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COA: Man not entitled to have restricted access to OWI conviction

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Because a man committed another crime while on probation, he failed to satisfy the obligations imposed as part of his sentence, so he did not qualify to have access to his conviction records restricted under Indiana Code 35-38-8, the Indiana Court of Appeals affirmed.

Austin Pittman was convicted of Class C misdemeanor operating a vehicle while intoxicated with a blood-alcohol content of 0.10 or more in December 2000. He was placed on probation, with terms that he abstain from the consumption of alcohol. But he was charged with Class D felony operating while intoxicated with a BAC of 0.10 or more in March 2001. In March 2013, he petitioned to restrict access to the record of conviction for the misdemeanor. The trial court denied his petition based on his subsequent conviction of OWI after the initial conviction.

“Indiana Code sections 35-38-8-3 and 35-38-8-4 clearly and unambiguously require that, before a trial court may restrict access to records of a person’s conviction, the person must have ‘satisfied any other obligation imposed on the person as part of the sentence.’ Here, as part of Pittman’s sentence, he was placed on supervised probation. The terms of his probation included that he abstain from alcohol and not commit any new criminal offenses. Instead of satisfying these obligations, Pittman drank alcohol, drove while intoxicated and was subsequently convicted for another OWI offense, this time a Class D felony which resulted in his admission that he violated the terms of his probation. We therefore agree with the trial court that Pittman did not satisfy all obligations imposed on him as part of his sentence,” Judge Paul Mathias wrote in Austin G. Pittman v. State of Indiana,  06A05-1305-CR-243.

The court noted that I.C. 35-38-8 has since been replaced with 35-38-9, but Chapter 8 was in place at the time the trial court ruled on his petition.

The judges also rejected the state’s claim that it did not have jurisdiction over the appeal, noting that a trial court’s alleged lack of personal jurisdiction does not deprive the court on appeal of jurisdiction.
 

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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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