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 new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

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  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."