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Judges decline to find OWI statute unconstitutional

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The Indiana Court of Appeals rejected a man’s claim that the statute proscribing the operation of a vehicle with a Schedule I or II controlled substance violates the Equal Privileges and Immunities Clause of the Indiana Constitution.

Chad E. Hucker was charged with Class C misdemeanors operating a vehicle while intoxicated and operating a vehicle with a Schedule I or II controlled substance. He was pulled over by police after a patron at a liquor store reported Hucker may be driving while intoxicated. Hucker told officers his seemingly intoxicated behavior may be a result of recently taking his prescription Xanax.

At his jury trial, Hucker testified he had a prescription for the drug but admitted to taking it in excess of the recommended dosage on the day of the incident.

In Chad E. Hucker v. State of Indiana, 35A02-1307-CR-575, Hucker challenged the second prong of the Collins test regarding Section 23: The preferential treatment must be uniformly applicable and equally available to all persons similarly situated. He argued that members within the identified class are treated unequally because criminal exposure under the statute varies depending on the dosage of drug taken, whether an individual is a chronic user, the nature of the metabolite, and other arguments.

“The second prong of the Collins test requires that a statute must apply equally and uniformly to all persons who share those characteristics that are the basis of the classification,” Judge Margret Robb wrote. “Assuming it is proper under Section 23 to create classifications based on persons who drive with a schedule I or II controlled substance and persons who do not, Indiana Code section 9-30-5-1(c) is not unconstitutional.”

He also argued that the statute treats as identical a number of controlled substances that have varying effects on the body. Robb noted this is a fair point, but one that is better placed before the General Assembly.

“The disparate treatment to persons who operate a vehicle with a schedule I or schedule II controlled substance is reasonably related to inherent characteristics among those persons — namely, the usage of those controlled substances causes impairment and the amount necessary to cause impairment is not easily quantifiable. Given the ‘substantial deference’ we must provide the General Assembly in generating such classifications, we cannot find the statute unconstitutional under Section 23.”

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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