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Judges uphold drunk-driving conviction

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The Indiana Court of Appeals declined to find that a Marion Superior court abused its discretion when it admitted the results of a chemical breath test.

In Bernard Short v. State of Indiana, No. 49A02-1105-CR-403, Bernard Short appealed his conviction of Class A misdemeanor operating a vehicle while intoxicated. He was pulled over by police after an officer saw Short’s car make unsafe lane movements and cut off other cars. Lieutenant Richard Kivett performed a certified chemical breath test on Short, which showed he had a blood alcohol concentration of 0.10.

Short tried to suppress the results of the breath test, but the trial court denied it.

On appeal, Short claimed the trial court abused its discretion in admitting the results of the breath test because Kivett’s testimony as to how he administered the test differed from the suppression hearing to the trial. Short argued Kivett didn’t follow the appropriate testing procedures.

Given the appellate court’s standard of review for admissibility of evidence, it couldn’t say that the trial court abused its discretion in admitting the test results.

Short also argued that the trial court erred in rejecting his proposed jury instruction regarding the breath test and when it should not be admissible.

“The proposed instruction tracks the language of Indiana Code Section 9-30-6-5(d) and Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied,” wrote Judge Michael Barnes. “However, simply because the language tracks the language from an opinion from this court and a statute does not make it proper for a jury instruction.”

The proposed instruction concerns admissibility of evidence, which is determined by a trial court, and the trial court properly rejected it, wrote Barnes.

 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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