COA divided on dismissal of OWI charges

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The Indiana Court of Appeals split on whether a defendant’s operating while intoxicated charges should have been dismissed because the charging information didn’t let the man know what vehicle he needed to defend against operating.

Police saw a Lexus in a ditch on the side of the road and Richard Laker hitching the car to the back of a Massey Ferguson farm tractor. Laker told police that a friend wrecked the car and asked Laker to tow it out. Laker didn’t have a driver’s license, his driving privileges had been suspended, and he blew a 0.10 on a chemical breath test.

The state charged him with four counts: Count I alleged he unlawfully, knowingly or intentionally operated a motor vehicle while driving privileges were suspended; Count II alleged he unlawfully operated a vehicle with a blood alcohol concentration equivalent to at least 0.08; Count III alleged he operated a vehicle while intoxicated; and Count IV alleged he had a prior OWI conviction. None of the charges specified whether it was the tractor or the Lexus that he allegedly illegally operated. The probable cause affidavit described the subject vehicle as the tractor.

Laker moved to dismiss the charges, which the trial court granted.

The appellate judges agreed in State of Indiana v. Richard J. Laker, Jr., No. 24A04-0912-CR-736, that Count I should have been dismissed. The charging information for that count didn’t specify what vehicle he allegedly operated, and Laker couldn’t prepare a proper defense without that knowledge.

“That Laker moved to dismiss this charge on the ground a farm tractor was not a ‘motor vehicle’ and because he was prohibited from operating while suspended demonstrates the information did not ‘specify the facts and circumstances which inform the accused of the particular offense coming under the general description with which he is charged,’” wrote Judge Melissa May in the majority opinion.

Finding that the charging information for the other counts were virtually identically in structure to Count I, the majority found them to also be deficient.

Judge Nancy Vaidik dissented on the dismissal of Counts II, III, and IV. She noted that the Indiana Supreme Court has indicated that even where a charging information may lack appropriate factual detail, additional materials such as a probable cause affidavit supporting the charging instrument may be taken into account in determining whether a defendant has been apprised of the charges against him. She found the state’s pleading materials on the whole, which include the probable cause affidavit and summons ticket that describe the subject vehicle as the tractor, sufficiently apprised Laker of the state’s charges.

“I agree with the majority that, given the unique circumstances alleged in this case, identifying the vehicle in the charging instrument would have been ideal. I would conclude, however, as the trial court impliedly did in its ruling, that the probable cause affidavit and summons tickets cure any purported omission and clarify that the State’s charges are premised on Laker’s farm tractor,” she wrote.

Since a farm tractor isn’t excluded from the definition of “vehicle” for purposes of OWI, she wrote she would find those counts are sustainable and the trial court erred by dismissing them.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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