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Ask Our Lawyer - March 2001

Q: A heated discussion occurred at our last meeting concerning the drunk driving laws. It focused on the BAC. It is my understanding that at .05 or less that you are presumed to not be intoxicated and that at .1 or greater you are presumed to be intoxicated. The BAC between .05 and 0.1 is the area of contention. As I understand it, you can be arrested and charged with DUI if your BAC is in this gray area if there is other evidence of impairment, other disagree. Would you enlighten us as to the truth?


A: The truth is, as it often is, stranger than fiction. In the case, the fiction is the conventional wisdom that you have to have a .10 BAC to be arrested. As you can see below, that is not the case.

There are two statutes involved, defining different terms. The first one is I.C.9-30-5-2 - "A person who operates a vehicle while intoxicated commits a Class A Misdemeanor." Intoxication is defined by Ind.Code 9-13-2-86 thus:

Intoxicated means under the influence of:
1) alcohol,
2) a controlled substance,
3) a drug other than alcohol or a controlled substance,
4) a combination of alcohol, controlled substances or drugs;
so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to an extent that endangers a person.

Another statute, defining a completely different crime, is Ind.Code 9-30-5-1, which states that:
(a) A person who operates a vehicle with an alcohol concentration equivalent to at least 10-hundredths (0.10) gram of alcohol but less than 15- hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person's blood; or
(2) two hundred ten (210) liters of the person's breath;
commits a Class C Misdemeanor.
(b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person's blood; or
(2) two hundred ten (210) liter of the person's breath;
commits a Class A Misdemeanor.


In essence, the statutory scheme contemplates two separate and distinct crimes. One deals with operating while intoxicating requires evidence of an impaired condition to the extent that it endangers a person. The other statutory scheme simply measures blood alcohol content and assigns a penalty if you are at 0.10 or 0.15. Violation of Ind.Code 9-30-5-1 does not require any evidence of endangerment or impairment, it simply requires that you meet the blood alcohol content specified in the statute.

A recent case, Henriott v. State, 562 N.E.2d 1325 (Ind. Ct.App. 1990), discusses the situation where Henriott was discovered at the scene of an accident by investigating officers. Henriott said that he had lost control of his truck when he swerved to avoid something blocking the roadway. The officers smelled alcoholic beverages, the suspect's face was flushed and he was unsteady. Henriott did give a breath test and was also administered two field sobriety tests. He did not pass either field sobriety test and the breathalyzer test revealed blood alcohol content of .11. At trial, Henriott was convicted of driving while intoxicated but was acquitted of driving with a blood alcohol content of .10 or more. Henriott argued on appeal that the two findings were inconsistent. The court stated that the definition of intoxication by statute does not require proof of blood alcohol content. The State is required to establish that defendant was impaired regardless of his blood alcohol content. Therefore, while the State did not prove that he was over .10, they did manage to prove intoxication and he was convicted on that count.

As that applies to this question, there is no "grey area" between .05 and .10. More than likely, what you have heard is really someone combining the two statutes discussed above, and trying to make sense of the difference between the driving while intoxicated statute and the blood alcohol content statute. It is important to note that there is no .05 break point that says intoxicated or not intoxicated. Any evidence of impairment coupled with endangerment under the statute would be sufficient to prove a case of intoxication no matter what the blood alcohol content was. There is no safe harbor between .00 and .05 which shows no intoxication. In fact, prosecution simply requires diminished capability and some element of endangerment.

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