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Gregg J. Stark Indianapolis DUI Attorney Gregg J. Stark Indianapolis DUI Attorney

Clarifications Of Indiana DUI Laws For Lawyers And Non Lawyers Alike

Within the last few years I have dealt with several cases where client’s were not served well by inexperienced attorneys taking on a dui prosecution in two specific areas: 1.) options for one’s drivers license when a refusal to submit to a breath test or blood draw has been alleged and 2.) whether one with multiple dui convictions can be in position to delay a case as a means to circumvent the ten year habitual suspension license statute.

The good news is that unbeknownst to too many Indiana lawyers relying on old law, one accused of a refusal to submit to a breath test or blood draw can in fact be granted specialized driving privileges in the State of Indiana. Under special circumstances one alleged to have refused a breath test or blood draw for alleged intoxication can petition the court for such driving privileges so long as an ignition interlock is affixed to the accused driver’s vehicle. This option under Indiana law exists both while a criminal case is pending as well as at sentencing following a case conviction.

Specialized driving privileges, often referred to as a “work license,” are often a critical component to preserving an individual’s employment while a case is pending and/or following the resolution of a dui case prosecution.

When the original refusal statutes went into effect, Indiana law did not permit one alleged to have refused to submit to a breath test or blood draw to obtain specialized driving privileges either while the dui prosecution was pending or post prosecution.

Unfortunately, too many lawyers not specializing in the field of Indiana dui defense continue to incorrectly advise clients that such specialized driving privileges are not an option when a refusal has been alleged. This mistaken legal counsel is far too frequently met with harmful results for one seeking to preserve their livelihoods.

That being said, depending upon the court and Indiana county, securing specialized driving privileges, even with an ignition interlock, can be a challenging endeavor when a refusal has been alleged. However, this legal option now existing in Indiana can often be an essential bargaining tool when fashioning the best legal options for a client seeking to maintain employment and other necessities of life.

Just as I must frequently educate Indiana attorneys as to the proper interpretation of the specialized driving privileges statute as applied to refusal allegations, I must all too often correct lawyers as to mistaken legal strategy when it comes to the Indiana Habitual Traffic Violator statutes.

As a result of a very poorly worded Indiana Habitual Traffic Violator statute, even lawyers are confused as to who qualifies as a potential 10 year license suspension habitual offender and who does not.

The problem lies in the Indiana habitual statute’s use of the word “judgement” to define the major moving violations within a ten year period to qualify as a habitual traffic violator in Indiana. While the word “judgement” often refers to a conviction within nearly all legal contexts, in the case of Indiana Habitual Traffic Violator eligibility it does not.

Rather, the targeted focus of investigation is not the date of conviction to determine the 10 year window of HTV eligibility, but the date of incident (s). Therefore, legal attempts to delay a prosecution so as to manipulate the proceedings to get a conviction past the potential ten year mark to avoid additional habitual traffic violator penalties will not only be fruitless, but potentially harmful to pre trial negotiations on behalf of a client.

No matter the specific circumstances within a dui case prosecution, it is always vital to insure that potential legal counsel defending an Indiana owi case is well versed as to updated Indiana dui laws.

Only by keeping abreast of any and all updates, modifications and clarifications within our state’s dui laws can a capable lawyer positively impact the options for a client depending upon the best legal outcome possible.

 

 

 

DUI Enforcement In A Covid World

The number of arrests for dui in Indiana has decreased significantly since the onset of the Covid virus within our borders. The reasons for these decreases are varied. Most notably, stay at home orders have forcibly cleared our roadways of automobiles. Further, the closure of small businesses including restaurants, bars and other entertainment venues has eliminated public gatherings where alcohol has been legally served.

Apart from the above referenced factors that have reduced traffic stops, I believe another significant consideration could be in play; police officer concern for their own health and welfare.

Whether in Indiana or throughout the United States, law enforcement’s willingness to engage in the necessary procedures required to sustain a legally binding dui arrest could now be in question.

The validity of many dui prosecutions nationwide require that bodily samples whether through blood draws and/or breath testing be collected and preserved as admissible evidence within a court of law.

Probable cause for arrests is almost always accompanied by preliminary breath tests at the scene of an arrest that require robust blowing into an apparatus held by a police officer. Thereafter, continued certified testing of breath or blood is initiated so as to fulfill the legal requirements of a lawful drunk driving prosecution.

Understandably, many law enforcement officials have grown reluctant to engage in such procedures during the course of our present global pandemic. Based upon my own anecdotal evidence many police officers have grown hesitant to put their own personal safety at risk if it means lawful compliance with proper dui arrest procedure.

More to the point, many officers may be in the midst of selective enforcement of criminal activity that does not require them to be in the close proximity of those legally required to expend breath samples.

Police officers are human beings with the same fears and concern for their families as other individuals. All things being equal, it makes more sense for such law enforcement officials to be less than enthusiastic to engage in such arrests at the present time.

Ironically, one of the recurring criticisms of police officers who have specialized in drunk driving arrests is that such arrests allow for the gratitude of engaging in a perceived public service without the typical risk of physical harm.

Once the Covid pandemic subsides and civilization begins to return to normal, it will be interesting for dui lawyers such as myself to follow whether the rate of dui arrests continues to diminish or returns to pre Covid levels.

Already, I have observed case files with subpar arrest procedures that I have come to believe are the result of officer hesitancy and fear. For example, where portable breath testing would typically be initiated as a basis for probable cause, such testing has on more than one occasion been curiously omitted as a basis for arrest.

All attorneys focused in the area of dui defense must be cognizant of these present and potentially future realities as a means by which to challenge the legal validity of a respective dui arrest.

Time will tell as to what continued effect a global pandemic will have upon nationwide arrests for drunk driving both now and in the future. More importantly, whether shortchanged legal procedures and subjective observations of impairment will be prevalent as a means by which to establish probable cause without on the scene breath testing.

As a result, defense attorneys such as myself must remain vigilant in challenging such legally deficient dui arrest procedures that will potentially cause the civil liberties of countless numbers of American citizens to be deprived.

Indiana DUI OWI Arrests On Private Property

The issue of whether a lawful owi arrest can take place upon a person’s private property is of considerable confusion to citizens throughout the United States. What makes the subject even more difficult to understand is that the answer may differ depending upon what state a citizen resides within.

As a general rule of thumb, no matter the state, one cannot expect to be immune from prosecution for an owi offense if a driver is determined to have been operating a motor vehicle on a public roadway prior to an arrest for owi on private property.

For example, it is wholly unreasonable to expect that a race to one’s private driveway protects one from prosecution the moment they enter their private property line. This is so because so long as probable cause exists to determine that an owi occurred on a public roadway or a location expected to be used by the general public prior to the driving activity, the automobile’s ultimate resting place is of little consequence.

However, the more controversial question is what happens when a motor vehicle never leaves one’s private property? For example, what happens if I am operating my own motorcycle in a state of intoxication on my own farm property, never once setting my wheels upon any public roadway whatsoever?

The answer to that question differs according to the state one resides in. In many state jurisdictions the term “public roadway” insulates the operation of a motor vehicle while intoxicated completely on “private” property from prosecution.

However, in states such as Indiana, it is specifically not a defense to an owi prosecution that a vehicle was never operational on a public roadway. As a result, no matter where a motor vehicle is operated within states such as Indiana, an individual can still be legally prosecuted for OWI.

With that being said, there will usually be significant probable cause issues that a capable owi attorney can utilize should a prosecution rely on driving activity completely done on private property.

Visual real time observations from a law enforcement official capable of determining valid owi probable cause for the investigation and/or questioning of a citizen upon their own premises I believe to be extremely limited.

More realistically, prosecutions of individuals for owi exclusively on private property are most likely to occur should outside entities be summoned to assist those in need of outside intervention.

For example, if 911 and/or an ambulance is called to my private property to assist me in the event I am injured while operating a snowmobile while intoxicated, I cannot rely on my private property rights to provide me with a legal defense to owi in Indiana.

As the validity of laws is always dependent upon appellate scrutiny, I believe that a case may arise in Indiana that could challenge the present state of law in this area. Nonetheless, at the present time, irrespective of where a motor vehicle is operated within the State of Indiana, please be advised that our owi statutes have specifically rejected the suggestion that an owi prosecution can be precluded based upon driving activity exclusively performed on private premises or property.

Changes To Indiana OWI/DUI Laws Broadening Reach Of Felony Prosecutions

A few months back a significant new law took effect in Indiana that could have a major impact on the punishments available to many individuals with past impaired driving offenses.

The new law contained within Indiana statutes related to owi/dui offenses now allows state prosecutors the ability to charge individuals with a felony if one has a prior owi/dui related conviction within the past seven (7) years.

Formerly, one in Indiana on a standard owi/dui offense could only be charged with a felony had the prior conviction for such an offense occurred within the past five (5) years of the new charged arrest. (owi causing death, serious bodily injury or with minor in a vehicle are felony offenses irrespective of time or a prior conviction for owi in Indiana)

The implications of this broadening of impaired driving laws are significant. For far more individuals attempting to rehabilitate their lives and careers following successful rehabilitation for a second offense owi/dui in Indiana, consideration will now need to be given as to how to address the possibility of a felony conviction.

Of course the best manner of attack is to do all legally possible to explore having such potential felony charges dismissed. Where such action may not be possible, an attorney must explore whether a misdemeanor can be secured at the time of an agreed conviction and if not, whether a felony reduction can be guaranteed upon the successful completion of any term of probation that may be imposed.

This modification to Indiana state law has escaped the notice of several lawyers I have counseled over the past couple of months. I suspect that some fortunate individuals presently charged with a misdemeanor impaired driving charge in Indiana may actually be subject to a felony as even state prosecutors are not always caught up with law changes such as the one being discussed.

In any event it is important that one who has been charged with an operating while intoxicated/impaired driving offense within the State of Indiana be aware of these changes within the law. In so doing, one with a prior impaired driving offense now within the past seven (7) years can capably meet the legal challenge of preparing for how to best minimize the impact such a felony can have on one’s otherwise productive future.

Recent Decision Limiting Scope Of Inventory Searches

As a defense attorney, one of the most questionable law enforcement tactics during the course of real time arrests is the nature by which supposed evidence is acquired. Many people have been educated as to constitutional restraints against police search and seizure toward our respective citizens. Consequently, in my sphere of defense practice it has stood to reason that many have consulted with me as to lawful police procedure as to automobile searches that have taken place within the borders of Indiana.

As a general matter, many people grow somewhat frustrated at the ways in which the general principal of preserving the rights of citizens to be secure from police search and confiscation has been gradually diminished. As criminal case law develops within each respective state of our union, it is the inevitable danger of courts bending over backwards to uphold a police arrest that in time slowly erodes the above referenced constitutional protections to be free from state intrusion.

Although general constitutional rights such as the right against unlawful search and seizure are considered directives by which each state must strive to preserve, the individual states each have a role to play in drafting their own state laws and the application of those longs so long as in accord with constitutional principals.

One of the most insidious constitutional exceptions that each state jurisdiction has crafted has been within the area of what is known as the “inventory search.” This flawed concept in my view has allowed for unscrupulous law enforcement officials throughout America the ability to circumvent the constitution by broadening the scope of any arrest that takes place during the course of an automobile stop.

Ironically, this inventory search exception was originally intended to safeguard the rights of citizens who have been arrested as a means by which to ensure that an individual’s personal possessions are documented and properly held until such time as such possessions may be lawfully returned to its rightful owner.

For example, if I am the sole occupant of a motor vehicle driven during the course of a dui arrest on a public highway, it stands to reason that it is not within the public interest to allow my belongings in that vehicle to remain unattended within a public place should an arrest take place. In such circumstance, rules have been promulgated throughout America to allow for police officials to seize such possessions within a vehicle so as to prevent theft or other harm to potentially unattended personal property.

Sounds perfectly reasonable right? In theory it is, as in most circumstances inventory searches are properly undertaken as intended and those who have had cause to be taken into police custody have their documented possessions available to be returned to them when warranted.

However, as is prone to happen within the context of granted police authority, isolated bad actors with police powers abuse such legal authority in ways not originally intended by the court system. In fact, in many instances failure to have a sober law abiding citizen in a vehicle with you subjects the driver to unfettered police ability to ransack a vehicle should cause for arrest be established.

For one accompanied within a vehicle by a sober of age individual, the inventory search can be thwarted due to the means by which the vehicle can be driven away from the scene by an individual authorized by the owner/arrestee.

For the sole occupant driver, it is usually the sworn word of a police officer alone that stands in the way of an unethical police official from lazily using the inventory exception as a means by which to retrieve any items he or she desires from the vehicle ostensibly to collect, document and later safeguard these possessions, for the benefit of the citizen of course.

Over time, continued instances of misconduct as to the intended lawful application of the inventory search demanded refined rules limiting it’s prospect for abuse. Most notably, in Indiana as in most other states, court rulings have thrown out any and all inventory search evidence seized under the guise of safeguarding one’s personal belongings where an established procedure for the retrieval and possession of such property by police have not been established.

In various derivations, most U.S. courts in one way or another have enunciated that if the inventory exception to constitutional rules against search and seizure is to be permissible, it must be in accord with strict written policies of the respective police department initiating the arrest.

In so doing, courts have shifted the burdens to police agencies to confront this issue and take the time necessary to enact specific written procedures to prevent the abuse of the inventory search or face the dismissal of such evidence within a court of law.

In the wake such required practice, police agencies have since obliged the courts with such written policies on most occasions.  Of course merely having such a written policy is not in and of itself a means by which to curb the abuse of police misconduct. If an officer is determined to swear under oath that an incriminating piece of evidence is found in an area lawfully within the scope of a written policy regulated inventory search, courts tend to uphold the validity of such a search.

However, in a refreshing stance against the continued abuse of inventory search evidence, the Indiana court of appeals a few months back issued a ruling constraining the practice even with the existence of written inventory search policy.

In Sams V. State, a warrantless search of a fast food bag and box found within a vehicle during the course of an inventory search contained 25 grams of methamphetamine. However, the court issued an important rebuke to a written inventory search policy that is basically unlimited in scope. As such, the court concluded that unless reasonable limits to the procedure of such a search have been clearly defined within a policy that its officers understand, the fruits of such a search will be considered illegally obtained.

To find otherwise would pay lip service to the constitution to merely allow all inventory searches to be held valid so long as law enforcement’s unchecked authority to use such search without restraint was reduced to writing.

Although our court of appeals’ recent ruling is a valuable precedent, it is incumbent upon all motorists, especially those driving alone to understand that in the aftermath of a police arrest for dui or other driving offense, your possessions within the vehicle may be fair game for police seizure.

Successful Results Are In The Details

Far too many lawyers are reluctant to expend the time or energy probing how existing laws can be challenged to defeat pending cases.

However, the successful representation of clients is based upon these very details that can be unearthed from a pre trial discovery investigation. Although many pre trial dismissals are secured by more “exciting” means such as breaking down witness testimony or the actual discovery of a key piece of evidence,  it is often the painstaking effort to find a defect in the way a law is worded that can carry the day on behalf of an appreciable client.

Within the context of the defense of dui prosecutions, a critical understanding of traffic codes and a willingness to challenge their application can become a key component to a winning legal defense. Even though such challenges may not always be available, I believe that it is the lawyer’s willingness to challenge the application of law on behalf of a client that ultimately determines the best lawyers from the legal pretenders.

One case recently decided by the Indiana Court of Appeals this year speaks to such imaginative efforts; a  legal motion that some lawyers may scoff at, while winning lawyers are more prone to appreciate.

The facts at issue are extremely significant to dui defense cases, for it is the proper application of traffic laws that almost always serve as probable cause for later arrest.

The case involved an individual who challenged his traffic conviction based upon the practical definition to be placed upon the term, “crossing the center line.”

In question for the appellate court in Pridemore V. State, was whether probable cause existed for a police officer to stop a vehicle for the traffic violation of driving left of center where all parties in the case agree that the Defendant’s tires never, in fact, “crossed” the center line.

Despite the above referenced agreed to facts, the court was to rule that the police officers had reasonable suspicion needed to lawfully stop the vehicle for crossing the center line between opposite lanes of travel.

The court stated that the Defendant had not presented authority for the legal assertion that the driving left of center statute only applies when and if the motorist drives within the opposite lane of travel. Yet, in my opinion the court offered what amounts to their own interpretation of state law in it’s decision as this was a case of what is called “first impression” or without legal precedent.

Citing that the legal statute clearly states that “a vehicle shall be driven upon the right half of the roadway,” it not so clearly concluded that despite never crossing the center line median, the mere touching of the center yellow line within the roadway was legally sufficient to satisfy a traffic violation for driving left of center.

Now, unless later overturned, this decision can today be put forth as legal authority for the proposition in Indiana that a motorist is not operating on the legal side of the roadway if tires are in any way to touch the median and/or center lines of a roadway, despite at no point actually operating in the opposite lane of travel.

Sound boring or trivial? It is hardly insignificant or boring when a lawyer can convey to a client that their case has been dismissed based upon a creative legal argument not before put forward. I would therefore submit that the results of such often tedious yet successful work is in no way boring but exciting when considering the favorable impact such efforts can have on a client’s behalf.

These efforts are especially gratifying when used to stifle far more serious criminal violations that would have never been prosecuted had it not been for a mere traffic infraction successfully challenged.

It is my firm opinion that the legal challenge put forward in Pridemore V. State clearly served as a reasonable basis for appeal. In fact, it is my assessment that had a different court of appeal examined the same set of circumstances a different decision could have reasonably been handed down.

Unfortunately, the practical implications of such a ruling often supersede the merits of the actual case being decided. In other words, some would suggest that in many of these fact sensitive cases, the risk of courts in Indiana being bombarded with appeals seeking to dismiss similarly situated criminal traffic citations due to this renewed interpretation of crossing the center line outweighed the ability to find in this specific appellant’s behalf.

Challenging the proper legal application for a traffic infraction such as crossing the center line can never be spoken of as a trivial issue. It is precisely the successful challenge to how traffic violations are actually implemented that must be used as the most valuable of legal weapons in challenging the most seriously charged crimes. Criminal offenses not often otherwise available without a proper understanding of the lawful application of traffic offenses in Indiana and whatever other state law is to be interpreted.

Recent Case Dismissal Underscores Need To Attack Circumstantial Evidence Within DUI Prosecutions

In my experience as a defense lawyer, I believe that not all evidence is the same when either a judge or jury is asked to render a criminal judgement against a fellow citizen.

Most people not trained in law have become accustomed to what they have watched on television in regard to the strong evidence customarily seen to convict one within a court of law. After all, when watching a crime drama on television, no viewer wants to have any question in their mind as to the guilt or innocence of one they may be rooting for.

As a result, what is known as “direct evidence,” is more often than not the type of evidence that the American public has been conditioned to believe is required to criminally convict one who has been put under arrest within a criminal case.

For example, direct evidence is the type of evidence that will produce the witness testimony of one person against another in directly witnessing the commission of a crime and/or the witnesses’ own commission of a crime in association with a particular Defendant on trial.

Direct evidence requires no speculation or inferences as to what is being testified to and is therefore among the most powerful of evidence that a prosecutor can put forth within a criminal prosecution.

I say that direct evidence is among the most powerful evidence due to the emergence of, “scientific evidence” that has also become part of the public’s consciousness. As many people have been shown to have been wrongfully convicted based upon the direct testimony of others through the introduction of such evidence, scientific evidence is often initially expected among jurors seated to hear a criminal case.

In fact, within crime investigation shows such as, “CSI,” television viewers and prospective jurors have often grown accustomed to airtight scientific evidence as the norm in the depictions of criminal prosecutions that will enable the good guys to put the evil behind bars with little debate as to the Defendant’s guilt or innocence.

However, what may come as a source of concern to many American citizens is the reality that, “circumstantial evidence” is often a less clear cut standard of proposed proof by which prosecutors nationwide each day attempt to secure criminal convictions.

Circumstantial evidence is evidence that requires either a judge or juror to draw inferences from the testimony given by a courtroom witness. The evidence does not directly link to the guilt or innocence of a person on trial. However, a prosecutor will assert that either circumstantial evidence pieced together by one or several witnesses is legally sufficient for a reasonable person to determine an adverse inference against one on trial.

As a result, the credibility of a witness asked by a prosecutor to provide circumstantial evidence is a critical component as to whether a prosecutor will be in position to obtain a guilty verdict beyond a reasonable doubt.

Understandably, an allowance for circumstantial evidence exists due to the reality that without such evidence, many criminal cases would not be able to be prosecuted. If our criminal justice system were to require direct testimony only for all criminal prosecutions, many wrongdoers would go unpunished as not all crimes are committed in front of witness (s) able or willing to testify within a criminal case proceeding.

When focused upon my specific sphere of dui defense in Indiana, I am particularly wary of circumstantial evidence introduced within drunk driving prosecutions. This is so because unlike other types of criminal offenses targeted for criminal prosecution, both direct and scientific evidence should be the pre eminent basis by which society insures that citizens accused of drunk driving are given the most fair trial possible.

In the majority of dui prosecutions the direct evidence component utilized by a prosecutor is fairly commonplace. A policeman in most such cases is able to testify directly as to his or her observation of impaired driving activity as well as any subsequent field sobriety testing conducted as a precursor to certified breath or blood testing of a drunk driving suspect.

What I will label the scientific evidence component will be evident in most such cases by the testified breath test and/or blood draw results to substantiate the observations of impairment by a given law enforcement witness.

Yet, what of circumstances where a law enforcement official has not directly witnessed the driving of a given criminal defendant accused of drunk driving? In such cases, potentially attacking circumstantial evidence that will inevitably be used to tie driving activity with a Defendant must be vigorously examined.

I had the good fortune of obtaining a trial dismissal within one such circumstantial evidence case I had recently defended.

My client was in a vehicle with her boyfriend that was involved in an accident. Soon thereafter, officers arrived on the scene. At no time did any officer witness any individual behind the wheel of the vehicle.

My client chose to make an admission to the officers that she was driving the vehicle involved in the crash. Field sobriety testing and breath testing provided the necessary proof that she was intoxicated. Her own admissions to driving despite no direct evidence indicated to the assigned prosecutor that he had what he believed to be a strong case.

Her boyfriend, the registered owner of the vehicle, was not suspected of impairment and was therefore not put through a preliminary dui investigation.

What this prosecutor failed to account for was the need to be highly suspect of circumstantial evidence where witness credibility on the part of the state or defense is in question.

Our defense conceded that my client was intoxicated. Nonetheless, such an admission meant little without a circumstantial case to conclude that she operated the motor vehicle involved in the accident.

The investigating police officer testified as to the significance of a pair of woman’s flip flops on the driver’s side floorboard and a driver’s seat position close enough to the dashboard to be indicative of a woman driver. As her boyfriend was a large man, the officer contended that he would not have been able to drive the vehicle in the position the seat was situated.

This my friends is an on point example of circumstantial evidence in action. No direct witness to driving activity. However, an admission by the Defendant in combination with testimony of woman’s flip flops in driver seat floorboard should be enough to convict right? Wrong.

The credibility of the officer and logical case inferences within a circumstantial case prosecution mean everything. Just as one can piece together reasonable conclusions for the prosecution, the same can be said for the defense.

Without going into too much detail, the crux of our defense was the illogical contention that the sober owner of a vehicle would allow his inebriated girlfriend to drive his car in that condition, irrespective of her admissions. As her admission came during a state of intoxication, its credibility can further be called into question.

Most importantly within the trial, much significance was made of my cross examination of the officer. By having him define the meaning of a circumstantial case, I had him affirm the heightened importance of documenting any and all contentions in support of driving activity where no direct evidence of the driver in question could be established.

Although the officer carried a cell phone with him, no evidence was introduced to confirm his testimony in regard to a pair of woman’s flip flops on the drivers seat floor board, nor seat position.

I asserted that especially within a circumstantial case, this officer’s testimony could have and should have been supplemented with photographic evidence of the alleged flip flops and seat position with the taking of a cell phone picture. However, this testifying officer chose not to do so.

Further cross examination established that the officer, arriving on scene and doing a criminal records check of the occupants of the vehicle, learned that my client had a brief criminal history of driving violations, where the boyfriend did not.

I contended that this reality is what caused the officers on scene to discount further inquiry as to whether the sober owner of the vehicle actually drove the vehicle.

At no time was significant attention given to questioning the vehicle’s registered sober owner of my client’s admissions, nor what would have compelled him to let his inebriated girlfriend drive his vehicle where he was not impaired.

I submit no such questioning was initiated, because those officers on the scene did not want inconvenient answers to get in the way of my client’s criminal prosecution.

To his credit, the officer admitted within my cross examination that he did in fact focus on the arrest of my client upon learning of the occupants respective driving histories.

As a result, I contended that a flawed criminal investigation ensued where both officers and prosecutors alike believed they had an open and shut criminal conviction.

At the conclusion of cross examination the case was dismissed against my client as a matter of law. The officer subject to cross examination learned a valuable lesson in regard to the need to bolster a circumstantial prosecution with the best evidence and theory of guilt possible.

The officer honorably in open court admitted that I taught him the value of doing a better job both in preparing and presenting trial evidence within a circumstantial case.

However, in a world where law enforcement witnesses are not always so honorable, it is crucial that defense attorneys do all possible to not allow sloppy circumstantial criminal allegations to erode the fundamental underpinnings behind the term, “guilt beyond a reasonable doubt.”

How Traffic Enforcement Has Often Become Counter Productive To The Public Welfare.

As an attorney I cannot state how often I listen to neighbors express their frustrations in regard to the amount of police activity seemingly directed at minor traffic violations when nothing appears to be done at curtailing home break ins or other forcible felonies on the rise throughout Indiana.

When my community was annexed, one of the purported selling points marketed to get citizens to vote in favor of the annexation was the increased amount of police attention our increased tax contributions would provide. I recall vividly telling anyone who would listen that what would result was the double whammy of increased taxes combined with an increased amount of minor traffic stops wholly unrelated to a reduction in true criminal activity.

True to form, I have stood by the sides of a quarter of my neighborhood in court for minor traffic violations since the annexation, leaving these individuals to question the nature of their local police activity fueled by the tax dollars they have provided. Such prioritization of impeding the time of productive citizens through minor traffic enforcement converts these hard working tax payers from those inclined to support their local police to individuals who look upon law enforcement with scorn.

Public law enforcement is dependent upon the financial resources of the general public to promote public safety. Customarily, tax dollars have been the bedrock by which respective law enforcement agencies nationwide have been able to function in a manner capable of enforcing public safety.

However, in today’s hotly contested political climate filled with allegations of wasteful spending in all areas of government, state, local and federal political officials have often seemingly been in a competition to demonstrate to the electorate how passionately they can slash tax expenditures earmarked for any public expenditure.

As a result, painful budgetary shortfalls, most notably within small town America, have resulted in harsh spending choices and policy decisions within all areas of public administration, most notably in the area of public safety.

In the area of law enforcement even financial support for local police agencies have not been spared. Such anger and calls for reduced financial expenditures to local police often stems from citizens who believe that their tax dollars have too often been directed toward police activity impeding their day to day driving activities at the expense of allowing true criminal activity to continue unabated.

Under the heading of misdirected public safety tax expenditures, I for one endorse the curtailment of the endless stream of commercials and public service announcements produced by one national traffic safety board after another, but made possible by individual tax dollars; tax dollars that I believe could be far more efficiently used toward the hiring and training of those employed by police agencies throughout America.

I believe, the consequences of such misdirected spending in the area of crime control is two fold, 1.) an increase in the activities of local police agencies that result in the promotion of traffic enforcement geared to increasing public revenue and 2.) a reduction in the community policing effectiveness of on the beat officers capable of engendering trust within their assigned communities.

It is no wonder that the public confidence that police actors have the proper motives in mind when performing their daily police directives have been more and more eroded with each passing year.

The above referenced budgetary implications have resulted in the retention of too many police officers more focused upon the collection of traffic fines through non violent detention activity than gaining the public’s admiration for heroic actions to apprehend and get violent offenders off the streets. Most often such actions are enforced at the direction of police leadership to replace the dwindling tax bases formerly relied upon to manage day to day operations.

Underscoring the perilous state of affairs among local police agencies nationwide, the state of Indiana has once again been the subject of national notoriety in the area of law enforcement practice as the entire Bunker Hill Indiana police department chose to abruptly walk off of their respective law enforcement responsibilities due to policy disagreements with the town council.

Throughout America the depletion of financial resources allocated toward law enforcement has resulted in political battles that have endangered the welfare of the general public. This reality has been highlighted by the actions taking place within Bunker Hill Indiana and no doubt in other communities across America.

Such policy disputes are not uncommon in the least. In fact, I would suggest that healthy and robust debate that can sometimes spurn extreme feelings is actually a positive activity among political leaders accountable for documenting that fiscal expenditures are allocated in the most efficient manner possible.

We presently live in an age where the word, “transparency” has become the new catch word to illustrate that the public wants their elected officials to be held to account for their actions. However, it is not a stretch to assert that what the general public does not want is for public officials supported by their hard earned tax dollars to act in a manner that is directly counter to the public good. In fact, I would submit that police officers or any other public officials who consciously take leave of their responsibilities are culpable for ghost employment allegations in the receipt of public funds for which services have not been performed.

From the perspective of many an attorney familiar with the workings of the criminal justice system in Indiana, the answers to building up public confidence in police actions starts with the proper budgetary priorities. Hiring more officers, properly training such officers and directing such officers to engage in conduct that can be admired instead of scoffed at.

Once the public tax base has witnessed police officers prioritizing the apprehension of violent offenders over accumulating minor traffic tickets, the general public can more readily endorse that their tax dollars are being spent properly.

When police officers are properly trained to interact with citizens within communities that they live in themselves, less consternation will be directed at tax funds supporting police actions that seemingly work counter to the public good and self respect of all members of our communities.

Reductions in violent crime requires sufficient financial support, but more importantly, the proper prioritized activity fueled by such financial support. When police officers are foreign to communities that they serve and look upon citizens as targets for arrest or financial shakedown rather than people they are employed to respect and protect, continued financial shortfalls will further cripple the opportunity to build up mutual respect among the police and citizens in the years to come.

New Indiana AG Election Results Endorse Pro Incarceration Policies

Nationwide there has been a recognition that anti drug/alcohol policies that have prioritized incarceration over rehabilitation have not been successful. As a result, no matter a person’s individual stance on the issue, prosecutors throughout America have begun to adapt new methods with which to more pro actively head off increased illicit drug/alcohol activity within their respective jurisdictions.

To provide but one example, by all accounts Seattle Washington is in the midst of a drug enforcement strategy that is lowering the rate of crime, not by the threat of incarceration, but by compelled rehabilitation.

Law enforcement officials in Washington state in conjunction with state prosecutors have endorsed directives that seek to avoid drug arrests by offering potential arrestees the choice of treatment over arrest. Significantly, at the point of arrest, it is police officers and not prosecutors who are empowered to offer such immediate options to those subject to imminent arrest.

Where in years past the criminal justice systems of such cities would be burdened with an overwhelming amount of non violent individuals slowing the successful prosecution of violent offenders, Seattle and like minded jurisdiction are utilizing a unique approach that hopes to set an example for other legal jurisdictions throughout America.

Many have found Seattle’s crime fighting approach in this area a win win in regard to the successful prioritization of  criminal prosecution. Those violent or otherwise repeat criminal offenders who threaten harm to the general public are able to be prosecuted far more expeditiously and incarcerated without jail overcrowding serving as a basis for early release.

Non violent offenders, many of whom would simply be subject to drug/alcohol treatment anyway, would no longer overburden a legal system by immediately channeling such qualified individuals to treatment and the prospect of a productive life; many times without the impediment of a criminal record to overshadow a minor discretionary transgression of law.

Seattle’s approach has gained national notoriety and been the focus of a 60 minutes piece that infers that such novel approaches to crime fighting have become the best hope for diminishing the underlying relationship between drug abuse and increased criminal activity once and for all.

The public’s changing stances on the prosecution of certain types of drug activity has allowed for the implementation of such programs to become more readily accepted among the general public; and in turn, elected officials.

For example, where in the recent past the prospect of Marijuana becoming a legal recreational drug would have been out of the question, national voters have consistently begun to favor such legislation when such ballot initiatives have been presented for their approval.

Within this rising tide of re shifting law enforcement policies, influential law enforcement officials within the state of Indiana have not only seen fit to reject the above referenced approaches to reducing crime, but have seemingly doubled down on incarceration as the go to method of addressing all forms of drug activity within its borders.

Former Elkhart County Indiana prosecutor Curtis Hill was recently elected Attorney General for the state of Indiana. The position of Attorney General is one that litigates in favor of state laws the result of appellate challenge, or can be an influential position within an advisory role to state legislators in the adaption of crime fighting legislation favored by the Attorney General in question.

One of Mr. Hill’s first actions as Attorney General has been his appointment of Mr. Aaron Negengard as Chief Deputy within the Indiana Attorney General’s office. Mr. Negengard in his former position as prosecutor for Dearborn County Indiana gained national notice for his steadfast rejection of crime fighting policies that diminish the imposition of incarceration as the first option directed at all individuals convicted of drug related offenses.

Presumably, such policies would include those taking place within Seattle and taking hold elsewhere that have promoted rehabilitation for non violent drug offenders over housing such individuals within at capacity penal facilities.

Ironically, the thought among many legal observers within Indiana was that by shining a light on the harsh policies enacted by those such as former prosecutor Nedengard, a healthy debate could begin as to whether more reasoned approaches to criminal prosecution could be discussed within our state. After all, as pointed out within a NY Times article on the issue, it seems rather curious that a small rural community such as that of Dearborn county Indiana has more people incarcerated for drug offenses than two major US cities combined.

Although the general public in Indiana may in fact endorse such legal action, (Nedengard was re elected as Dearborn County Prosecutor) it may best promote the public interest for other communities within Indiana to be aware of the positions held by such state law enforcement officials.

The political campaign for state Attorney General is generally not one that lends itself to public interest or analysis as to the implication such election results can have toward state laws that can directly affect our quality of life.

Whether in Washington state or elsewhere, no crime fighting tactic will be universally successful in both reducing crime and increasing the rate of rehabilitation. However, it is imperative that our legislators and prosecutors never rest in experimenting with the most effective ways with which to compassionately deal with certain underlying law enforcement agendas.

No matter the position of our elected officials, it is important that those positions be known. Once understood, it is vital that antiquated positions on law enforcement be scrutinized and changed as necessary to promote the public’s well being.

Although Indiana tends to be conservative in its willingness to adapt to change, in the area of law enforcement our legislators have begun to take steps to recognize that our former ways of addressing criminal punishment needed significant modification.

Last year’s alteration of the Indiana criminal code was done in large measure to address the issue of prison overcrowding due to former laws encouraging prosecutors to incarcerate too many non violent criminal offenders.

As such, with the election of those such as new Attorney General Curtis Hill, time will tell as to the direction that Indiana will take in the promotion of legislation that takes a fresh and reasoned look as to the most effective means with which to reduce crime within its borders.

In regard to the arrest and/or prosecution of non violent drug offenses, the appointment of a former prosecutor such as Mr. Negengard to chief deputy Attorney General may be an indication that unlike the changing policies of other states, the state of Indiana may prove unwilling to embrace the notion that illegal drug activity should be met with anything less than the real threat of incarceration.

Recent NY Times Article Illustrates Challenges Facing Indiana Defense Lawyers

Recognizing the judicial philosophies and sentencing tendencies of a given judge is one of the most essential understandings that any experienced defense attorney must undertake. Only by knowing the particular worldview of a given judge and/or prosecutor within a community can a defense lawyer be as effective as possible on behalf of a client.

Further, when preparing to contest criminal allegations at trial, strategic arguments to a potential pool of randomly selected jurors within a specific socio-economic area must be tailored to the sensibilities of such individuals who will hold the outcome of a client’s future well being in their hands.

It is a quite understandable frustration for many laymen as well as lawyers to learn that the potential criminal punishment that may be awaiting one put before a court of law can be drastically different in application depending upon the location of an arrest for any type of criminal charge. Although there are instances to the contrary, most county courts in Indiana strive to be somewhat consistent among judges in regard to the range of punishment they will impose in application in the wake of a sentence that requires their discretion.

This consistency is essential to furthering justice for it allows counsel to be in position to ably inform one in their care of all of the risks and benefits of each course of action to potentially be undertaken. In fact, consistency is considered to be such an important principle of the American legal system that appellate courts are both extremely loath to reverse the rulings of state court judges or alter former case rulings that can be interpreted as not respecting established case law precedent.

Randomly enunciated case rulings or punishments can have the harmful affect of allowing for speculation that favoritism and/or prejudice is at the root of judicial action or prosecutorial misconduct and not equal protection under the law. Now more than ever in the politically charged climate of today, the intersection of political thought and legal punishment has intersected to a degree not yet seen in our lifetimes. As a result, isolated communities throughout or nation have begun to come under increasing scrutiny as to how justice is defined and imposed.

No matter our generation, the social media age is now among us. Those practicing law before the internet’s existence or mobile telecommunication can no longer responsibly disregard its potent influence as to how all people view the world and in turn the application of justice.

Just how justice will be defined in the coming years is but one of many burning issues that is presently challenging the people of our country. As a defense lawyer in urban and rural areas of Indiana I see this philosophical divide growing wider than ever before. Whereas in years past communities sought to more readily understand one another, now these same communities seem more apt to isolate from one another while drawing lines in the sand as to social principals that will no longer be a point of compromise.

This reality has now taken center stage as to how people view the correctness of actions taken by law enforcement and the respect or scorn to be directed at such government sanctioned action.

In practice for 25 years I have had many occasions to defend clients within one Indiana community that has recently come under national scrutiny for the eye raising adherence it has maintained in incarcerating individuals as opposed to seeking to rehabilitate them.

Lawrenceburg Indiana is an Indiana community that sits on the Ohio river not far from the city of Cincinnati. However, despite its relatively small size in population, Dearborn County Indiana has produced incarceration numbers that rival any location in the United States be it rural or urban.

In fact, Lawrenceburg Indiana has now been alleged to have the highest percentage of individuals incarcerated per capita than any location in America. More people are claimed to be in jail here than the cities of San Francisco and Durham, North Carolina combined.

Its reputation among out of state law enforcement in Ohio has become so pronounced that police officials have been claimed to manipulate individuals to commit their wrongdoing across the border in Dearborn County where the prospect of certain incarceration will be more assured against the target of an investigation.

I submit that although these practices may appear shocking to many, how one feels about such practices is usually dependent upon upbringing and cultural values; values often shared by like minded peers in a community from which one has been raised.

Although the subject of scorn among many, it must be kept in mind that the prosecutor subject of this NY Times article has been re elected despite his uncommon stance as to how criminal sentences should be dealt with.

For many lawyers who fervently disagree with such positions the ultimate challenge becomes not how to promote a more equal protection under the law, but a more reasoned protection for those subject to criminal punishment where most all punishment has become equally substandard.

For defense lawyers the challenge of protecting good people in such like minded rural jurisdictions has always been far more difficult than those practicing within urban locations.

Although lawyers such as myself may receive more notoriety and name recognition than that of a public defender in Lawrenceburg Indiana, the daily challenges facing such rural lawyers must always be appreciated and never overlooked .

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