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Judges uphold drunk-driving conviction

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The Indiana Court of Appeals declined to find that a Marion Superior court abused its discretion when it admitted the results of a chemical breath test.

In Bernard Short v. State of Indiana, No. 49A02-1105-CR-403, Bernard Short appealed his conviction of Class A misdemeanor operating a vehicle while intoxicated. He was pulled over by police after an officer saw Short’s car make unsafe lane movements and cut off other cars. Lieutenant Richard Kivett performed a certified chemical breath test on Short, which showed he had a blood alcohol concentration of 0.10.

Short tried to suppress the results of the breath test, but the trial court denied it.

On appeal, Short claimed the trial court abused its discretion in admitting the results of the breath test because Kivett’s testimony as to how he administered the test differed from the suppression hearing to the trial. Short argued Kivett didn’t follow the appropriate testing procedures.

Given the appellate court’s standard of review for admissibility of evidence, it couldn’t say that the trial court abused its discretion in admitting the test results.

Short also argued that the trial court erred in rejecting his proposed jury instruction regarding the breath test and when it should not be admissible.

“The proposed instruction tracks the language of Indiana Code Section 9-30-6-5(d) and Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied,” wrote Judge Michael Barnes. “However, simply because the language tracks the language from an opinion from this court and a statute does not make it proper for a jury instruction.”

The proposed instruction concerns admissibility of evidence, which is determined by a trial court, and the trial court properly rejected it, wrote Barnes.

 

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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