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COA reverses public intox conviction based on potential danger

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The state’s claim that a man’s public intoxication conviction should stand because of possible danger he faced if he left an apartment complex while intoxicated was rejected by the Indiana Court of Appeals Thursday because the argument was merely speculative.

Police responded to two calls at an apartment complex indicating that Clyde Davis and another man had been fighting. After the first call, police noted Davis had been drinking, but concluded he could safely walk home. But Davis didn’t leave and the next morning, police came back after the second call and found Davis standing outside the building in a grassy common area. Police believed he was extremely intoxicated and concerned that if he tried to walk home, he could be struck by a car on the busy road. Officers arrested him and he was charged with and convicted of Class B misdemeanor public intoxication.

Davis argued that the state failed to prove he endangered the lives of himself or others for purposes of the public intoxication statute, as recently amended. The appeals judges reviewed several cases that deal with the new statute, including the Supreme Court’s recent decision in Thang v. State, to determine the common thread in these cases is past or present conduct by the defendant did or did not place life in danger.

“While the statute does not require that actual harm or injury occur, some action by the defendant constituting endangerment of the life of the defendant or another person must be shown. This is true even where an officer testifies that the defendant was a danger to himself or others,” Judge James Kirsch wrote. “Were it otherwise, citizens could be convicted for possible, future conduct. The policy behind the current public intoxication statute is to encourage intoxicated persons to avoid danger by walking or catching a ride rather than driving. Although we acknowledge that intoxicated persons may also create danger by walking in public places, that danger must have manifested itself in order for the State to obtain a conviction.”

In this case, there was no evidence Davis was in danger. The state argued that he was in danger of being struck by a car if he left the apartment complex, but that is just speculative and not proof beyond a reasonable doubt.

“The State may not convict Davis for what would or could have happened,” Kirsch wrote in Clyde Davis v. State of Indiana, 49A02-1311-CR-938.



 

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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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