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In affirming DUI on appeal, judges include predictive warning

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An argument made on appeal in a drunken-driving case that the person who certified the operating condition of a breath-test machine should have been required to testify was rejected Monday by the Indiana Court of Appeals, which also warned in a footnote that such a ruling could cost criminal defendants.

The 31-page opinion in Edwin Jones v. State of Indiana, 49A02-1204-CR-292, affirmed Jones’ Class A misdemeanor conviction on a charge of operating a vehicle while intoxicated. Jones had a blood-alcohol level of 0.18 percent when he was arrested. He argued that because a state trooper testified about the certification of a breath tester rather than the person who signed the certification, he was deprived of his Sixth Amendment rights under the Confrontation Clause.

“We observe that, as a policy matter, were we to agree with Jones and find that certificates of inspection such as the Certification at issue here were testimonial evidence and require that the person who inspected the breath test equipment testify at every OWI trial before breath test results may be admitted, the legislature could respond by removing the statutory requirements currently in place which ensure the accuracy of such equipment, judging it as an undue burden on law enforcement,” Judge Elaine Brown wrote in an opinion joined by judges Mark Bailey and Nancy Vaidik, who concurred in a separate opinion.

The court also found no error in Jones’ sentencing or in the court overruling defense objections to questions of the trooper it considered leading because it concerned facts not in dispute and because “the state presented a multitude of other evidence that he operated a vehicle while intoxicated.”

In her concurring opinion, Vaidik wrote that the 2012 U.S. Supreme Court decision in Williams v. Illinois, 132 S. Ct. 2221, required her to disagree with the majority’s finding as it relates to an earlier Court of Appeals opinion that Vaidik wrote in Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010).

“Instead of finding that the certificates of inspection are ‘prepared for purposes of criminal litigation, . . . [but] are not prepared in anticipation of litigation in any particular case or with respect to implicating any specific defendant,’ ... the majority would find that the ‘primary purpose [of the certificates of inspection] is to ensure that certain breath test equipment is in good operating condition in compliance with Ind. Code § 9-30-6-5,’ Vaidik wrote.

“I respectfully disagree with this. I still believe that these certificates of inspection are generally ‘prepared for purposes of criminal litigation.’ Therefore, in light of the Supreme Court’s decision in Williams, I would simply eliminate the third rationale articulated in Ramirez."
 

 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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