The Difference Between the Habitual Offender Sentencing Enhancement and the Habitual Vehicular Substance Offender Sentencing Enhancement

Sentencing Enhancements are, unfortunately, something that repeat offenders must sometimes contend with.  There are two primary sentencing enhancements in Indiana that individuals should be familiar with.

Habitual Offender Enhancement

The first enhancement that will be discussed is the general Habitual Offender Enhancement.  The statute defining the Habitual Offender Enhancement is IC 35-50-2-8.  If the defendant is convicted of any felony, and has multiple prior felony convictions, the defendant may be eligible for this enhancement.  The penalty range for this enhancement is tied to the underlying conviction.  For example:

A person convicted of murder or a Level 1 through Level 4 felony is a habitual offender if the State proves that:

  • The person has been convicted of two prior unrelated felonies; and
  • At least one of the prior unrelated felonies is not a Level 6 or Class D felony.

The additional penalty range is 6-20 years on the enhancement if the underlying conviction is either murder or a Level 1- Level 4 felony.

A person convicted of a Level 5 felony is a habitual offender if the State proves that:

  • The person has been convicted of two prior unrelated felonies; and
  • At least one of the prior unrelated felonies is not a Level 6 or Class D felony; and
  • If the person is alleged to have committed a prior unrelated Level 5, Level 6, Class C, or Class D felony, not more than 10 years have elapsed between the time the person completed the sentence for at least one of the two prior unrelated felonies and the commission of the present offense.

The additional penalty range is 2-6 years on the enhancement if the underlying conviction is a Level 5 or Level 6 felony.

A person convicted of any felony offense is a habitual offender if the State proves that:

  • The person has been convicted of three prior unrelated felonies; and
  • If the person is alleged to have committed a prior unrelated Level 5, Level 6, Class C, or Class D felony, not more than 10 years have elapsed between the time the person completed the sentence for at least one of the three prior unrelated felonies and the commission of the present offense.

The Habitual Offender Enhancement is nonsuspendible, which means any time received on the habitual offender enhancement must be served as an executed sentence on either home detention, work release, or most commonly, at the Department of Corrections.

 

Habitual Vehicular Substance Offender Enhancement

The next most common sentencing enhancement in Indiana is The Habitual Vehicular Substance Offender Enhancement (HVSO), defined by IC 9-30-15.5-1.  A person is eligible for this enhancement if they have accumulated either two or three prior unrelated vehicular substance offense convictions, most commonly Operating a Vehicle While Intoxicated.

If the State alleges only two prior unrelated vehicular substance offense convictions, the allegation must include that at least one of the prior unrelated vehicular substance offense convictions occurred within ten years before the date of the current offense.

If the alleges three prior unrelated vehicular substance abuse convictions, there is no timeframe requirement for any of the three prior unrelated convictions.

The additional penalty range for the HVSO is 1-8 years.  This enhancement differs from the Habitual Offender Enhancement previously discussed in two important aspects.  The first is that the HVSO can attach to either a misdemeanor or a felony, whereas the Habitual Offender Enhancement can only attach to felonies.  The second important difference is that there is no requirement that the HVSO penalty be enforced as an executed sentence.  The judge could suspend all or a portion of the HVSO penalty, depending on if the underlying conviction is suspendible under IC 35-50-2 or IC 35-50-3.  This means that even if convicted of the HVSO, an executed sentence on Home Detention, Work Release, or the Department of Corrections could possibly be avoided.

 

Are you facing either the Habitual Offender Enhancement or the Habitual Vehicular Substance Offender Enhancement?  Contact the experienced attorneys at Banks and Brower anytime at 317-870-0019 or by emailing at info@banksbrower.com.