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COA delves into grammar in reversing trial court

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The Indiana Court of Appeals issued three opinions Wednesday that dissect the grammar of a state statute in reversing a trial court’s decision regarding sentence enhancements.

In the three cases – State of Indiana v. James D. Eichorst, No. 71A03-1102-CR-105; State of Indiana v. Kevin Lee Traver, No. 71A04-1102-CR-131; and State of Indiana v. Donald Loren Wilson, No. 71A05-1102-CR-130 – the state appeals the St. Joseph Superior Court’s decision to not impose enhanced sentences for the defendants, who had previous convictions of operating while intoxicated. Indiana Code Section 9-30-5-3 provides for an enhancement of a charge under section 1 as follows: “[A] person who violates section 1 or 2 of this chapter commits a Class D felony if … the person has a previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter[.]”

In Eichorst, the appeal contends that the wording of the statute means the date of the original act – not the conviction arising from that act – marks the beginning of the five-year period. In support of this claim, Eichorst argues that in the statute, “occurred within … five … years” modifies “operating while intoxicated,” instead of “conviction,” due to its proximity to the word “operating.” Eichorst further argues that “occurred” modifies “operating,” because a conviction cannot “occur.”

Judge Cale Bradford wrote the opinion for all three cases, pointing out that while the word “occurred” is closer to “operating” than to “conviction,” proximity alone does not support the conclusion that “occurred” modifies “operating” in the statute. As an example, he wrote, “Very few, if any, would read ‘we had a meal in France that was delicious and expensive’ and conclude that ‘delicious and expensive’ was describing ‘France.’”

Bradford wrote that the COA rejects the contention that a conviction cannot “occur,” citing Webster’s Third New International Dictionary, which defines “occur” as: to present itself, come to pass, take place or happen.

Finally, Eichorst argues that in sections 4 and 5 of I.C. 9-30-5, the Legislature’s use of slightly different language indicates an intent to treat prior OWI convictions differently than in section 3, because sections 4 and 5 do not include the words “that occurred.”

The COA held that “The presence of two arguably superfluous words in section 3 does not change the fact that the three sections, insofar as they refer to prior convictions, have essentially identical meanings.”

Applying the same logic to Traver and Wilson, the appeals court held that the state is required to prove that the defendant who has a previous OWI conviction that falls within the five-year period immediately preceding the commission of the instant offense is subject to an enhanced Class D felony sentence. The court remanded all three cases for proceedings consistent with its opinion.
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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