Indiana OWI Defense

An OWI arrest puts two things at risk at once: your record and your driver's license. The license problem starts before you ever see a judge, and for most people it is the most urgent concern, because it decides whether they can get to work next week.

I prosecuted and supervised OWI cases in Indiana for nearly 30 years, from first arrests to crashes involving a death. I know how the State builds these cases, what the breath test rules require, and where the paperwork and procedures break down. I now use that experience to defend people charged with OWI.

Is a first OWI a misdemeanor or a felony in Indiana?

A first OWI with no injury is usually a misdemeanor, but even a first offense can be a felony in the circumstances listed further down, such as a child passenger:

• Class C misdemeanor (up to 60 days and a fine of up to $500) for driving while intoxicated, with a blood or breath alcohol concentration of .08 to under .15, or with a Schedule I or II controlled substance, or its metabolite, in the blood.
• Class A misdemeanor (up to one year and a fine of up to $5,000) with an alcohol concentration of .15 or more, or when the driving endangered a person.

An OWI becomes a felony when:

• Prior OWI within 7 years: Level 6 felony (six months to two and a half years, advisory one year, fine up to $10,000).
• Child passenger: Level 6 felony, even on a first offense, if the driver is 21 or older, a passenger was under 18, and the charge is .15 or more, a Schedule I or II controlled substance, or endangerment.
• Serious bodily injury: Level 5 felony, or Level 4 with a prior OWI within five years.
• Death or catastrophic injury: Level 4 felony (two to twelve years, advisory six years).
• Prior OWI causing serious bodily injury, catastrophic injury or death: A new OWI is a Level 5 felony, no matter how long ago the prior conviction was.

A Level 6 OWI felony can sometimes be entered, or later reduced, as a Class A misdemeanor.

What if this is not my first OWI?

As of July 1, 2026, a person with one prior OWI conviction must serve at least 10 days in jail or perform at least 240 hours of community service. With two or more priors, the minimum is 20 days or 480 hours. The court must also order an alcohol and drug assessment. This minimum cannot be suspended; at least 48 hours of any jail time must be served in a row, and the jail time must be completed within six months.

Three prior unrelated OWI-type convictions, or two with at least one in the last ten years, can support a habitual vehicular substance offender enhancement of one to eight additional years.

Will I lose my license right away?

Often, yes, unless something is done at the first court date. At your initial hearing, if the judge finds probable cause, your license can be suspended right away:

• Failed chemical test: suspended for 180 days, or until the case is resolved, whichever comes first.
• Refused the chemical test: suspended for one year, or two years with a prior OWI conviction.

This is why the first court date matters so much. Indiana law gives you options to keep driving, and some of them have to be raised at or soon after that first hearing.

Can I keep driving to work?

Often, yes. There are two main routes:

• Specialized driving privileges. A court can allow you to drive for work, school, treatment and other approved purposes during a suspension. If you tell the court at the initial hearing that you will ask for privileges, the court must hold off on the suspension, and the petition must be filed within 10 days. Since July 1, 2026, an eligible person can also ask after the initial hearing. Proof of insurance is required.
• Ignition interlock instead of a suspension. When there is probable cause for an alcohol-concentration charge (.08 or more, or .15 or more), the court can order that you drive only a vehicle with an ignition interlock device while the case is pending, instead of suspending your license. This option can be available even if you refused the chemical test, and even if you are also charged with intoxicated or endangering operation. It does not apply to a charge based only on a controlled substance.

Not everyone qualifies. Specialized driving privileges generally cannot cover a refusal suspension, although the interlock option above may still be available after a refusal. People who have never been Indiana residents are not eligible for specialized driving privileges, and privileges cannot cover driving a commercial vehicle.

What happens to my license if I am convicted?

• First OWI: the court may suspend your license for up to the maximum jail term for the offense (60 days for a Class C misdemeanor, one year for a Class A misdemeanor).
• With a prior OWI conviction: at least one year.
• Serious bodily injury: at least one year. Death: at least two years, with no specialized driving privileges.

Time already served under a failed-test suspension is credited against the court's suspension. Time under a refusal suspension is not credited, and a conviction suspension generally runs after it, although the court can end the remaining refusal suspension in some cases.

Should I have refused the breath test?

In Indiana, refusing a chemical test is not a separate crime in an ordinary traffic stop, but it has real costs: a longer suspension (one year instead of 180 days), the refusal can be used as evidence at trial, and the refusal suspension is not credited against a later suspension. Refusing a portable breath test or chemical test after a crash involving serious injury or death is a separate infraction (Class C, or Class A with a prior OWI) with its own one- or two-year suspension.

Refusal does not have to be in words. Conduct can count as a refusal, as long as the person was capable of refusing and showed unwillingness to take the test.

Do I have to do field sobriety tests or the roadside breath test?

Indiana's implied consent law, which suspends your license if you refuse, applies to the certified chemical test of your breath, blood or urine, usually given at the station or the jail. In an ordinary traffic stop, refusing the handheld roadside breath test does not suspend your license, and neither does declining field sobriety tests.

The roadside breath test is a screening tool. An officer needs reasonable suspicion to ask you to take one, and the number it shows generally is not admissible at trial.

Field sobriety tests are how officers decide whether they have probable cause to arrest. Officers do not have to give Miranda warnings, or tell you that you may talk to a lawyer, before asking you to do them.

Indiana's appeals courts have not clearly decided whether declining field sobriety tests or the roadside breath test can be used against you at trial, or counted toward probable cause. So declining is not free of consequences: an officer can still arrest you based on your driving, your appearance and what you say, and can still offer the certified chemical test, which does carry a suspension if you refuse it.

Every situation is different, and what you should do at the roadside depends on the facts. If you have already been arrested, what matters now is what the officer did and whether it was done correctly.

How can a breath test be challenged?

Indiana's certified breath test has strict rules. A result can only be used in court if the operator, the instrument and the method were approved and followed:

• The test must be given within three hours of the officer having probable cause. When a sample taken within those three hours shows .08 or more, the law lets the jury presume you were at least .08 while driving. The presumption can be rebutted, and it does not mean your later reading was your reading while driving.
• There must be a 15-minute deprivation period before the test, continuing through the last breath sample, with nothing to eat, drink or smoke and nothing put in your mouth. The officer in control of you during that time does not have to be the operator.
• The operator, the equipment and the testing method must have the required state approval. A certification dated within 180 days before your test is treated as evidence that the instrument was working properly.
• If the machine reports mouth alcohol or an interfering substance, the officer must either get a blood test or repeat the 15-minute period and give another breath test, with further steps if the same message appears again.
• If you gave an insufficient sample, the officer generally must offer a second test unless you clearly refused.

I review the breath test ticket, the certifications and the video in every OWI case. As a prosecutor, I saw how often a small departure from the required procedure decided whether a result could be used.

Can an OWI be diverted or dismissed?

Indiana's general pretrial diversion law does not apply to OWI charges. Some counties have an alcohol abuse deterrent program that can defer prosecution if both the defendant and the prosecutor agree, subject to exclusions in the law. Many OWI cases are resolved by challenging the stop, the arrest or the test, or by negotiating the charge.

I have a commercial driver's license. What happens?

Federal rules apply to every CDL holder, even if the arrest happened in a personal vehicle. A first OWI conviction or a test refusal disqualifies you from commercial driving for one year (three years if you were hauling hazardous materials). A second is a lifetime disqualification, although federal rules let states reinstate some drivers after ten years and an approved rehabilitation program. CDL holders are also barred from pretrial diversion on driving offenses, and specialized driving privileges do not cover commercial driving.

Will I need SR22 insurance?

After an OWI conviction suspension ends, Indiana requires proof of financial responsibility, commonly called an SR22, and you must keep it on file for three years.

Can an OWI be expunged?

• Misdemeanor OWI: you can generally petition five years after the conviction, with no new convictions in that time, no pending charges, and all fines, fees, court costs and restitution paid. A Level 6 felony that was reduced to a misdemeanor follows this route. The prosecutor can agree in writing to a shorter wait.
• Level 6 felony OWI: generally eight years after the conviction, with no new convictions in that time, no pending charges, and all fines, fees, court costs and restitution paid. This route is not available if the offense resulted in bodily injury to another person. The prosecutor can agree in writing to a shorter wait.

I live in Ohio, Michigan or Illinois. How does an Indiana OWI affect me?

An Indiana OWI conviction follows you home. Indiana, Ohio and Illinois are members of the Driver License Compact, which reports convictions between member states, and your home state can treat an Indiana OWI as if it happened there. Michigan is not a Compact member, but it also acts on out-of-state convictions under its own law. People who have never been Indiana residents also cannot get Indiana specialized driving privileges.

How I defend an OWI case

• Act at the first hearing to protect your ability to drive.
• Examine the reason for the stop and whether it was lawfully extended. (See how police mistakes can affect a case.)
• Review the dash and body camera video against the officer's report.
• Check the breath test procedure, certifications and timing, or the blood draw and lab work.
• Make the State prove any prior conviction it uses to raise the charge.
• Weigh every option, from trial to a negotiated resolution, with you.

Every case depends on its own facts. This page is general information, not legal advice, and past results do not guarantee a similar outcome.