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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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