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IBA: A Review of 2011 Criminal Law Legislation

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Joel Schumm mug Schumm

By Joel Schumm, Professor of Law, Indiana University School of Law - Indianapolis

What looked early in 2011 like a blockbuster year for sentencing reform fizzled into a legislative session with mostly tinkering in the criminal law realm. This article summarizes some of the bills that took effect July 1 and concludes with a summary of failed sentencing reform.

Texting. Few doubt that texting while driving is a bad idea, but the ban enacted in HEA 1129 may create more problems than it solves. Only those who type, transmit, or read a text or email message while operating a motor vehicle commit a Class C infraction. Drivers remain free to dial their phone, read the New York Times app, Google any term they’d like, or play Angry Birds. Police may not confiscate the “telecommunications device,” but could presumably ask consent to see it, which savvy drivers will refuse. If an officer tickets a person for the infraction, proof may be difficult at trial without the phone unless the driver makes an admission. Moreover, many defendants will be charged with criminal offenses when an officer sees contraband in their vehicle. If courts find the officer lacked “an objectively reasonable reason,” the evidence will be suppressed. See State v. Massey, 887 N.E.2d 151, 158 (Ind. Ct. App. 2008).

Sexting. HEA 1083 creates a new defense to the crimes of child exploitation and obscene performance before minor for the consensual exchange of sexual pictures if the defendant is 21 or younger, using a wireless device or social networking site, and engaged in an “ongoing personal relationship” (but not a family member) with the other person who is within four years of the defendant’s age. The defense does not apply if the message is sent to others.

Restricted Records. Although Indiana’s expungement statute continues to allow a very narrow group of individuals a complete obliteration of records, HEA 1211 provides more limited relief for a broader class of arrest and conviction records.

Arrest. Under Indiana Code section 35-38-5-5.5, an individual arrested but not prosecuted, acquitted of all charges, or vindicated on appeal may petition to restrict access of the arrest record. If successful, the court shall order the state police not to disclose or permit disclosure of the arrest record to noncriminal justice organizations.

Conviction. Those convicted or adjudicated delinquent of a misdemeanor or D felony that did not result in injury may petition to restrict their conviction record. The defendant must wait eight years, have satisfied all obligations of the sentence, and cannot have been convicted of any felonies in the interim. The new bill expressly states “the person may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.” Some of this information, though, may already be available to companies that do background checks or be accessible through court records or elsewhere. The legislation may need to be revisited to meet its well-intentioned goal of giving people a second chance.

Drugs. Senate Bill 57 broadened all existing prohibitions on marijuana possession and dealing to include synthetic cannabinoid and salvia.

Voyeurism. In response to a highly publicized Marion County case of a man who put a camera on his shoe to look up dresses at a mall, the voyeurism statute was broadened to create the offense of public voyeurism for the non-consensual “peep[ing] at the private area of an individual.” Previously, voyeurism required peeping in areas where people were reasonably expected to disrobe, which did not include mall hallways.

Failed Sentencing Reform. After months of study, the 15-0 support of the Criminal Code Evaluation Commission, and Governor Daniels’ endorsement, Senate Bill 561 proposed a shift from Indiana’s “’one size fits all’ sentencing policy for a theft and drug offenses to a more graduated approach.” Sen. Richard Bray et al., Time to Revisit Our Criminal Code, Res Gestae, Jan./Feb. 2011, at 14-15. Among other things, the bill would have reduced many felony drug offense by one class felony if less than ten grams were involved and restricted enhancements for proximity to parks, schools, family housing complexes, and youth centers to 200 (instead of 1000) feet. It would also have reduced theft from a felony to a misdemeanor unless the property taken was valued at $750 or more or the defendant had a prior theft conviction. It wasn’t long before “prosecutors assailed [the bill] as soft on crime, senators gutted the bill and even lengthened sentences for some offenders.” Heather Gillers, Daniels: I’ll Veto Amended Prison Bill, Indianapolis Star, Mar. 23, 2011, at A1. The Governor threatened a veto of the new bill that no longer achieved the goal of graduated penalties and “smarter incarceration,” and the bill died. Id. Hopefully many of these sensible proposals will be revived next year.•

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    Voyeurism. In response to a highly publicized Marion County case of a man who put a camera on his shoe to look up dresses at a mall, the voyeurism statute was broadened to create the offense of public voyeurism for the non-consensual “peep[ing] at the private area of an individual.” Previously, voyeurism required peeping in areas where people were reasonably expected to disrobe, which did not include mall hallways. Ramji & Associates Houston Personal Injury Attorney

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  1. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  2. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  3. It's a capital offense...one for you Latin scholars..

  4. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  5. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

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