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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 voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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