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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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