Tag Archive | "DUI"

DUI: Pre-Trial & Post-Trial – Aug. 23

DUI: Pre-Trial & Post-Trial – Aug. 23

TOPICS:
• BMV Issues

• Case Law & Statutory Update

• Investigation of a Blood Case

• Pre-Trial Motions

• Anatomy of Evidence Based Sentencing & Alternative Sentencing Options
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FACULTY:
Mark A. Foster – Chair
Foster O’Daniel, Hambidge & Lynch LLP, Evansville

Hon. Wayne S. Trockman
Vanderburgh Superior Court, Evansville

Kyle J. Bonick
Indiana Bureau of Motor Vehicles, Indianapolis

Shaunda Lynch
Foster O’Daniel, Hambidge & Lynch LLP, Evansville

L. Scott Pejic
Pejic & DiMartino, P.C., Michigan City

Lori Schein
Indiana Bureau of Motor Vehicles, Indianapolis

Jodi L. Uebelhack
Vanderburgh County Treatment Court, Evansville

John R. Watkins
Arata Watkins, Fort Wayne
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DUI: PRE-TRIAL & POST-TRIAL
6 CLE – Wednesday, August 23;  9:00 A.M. – 4:30 P.M.

LIVE IN-PERSON SEMINAR
– ICLEF Conference Facility, Indianapolis

LIVE INDIVIDUAL WEBCAST
– From your home or office computer

VIDEO REPLAY SEMINARS
– Available after Live Seminar date

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Indiana Law Allows you to Take Another Breath Test for Alcohol if the First Results in Insufficient Sample

By Richard Mann, Richard A. Mann, P.C., Indianapolis

On May 31, 2017, the Indiana Supreme Court reversed the suspension of a woman’s driver’s license for allegedly refusing to take a breath test.  A state trooper had asked the driver to take a breath test for alcohol after she was stopped.  The trooper believed she had failed the field sobriety tests and she agreed to take a breath test.  After blowing in 3 times the machine continued to show “insufficient sample.”  Even though the driver had been cooperative, the trooper declared she was refusing to take a breath test.  At court the trial court found she refused and that decision was upheld by the Indiana Court of Appeals. The Supreme Court in Hurley v. State of Indiana in a unanimous decision reversed the lower courts and held that the trooper had to follow the rules requiring other options including offering for her to test again after the insufficient sample. The court stated, “The trooper was required to administer a second test on this record because Hurley did not clearly manifest an unwillingness to take it.”  The court went on to point out that this is not the case where a person puffs their cheeks and pretends to blow, which could result in a valid finding of refusal.

Under Indiana law any person driving a motor vehicle on the roads has impliedly consented to take a test for drugs or alcohol in their system if a police officer has probable cause to believe they are currently operating a vehicle under the influence of alcohol or other drugs pursuant to I.C. 9-30-6-9.  If you refuse to take the test your driver’s license may be suspended for a period of one (1) year in addition to any suspension you receive if convicted of the underlying operating under the influence charge.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

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Law Tips: DUI Defense – Jury Selection In Blood Test Cases

The blood test machine is not a “guilty box.” The State must show the jury the “Carfax” – the evidence showing that the test is right. The jury must put on their “skeptic glasses” and review all the evidence and determine if it leaves no doubt as to its accuracy. The evidence of the test’s accuracy must be so clear that they would feel free to act upon it in a matter of the highest concern and importance to them.

In these few words Bart Betteau zeros in on the issues for a jury in a blood test case. I appreciate Bart bringing his DUI Defense expertise to Law Tips readers. Come along as he pointedly shares insights, questions and comments that clarify the jurors’ role in protecting our constitutional tenets during a DUI trial:  

Voir dire is the single most important part of an OWI jury trial – especially where a blood test is involved. As in any case, the main thrust is to ensure that jurors know their proper role. Jurors must thoroughly understand the constitutional precepts of “presumption of innocence”, “proof beyond a reasonable doubt” and ”burden of proof’.”

Your task:
In trying a blood test case, you have to make potential jurors aware that it is the State’s burden to show that the test is reliable and accurate – that it is right! It is not sufficient to introduce a piece of paper with the result and scream “here’s the result.”

Questions for Potential Jurors
– What will you require the Accused to do in order to show he is not guilty?
Comment: “Nothing!” The presumption of innocence requires only the government to prove things. If the government fails the verdict is “not guilty”.

– What if you believe the test is probably right – almost certainly right?
CommentNot guilty! The standard is beyond a reasonable doubt.

– If you voted right now – what would your verdict be?
Comment: Not Guilty! No evidence has been presented.

– When the blood test result is presented, do you understand your obligation is search the evidence for reasons it’s not right?
Comment:Jurors must attempt to fit the evidence to the presumption of innocence.

– What if, in the end, you are not sure the test is right – you can’t decide?
Comment: Not Guilty! We don’t convict innocent people. If you have a reasonable doubt, you cannot convict.

– Do you like the presumption of innocence, the fact that the evidence must be beyond a reasonable doubt and that the State has the burden?
Comment: You better. It is one of the constitutional rights that people have fought and died for. It is not here for Mr. _____ __, but for you, your brother, sister, mother, father and your children, to make sure innocent people are not convicted.

– What does beyond a reasonable doubt mean:?
Comment: Each juror will believe themselves to be reasonable. If they have a doubt, it is a reasonable one.

– What if, at the end of this case, you have not seen some evidence that you thought you needed to know whether the test result was accurate?
Comment: Not Guilty! A reasonable doubt may arise from the evidence or lack of evidence.

– What if I don’t do anything – don’t cross examine the lab tech – don’t say a word?
Comment: Does not matter. State has the burden of proof and must show proof that convinces the jury beyond a reasonable doubt.

– What are you here to decide – the possible verdicts?
Comment: The answer is “guilty” or “not guilty”. Jurors have NO authority to find the Accused innocent. Not guilty does not mean your client is innocent but means that there is a reasonable doubt. This is not a trivial point.

– Do I have to show the machine was wrong?
Comment: No. Such would be contrary to the presumption of innocence, the obligation for the State to prove the Accused guilty beyond a reasonable doubt and the fact that the State has the burden of proof. More importantly, it’s impossible. I was not there for the test; I don’t have a video of the test.

When you bake a cake and it does not come out right, you don’t know why. When a computer locks up (and this blood test machine has a computer) – anybody tell me why the computer locked up? No. Something happened but you don’t know what. That is why we have the presumption of innocence, the beyond a reasonable doubt standard and put the burden of proof on the State to show the test was right. Plain and simple – it’s impossible for me to show it was wrong.

– Does it matter if the State has a lab tech say: “I gave the test. I gave it right. The machine was working properly” – is that the whole ballgame?
Comment: No. The jury must consider all the evidence presented.

– Would you still weight that evidence against all the other evidence for you, yourself, to determine whether the test result is accurate?
– You understand that each and every one of you, independently, must be convinced that the machine is right.
Would it be wrong to surrender your own judgment, just to get a verdict?
Comment: The verdict must be that of each individual juror.

– Anyone know what a hung jury is?
Comment: Jurors must know that it would be wrong to vote any way other than the way they see it. They must also know that if they are “irretrievably deadlocked”, the State gets to try the case again. This again is how we protect against convicting the innocent.

– Who are you here for?
Comment: Jury is there not as a representative of the public- but to protect the Accused. The Sixth Amendment says the Accused shall enjoy a trial by jury. When the State says you committed a crime and you say you didn’t, you get to take it to a jury of your peers to argue your case.

It bears repeating:
Voir dire is the single most important part of an OWI jury trial – especially where a blood test is involved. You have to make potential jurors aware that it is the State’s burden to show that the test is reliable and accurate – that it is right!

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I am grateful to Bart Betteau for providing his expertise for Law Tips. You can get the full impact of his CLE presentation during the Annual DUI Defense Update. Make your choice of locations for this popular CLE in September through December.  

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About our Law Tips faculty participant:
Bart Betteau, Betteau Law Office, LLC, New Albany, Indiana, graduated Wabash College magna cum laude with a Bachelor of Arts in 1989. He earned a juris doctorate from Indiana University School of Law in 1992. Since then, he has received hundreds of hours of continuing legal education in the field of criminal defense attending seminars throughout the United States. He has also been sought to instruct other attorneys in the field of criminal law both inside and outside of the State of Indiana.

 

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Thoughts on Finding Defense Experts: A Bad Expert Can Guarantee Failure….and so on

” … Do as adversaries do in law, strive mightily, but eat and drink as friends.” Shakespeare; The Taming of the Shrew, act 1, scene 2.

It’s my pleasure to bring Jon Stowell’s counsel on selecting defense experts to Law Tips readers. Mr. Stowell is with the Law Offices of the Cincinnati Insurance Company in Indianapolis. He participates as a faculty member in our CLE entitled “Trying the Traumatic Brain Injury Case,” Jon’s advice covers a wide gamut of issues defense lawyers need to contemplate. Here are samplings of that instruction ranging from introductory remarks on the traumatic brain injury case to his general thoughts on finding experts:

“Few areas in civil litigation are more challenging and more intellectually interesting for a lawyer than a traumatic brain injury (“TBI”) case. TBI cases demand a team of qualified experts to opine on discrete and specific areas of specialty. To understand the potential exposure facing a client, a defense lawyer needs to begin thinking about damages experts as soon as a TBI case is assigned.

Finding the right expert can be a time consuming process, but it is time well spent. Finding a new expert may require the investment of five to ten hours of time. After an expert has been retained, an early in-person meeting at the expert’s location should be arranged. Although these trips can be cumbersome for the attorney’s schedule, they will in certain cases save a great deal of trouble and aggravation on the back end of a case. This initial meeting is a good chance for the defense lawyer to “Daubert” their own expert.”

Jon Stowell’s general thoughts on finding defense experts:

There are many acceptable ways to find qualified defense experts. Practitioners will be familiar with free locator services such as SEAK and JurisPro. These services have many qualified experts who generally have a good level of familiarity with the litigation process. A rich source for potential experts is to locate a practitioner or academic who has recently published in a given area but has not previously served as an expert witness. These experts can often be found using Google Scholar searches.

The benefit of using this type of expert is the person is often on the cutting edge of their topic and very well qualified to review and opine on a specific topic. The downside of using this type of expert is they may have never been involved in litigation before and may not fully appreciate the rigors of the process. Additional time and preparation must be given to this type of expert if chosen for a case.

A nonexclusive list of potential sources of experts includes:

1. Published Authors – Google and Google Scholar searches

2. Academics

3. Colleague Referral

4. Westlaw Case Queries

5. JurisPro

6. SEAK

7. Thompson Reuters

8. Linkedln

In most cases, the practitioner will want to start with the foundational experts, neuropsychologist and neurologist, and build up from there. The best source for determining what areas of the defense case need to be shored up is from the experts already retained. A good expert will not want to go beyond their area of expertise or their comfort zone. A defense attorney does a disservice to his case and the expert to ask for a stretch by the expert beyond those bounds.

A good expert does not guarantee success in a case. A bad expert can guarantee failure. The take away point should be to invest the time and effort necessary to find the right expert.

I appreciate Jon Stowell’s contribution to Law Tips. And, as always, thank you to Law Tips readers for taking the time to visit. If you would like to take advantage of the excellent CLE program that includes the presentation by Jon Stowell and other expert faculty members, look at the On Demand or Video Replay Seminars of “Trying the Traumatic Brain Injury Case,” and “Recent Developments in DUI Defense.” as well as the ever-popular 36th Annual Indiana Law Update scheduled live in September.

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About our Law Tips faculty participants:
Jon Kenneth Stowell is Associate Counsel-Managing Attorney at the Law Offices of The Cincinnati Insurance Company in Indianapolis. His areas of practice are: Traumatic Brain Injury; Wrongful Death; Nursing Home Negligence; Dental Malpractice; Product Liability; Agent Errors and Omissions; Construction Injury; Construction Defect; and Premises Liability.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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