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High court divided on public intoxication charge

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In deciding that a woman’s public intoxication conviction should stand, four Indiana Supreme Court justices declined to reverse her conviction on public policy grounds and found the conviction didn’t violate any constitutional right.

Brenda Moore challenged her conviction of Class B misdemeanor public intoxication. A friend of her brother asked her for a ride to visit a friend, but since Moore had been drinking, she let the friend drive her car and she rode in the passenger seat. The two were pulled over for a nonworking license plate light. The friend didn’t have a valid license, and Moore admitted she couldn’t drive the car because she had consumed alcohol.

The Indiana Court of Appeals was divided on the conviction, with the majority reversing and using Miles v. State, 247 Ind. 423, 425 216 N.E.2d 841, 849 (1966), to support their decision. The majority noted the purpose of the public intoxication statute is to prevent intoxicated people from threatening the safety of others, and under the circumstances of this case, Moore wasn’t intoxicated in a public place under the meaning of Indiana Code 7.1-5-1-3, Judge Nancy Vaidik dissented, believing it was up to the legislature to address this issue.

In Brenda Moore v. State of Indiana, No. 49S04-1101-CR-24. the majority didn’t address the public safety issue, but instead focused on two issues raised by Moore – that the conviction violates public policy and her right to consume alcohol. Moore argued that her conviction “violates the spirit of the public intoxication statute, and the policy behind its enactment” because she didn’t cause any harm or annoyance and didn’t drink and drive. She believed a policy should be enacted to encourage intoxicated people to find rides without fear of being prosecuted for a crime.

The majority declined to reverse on this issue. “Whether conduct proscribed by a criminal law should be excused under certain circumstances on grounds of public policy is a matter for legislative evaluation and statutory revision if appropriate. The judicial function is to apply the laws as enacted by the legislature,” wrote Justice Brent Dickson for the majority in the decision issued June 28.

The majority also quickly dispensed with Moore’s argument that she has a constitutional right to consume alcohol based on Herman v. State, 8 Ind. 545, 558 (1855). Moore didn’t suffer any impingement of any alleged constitutional right to select which beverage to drink. She was subject to the public intoxication statute because of her conduct after consumption, not due to what she drank. Her accountability under the statute doesn’t violate her personal liberty rights under the Indiana Constitution, wrote Justice Dickson.

Justice Robert Rucker dissented, saying he would revisit Miles, in which the Supreme Court had held that a person parked along a highway was in a public place for purposes of the public intoxication statute, and declare it wrongly decided. In State v. Sevier, 20 N.E. 245 (Ind. 1889), the high court declared that the purpose of this statute is to protect the public from the annoyance and deleterious effects that may occur because of the presence of intoxicated people.

“It is difficult to perceive how this purpose is advanced by declaring that the inside of a closed vehicle traveling along a highway is a public place,” he wrote. He believed Moore should not suffer a criminal penalty for taking the responsible action of allowing a sober friend to drive her car while she was too intoxicated to do so.

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  • car's not public
    how about this. your car is not a public space. contrary to what the police pretend and the courts want to maintain. people have an expectation of privacy in their cars that is flouted by the government all the time. yet another twisted result because of it. understand this right and its the end of story.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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