Tales from the Brown Desk

Tales from the Brown Desk - Episode 8 - OWI & DUI

May 12, 2020 Rigney Law LLC Season 1 Episode 8
Tales from the Brown Desk
Tales from the Brown Desk - Episode 8 - OWI & DUI
Chapters
1:38
OWI or DUI. What's the difference?
2:33
What Type(s) of Field Sobriety Tests do Indiana Cops Use?
5:34
Can you refuse a blood draw in Indiana when facing OWI charges?
6:37
What happens in Indiana to someone who gets pulled over for operating while intoxicated?
7:45
Investigation & Field Sobriety Tests
9:51
What evidence is used in court against someone accused of driving while under the influence?
10:51
Are blood tests admissible in court?
11:36
The field sobriety test in Indiana
15:17
What happens to your vehicle after you are arrested for an OWI?
17:53
What are the penalties for first OWI offense in Indiana?
19:22
How bad is a second OWI charge in Indiana?
20:07
Arrested two times in one week for DUI.
22:00
Penalties for two OWIs within seven years.
22:27
Does an OWI mean jail time?
24:37
What are the penalties for a thrid OWI charge in Indiana?
29:17
Lifetime suspensions are not longer issued in Indiana.
29:18
Defenses for OWI charge in Indiana?
Tales from the Brown Desk
Tales from the Brown Desk - Episode 8 - OWI & DUI
May 12, 2020 Season 1 Episode 8
Rigney Law LLC

Weekly Criminal Law Podcast, Tales from the Brown Desk, brought to you by Rigney Law LLC. Tales from the Brown Desk is a free flowing conversation involving two foul-mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised. 

Episode 8 - Discussion about operating while intoxicated (OWI) in Indiana and driving while under the influence (DUI), How bad is getting an OWI, Intoxication testing methods, Field sobriety test, Penalties for OWI in Indiana, and Florida Man arrested for DUI. 

Show Notes Transcript Chapter Markers

Weekly Criminal Law Podcast, Tales from the Brown Desk, brought to you by Rigney Law LLC. Tales from the Brown Desk is a free flowing conversation involving two foul-mouthed attorneys. It may include graphic descriptions of sexual activity, violence, and traffic law. It may not be suitable for children. Listener discretion advised. 

Episode 8 - Discussion about operating while intoxicated (OWI) in Indiana and driving while under the influence (DUI), How bad is getting an OWI, Intoxication testing methods, Field sobriety test, Penalties for OWI in Indiana, and Florida Man arrested for DUI. 

Jacob Rigney:   0:05
It's Friday afternoon. We've locked the door so no one will interrupt us while we contemplate a May in Indianapolis with no car races and no traffic related to car races. And also because it's time for another edition of our weekly podcast Tales from the Brown Desk. I'm Jake Rigney of Rigney Law LLC. With me, as usual, is my law partner wife and the reason I can't have nice things, Kassi Rigney. Our host is Teri Ulm. Friendly reminder, Tales from the Brown Desk is a free flowing conversation involving two foul mouthed attorney. It may include graphic descriptions of sexual activity, violence and attempted meat theft. It may not be suitable for children, small animals, large animals, filthy animals and George the animal steele. Listener discretion is advised. Here's Teri.

Teri Ulm:   0:57
Hello, everyone. Hi, Jake. How are you?

Jacob Rigney:   1:00
I am, uh, embarrassed. Due to my repeated mess ups of the intro, which all had to be edited out. I'm ashamed. Ashamed of myself. I tell you.

Teri Ulm:   1:11
The listeners won't notice.

Jacob Rigney:   1:13
Well, they will now because... Because I just told them. 

Teri Ulm:   1:18
He admitted it.  

Jacob Rigney:   1:19
Right.  

Teri Ulm:   1:20
How are you, Kassi?

Kassi Rigney:   1:22
I'm fine, thank you.

Teri Ulm:   1:23
Good.

Jacob Rigney:   1:24
That wasn't very funny.

Teri Ulm:   1:26
It wasn't. But at least she's fine during a pandemic. So today we're gonna talk about OWIs and we're gonna jump right into it. OWI is operating while intoxicated, and then there's a DYI, which is driving under the influence. Which terminology is right in Indiana, and is there a difference between the two?

Kassi Rigney:   1:51
The current language of the law is operating while intoxicated. I'm not sure, for the entire reasons why they changed. DUI was also driving under the influence. I think the connotation with DUI was alcohol operating while intoxicated. The way the law has been written has been developing to encompass all forms of intoxication. Whether it's prescription drugs or marijuana or methamphetamine. So the proper term in Indiana is operating while intoxicated.

Jacob Rigney:   2:26
It even includes being intoxicated on your love. No, it doesn't. That's a joke.

Teri Ulm:   2:34
So for the police to know that you were intoxicated, how did they find that information out?

Jacob Rigney:   2:41
Well, it can happen a lot of different ways, but the most common way is they catch you breaking some minor traffic law and pull you over for that. And then when they see you during the part where they ask you for your license and registration, they noticed some things that lead them to think you're intoxicated. And they're trained to look for those things, so they usually spot them and then they go from there.

Teri Ulm:   3:12
Well, you can get an OWI with different drugs intoxicating your body, how can they tell what type of drug it is? Like if it's alcohol or if you're smoked weed and then hopped in the car like, how would they be able to differentiate between the two? Or even prescription pills?

Jacob Rigney:   3:32
Well, so sometimes they can tell a sort of a general class or a specific drug based on the type of things they notice. For example, one of the things they often do to people when they suspect they're intoxicated is a test called the horizontal gaze nystagmus test. Which is a big fancy way of saying they check your eyes to see if they shake or not. Because when you were intoxicated on alcohol, for example, which is the most common way people get DUIs, your eyes stop working exactly correctly. And they start wobbling a little. And they wobble a little, especially when you're looking to the left and the right, and they also don't track smoothly. So if they move something in front of your eye and you're supposed to watch it, your eye will sort of ratchet rather than moving smoothly. It'll just click, you know, bounce, bounce, bounce, bounce rather than move smoothly, horizontally. When you're intoxicated on marijuana, on the other hand, your eye will move perfectly smoothly, horizontally, but it won't move correctly vertically.  

Teri Ulm:   4:50
Interesting.  

Jacob Rigney:   4:50
Yeah, it's just the neurological effect it has on people is different that way. So if they think someone's intoxicated on marijuana, a lot of times they'll do a vertical gaze nystagmus test where they check to see if your eyes track smoothly up and down rather than left and right. And that gives them some clue. But there is also true that sometimes they don't know exactly what you're on, and they don't have to know exactly what you're on. They just have to have probable cause to believe you're intoxicated. Then they go get a warrant, and the judge typically signs it. And then they will draw your blood either by force or not.

Teri Ulm:   5:34
Can you refuse the blood draw?

Kassi Rigney:   5:38
Well, you certainly can refuse. There's something in the state of Indiana called the implied consent law. And whether you are simply holding Indiana driver's license or operating a vehicle on Indiana roads, you have kind of preliminarily consented to submit to a lawful request for a chemical test. And if you refuse that chemical test regardless of anything else, what happens, your license will be suspended for one year. And if it's your second DUI or your second refusal, it will be two years. And there is no hardship license for that. There's no... it's just straight suspended time.

Jacob Rigney:   6:22
Yeah, it's sort of like asking if you can refuse to be arrested. I mean, you can say ain't gonna do it, but if the police have a different idea, they will make it happen.

Teri Ulm:   6:38
So what happens in Indiana to someone who is pulled over and is drunk or under the influence of a drug... You mentioned some test... Is that the field sobriety test or is that something different?

Kassi Rigney:   6:54
Well, what Jake was referring to is the horizontal gaze nystagmus test is one of the three standard operating standard field sobriety tests that are commonly given that officers are trained on, on these kind of investigations. You get pulled over, the officer will probably ask you some questions, ask you to step from the vehicle. Um, you know, all of this time, he is gathering evidence against you. Are you shaking? Are you... Do you smell like alcohol? Do you pull yourself from the vehicle? Do you have to lean on the back of the car? And then he'll do the tests. Which are further ways to gather evidence. All of this is potentially...  to use to get probable cause to either ask for the chemical test or to get a warrant if you refuse.

Teri Ulm:   7:45
So the test starts at the beginning of the traffic stop? Not once you're out of the car and they say they're gonna give you a test.

Kassi Rigney:   7:54
I would say any time you're encountering the police, I mean, they're there for a reason, and they're taking note of everything. I mean, they're just taking note. They're observant. Don't think they just didn't come over because you're buddies and they want to know. I mean, if they noticed something, they're going to follow that thread,

Jacob Rigney:   8:11
Right. The tests are a part of their investigation. The tests start when they start, but the investigation starts immediately. As soon as you roll down your window. Because they're always looking for it. Obviously, pretty quickly, sometimes they realize that it isn't, and it's just a regular traffic stuff and just go ahead and do the rest of it. Write you a ticket or not, but they're trained to always be looking for those things. So the investigation starts immediately.

Teri Ulm:   8:44
So let's say that they suspect... They pulled someone over, and they suspect that they are driving under the influence. Do the cops have a breathalyzer there on scene? Do they take your blood there on scene? How does that happen?

Jacob Rigney:   8:58
They do. They have a handheld device called a portable breath test. PBT is what they call it for short. And it is something they keep in their car. They have a little mouthpiece that they use for each person. They pull it out of a little plastic wrapper, plug it into the box, they have you blow through it, and then it gives them an alcohol reading. That is useful for their investigative purposes because they can then use it to exclude alcohol, for example, if they're seeing intoxication, but they think it's not alcohol. They can confirm it with that. But the result is not admissible in court against you. So they can't come into court later and say what you blew in it.

Teri Ulm:   9:51
So what kind of evidence do they use in court against you for driving while intoxicated if they can't use the breathalyzer results?

Jacob Rigney:   10:01
So you get all their observations plus those the three standard field sobriety tests. Which are the horizontal gaze nystagmus that we already talked about, the nine step walk and turn, and the one leg stand. Each one of those tests is difficult. Each one of them, especially the two that aren't the eye test, are difficult. And they're trained to be looking for all the different ways you'll fail it on. And then they note all those. If they get failures on those tests, they can get a warrant and/or compel you to give a breath or blood test. And then from there you'll get lab results back that will tell you whether or not a person was intoxicated, what was in their blood?

Teri Ulm:   10:51
Are the blood test admissible in court?

Kassi Rigney:   10:55
If the blood test was taken lawfully, then yeah. Absolutely.

Teri Ulm:   11:01
When you say it was taken lawfully... So there's been times in the past where people's blood has been taken from them unlawfully? 

Kassi Rigney:   11:09
I can only assume that it has been. I mean, you either give consent or you don't. But, I'm certain that there have been times where people have samples taken from them forcefully by the police. I don't have a specific instance for you, but it's bodily invasion that requires a search warrant or consent.

Teri Ulm:   11:35
Now, going back to the field sobriety test, are there any things someone can do to get extra credit, during these tests?

Jacob Rigney:   11:43
No, there is no extra credit for it. In fact, just speaking personally, I would almost definitely never take them. You don't have to. You're unlikely to pass them sober or drunk. I know I am unlikely to pass them sober or drunk. And all I'd be doing is give them more evidence against me. So I would almost certainly tell the officer that I wasn't going to do those things. But people think that if they do it, then they might get to go home. And so they take their shot. But yeah, I see a lot more people fail them, then past them. 

Kassi Rigney:   12:33
And that's something that, going back to the implied consent, you can refuse to do the field sobriety test, and there's not a legal consequence to that. You can refuse them. What you cannot refuse to do, without legal consequences, is take the certified chemical test. Which is choice of the officer. That's either a breath test that you do at a police department or the drawing of your blood. Though the certified test is what you cannot refuse, or you'll get a driver's licenses suspension. The field sobriety test, you can refuse.

Teri Ulm:   13:09
Is there a certain phrase you would recommend someone use to tell the cops they don't want to do this test? Just to not be disrespectful to the cops and maybe work in their favor?

Jacob Rigney:   13:22
I would just say something along the lines that I'm not taking those tests. Or no thanks.

Teri Ulm:   13:31
Okay. So let's say someone was pulled over because the cop suspected that they were intoxicated, and they took these tests, and they failed them. They blew in a breathalyzer, and it shows that they are under the influence of alcohol. What happens to that person, next? Are the cuffed and put in the car and taken to jail? What happens to their car?

Kassi Rigney:   13:54
Well, what you described is actually just the investigation. At that point, then they would be read Indiana implied consent. And then you would expect them to be taken either to the police department to do the certified chemical test or to the hospital for a blood draw. And even if it's a strong investigation, if they can get that kind of evidence, a chemical test, they're gonna want to collect that evidence. And that would be, in the ideal investigation, I would expect that would be the next step, would be the admissible chemical test. When they put you in cuffs? I mean, that kind of question is, you know, an officer to officer kind of thing. You know, you may have somebody who's put in cuffs during an investigation who's never arrested. You may have somebody who goes through this whole thing and they never put cuffs on him before the are in the drunk tank behind bars in the police station. So that's a hard question to ask. I hate to have to say those things because you get people who would be like, well, I heard, and you can't cuff me... blah, blah. If the officer is in fear, as part of his investigation, he could put cuffs on you. And that may or may not mean you're going to jail or not. I don't know.

Teri Ulm:   15:16
So let's say they decided to arrest you, because you failed the test. They're pretty sure you're under the influence of alcohol. What happens to your vehicle?

Jacob Rigney:   15:28
They will typically tow it, unless you managed to park it legally in a place that it can stay. But yeah, otherwise, they call a wrecker and they tell your truck or your car, and they'll search it before they do that. So sometimes they find additional evidence against you when they're doing that. Either evidence that you were possessing something else in your car you shouldn't have. Or they'll find empty alcohol containers or something like that that makes you look worse. So that's usually what happens to your car.

Kassi Rigney:   16:03
You will also be held, oftentimes first time offenders, OWI's, you're just going to get OR'd out. But they will hold you in custody until you are at least under the legal limit. They've got a hold you till you sober up.

Teri Ulm:   16:16
What does OR mean?

Kassi Rigney:   16:17
Released on your own recognizance. Meaning that you're not gonna have to pay money to be released from custody. You're released on your promise to come back.

Teri Ulm:   16:29
Now, let's say that there was a child in the car. What happens to the child? They're not gonna tow the car with the kid in it, right?

Jacob Rigney:   16:39
Yes. They have a specific tow yard where they take nothing but cars with small children in them, and they're they're kept there and fed and watered until, uh. No. They don't. They don't do that. First of all, if you have a child in your car while you're driving while intoxicated, it increases the level of your offense. So, where that would normally just be an A misdemeanor, it becomes a level six felony, if you have a child in the car. Typically, I believe, what they try to do is find the other parent. So that, or another responsible adult who can come pick up the child. But if they can't or if there just isn't anyone that can come do that, then, because, for example, Chad's grandma was also drunk or whatever. Then they call the Department of Child Services, and the child goes into foster care. At least for a little while. So it can have really devastating results, and just really unfortunate situations can come up in that in that scenario.

Teri Ulm:   17:53
So let's say, for example, somebody was pulled over and they're being arrested for an OWI, and it's the first time they've ever received such a charge. How bad is that for them? What can they expect as far as penalties and consequences?

Kassi Rigney:   18:13
Generally, it's not going to result in any time in jail beyond the initial night of the arrest. Generally, obviously it's on a problem. You could go to jail for up to 365 days on an A misdemeanor. However, after that most of the time of probation matter. However, there's potential treatment. There's classes you have to take if you get a license suspension, you want toe the specialized driving privilege. You know you have to have special insurance. They might demand an interlock device on your car. One of the things you have to breathe into. It's very costly. The way I describe it to clients is they want it to be. It's not supposed to ruin your life, but they wanted to be painful enough so that you never come back. They don't want you to ever come back, and it is. It costs a lot of money, on top of what you would pay an attorney. And it's time consuming, and it's going to be a major frustration in your life. It's probably the strictest or toughest sentencing you'll get of any misdemeanor in my opinion.

Teri Ulm:   19:22
How bad can it be for someone who has two OWI charges, and does the time in between charges mean anything?

Kassi Rigney:   19:32
Okay, so you mean two different incidences. Not one incident that had multiple charges?

Teri Ulm:   19:37
Right.

Kassi Rigney:   19:37
Okay. Anytime, it's seven years now. If your first incident results in a conviction. You get picked up anytime with the following seven years, that will then be a felony. A level six felony charge, it will be enhanced for your prior conviction. If it's outside of that seven, whether it's inside or outside of that seven, you have to do five days in jail or 240 hours of community service.

Teri Ulm:   20:06
So if Indiana man wanted to live up to Florida man this week, what would happen to Indiana man if he did what Florida Man did and got arrested two times in one week for driving while intoxicated?

Jacob Rigney:   20:24
Well, um, so Indiana... and I've seen this happen actually. I think, I had a person I was prosecuting who picked up three in, like, a month or something like that. So they're all misdemeanors, which is the first thing, Which seems weird, but until you've been convicted of one, they can't enhance the other ones. So all three would be misdemeanors. But Indiana Man's bond or release on his own recognizance, if he didn't have a bond, can potentially be revoked for the second and third arrests. So there's a point where if you keep doing that, even in the more liberal type places like Indianapolis, that you will be held on a bond you can't make or no bond until your case is resolved. And it destroys any leverage you have to try to get the prosecutor to do anything different or a little easier or better for you. Because when he knows you're in custody, and that you'll take anything to get out, he has no incentive to cut your brakes or try to get it over with quick. Because he knows that if he just walks away from the negotiation, you'll just be sitting in jail. And that's worse than whatever you're going to get anyway. So you'd destroy all your leverage to negotiate when you do stuff like that.

Teri Ulm:   22:01
So what would be the penalties for someone who received two OWI's within a seven year time frame in Indiana.

Kassi Rigney:   22:12
I mean, it's a level six felony. So it's six months up to 2.5 years, probation, jail time, home detention, any range of penalties that come along with that.

Teri Ulm:   22:27
How likely is a for someone who received an OWI to spend time in jail? Like, how many do you have to get to sit in jail or is a common to just get OWIs and not much jail time?

Kassi Rigney:   22:40
That's just not a kind of question that an attorney can answer. Each jurisdiction is different. Each judges different. You're going to get treated differently regarding bond, and custody, post conviction in Marion County then you are in rural county. so that's why often times you asked me these questions and I'm like, well this is the minimum and this is the maximum. Because any of those are possible. It just kind of depends on where did you get arrested? And then I could tell you, while you're more likely to get towards this or that. But there's not hard and fast answers to these questions.

Jacob Rigney:   23:20
Yeah, I get these sorts of questions from people who call a lot, and my I tell most of them about the same thing. Which is, I'd love to be able to tell you this is what's gonna happen. And that I can guarantee you that. But there are no guarantees in criminal law. And if you find a lawyer that will give you a guarantee that this is gonna happen or that's gonna happen, you should turn and run. Because that lawyer does not know what they're talking about. It is rife with the opportunity for unpredictable things. to happen. Because every case is a little bit different, and every person's life leading up to their case is different. And so they have different backgrounds and different histories. And sometimes they did or said something bad to the judge at the beginning of their case too. Which can create additional uphill problems. So we never know for sure what's gonna happen. All we can do, and this is, like I said, this is what I tell them,  I can't guarantee what's gonna happen. I can guarantee I'll do what I can to help. And that's sort of where we're stuck.

Teri Ulm:   24:37
Now what about third OWI charge? Do the penalties get harder? Do the consequences come on a person stronger? How many of these charges can someone rack up? How many OWI's have you seen on one person's record?

Jacob Rigney:   24:56
When I was a prosecutor at a case in court nine where the guy had something like 10 or 15. Somewhere in there.  

Teri Ulm:   25:07
Wow.  

Jacob Rigney:   25:07
The progressive penalties for priors stop going up at a level six felony. And the mandatory minimums stopped going up after two. And the minimum for that is 20. No, 10 actual days. Yeah, 10 actual days in jail. But that doesn't change the fact that the judge has discretion to give you a worst sentence. For example, I think the guy who had 10 or 15 he got, like, a year and 1/2 in prison. 

Kassi Rigney:   25:45
Well, something else. Once you start ranking up multiple convictions, then you're going to start facing administrative consequences. Which is what the BMV is an administrative body, and they can take action against you that's not considered criminal. They can a judge you a habitual traffic offender and suspend your license. And that's something they can do separate of any criminal case. So that's additional.

Jacob Rigney:   26:15
Yeah. And in fact, you can lose your license for five years, even with just one DUI. If you have one major offense, like a DUI or a reckless driving, or even I think driving while suspended, and nine tickets within a 10 year period, then your habitual traffic violator. And the bureau will administratively suspend your license for five years if you pick up three majors, which would include your three DUI scenario. They'll suspend your license administratively for 10 years. So there are large collateral consequences sometimes to these things that there's not a lot you can do about. Especially if you've already pled guilty.

Teri Ulm:   27:03
Is a lifetime suspension a thing?

Kassi Rigney:   27:08
Not anymore. And if people are out there living under a lifetime suspension, give us a call, cause after 10 years we can help you get that done. The legislator has recognized that lifetime suspensions just aren't generally even good for the community. People can't function in today's society, so it's maxed out a 10 year suspensions.

Jacob Rigney:   27:32
Right. There are people out there in the community who are suspended for life. They changed the law, in 2014, and did away with lifetime suspensions. So new people are not getting lifetime suspensions. But the people who got them before, still have them. And those weren't vacated just because they changed the law. So the people from... who had their license forfeited for life before 2014 are still suspended for life. And some of them aren't even eligible to have their lifetime suspension rescinded, yet. You have to go 10 years, I think. Although it depends on how you've got there. I think sometimes you get it done after three. But yeah. Lifetime suspension used to be a thing, and still is for some people who were living out there. You got it when you were convicted of the level, not the level six, the D felony, operating as a habitual traffic violator. So the five and 10 year suspension I just described is called a habitual traffic violator suspension. If you get caught driving on that, it was a D felony, still a level six felony. And as a result of that conviction, if it stayed a felony, your license would be forfeited for life. And then if you got caught driving on your lifetime forfeiture, that was a level C felony, a class C felony, back in the day. So I carried a penalty of 2 to 8 years in prison. Just for driving.

Teri Ulm:   29:15
Wow. So I know you two, as criminal defense attorneys handle a lot of OWI cases defending people that the charges have been brought against. What are some typical defenses that you look into when you're building your case for your clients?

Kassi Rigney:   29:33
DUIs are a lot of fun because there's often times a lot up for a defense attorney to work with in defending the case. There's lots of things that happen that implicate the Fourth Amendment. You hear motions to suppress... Was the initial traffic stop legally justified? Did the investigation unfold legally? Were the field sobriety tests administered properly? Was the chemical test administered properly? Were they, in fact, intoxicated, or is there some kind of problem with the the chemical test? Is there some other reason for the observations that the officer would would claim to have? So whether it's intoxication, then there's also were they really operating? You get a lot of things like was the car parked? Where the keys in the indication? Was it running? You know, those kind of those kind of things. Operation. Intoxication. Then any time, the contact with the police, did they handle that aspect lawfully?

Teri Ulm:   30:47
So as far as operating, what if someone was sitting in the car drunk, just sitting in a parking lot, or even their garage?

Jacob Rigney:   30:58
Sitting in their car? It would depend. If their car was running, in particular, if it was in gear and they had their foot on the brake, definitely. If their car's in park and it's running, probably yeah. Although I have seen some prosecutors who are a little hesitant to charge that. But look, operating a motor vehicle... It's still a 2,000 ton piece of... 2,000 pound a piece of plastic metal and glass, right? You shouldn't be behind the wheel of your car, even if you're not doing anything with it while you're intoxicated, because it's dangerous. It's dangerous for you, and it's dangerous for the other people you live with. So even in your garage, it's dangerous for you and your house. So that's typically still illegal.

Kassi Rigney:   32:00
And it's one of those things, people think that they're going to get real clever, and they're in a one car accident, and the police roll up and they're not in the car. But it's kind of like, well, where did you in your car? How did they in there? It's beyond a reasonable doubt. You don't actually have to be caught puking your guts out, driving the wrong way down a one way street. It's a global... Is it reasonable? They could make a proof, prove a case of operation, even if you're not well, actually behind the wheel of your car, moving on the roadway. It's a fact sensitive situation. So it's a big difference if you're in your car versus a public parking lot. Did you drive? Where you going? Were you getting something out of your car? Were you fighting with your family member? Just listening to music in your driveway? Or if you're in a public place, how did you get there? It's less likely to think that you were doing something innocent, not moving, if you're in a public place.

Teri Ulm:   33:04
Could you get an OWI for driving a golf cart, drunk?

Jacob Rigney:   33:10
Yes. Yeah, absolutely. A golf cart is a motor vehicle. And in fact, of the statute doesn't even say motor vehicle anymore. It just says vehicle, and so yes. It is any vehicle, which is anything that is essentially pushed by a mechanical scheme is a vehicle. So that includes scooters, bicycles, mopeds, and golf carts. Yeah.

Teri Ulm:   33:49
Let's say there two people in the car, the driver is not drunk, not under the influence of any drugs, but there's a passenger drinking. Is that okay?

Jacob Rigney:   33:59
Well, the passenger is not allowed to have an open container in a vehicle. So if he's drinking in the car, that's illegal. That's a C misdemeanor. But the passenger can... is not operating the vehicle in that scenario, so they wouldn't get an OWI. It is also possible to get a public intoxication charge from riding in a car while intoxicated. There was a somewhat high profile, at least among lawyers case, several years ago where a woman was a passenger in a taxi. And she ended up getting arrested for public intoxication where she was a passenger in a car. That's what it was. She was a passenger in a car and she got arrested for public intoxication. It was understanding how those investigations go. What happened is the driver of the car was also intoxicated, and so they couldn't let her drive the car away because she was also drunk, and it was in a bad neighborhood. So they didn't... I don't think the officer felt comfortable letting her walk to wherever she needed to go, in that neighborhood. So he felt like, my guess is, he felt like the only thing he could do was arrest her for public intoxication. Then some prosecutor filed the case, which they don't usually do. But they did. And it went to trial and she lost the trial. It went to the Court of Appeals, and I'm pretty sure she lost there, too. That caused the legislature to change the public intoxication statute so that those types of things didn't happen anymore. And now there's an element where you have to be bothering somebody in a public intoxication situation. So now being drunk in public on its own is not a crime. Unless you are harassing, annoying or yeah, there's some third element. I can't remember what it is... Endangering yourself or someone else.

Teri Ulm:   36:06
So have either of you two seen those, I don't even know what they call them, they're like these multi-people bikes that are riding around Indianapolis. But, they're like bar bikes where people are peddling and drinking. How is that okay? 

Jacob Rigney:   36:27
Please tell me that Florida Man is going to get involved in the pickled peddler here in a second.

Kassi Rigney:   36:33
To be honest, the person driving is the operator... is not drinking. That's like the proprietor. At least of the ones that I have seen, is that there is someone who's actually serving the alcohol, and I assume works for, they call it bards? Whatever they're called, it's an employee. So certainly, if that person was drinking and they were intoxicated, yes, they could. But the people who are drunk are the motion of the pedals. They're not steering the vehicle.

Jacob Rigney:   37:07
Yeah. And, if you look closely at those things, you'll notice they have engines. They're not like... I don't think they run on gas. They're probably electric. But I'm not even sure that the people who peddle are doing anything.

Jacob Rigney:   37:24
I think they're just like, oh no it's exercise. Here's some pedals. To be honest, I think it's probably against the law. Because it's it's having an open container in a motor vehicle. Which most likely everyone who's doing that is committing a C misdemeanor. At the same time, I've never heard the police suggests they needed to start enforcing that, and as long as people are doing it and they aren't throwing beers at people as they go by, and/or yelling and screaming, and they keep it when the sun's up and not like in the middle of the night, driving through neighborhoods and stuff. Who cares, right? That is why the police have some discretion about whether to enforce laws or not. And it's so that we can keep letting them motorized beer seller guy drive people around. Who cares? It's fine. Let them do it.

Teri Ulm:   38:27
So would it be fine to hop on a bike and drink? Like a bicycle. Not a motorcycle, but a bicycle with pedals. It's gotta be fine then. Right?

Jacob Rigney:   38:41
Well, I think that's it's also illegal. Just like being inside the pickled peddler is. But I don't think you're usually going to get in trouble for it. Especially if you're not doing something stupid, and you don't hurt anyone. But you can get a DUI on a bike.

Kassi Rigney:   39:01
And that's something that... And this is where, why it's not so easy to be a lawyer. You're mixing two issues. The pickled peddler, you've got the drunk people as the power, and then the person steering. So the person who's steering isn't intoxicated. But if you're drunken and biking that's the same person doing the same thing. They're two separate issues. So, that's where you know... If you're intoxicated, you're not supposed to be in charge of maneuvering something that can hurt you or somebody else is kind of the jest.

Teri Ulm:   39:39
We've had numerous people call, recently, asking if there's a way to expunge their driving record. Is that a thing? I don't know if they have, like OWI's or whole bunch of tickets, but they specifically want to erased their record, their driving record.

Jacob Rigney:   39:56
There is a statute that allows for the expungement of certain driving offenses, but it is not a very user friendly statute. I don't think it actually helps very many people. And I, even though we've gotten a lot of calls about it, I don't think I've ever actually been hired to do it, because the statute doesn't provide a lot of relief.

Kassi Rigney:   40:22
Well, because the thing is it's sealing it, and they have... You can't have admitted them. In an expungement you're like, OK, I did this. You admitted guilt or however. You're coming back... You're not fighting the conviction. You're just like this has been enough time. And on those, if you want to seal it on an infraction, it had to have been dismissed or overturned on appeal. So if you admitted it, you're not eligible to seal your driving record.

Jacob Rigney:   40:49
And paying the fine is the same is admitting it. That's paying the fine is admitting it. So if you paid the ticket, you can't get them expunged.

Teri Ulm:   40:59
So did either of you hear that, earlier this week in Utah, the cops were pulling over this SUV because they suspected that the driver was intoxicated. But when they go up and question the driver, the driver is a kid. He's a five year old boy driving on the interstate... On his way to California to buy a Lamborghini because his mother would it buy him one?

Jacob Rigney:   41:27
Yeah. So this... I've ever about this kid. And I just I want to say our phone number is 317-430-7370. And we have a four and a half year old daughter. She's gonna be the daughter of two lawyers. So... that kid needs to be my future son-in-law. That's awesome. I'm sorry, but my daughter is now betrothed. That kid's amazing. He's my hero.

Teri Ulm:   41:57
I don't know how you'd to reach the pedal?

Kassi Rigney:   42:00
Yeah, that or see over to be able to steer?

Teri Ulm:   42:05
Or to know the cop was pulling him over. And he pulled over on the interstate for the cop.

Jacob Rigney:   42:12
That's why this kid's my hero. He's obviously... He figured out things that three ground adults can't figure out. We don't understand how he didn't. And, he's just like, oh shit, the cops are here. I guess I better pull over.

Kassi Rigney:   42:23
He reminds me of the kid that took his grandma's car. Wasn't that I like to do hood rat stuff with my friends? 

Jacob Rigney:   42:32
Yes. That was that kid. Yeah. Why did you do it? Because I like to do bad stuff with my friends. Smoking with cigarettes.

Teri Ulm:   42:39
So Florida Man was having fun with his brother this week, and both of them ended up getting a DUI. I think it's called a DUI in Florida, for the same vehicle. We never heard of such a thing happening?

Jacob Rigney:   42:57
Was one sitting on the others lap?

Teri Ulm:   42:59
No. The cops were called about a reckless driver. And when they showed up, this vehicle is pulled over and the driver got out. And while he got out, his brother, who is also under the influence, got in the driver's seat. So they both ended up with DUIs.

Jacob Rigney:   43:19
Did he take off?

Teri Ulm:   43:21
Yeah, he tried to take off.

Jacob Rigney:   43:22
Yeah, that'll do it.

Teri Ulm:   43:25
That's it. So that wraps up this episode of Tales From the Brown Desk.

Jacob Rigney:   43:30
Thanks, Teri. And thank you for listening to Tales from the Brown Desk. Please note, while we may discuss legal issues and provide information regarding the law to our listeners, we do not intend to create an attorney client relationship with any listener. Our advice may not be applicability to some legal issues. Please consult with an attorney you hired to review your legal situation before you attempt to apply the things we have said to your case. If you'd like to schedule a free consultation with one of us regarding a criminal law matter, please call us at 317-430-7370. If you'd like to submit a question for our podcast, please send an email to [email protected] Please title your email: Podcast Question. No names are necessary. The attorneys at Rigney Law do not comment on their current pending cases. Nothing we have said in this podcast is a comment on a case we're currently working. Even if your name is Chan or if you are a man from Florida. Thanks. Take care..

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