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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...