NFP opinion gives us pause

July 20, 2010
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This blog post was written by Indiana Lawyer reporter Rebecca Berfanger.

Typically we don’t give the not-for-publication opinions from the Indiana Court of Appeals too much thought, but one today definitely caught our attention.

As the person compiling opinions today, I was the first to read this particular NFP. I spent a little extra time on it because the appellant-defendant posited the issue: “Whether the State violated (his) rights to due process and to not be subject to cruel and unusual punishment” after he pled guilty to five counts of operating while intoxicated as Class D felonies.

It turned out the cruel and unusual punishment claim didn’t much matter because it was based on the amount of time that passed between the incidents and the charges, but the Court of Appeals opinion states “prohibition against cruel and unusual punishment proscribes atrocious or obsolete punishments and is aimed at the kind and form of the punishment, rather than the duration or amount.”

But what was interesting was that the appellant-defendant met up with an officer of just about every police and sheriff’s department in Hamilton County in the course of only a few months.

The case, Christopher W. Turner v. State of Indiana, No. 29A02-0905-CR-479, is about a man who between May 21, 2008 and Sept. 9, 2008, had his blood drawn for testing on five reported occasions following five separate incidents where officers suspected he’d been operating under the influence.

During the first incident, on May 21, 2008, officers with the Hamilton County Sheriff’s Department found Turner after he apparently struck a tree with his car. He was unconscious and injured, and the officers transported him to the hospital. However – no charges were filed for this incident until Sept. 16.

On June 17, 2008, a Carmel Police officer pulled Turner over for driving erratically. He failed field sobriety tests and the officer had Turner’s blood drawn. At that time, he was arrested but released the next day after posting $7,500 bond. Charges were filed on that incident Aug. 4.

On June 21, 2008, a Westfield Police officer stopped Turner, who once again failed field sobriety tests and once again had his blood drawn at the hospital. He was again arrested and jailed, but released two days later after the state told the court it would not file charges at that time.

Turner was again pulled over July 5, 2008. Again failed field sobriety tests. Again had his blood drawn. Again no charges filed at the time of incident.

Charges were ultimately filed July 18 for the June 21 incident, and Aug. 4 for the June 17 incident.

Five days after his Sept. 4, 2008, hearing, he was pulled over by a Noblesville Police officer. He again failed field sobriety tests and again had his blood drawn. For that incident, he was arrested and jailed and the state charged him Sept. 10 for the Sept. 9 incident.

On Sept. 12, the state filed charges for the July 5 incident.

It could also be noted that he made a $50,000 bail Sept. 16, which was revoked Sept. 23.

After pleading guilty to the five charges from incidents that occurred May 21, June 17, June 21, July 5, and Sept. 9, he was sentenced to a total of 8 years.

On appeal, he claimed that the state waited on purpose to charge him.

Judge Carr L. Darden sums it up nicely in the opinion:

“Further, Turner’s argument necessarily implies that the State had knowledge that after his arrest on May 21st, Turner would not act in accordance with the law but would instead choose to commit additional criminal offenses. Certainly there is no evidence in the record to support our drawing such an inference. If he is suggesting that his guilty plea should be set aside on this basis, post-conviction relief procedures provide for an evidentiary hearing to establish any possible factual circumstances and assertions in that regard.”

But a word to the wise – if you think you were not arrested for drunk driving because the police will want to arrest you for drunk driving if you do it again, maybe just don’t do it again.

And if this individual needs treatment, hopefully someone in his life can convince him of that after he’s released from prison before something worse happens.

As someone with very little knowledge of these kinds of cases, is this typical or is it out of the ordinary to wait months to face charges after committing essentially the same crime four more times?
 

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  • Hamilton County
    In Hamilton County, it is not unusual for it to take months to get results of a blood draw back, then charges are filed, if the results indicate driving under the influence.
    • Hamilton County
      What is unusual is that the Hamilton County Prosecutor's Office will not file charges pending the results of the blood test, a practice not followed by other counties. Hamilton County's practice allows drunk drivers to keep on driving without posting bonds or receiving license suspensions, even if the drivers have refused the breath test.

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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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