By Kevin Karimi, Gemma & Karimi LLP
This article was originally published on the IndyBar Criminal Justice Section page. See more at indybar.org/cjs.
The Indiana Court of Appeals (COA) has issued two recent opinions that change things in the world of Operating a Vehicle While Intoxicates (OVWIs; they’re sometimes known as Driving Under the Influence or DUIs) and Maintaining a Common Nuisance (MCN) in a vehicle. In short, Drug Recognition Expert (DRE) examinations now require a Pirtle advisement, and MCN in a vehicle requires proof that it has happened at least twice.
DREs and Pirtle
In December 2017, the Indiana Court of Appeals issued an opinion many people believe will be overturned by the Supreme Court: Monica Dycus v. State of Indiana. In this case, Monica Dycus was pulled over and suspected of being impaired. Although she blew zeroes on a preliminary breath test (PBT), the officer noticed her tongue was green and further noticed what appeared to be marijuana in her mouth. The officer was a DRE and asked the defendant if she would submit to a DRE examination, which she agreed to. As you may know, a DRE exam is a standardized, 12-step program designed to determine whether an individual is impaired by the use of drugs based on the totality of the evaluation. It is employed by officers in situations where impairment is suspected, but not from alcohol. Unlike standardized field sobriety tests (SFST), a DRE exam is a lot more invasive on the examinee. Where an SFST is merely a temporary test of a person’s ability to follow directions and walk, a DRE exam consists of behavioral tests on a suspected impaired person along with physical medical inspections of the oral and nasal cavities. Examinees are at one point placed in a dark room – in the case at hand, a closet at the Indianapolis Metropolitan Police Department northwest office.
The exam took 30 minutes and at its conclusion, the officer suspected that Dycus was under the influence of marijuana. Based on his conclusion, implied consent was read, the defendant agreed to a blood draw, her blood was taken and her blood results showed the presence of marijuana.
The defendant moved to suppress the blood draw results and the DRE examination results for lack of being advised of her right to an attorney. The trial court denied and the appeal ensued. The Court of Appeals did not agree with that argument, but did however still reverse the trial court on the basis that the defendant was not advised of her Pirtle rights.
“Because the DRE is akin to an unlimited search that the Pirtle doctrine is designed to protect against, we hold that person in custody must be advised of his right to consult with an attorney prior to consenting to a DRE. As Dycus was not given the Pirtle advisement, her consent was invalid as a matter of law and the evidence obtained thereby was inadmissible,“ Judge Patricia Riley wrote for the COA.
Maintaining a Common Nuisance (in a vehicle)
Just issued in May 2018, in Leatherman v. State, the COA issued an equally-shattering opinion in the world of Maintaining a Common Nuisance. Mostly charged in small counties, MCN convictions have been upheld for vehicles when defendants are pulled over or found parked with drugs in the car. In Leatherman, the defendant was seen driving a van to a home in a neighborhood. Some unknown person exits the home, walks to the defendant in his van, gives the defendant something, then the van is seen leaving the home. The defendant drove his van a few streets away and parked. As the officer drives by, the defendant opened his car door and almost hits the officer’s vehicle. When the officer stopped and approached the defendant, the officer saw the defendant hand something to his female passenger, who then pulled out the elastic waistband of her pants and “placed the baggie inside of her vagina.” The officer asked the female if she was “done shoving that” to which she unsuccessfully attempted to persuade the officer that she “was on her period, doesn’t have tampons, [and] it’s napkins, [she] swears.” Lo and behold, the female removed the bag from her vagina and within the baggie was methamphetamine.
Ultimately, the state charged Leatherman with MCN in which they had to prove Leatherman “knowingly or intentionally maintained a vehicle to unlawfully use, manufacture, keep, offer for sale, sell, deliver, or finance the delivery of a controlled substance. At trial, the state was able to prove every one of those elements. However, as the COA explains, the state had to also prove the nuisance was a “common” nuisance. In other words, the state had to prove that this type of thing is more than just a one-time occasion.
After discussing the legislative intent and the changes in the law regarding the MCN charge, the COA reversed the conviction of the trial court on a sufficiency analysis, holding that “because the state failed to provide evidence that the vehicle Leatherman drove had been used on multiple occasions, for the delivery of a controlled substance, the state failed to provide sufficient evidence to support Leatherman’s conviction of maintaining a common nuisance.”
Do you have questions or comments? Please email me at Kevin@IndianaDefenseTeam.com.•