An Affidavit for Probable Cause in a DUI

A Quick Guide to Reading and Understanding an Affidavit for Probable Cause in a DUI

State Form 44213 (click here to view)

Being pulled over by a police officer for any reason is a stressful event. However, multiply that anxiety by 10 if you are being pulled over when you know you are operating a vehicle while over the legal limit and facing a DUI. If you have faced that situation, you inevitably have been subject to criminal prosecution. We have written many, many blogs on the topic of DUI law, and you can read those blogs here. Yet, there aren’t many blogs on analyzing the many documents you will receive as part of the discovery process in your case. If you are wondering what discovery is…you aren’t alone…it is a fancy word for the process of viewing and gathering evidence in your case — including all the documentation you and your attorney will receive from the prosecutor.

In any DUI case, you can expect to receive tens if not hundreds of pages of material…not least of which are the three main legal documents in a DUI: (1) a charging information listing your formal charges, (2) a probable cause narrative — the officer’s story or account of what happened to justify your arrest, and (3) an Affidavit for Probable Cause (a.k.a a State form 44213 — commonly referred to as the “Long Form Affidavit). This blog will focus on the State form 44213. While it is commonly referred to as the “Long Form Affidavit,” given it wraps up most of the pertinent facts in a quick, easy to read snapshot, fill-in-the-blank form, many refer to it as the “Cliff Notes” version of the arrest.

Given you will (or should) be given a copy of the Affidavit for Probable Cause, or State form 44213, we thought it would be important to give you a quick snapshot of what it contains and how to read it. As such, we provided a screenshot of it below. We color-coded the form and placed large numbers (1-8) next to the color-shaded areas for easy explanation.

Below are the explanations for what each section is for, and the best way to read the document. While this form is meant as a quick reference to most of the important details in the DUI investigation, it is important to read this document in conjunction with all the other discovery the State provided. Every once in a while the narrative probable cause document is inconsistent to the Long Form Affidavit. Your defense attorney can use this to their advantage.

Regardless, we hope this information below helps. Begin at Section 1. and work your way to section 8.

Section 1:

This section is used primarily for three reasons: (1) it provides everyone with the police officer’s information (including agency/department) and who the alleged driver/defendant is (by using their identifiers – DOB, SS#, etc.), (2) it provides the details for when the event took place, and (3) it provides details of vehicle and location of the offense.

Section 2:

This section is used to provide more details about what the officer or witnesses saw to establish operation of the vehicle. In any DUI arrest (in Indiana they are referred to as OVWI’s or Operating While Intoxicated), the prosecutor must prove that the defendant actually operated the vehicle. This section is used to help prove operation (i.e. the officer witnessed them drive, a civilian saw them drive, they were in an accident (and if there were injuries), the defendant admitted driving, etc.)

Section 3:

Once operation is established, you move to this section. Section three provides all of the initial indicators the officer uses to observe whether or not they believe the driver/defendant is intoxicated. These observations aid the officer in working towards probable cause for an arrest. Most DUI arrest on average will show three of these at a minimum —the most common of them being blood shot/glass eyes, odor of alcohol, and slurred speech.

Section 4:

Armed with information the driver was operating a vehicle and has shown signs of intoxication, the officer will often times administer three standardized field sobriety tests. Those are conducted according to (or should be) NHTSA standards. The three main tests are the Horizontal Gaze Nystagmus (or HGN) test (officer looks for 6 clues in total, it takes 4 to fail), the 9 Step Walk and Turn (officer looks for 8 clues, takes 2 to fail), and the One Leg Stand (officer looks for 4 clues, takes 2 to fail). After the tests are conducted the officer will mark this section for a “pass” or a “fail.”

Section 5:

Once the officer has completed sections 1-4, the officer typically will offer the driver a non-certified portable breath test (also referred to as a preliminary breath test) or PBT. The PBT will issue a result with three numbers following a decimal (i.e. .081). However, given this test is non-certified, it is only allowed as evidence to show the defendant tested positive for alcohol.

Section 6:

Armed with operation, observations, failed fields (at the very least the HGN), and a positive hit for alcohol, the officer will move onto this section. Here, the officer will offer to the driver/defendant the chance to take a true, certified chemical test. That can be by blood for by breath. The officer will read implied consent to the driver, and will mark whether the driver consented to take the test or refused.

Section 7:

Lists what type of test was given, when it was given, by whom it was given, and what the results are (or if they are pending).

Section 8:

This section allows for the officer to provide a quick BMV check on the driver including any previous convictions for OVWI/DUI.

If you or a loved one are facing a potential DUI charge, give the experienced former DUI Prosecutors at Banks & Brower a call today. Our Indianapolis DUI Lawyers stand ready to assist you 24/7/365. Call us at 317.870.0019 or email us at info@banksbrower.com.

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Attorneys Brad Banks and Adam Brower are Indianapolis area litigators that focus their practice in Criminal Defense, Family Law, and Personal Injury.
(317) 870-0019