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A Court of Appeals decision decided on August 6, 2010 has limited the ability of trial courts to reduce Class D felony convictions to Class A misdemeanors. In a case of first impression, the Indiana Court of Appeals has held that a trial court may only reduce a Class D felony, to a Class A misdemeanor, at the time of the original sentencing hearing; or, by the entry of a conditional Class D felony, whereby the Class D felony will automatically be reduced to a Class A misdemeanor within three years, provided the Defendant completes certain terms of probation.

This case does not address the situation in which a defendant has entered a plea agreement that specifically provides that the "Defendant may petition the Court for misdemeanor treatment upon the successful completion of probation." However, I anticipate that trial courts will interpret the case to continue to allow for argued hearings on misdemeanor treatment in such cases, for plea agreements entered prior to the Court of Appeals decision. Otherwise, defendants would be able to seek post-conviction relief to set aside their previous felony convictions.

I handle criminal cases in dozens of Indiana counties, and throughout the State judges have routinely reduced Class D felony convictions to Class A misdemeanors through sentence modification. This Court of Appeals decision will dramatically affect plea negotiations, sentencing hearings, and decisions on whether to proceed to jury trial, in Class D felony cases. Class D felony crimes include theft, receiving stolen property, operating while intoxicated with a prior conviction, possession of a controlled substance, resisting law enforcement in a vehicle, maintaining a common nuisance, and driving while being a habitual traffic violator. If you have a pending Class D felony charge, it is crucial that you seek the advice of an experienced criminal attorney who is familiar with this recent change in interpreting Indiana law.

The Indiana Court of Appeals reversed a man's conviction for Refusal to Identify Self, a Class C Misdemeanor. The man was a passenger in a car driven by his girlfriend, who was stopped for making an illegal turn. After obtaining the girlfriend's (driver) identification, the police officer questioned the passenger as to his identity. The man refused to comply. He was then arrested, and later convicted at a bench trial, of Refusal to Identify Self, a Class C misdemeanor.

The Court of Appeals reversed the man's conviction, holding that because there was no reasonable suspicion that the passenger had committed any ordinance or infraction violation, he was not subject to the requirement to identify himself under Indiana Code 34-28-5-3. Under Indiana law, if police believe in good faith that a person has committed an infraction or ordinance violation, the officer may detain the person to inform them of the alleged violation and obtain their name, address, and date of birth. If the person refuses to comply, they can be charged with Refusal to Identify Self, a Class C misdemeanor.

Police often use infraction traffic stops to interrogate passengers and seek to identify unrelated crimes. However, as a general proposition under Indiana law, citizens are not required to interact with police officers. If there is no reasonable suspicion that a passenger has committed an ordinance or infraction violation, the Indiana Court of Appeals has held that the passenger cannot be compelled to identify themselves or submit to interrogation.

Passengers in vehicles can be the target of investigations for crimes ranging from substance offences such as public intoxication, minor consumption of alcohol, and visiting a common nuisance, to major felonies such as possession of a firearm by a serious violent felon and other firearms charges. If you are a passenger in a vehicle, you should be aware that if police have reasonable suspicion that you have committed an infraction or ordinance violation, you can be compelled to identify yourself. You can also be briefly detained during a traffic stop so that police may alleviate any concerns about officer safety during the stop. However, if there is not reasonable suspicion that you have committed any infraction or ordinance violation, police cannot compel you to identify yourself or to submit to interrogation. If you have been arrested following a traffic stop in which you were a passenger, you should contact an experienced criminal attorney. You may have a viable motion to suppress the evidence against you.

The Indiana Court of Appeals has reversed a man's conviction for operating a vehicle while intoxicated causing endangerment. The court held that to convict someone of the Class A misdemeanor offense, the State must submit proof of "endangerment" beyond mere intoxication.

Indiana law has two classes of operating while intoxicated ("OWI") offenses. It is a Class C misdemeanor to operate a motor vehicle while intoxicated. It is a Class A misdemeanor to operate a motor vehicle while intoxicated, in a manner that endangers a person. A Class C misdemeanor carries a penalty of 0 to 60 days in jail and up to a $500 fine. A Class A misdemeanor carries a penalty of 0 to 365 days in jail and up to a $5,000 fine. Furthermore, a Class A misdemeanor OWI counts as a substance offense under Indiana's habitual substance offender law. If a person is convicted of three substance offenses (such as OWI, possession of marijuana, etc.), they face an additional 3 to 8 years of incarceration for the third substance offense. A Class C misdemeanor does not count as a substance offense. Thus, a Class C misdemeanor OWI conviction is a not a strike against a defendant's habitual substance offender status.

In the case above, the defendant was parked in the middle of a drug store parking lot. The car's engine was running, and its headlights were on. The defendant sat in the driver's seat slumped over the steering wheel. A police officer testified at trial that he banged on the car's window for thirty seconds before the defendant acknowledged him. The officer also testified that the defendant answered questions slowly, had red eyes, and had a strong odor of alcohol about him. The defendant failed one of two field sobriety tests and had a .12% blood alcohol content. The police officer never observed the defendant travelling in the vehicle. However, circumstantial evidence presented at trial indicated the defendant had been driving.

The defendant was charged with two counts: operating a vehicle while intoxicated causing endangerment, a Class A misdemeanor; and operating a vehicle while intoxicated, a Class C misdemeanor. The defendant was found guilty of both counts at a bench trial. He appealed arguing that there was insufficient evidence to sustain the convictions.

The Court of Appeals reversed the defendant's conviction on the Class A misdemeanor count, finding that the State failed to present sufficient evidence of endangerment. The Court held that the State was required to submit proof of "endangerment" that went beyond mere intoxication in order for the defendant to be convicted of operating while intoxicated as a Class A misdemeanor. This ruling was significant not only because the Defendant now only faced a penalty range of 0 to 60 days, instead of 0 to 365 days. The Class C misdemeanor is not a strike towards the defendant's habitual substance offender status.

If you are arrested for operating while intoxicated in Indiana, you will almost certainly be charged with two counts of operating while intoxicated: the Class A misdemeanor offense that requires a finding of endangerment, and the lesser offense of merely operating while intoxicated, a Class C misdemeanor. If you are charged with operating while intoxicated, it is important to obtain a criminal attorney with significant trial experience. You may have a defense to a charge of Class A misdemeanor operating while intoxicated, if the State cannot prove that your driving caused endangerment. If you are also alleged to be a habitual substance offender, you may be able to avoid the 3 to 8 year sentencing enhancement.

Mere unexplained possession of stolen property, standing alone, can no longer establish a conviction for theft in Indiana. The Indiana Supreme Court has reversed a 40 year-old rule that allowed a conviction for theft to be established by mere unexplained possession of stolen property. In this case, the defendant was spotted driving a stolen truck within a few hours after the owner reported it missing. After being stopped by police, the defendant was belligerent and insisted he did not steal the truck. The state charged him with receiving stolen property, a Class D felony.

At trial, evidence was presented that the owner of the truck had not given the defendant permission to take the truck. However, there were a number or empty beer cans and an empty liquor bottle in the bed of the truck. The alcohol did not belong to the owner of the truck, but police officers testified at trial that the defendant did not appear intoxicated and was not driving erratically. A jury convicted the defendant of receiving stolen property, a Class D felony. The Court of Appeals then reversed the conviction finding that the evidence was insufficient to show that the defendant knew that the truck was stolen. The case was then granted transfer to the Indiana Supreme Court to address the anomaly that had the State charged the defendant with theft, instead of receiving stolen property, mere possession would have been sufficient to sustain the conviction.

The Supreme Court affirmed the reversal of the defendant's conviction. The Court held that the State could only prove that the defendant was in possession of recently stolen property and that fact alone cannot support an inference that the defendant knew the truck was stolen. The Court then ruled that the same evidence could not support a conviction for theft either, abolishing the mere possession rule.This case has established a new rule that to be convicted of theft, possession of stolen property is to be considered along with other evidence in a case, such as how recent or distant in time was the possession from the moment the item was stolen, and what are the circumstances of the possession (such as possession right next door as opposed to many miles away). Even if a defendant's possession of stolen property is unexplained at trial, a jury cannot find the defendant guilty if after consideration of all of the evidence in the case, there remains a reasonable doubt as to his guilt.

This ruling makes it crucial for persons accused of theft, or receiving stolen property, to maintain their right to remain silent and their right to an attorney. Police are trained in interrogating people under duress and obtaining incriminating statements. If you are under investigation for theft or receiving stolen property, you should contact a criminal attorney immediately. An experienced criminal attorney can help attack the evidence used against you. Mere possession of stolen property alone, can no longer sustain a conviction for theft in Indiana.

The Indiana Court of Appeals has reversed a man's conviction for maintaining a common nuisance, because the State failed to prove that he used his car to facilitate dealing in marijuana. The Court ruled that the statute defining the charge of maintaining a common nuisance was not intended to apply to a person who has personal use quantities of a controlled substance in his pocket or even loose in the car. Maintaining a common nuisance is one of the most overcharged and abused criminal allegations in the State of Indiana. It is often used by prosecutors to turn misdemeanor possession of marijuana cases into felony charges. If you are charged with maintaining a common nuisance, it is critical to obtain the assistance of an experienced trial lawyer.

Maintaining a common nuisance is a Class D felony in Indiana and carries a penalty of 6 months to 3 years in prison. Possession of marijuana under 30 grams is a Class A misdemeanor and carries a penalty of 0 to 365 days in jail. The crime of maintaining a common nuisance requires the State to prove that a person maintained a building or car that is used by persons to use illegal drugs or for unlawfully manufacturing, keeping, selling, or financing controlled substances or drug paraphernalia. Prosecutors often charge people, who are arrested in a vehicle with marijuana or drug paraphernalia, with maintaining a common nuisance, which elevates a Class A misdemeanor possession of marijuana to a Class D felony maintaining a common nuisance. The prosecutor then argues that the defendant was "keeping" the illegal drugs in a vehicle. The Court of Appeals has now ruled that such an allegation, unsupported by evidence of dealing or manufacturing of drugs, is insufficient to prove the charge of maintaining a common nuisance.

In the case referred to above, a man was pulled over for a traffic stop. He had been drinking and the police officer initiated a drunken driving (DUI) investigation. The defendant admitted to having marijuana and a pipe in his pocket. The man went to trial and was convicted of maintaining a common nuisance. The Indiana Court of Appeals reversed his conviction, because the amount of marijuana was consistent with personal use and there was no evidence that he used his car to manufacture, sell, or deliver marijuana.

If you are investigated, or arrested, on any drug related charge, it is critically important that you exercise your right to an attorney and your right to remain silent. In reaction to this case, police may attempt to interrogate people found in vehicles with small amounts of marijuana, and try to get them to confess that their vehicle was used for dealing or consuming drugs. A coerced statement could change a misdemeanor possession of marijuana charge into a Class D felony charge of maintaining a common nuisance. Passengers should also be careful. If drugs are present in a vehicle, the passengers could be charged with visiting a common nuisance. If you are charged with a crime, you should always hire an experienced criminal attorney immediately. Your first defense is to exercise your right to remain silent and obtain a criminal attorney.

The right to a jury trial is one of the must fundamental constitutional rights that you have. However, many people unknowingly waive this right because they do not timely hire a criminal defense lawyer. In Indiana, if you are charged with a misdemeanor offense, you must request a jury trial in writing at least 10 days prior to your initial trial date. If you fail to file a written jury trial demand, you waive your right to a jury trial. Misdemeanor offenses include public intoxication, drunk driving (operating while intoxicated), criminal mischief, and battery. People who attend their initial hearing without an attorney almost never understand this right and often fail to timely request a jury trial.

There are numerous reasons to request a jury trial, even if you intend to seek a plea agreement. The threat of going to trial by jury gives you leverage to negotiate your case. The prosecutor and police think that you are guilty or you wouldn't be charged. However, many misdemeanor cases are filed on weak evidence, especially in misdemeanor cases such as public intoxication and battery.

Charges of public intoxication are often based solely on subjective opinions of a police officer. The police reports usually claim that the defendant smelled like alcohol, had red watery eyes, spoke loudly, and appeared intoxicated. In many public intoxication cases, there is no admissible breath test. So the totality of the evidence is that the defendant looks like they have been drinking and their eyes are red. It is not illegal to drink and be in public. Jurors will understand that the smell of alcohol is irrelevant, because it is not illegal to drink. Your eyes may be red because you are tired, you have been around smokers, you wear contacts, or numerous other reasons. Your speech may be loud or slurred because the police make you nervous. Who among us does not slow down when a police car is behind us, even if we are not speeding? To a juror, there is often reasonable doubt as to whether a person is intoxicated, when the sole evidence is the officer's opinion.

Battery cases are also often based solely on subjective opinions. In almost every battery case, there is an argument for self-defense or defense of a third party. The evidence in many battery cases is the statement of the person who claims to be the victim and possibly their friends. Their statements regarding the alleged battery are self-serving and almost always exaggerated. The supposed victim of battery is not likely to tell police that they started the fight, either verbally or physically. Jurors may find reasonable doubt in a battery case where the defendant was provoked or the alleged victim was a willing participant.

We are in the first week of 2010 and during the course of the year numerous people will be investigated for alleged criminal acts. New Year's is always accompanied by charges of public intoxication, drunk driving, criminal mischief, and battery. Both innocent and guilty people will be arrested and the outcome of their respective cases can be influenced by requesting a jury trial. This is one of many reasons that you should hire an attorney immediately if you are charged with a crime. The most important thing that you can do to defend yourself is to know your rights.

When you see a police car in your rearview mirror, it almost always invokes a certain level of anxiety. Many people are intimidated by police encounters and act in extreme ways. They may waive all of their constitutional rights and consent to have their privacy violated; or, worse, they act aggressively toward the officer or even flee, and turn a potentially non-criminal investigation into an arrest for resisting law enforcement. Regardless of the reason for a police encounter, the best course of action is to remain calm and polite, but do not waive any of your constitutional rights.

There are three levels of police investigation, two which implicate the Fourth Amendment protections against illegal search and seizure, and one which does not. The Fourth Amendment requires that an arrest or detention for more than just a short period be justified by probable cause. Police may also briefly detain a suspect if the officer has reasonable suspicion that criminal activity "may be afoot." The third level of police investigation occurs when there is a consensual encounter, which consists of a casual and brief inquiry of a citizen and involves neither an arrest nor a stop.

During any of the above types of encounters, acting aggressively or threateningly towards police could invoke an exception to the protection citizens enjoy to be free from unreasonable searches. An officer is not entitled to seize and search every person who he sees on the street or of whom he makes inquiries. However, a police officer may conduct a pat down search for weapons if the officer reasonably believes that the person is armed and dangerous. In deciding whether a pat down search was legal, the Court will examine whether the officer had a justification to believe, from specific facts,that the person searched was dangerous.

The Indiana Court of Appeals reversed the conviction of a man convicted of Possession of Cocaine, a Class B felony, due to an illegal pat down search. The police encounter with the defendant was initiated because officers saw him exit a vehicle with an alcoholic beverage, in violation of the open container law. The officer testified at a suppression hearing that he approached the defendant and asked him to remove his hands from his pockets with the understanding that the officer was going to search for weapons upon his outer clothing.  While removing his hands, the defendant dropped a bag containing cocaine on the street. The State argued at the suppression hearing that the defendant had abandoned the cocaine, thus the defendant's privacy in the bag had been waived; and alternatively, that the pat down search was necessary for officer safety because the defendant was in a "high drug area" and the defendant had his hands in his pockets. The trial court denied the motion to suppress and the defendant was convicted of Possession of Cocaine, a Class B felony.

The Court of Appeals then reversed the conviction finding that the defendant had not made any furtive or aggressive actions toward the officers; and that being in a "high drug area" and having his hands in his pockets were not facts sufficient to cause a reasonable officer to fear for his safety. Because the defendant had been calm, and the infraction open container violation was not a criminal offense, there was no reason for a pat down search to be conducted. The Court of Appeals further held that the defendant's decision to discard the cocaine was caused by improper police conduct. Thus, the abandonment was not truly voluntary and as a result, the cocaine was not admissible.

In the above case, had the defendant panicked, and been either overly aggressive towards the officers, or voluntarily consented to a search of his person, he would have faced 6 to 20 years in prison. If you are in a police encounter, always remain calm and respectful. And, never consent to a search of your person, car, house, or computer. If you are arrested following such a search, you should contact an experienced criminal attorney immediately. You may have a valid motion to suppress the evidence.

The Indiana Court of Appeals has overturned a man's conviction for possession of marijuana due to an illegal pat down search. The man was stopped for driving a vehicle without a seatbelt. The officer took the man's identification and returned to his police car where he called for backup. A detective arrived on the scene and asked if he could speak to the driver about an ongoing investigation regarding a gang known to carry weapons. The officer who made the stop issued the driver a ticket and advised that he was "free to go." He then asked the driver if he was willing to go to the police station to speak to a detective in reference to an ongoing investigation. The driver agreed. The officer then advised that he needed to conduct a pat down search for officer safety. When he did so, he discovered 13 grams of marijuana in the driver's pocket. He was then arrested for possession of marijuana.

Prior to trial, the defendant moved to suppress the marijuana arguing that the officer's pat down search violated his rights to be free from unreasonable search or seizure under the Indiana Constitution. The trial court denied the motion and found him guilty at a bench trial. The Indiana Court of Appeals reversed the defendant's conviction and held that the search was illegal. The Court found that, although the driver consented to go to the police station, he never agreed to be transported there by the officer. When the driver consented to go the police station, the officer immediately asked him to turn around, put his hands above his head, and searched him. The Court held that at the point of the search, the driver was unlawfully detained without his consent. The evidence of marijuana was ordered suppressed and his conviction for possession of marijuana was overturned.

It is important to note that the Court distinguished this case from prior cases where a defendant has specifically consented to be transported by police. Where a person agrees to be transported by an officer, a pat down search may be conducted for officer safety. However, if a person not under arrest does not consent to be transported by police, a pat down search may not be conducted. Article 1, Section 11, of the Indiana Constitution protects the right of people to be secure in their persons, home, vehicles, and computers against unreasonable search and seizure. You should never waiver this important right to privacy. Any time you are requested to submit to interrogation, either as a suspect or witness, you should contact an experienced criminal attorney immediately.

In Indiana, you have the right to use reasonable force to defend yourself or a friend from being attacked or assaulted. You can also use force, including deadly force, to protect your home from unlawful entry. Unfortunately, you may be at risk of being unlawfully arrested for battery or assault, even when you acted to lawfully defend yourself. If unreliable witnesses report the battery, or the person who attacked you goes to the police first, you could be viewed as the perpetrator instead of the victim or a person merely defending yourself from a battery.

Under Indiana law, battery is defined as touching someone in a rude, insolent, or angry manner. If the person suffers some injury, no matter how minor, battery is a Class A misdemeanor. Battery is a Class C Felony if it results in serious bodily injury or by means of a deadly weapon. Aggravated battery is a Class B Felony. A charge of aggravated battery requires that the alleged victim suffered a substantial risk of death or serious permanent disfigurement or a protracted loss or impairment of their body. A Class C Felony carries a penalty of two to eight years in prison. A Class B Felony carries a penalty of six to twenty years in prison.

If you have been in a physical confrontation, you should contact a criminal attorney immediately. If the police initiate a battery investigation, you should never give a statement without your lawyer present. Under the heat of the confrontation, you will not be clear-minded to accurately explain what happened. And, the person who attacked you may have given a grossly false report to the police, which could lead to an aggressive interrogation. Many battery offenses are alcohol related. You should never give a statement to police when you have been drinking or using illegal drugs.

If you have been arrested or accused of battery, you should immediately make a list of witnesses in your favor and provide that to your attorney. An experienced criminal attorney can develop a stronger defense by taking statements of favorable witnesses while the events are fresh in their minds. And, an experienced criminal attorney can determine if it is necessary to hire an investigator to locate additional witnesses. 

It is a defense to a charge of battery if you were acting to protect yourself or a friend from an attack. Your use of force must be reasonable. If you are being investigated for a criminal charge of battery, or are under suspicion of committing a battery, you should contact an experienced criminal attorney. Immediate action can help identify corroborating evidence that you acted in self-defense and prevent you from wrongful suspicion of having committed the battery.

I am a criminal lawyer in Lafayette, Indiana and have handled battery cases and other serious criminal cases throughout Indiana.  I have won acquittal in battery trials multiple times by presenting credible evidence of self-defense. I have also negotiated the dismissal of charges of battery and aggravated battery by presenting credible and compelling evidence of self-defense. If you used force to defend yourself or a friend, you may also need to aggressively defend yourself in court.

Almost all criminal convictions result in some period of probation. If you violate the terms of your probation, the prosecutor or probation department may file a Petition to Revoke Probation ("PTR") and ask the court to issue a warrant for your arrest. If you have violated your probation, it is crucial to contact an experienced criminal attorney right away. Avoiding jail time often requires immediate action.

If a Petition to Revoke Probation has been filed, it is important to obtain a copy of the PTR to determine what it alleges. For example, in almost all DUI and drug related cases, terms of probation require the completion of community service and an alcohol or drug abuse evaluation. Plea Agreements usually provide that if these terms are not timely completed, the defendant must serve a fixed period in jail. If the PTR alleges that these terms were not completed, an experienced criminal attorney may be able to negotiate an extension of time. 

If the PTR alleges that you committed a new crime, you may face more serious consequences for the probation violation, than even the new offense. On a pending criminal case, you have the right to a trial by jury and to force the prosecutor to prove your guilt beyond a reasonable doubt. However, on a probation violation, the prosecutor only has to prove that it is more likely than not that you violated probation. And, the PTR will be heard by a judge and not a jury. If you are charged with a new offense while on probation, an experienced criminal attorney may be able to negotiate a plea agreement in the new case that will dismiss the probation violation. 

You should never appear in court for an initial hearing without an attorney, especially if you are on probation on another case. If a PTR has been filed, you could have a warrant out for your arrest. You should also never represent yourself in accepting a plea agreement, even if you think the terms are favorable. By accepting a plea agreement in a new case, you have now admitted the facts necessary to prove that you violated your probation.  If you are on probation and a PTR is filed, you should contact an experienced criminal attorney immediately. Aggressive action is often required to avoid jail time or other sanctions on the PTR.