January 2010 Archives

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.