Habitual Vehicular Substance Offenses

One of the most important areas of law that clients need protection from is the imposition of what is known as a “Habitual Vehicular Substance Enhancement,” commonly abbreviated by lawyers as “HSO.” This enhancement, filed at the discretion of the prosecutor, attaches to the dui charge of one who is facing a third or higher dui conviction in Indiana. If found guilty of the third or higher dui, an HSO imposes the possibility of a mandatory additional punishment from a minimum of one (1) to eight (8) years in prison to the sentence of the underlying offense convicted of.

For the sake of discussion let’s presume that one is facing a third dui conviction misdemeanor in Indiana (both prior dui convictions were over five years ago) where such an HSO enhancement is filed. Although the individual would be subject to up to a maximum of one year in jail on the misdemeanor, the HSO would allow an additional eight years in prison to be imposed per the enhancement.

Unlike a felony designation, the HSO determination is not always reliant on time. In other words, even a prior dui conviction over twenty years ago can qualify as one of the prior offenses to qualify one for HSO treatment. This is important to keep in mind as time and time again I have even had to correct well intentioned attorneys from incorrectly counseling that an HSO only considers convictions within the prior ten years.

The reason for this common mistake is due to the fact that it is the Habitual Traffic Violator (HTV) statute that deals with license suspensions and not HSO enhancements that limit a Habitual designation to driving offenses accumulated within a ten year period.

Further, the HSO does not have to be filed at the time the initial dui charge has been filed. To express it in a more blunt way, an individual is by no means out of the woods for such a penalty if initially charged without an HSO enhancement, as the enhancement can be later added to the original charges any time before what is usually termed a pre trial/omnibus date.

It should go without mention that within prosecutions representing a client who is a multiple offender in Indiana, an attorney’s foremost concern must be to do anything and everything in his or her power to either prevent the filing of an HSO or get it dismissed post filing. An attorney in Indiana must further be aware of what prior dui or drug offenses may actually qualify under Indiana’s HSO statute. I have been privy to occasions where prosecutors themselves have unknowingly attempted to qualify one as HSO eligible for prior unqualified offenses or out of state convictions for drug/dui offenses that have not been determined analogous enough to Indiana’s statute to qualify for hso treatment.

In my experience preventing the HSO filing from the outset of a prosecution is a far more advantageous achievement on behalf of a client, for once the enhancement has been filed plea options tend to become far more harsh and unreasonable. This is usually the case due to the leverage such a filing provides a prosecutor.

Unlike a conventional misdemeanor dui prosecution where a determination can be made that a worse case scenario for going to trial may be a one year jail sentence, a client must be willing to risk another eight years imprisonment if convicted at trial and subject to an HSO.

This reality can change and should change the dynamic of pre trial negotiation. It is critical in such circumstances that the experienced defense lawyer be pro active in investigating the possibility for pre trial dismissal without compromising the ability to dismiss an HSO filing through later negotiation where applicable.

Within the context of defending a client with multiple offenses, pre trial negotiations should be a delicate endeavor. Too often an inexperienced attorney will proceed like a bull in a china shop toward a prosecutor in such high stakes prosecutions; a prosecutor who may be inclined to shut off the prospect of later negotiation to dispense with a subsequently filed HSO at the expense of a client’s best interests.

Properly defending clients is about investigating and securing all potentially favorable options. In this regard I strongly advise not to allow an HSO eligible prosecution to be mishandled in this potentially perilous area of Indiana dui defense.