the time within which the person actually receives notice by mail of the administrative suspension from the bureau can be fraught with danger for a person improperly advised that they can drive unless and until the notice has been received.

All too often an dui lawyer must fulfill his or her legal obligation to instruct a client following probable cause being established that they are not to be driving a motor vehicle until further notice. Quite reasonably, such an individual has a reasonable belief that he or she will be entitled to credit time for this suspension being served during the case proceedings. While in most cases this is so, it has not been uncommon for an attorney to have to conduct a hearing before a sentencing judge to order credit from the Initial Hearing forward where for whatever reason the Indiana BMV had not, in fact, ever suspended the drivers license. In such troubling circumstances even where a judge will order “retroactive” (dated back to a finding of probable cause) credit toward the court ordered suspension, it will be the Indiana BMV who can sometimes impose a power play as to whether they will in fact grant the judge’s order for retroactive credit where the Bureau never actually suspended the driver’s license.

Once a case has been concluded, unless the case has been dismissed, license suspensions for a first offense misdemeanor dui conviction will range from a presumptive 60-90 day minimum suspension period  to a maximum of one year.

Second offense and higher court ordered dui convictions be they misdemeanor or felony will range from a minimum of one year to two and a half year license suspension absent certain circumstances (injury/death) subjecting one to longer suspension periods.

It has been announced that the Indiana Department of Transportation has reversed course on recommendations as to the construction of roundabouts within Hamilton County. In part due to the lobbying efforts from the mayors of Carmel and Westfield, (INDOT) has agreed to join with the local officials in furthering the path to the construction of new roundabouts in the congested traffic corridor along Highway 31 within Hamilton County and possibly beyond in the future.

The initial hesitancy for the construction from state transportation officials concerned heavy traffic congestion. Initially it was asserted that more trafficked roadways would not be as conducive to roundabouts as the others constructed within less traveled roadways of Indiana. Not to be deterred, the Mayor of Carmel it is believed did some heavy lobbying for the cause of his pet project roundabout construction. Carmel Indiana is now home to more roundabouts than anywhere in the United States. Mayor Jim Brainard is proud to tout his leadership promoting the cause of this newly imported traffic tool from Europe in any forum that will allow. Just what he had promised state officials in his efforts to successfully reverse their decision to allow the roundabouts is unclear. However, if past is prologue, it can be speculated that increased traffic enforcement under the guise of safety through this new road construction was promoted to ease opponents concerns.

Mayor Brainard formerly promoted increased law enforcement as a benefit of the increased taxes to those within his county he sought to annex into the Carmel city limits. It can logically be suggested that increased revenue through traffic enforcement within these more congested roundabouts will be a secondary internal benefit Brainard hopes to capitalize on.

As I had first commented months ago, I believed that annexation of unincorporated areas of Hamilton County would serve little benefit to those being annexed apart from facing the prospect of being ticketed more frequently for traffic violations. As the areas within this part of the state affected did not suffer from a crime problem of any urgent measure, the net motivation of the annexation was I believe to be the double benefit to the city of increased revenue from higher taxes as well as fines and costs related to the increase in law enforcement. Unless these communities subject to annexation welcomed an increased law enforcement presence with which to hand out traffic violations to community residents, the rise in tax revenue has served little direct benefit to those then affected.

With the same premise I would suggest that traffic violations and the increased revenue they bring to local municipalities will be an insidious bi product of the use of roundabouts within Hamilton County and beyond. To the north in Valparaiso and contemplated within Marion County, the incubator of Hamilton County has spawned proposals throughout the state for the new construction of roundabouts. While there is no doubt that the use of roundabouts is an often favored and productive means with which to reduce traffic flow and congestion, let there be no mistake as to the hazards not related to accidents themselves.

With each new construction project introduced, I would advise that motorists be especially mindful of the presence of traffic enforcement. Ostensibly, the heightened presence of traffic cops will be rationalized in the name of public safety as people get familiarized with the recently inaugurated traffic flow caused by roundabouts. However, let there be no mistake, for municipalities seeking the secondary benefit of revenue flowing from the heightened prospect for traffic violations within these new construction sectors, the goal of increased citations for traffic violations and the prized dui arrest may inevitably follow.

To what extent the mayor “educated” state officials as to these secondary revenue benefits of his favored mode of road construction is open to speculation. The fact that state officials have reversed course to now favor the roundabouts presently favored within certain communities makes it incumbent upon all drivers to learn not only how to navigate such roadways but how to avoid traffic detention as well.