Judge affirms retaining charges but finds criminal prosecution unjust

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An Indiana Court of Appeals judge expressed concern that a woman’s criminal case may be affected by her admittance of violating several city ordinances after her dogs attacked two people.

Carolyn Boss brought an interlocutory appeal challenging the denial of her motion to dismiss the charging information of criminal charges related to her dogs’ attacks. She argued that her criminal charges, filed a month after she was cited for violating Indianapolis ordinances, are a violation of double jeopardy principles. Boss admitted to 12 of the 15 violations which resulted in more than $1,200 in fines and court costs.

The trial court denied her motion to dismiss, concluding that the enforcement of the ordinances didn’t constitute punishment and the criminal prosecution was therefore not a second prosecution for the same offense.  

In Carolyn Boss v. State of Indiana, No. 49A02-1002-CR-225, Judges Ezra Friedlander and Paul Mathias affirmed, holding the ordinances – some of which prohibit the same conduct as the criminal statutes – were intended to be a civil remedy, not a criminal penalty.

They also analyzed the ordinances in question using the seven factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to conclude there is little evidence that the ordinance enforcement actions serve a punitive purpose.

Judge Melissa May concurred in result, unable to find fault with the majority’s analysis of the Mendoza-Martinez factors, but still felt the criminal prosecution of Boss was unjust. She believed the city fined Boss under ordinances that appear invalid under Indiana Code Section 36-1-3-8 because that section prohibits ordinances that prescribe a “penalty for conduct constituting a crime or infraction under statute.”

Judge May also worried that the appellate court’s decision effectively deprives Boss of her presumption of innocence or any meaningful right to counsel in the criminal prosecution. Boss didn’t have an attorney during the ordinance-violation proceeding, and the trial court found her to be indigent. Defendants have the right to counsel in all criminal prosecutions, “But those rights have little meaning where, as in the case before us, the State is in a position to pursue a criminal prosecution based on admissions a defendant made in an ordinance-violation proceeding where no such right-to-counsel protection was available to her,” she wrote.

“It appears Boss was subjected to a money penalty under an ordinance that is invalid, and will now be deprived of her presumption of innocence and of meaningful assistance of counsel as the State pursues her criminal prosecution. That is wrong, even if the State can avoid double jeopardy violations by characterizing the ordinance violation penalties as having no ‘punitive effect.’ It violates the spirit of numerous constitutional rights intended to protect the innocent in criminal proceedings.”


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  1. Freedom From Religion Foundation: If you really want to be free from religion, don't go to the Christmas Play or the Christmas Pageant or the Christmas Parade. Anything with "Christ" or Saint...fill in the blank...would be off limits to you. Then leave the rest of us ALONE!

  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  3. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  4. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon