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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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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