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Ephedrine database allowable under business record hearsay exception

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The Indiana Court of Appeals held Thursday that a National Precursor Log Exchange report documenting the purchases of ephedrine and pseudoephedrine by a defendant are allowed into evidence under the business record exception to the hearsay rule.

In Jeffrey Embrey v. State of Indiana, 82A01-1211-CR-494, Jeffrey Embrey was charged with and convicted of Class B felony dealing in methamphetamine, Class C felony neglect of a dependent and Class D felony maintaining a common nuisance after U.S. Marshal’s Fugitive Task Force executed a warrant on a person believed to be living where Embrey lived. The officers found evidence of meth manufacturing and that Embrey and his child lived in the home.

Indiana law requires that retailers selling non-prescription ephedrine and pseudoephedrine electronically submit a record of all sales of products containing ephedrine and pseudoephedrine to the NPLEx as part of the retailer’s regularly conducted business activity. The report introduced at Embrey’s trial showed all his purchases of the drugs in the month prior to his arrest and noted that he had been refused sales several times.

The computerized NPLEx database is maintained by Appriss, Inc. Embrey argued that the NPLEx report shouldn’t have been admitted because James Acquisto, the custodian of records for Appriss, didn’t have firsthand knowledge of the recorded transactions.

“We conclude that the NPLEx report is imbued with an independent indicia of trustworthiness, and, as such, qualifies as a business record,” Judge Cale Bradford wrote for the court. “The information contained in the NPLEx report was submitted to the NPLEx database in the course of the retailers’ regular business activity at the time of the purchase or attempted purchase by employees of the retailers who had firsthand knowledge of the transactions. These submissions were made by individuals who, in the routine course of their employment, had a duty to accurately report the information and could be held criminally liable for a knowing or intentional failure to make an accurate report.”

“Because the individuals submitting the information had both firsthand knowledge of the purchases or attempted purchases as well as a duty to accurately report the purchases or attempted purchases, we conclude that Acquisto, as custodian of the records, was not required to have firsthand knowledge of the purchases or attempted purchases,” he continued.

The judges also found sufficient evidence supported that the child found in the home by the officers was Embrey’s child and affirmed his neglect of a dependent conviction.



 

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  • COA rewrites law
    Here we go again, the court of appeals, thinks, that they have the right to re write the law, to suit their fancy. Heresay is heresay, regardless of how reliable the source. Unless there is first hand knowledge, it is heresay and if heresay is inadmissable in one case it is inadmissable in all cases. But what are you going to do? The supreme court rules a law is unconstitutional, then later says it is constitutional. Then, you have justice scalia, saying, it is okay to execute an innocent person. I wonder how many people think he would say that if he was the innocent person facing execution!

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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