August 2010 Archives

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.