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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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