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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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