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Is driving a necessary part of an OWI charge?

In Indiana, if you have a blood alcohol concentration above 0.08%, it is against the law to operate a motor vehicle. Operating a vehicle while intoxicated may lead to your arrest and criminal charges. You do not have to be driving to violate the law, however. 

Driving is not an element of an OWI offense in the Hoosier State. Instead, prosecutors only must prove beyond a reasonable doubt that you had actual physical control of a motor vehicle while intoxicated. 

A multi-factor test

Clearly, if you are in the driver’s seat of a vehicle that is moving forward or backward, you likely satisfy the requirement of having actual physical control of the vehicle. For cases where the evidence is not so clear-cut, judges typically apply a multi-factor test. 

The following may indicate you had actual physical control of a motor vehicle at the time of your arrest: 

  • Whether the vehicle was in a location where moving vehicles typically drive 
  • Whether the vehicle was moving 
  • Whether the vehicle is in gear 
  • Whether there is other evidence of vehicle movement 

Your OWI defense

To determine if you had actual physical control, judges may also consider any evidence that leads to a reasonable inference of actual physical control. You probably want to keep this fact in mind when planning your OWI defense. 

Anything you can do to show you lacked physical control of the vehicle may help you dispute false drunk driving accusations. That is, to defend yourself effectively, you may want to use the multi-factor test to distinguish your arrest from arrests courts have found to pass legal muster. 

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