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. 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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