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 is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

    2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

    3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

    4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

    5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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