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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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