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Judges split on endangerment issue

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The Indiana Court of Appeals found the state proved a defendant had driven drunk, but the judges disagreed as to whether the state showed the man had endangered others with his driving.

In James Dorsett v. State of Indiana, No. 82A01-0906-CR-292, James Dorsett appealed his conviction of operating a vehicle while intoxicated as a Class A misdemeanor, which requires showing that his operation of his car endangered a person. A Vanderburgh County Sheriff sergeant spotted Dorsett in his car, which was parked and running in the middle of a parking lot early in the morning. Dorsett was slumped over in the car and took more than 30 seconds to wake up after the sergeant got to the car. He told the officer he was at a friend's party, on his way home, and had stopped at a McDonald's for food. Dorsett appeared intoxicated and tests showed his blood alcohol content at 0.12 percent.

Dorsett was convicted of operating a vehicle while intoxicated as Class A and Class C misdemeanors. His convictions were merged and he was sentenced only on the Class A misdemeanor.

Even though the sergeant didn't see Dorsett driving his car, the state presented enough circumstantial evidence to show Dorsett had driven. The sergeant testified Dorsett told him he had drank at a friend's house and then drove to McDonald's. Based on the time he went to McDonald's, only the drive-thru window would have been open. It could be reasonably inferred that Dorsett drove to McDonald's and then parked his car in the nearby parking lot, the appellate judges concluded. This was sufficient to only support his Class C misdemeanor conviction, so the majority reversed the Class A misdemeanor conviction and remanded for judgment and sentence to be entered on the Class C misdemeanor conviction.

Judge Cale Bradford dissented on the reversal of the Class A misdemeanor conviction, believing the state proved endangerment by presenting evidence Dorsett was much more than minimally intoxicated and his driving created a risk.

"In my view, a fact-finder should be free to conclude, based on a high level of intoxication alone, that a driver endangered himself or others when he operated a vehicle, even if no direct evidence of dangerous operation was presented," he wrote.

Based on the evidence and testimony of the sergeant, one could conclude Dorsett was so drunk he wasn't capable of driving his car into a parking space or turning the engine off before passing out. Clearly anyone operating a vehicle in that condition poses a serious threat to public safety, wrote Judge Bradford.

Judge Edward Najam wrote in a footnote for the majority that Judge Bradford commingled the Class A misdemeanor charge with the Class C charge, stating that "intoxication alone" is sufficient to support a Class A misdemeanor conviction as long as the intoxication is "more than minimal."

"But the statute as recently amended does not recognize degrees of intoxication and clearly requires more than intoxication to establish endangerment," wrote Judge Najam.

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  1. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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