COA reduces woman’s OWI conviction, orders new hearing on fees

A trial court did not properly determine whether a woman had the ability to pay fees owed after being convicted of a misdemeanor drunken-driving charge, so the Indiana Court of Appeals ordered the case back to the trial court. The judges also ordered her conviction reduced based on the evidence presented at trial.

Wendy Burnett was the passenger in a vehicle that struck another car. The driver drove away, but later, Burnett got behind the wheel and drove back to the scene. Officers believed she may have been intoxicated but she refused to take a breath test or certified chemical test and was arrested.

At issue is her conviction for Class A misdemeanor operating a vehicle while intoxicated endangering a person. As part of her sentence, the trial court ordered Burnett to pay $200 countermeasure fee, a $250 alcohol drug services fee, $183.50 in court costs, and a $16.50 fine.

Her sentencing order does not list any probation fees, but her probation order says she must pay all court-ordered fines, costs, fees and restitution as directed. The probation department later charged her a total of $340.50 in various fees.

Burnett appealed, challenging her conviction and the fees. Regarding her conviction, the trial judge found she was not driving at the time of the accident. Judge John Baker noted that there’s no evidence Burnett drove in a manner that endangered someone when she started driving after the accident. The COA reversed her Class A misdemeanor conviction of OWI while endangering a person and ordered the lower court to enter judgment for OWI as a Class C misdemeanor and to resentence accordingly.

The judges also reversed the imposition of the probation fees.

“Because the trial court did not impose any probation fees or costs on Burnett, it was erroneous to accept the imposition of these fees without a petition from the probation department and a showing that Burnett’s financial situation has changed since the sentencing hearing,” Baker wrote.

The trial court also erred by not conducting an indigency hearing before imposing the fees, the COA ruled in Wendy Burnett v. State of Indiana, 49A02-1610-CR-2402 .

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