All posts by Chris Buckley

Driving While Suspended Porter County

Driving While Suspended Porter County or Lake County, Indiana is Not a Good Place to Be

Driving while suspended Porter County or Lake County, Indiana is risky business. You might have been told or sent a notice by the courts or the Indiana Bureau of Motor Vehicles recently that your driver’s license has been suspended. You might even already know that your driver’s license has been suspended. You might drive cautiously, with nervous anticipation of a police officer pulling up behind you and running your license plate for fear he will discover that you are driving while suspended Porter County or Lake County, Indiana.

The worst thing that could happen as a result of driving while suspended Porter County is that you are arrested and charged with a criminal misdemeanor for driving while suspended Porter County. You will be handcuffed and taken into custody, and may spend several days in the Porter County Jail. This is an unfortunate result, and could have been avoided. If this has already happened to you while driving while suspended Porter County, our experienced traffic lawyers will defend you and put your life back on track in no time. If this has not happened to you, our lawyers can help restore your driving privileges and get you back on the road, legally.

Avoid Traffic Ticket Points for Driving While Suspended Porter County or Lake County, Indiana

When you are pulled over by police and your license is suspended, police will either arrest you or write you a citation for driving while suspended Porter County or Lake County, Indiana. Whether the officer arrests you or writes a citation with a summons to court for driving while suspended Porter County or Lake County, Indiana often depends on a number of factors, including, whether you are cooperative or polite, whether you are honest about your license being suspended, and whether you have had a previous citation or arrest for driving while suspended Porter County or Lake County, Indiana. Regardless of whether you are arrested or simply issued a citation for driving while suspended Porter County, you may face eight (8) points added to your driving record, as well as an automatic ninety (90) day suspension. In addition, this might make you a habitual traffic violator requiring a possible five (5) year suspension, and will cause your auto insurance premiums to significantly increase.

An experienced Porter County lawyer or Lake County lawyer can help you to avoid these consequences for driving while suspended Porter County or Lake County, Indiana. First, a lawyer will likely be able to restore your driving privileges while the case is pending. If this happens, there may be a chance that the charge of driving while suspended Porter County could even be dismissed altogether. If not, the lawyer may be able to amend the charge to a non-moving or non-pointable offense that will not adversely affect your driving record.

SFT Lawyers Can Help with Your Driving While Suspended Porter County and Restore Your Driving Privileges!

SFT Lawyers have Lake County lawyers and Porter County lawyers experienced in restoring driving privileges, eliminating points on your driving record, and getting specialized driving privileges for those with suspended driver’s licenses. CALL TODAY for a FREE CONSULTATION! (219) 841-5683.

Indiana Criminal Record Expungement Law: A Good, Fair, and Just Social Policy

The SFT Blog has written extensively on Indiana criminal record expungement law. (See, “Criminal Post Conviction Relief Available July 1, 2013 for A, B, and C Felonies in Indiana!”, “Major Exciting Changes to Indiana’s Second Chance Expungement Act for 2013”, and, “Spend Your Tax Refund Wisely! Get a Better Job with an Indiana Criminal Record Expungement!”) Not only is this law good for people convicted of a crime, it is good social policy.

Indiana Criminal Record Expungement Law – Good Becuase Criminal Record Was Never Intended to be a Punishment

Many prosecutors and judges have complained and even written to their state legislators in the Indiana General Assembly because they do not agree with the Indiana criminal record expungement law known as the “Second Chance Act”. As written in the previous articles cited above, the 2014 law requires judges to grant some petitions, while it allows judges discretion on others (such as A, B, and C felonies). Some complain that the law is poorly written, that it is unclear whether it was intended to restore certain rights such as the right to carry and conceal a firearm as a matter of law. Nonetheless, some prosecutors would like the law repealed. They claim that the general public has a right to know who the offenders are in their community, and that such a law takes away from opportunities of non-offenders in employment.

However, establishing permanent criminal records was never intended to provide an additional punishment to the offender. Our system was founded on a principal of rehabilitation, and not retribution as some might think. Incarceration is as much for the protection of victims of crime than to punish the offenders. If the offender serves a time of incarceration, he or she is prevented from committing further crimes and hurting other potential victims. Only in the most serious cases where a victim is actually injured or harmed by the offender’s criminal conduct should the system itself intend to actually punish the individual. Incarceration also serves as a deterrent to committing crimes in the first place, and the very threat of incarceration helps to establish and promote regular order in our society as a whole.

But keeping a permanent criminal record on individuals is to identify those individuals who pose a threat to society at large by tracking patterns of criminal conduct. Permanent criminal records are simply designed to give prosecutors and judges tools to determine which types of individual each defendant is–is he or she a repeat criminal offender? Is he or she a career criminal? Is there a pattern for this person’s behavior? The answers to these questions are crucial in determining a proper sentence for an individual who has been convicted. This was the only intended use for permanent criminal records.

Then, at some point later when the information became publicly available, employers began using criminal background checks to screen potential job applicants. All of a sudden a crime that a person has completely paid the price for continues to haunt the individual for literally his or her entire life. Not only does the person face the built in prejudices in the criminal justice system should he or she commit further crimes, but he or she will have to face a heavy bias in finding a job and obtaining gainful employment. Did we really intend for a person’s permanent criminal record to be an additional life sentence? I don’t think so. And in passing the new Indiana criminal record expungement law, the Indiana General Assembly appears to agree.

Indiana Criminal Record Expungement Law– Restoring Rights and Giving a Second Chance

As mentioned, it becomes exponentially more difficult for a convicted person to obtain employment after the sentence has been served and his or her debt to society has been paid. The moment that a new potential employer becomes aware that a person has been convicted of committing a crime, the person receives a new sentence each time he or she is turned down for employment. This is not only unfair, but it may even cause the person to turn back to crime and re-offend because they feel that they have little or no options. The only hope that many of these people have is with an Indiana criminal record expungement law.

Indiana Criminal Record Expungement Law – Well Tailored to Protect the Public

In addition to the general social policy benefits to the Indiana criminal record expungement law, the Indiana criminal record expungement law known as the “Second Chance Act”, most recently amended in 2014, is well thought out to allow non-violent and non-repeat offenders a second chance without jeopardizing the safety and order of Hoosiers.

First, the Indiana criminal record expungement law only offers the opportunity to expunge one’s criminal record AFTER eight (8) years from the date of conviction for a felony, and five (5) years from the date of conviction for a misdemeanor, with certain exceptions. You cannot have committed a crime within the preceeding five (5) or eight (8) years to be eligible for an Indiana criminal record expungement. These waiting periods serve a very important purpose. They separate repeat offenders from offenders who may have made an isolated mistake, or offenders who had a defined period of criminal conduct in their lives. If you are a repeat offender, you would not be eligible under the Indiana criminal record expungement law because, by definition, you would likely have committed a crime during this waiting period. In addition, if a new crime takes place within five (5) years after relief under the Indiana criminal record expungment law is granted, the State of Indiana, by its deputy prosecutor, can move the court to have the record restored as though it had never been expunged.

Secondly, built into the new Indiana criminal record expungement law, the law separates the most serious offenses–those involving actual harm to victims–from victimless and otherwise harmless and nonviolent acts of criminal conduct, such as possession of certain drugs in limited quantities, such as the possession of marijuana. Crimes harming victims and violent crime are typically in the highest three classes of crimes–A, B, and C felonies. In addition to a longer waiting period of ten (10) years, with these crimes a court has wide discretion in whether to grant relief under the Indiana criminal record expungement law, unlike in misdemeanor cases, and the prosecutor also has wide discretion in whether relief under the Indiana criminal record expungement law is granted. Certain crimes such as child molesting, murder, and rape, for example, can never be expunged under most circumstances. So all in all, this law was well drafted in ensuring the general public is protected from truly harmful individuals, while allowing a second chance to those who truly deserve it.

SFT Lawyers – Experienced Indiana Criminal Record Expungement Law Lawyers

SFT Lawyers have experienced Indiana criminal record expungement law attorneys eager to assist you in getting that second chance that you deserve. CALL TODAY for a FREE CONSULTATION for an Indiana criminal record expungement! (219) 841-5683.

U.S. Supreme Court: Illegal Police Dog Search after Traffic Stop

In a somewhat surprising decision, the United States Supreme Court has determined that police officers conducted an illegal police dog search of a car because the illegal police dog search occurred after the traffic stop has concluded.

In Rodriguez v. United States, No. 13–9972, decided yesterday, April 21, 2015, the United States Supreme Court decided that conducting a search beyond the scope of the original traffic stop violated the Fourth Amendment of the United States Constitution, and constituted an illegal police dog search.

In Rodriguez, Officer Struble, a K–9 officer, stopped Mr. Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After the Officer attended to everything relating to the stop, including, checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic offense, he asked Mr. Rodriguez for permission to walk his dog around the vehicle. When Rodriguez refused, Struble detained him until a second officer arrived. Struble then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Only Seven or eight minutes elapsed from the time Struble issued the written warning until the dog alerted. Mr. Rodriguez was indicted in federal court with the possession of methamphetamine.

The United States Supreme Court reasoned that, absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable searches and seizures, and constitutes an illegal police dog search.

Beware: Not All Police Dog Searches are Illegal Police Dog Searches

This Opinion, from the moment it was printed as a slip Opinion is binding upon future decisions of any court in the United States. However, this Opinion assumes a few things that readers may take for granted. First, this Opinion is based on the fact that the officer did not articulate a reason that he suspected that the driver possessed methamphetamine in his vehicle, and conducted the illegal police dog search anyway. This Opinion would not apply if the officer had some other reason to believe that Mr. Rodriguez had drugs in his vehicle. Second, this Opinion is based on the fact that Mr. Rodriguez did not consent to the search. If Mr. Rodriguez had consented to the otherwise illegal police dog search, he would have waived any Fourth Amendment right or privilege that he may otherwise have had. Third, this Opinion distinguishes between conducting an illegal police dog search after a traffic stop had been concluded, as opposed to conducting the illegal police dog search before it had concluded.

When Does a Traffic Stop Start and End for the Purpose of Determining Whether an Illegal Police Dog Search Has Occurred?

The tolerable duration of a traffic stop is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop, and to attend to the related safety concerns. Authority for the traffic stop ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete the mission” of issuing a warning ticket. Rodriguez, at 2, citing, Johnson, 555 U. S., at 327–328 and Caballes, 543 U. S., at 406, 408.

Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission. Rodriguez, at 2, citing, Delaware v. Prouse, 440 U. S. 648, 658–659.

In other words, unless an officer has an independent reason to believe that you have drugs inside of your vehicle–a reason that would impose suspicion in a reasonable person’s mind–the officer does not have the right to conduct a police dog search on your vehicle. Any attempt to do so would constitute an illegal police dog search, and any evidence gathered from such illegal police dog search would not be able to be used against you in any court as a matter of law.

Why is this New Law on Illegal Police Dog Searches So Important?

In other recent decisions over the past several decades, police dog searches were not considered “searches” under the meaning set forth in the Fourth Amendment of the United States Constitution. So long as police dog searches were “reasonable” and did not unreasonably restrain a person’s liberty, such searches were considered “legal”, and therefore any evidence recovered as a result of the police dog search could be admitted and used against the defendant at a trial. This is no longer the case. In this new decision, any detention beyond the scope of the traffic stop, which is strictly defined and limited, constitutes an illegal police dog search.

Have You Been the Victim of an Illegal Police Dog Search? The Criminal Defense Attorneys of SFT Lawyers Can Help!

The criminal defense attorneys of SFT Lawyers can help! Our experienced criminal defense attorneys are well seasoned in the area of illegal police dog search es and will work tirelessly to exclude evidence gathered illegally by the police. If you have been charged with the possession of marijuana, possession of cocaine, possession of methamphetamine, or possession of heroin that was found as a result of an illegal police dog search, CALL TODAY for a FREE CONSULTATION. (219) 841-5683.

Spend Your Tax Refund Wisely! Get a Better Job with an Indiana Criminal Record Expungement!

It is tax season again, and there are countless ways to spend that long awaited State and Federal Income Tax Return. Many people lay awake at night dreaming of buying that new car, paying off credit cards, doing overdue home improvement projects, or finally being able to pay for that divorce that you have long awaited. While I will not comment on the value of the latter of those, the others may be a good idea in terms of spending your hard earned tax refund. However, spending your tax refund getting an Indiana criminal record expungement could make your money work even harder for you when you land that job you have been afraid to apply for because of your criminal record.

We all Make Mistakes. Indiana Criminal Record Expungement Can Erase Them!

We all make mistakes. We shouldn’t have to pay for them forever. The Indiana General Assembly, in passing the “Second Chance Act” first in 2011 realized that. There is no sense in punishing past offenders for their entire lives, and preventing them from suitable employment opportunities simply because of a single or series of past indiscretions. An Indiana criminal record expungement attorney can help!

Indiana Criminal Record Expungments are Faster and Cheaper than You Think!

Many people think that no matter what you hire a lawyer for, you are in for thousands and thousands of dollars in legal fees. That is not the case here. These cases are usually done on a flat fee basis. For as little as a thousand dollars ($1,000) in some cases, a lawyer at SFT Lawyers will take your case from start to finish.* As well, under the newest version of the new Indiana expungement law, many these Indiana criminal record expungement petitions can be completed within thirty days of filing the petition, and even sooner in some cases.**

New Changes Make it Even Cheaper to File Indiana Criminal Record Expungements!

There are many exciting changes for 2015 when it comes to Indiana criminal record expungement. One such change is that the law no longer requires a civil filing fee when filing Indiana criminal record expungement petitions. When formerly you would have to pay a filing fee between a hundred fifty ($150.00) and two ($200.00) hundred dollars per case with each court, this is no longer the case. This can mean big money if you have convictions in multiple Indiana counties and would otherwise have to pay some pretty hefty fees for your Indiana criminal record expungement.

SFT Lawyers has Experienced Indiana Criminal Record Expungement Attorneys Ready to Help You Get that Better Job!

SFT Lawyers was among the first law firms in Indiana to begin filing Indiana criminal record expungement petitions in courts all over Indiana! SFT Lawyers has filed and gotten results for literally hundreds of clients, in nearly every county in Indiana!*** CALL TODAY for a FREE CONSULTATION on Indiana criminal record expungment and get your life back on track today! (219) 841-5683.

*Not a guarantee of actual price in Indiana criminal expungement cases.  Flat fee varies on a case-by-case basis, and depends on a number of factors involved in the legal services provided.  Please call for a free consultation to discuss actual fee charged for actual services performed.

**Not a guarantee of result for actual time elapsed for resolving Indiana criminal record expungements. Actual time may vary on a case-by-case basis.  Please call for a free consultation to discuss actual time estimated for individual case(s).

***Not a guarantee of result. Individual results may vary. SFT Lawyers does not promise or guarantee any result in any given case, nor in Indiana criminal record expungements.  SFT Lawyers does not assert that its services are greater than any other law firm in Indiana, nor promise or guarantee any result in excess of results from hiring other competent and licensed legal counsel in matters generally, or in Indiana criminal record expungement case(s).

Major Changes to Indiana’s Traffic Law for Indiana Traffic Attorneys

Indiana traffic attorney s take note: Effective January 1, 2015, the Indiana General Assembly has dramatically changed Indiana traffic law as we once knew it. Most notably, Indiana has done away with its old scheme of driver’s license suspensions to reduce the number of suspended drivers in Indiana, and allowed many drivers, previously ineligible, to obtain limited driving privileges.

House Enrolled Act 1279-2014 amended many parts of the traffic code concerning Lake and Porter County DUI’s, as well as Indiana driver’s license suspensions that follow any traffic conviction in the State of Indiana.

New Terms for Indiana Driver’s License Suspensions for Indiana Traffic Attorneys

The new statutory suspension range for any Indiana traffic offense now cannot exceed the maximum penalty imposed by law. For instance, operating while intoxicated (“OWI“) [driving under the influence (“DUI“)] goes from the possibility of a ninety (90) day driver’s license suspension to two (2) years to the new possibility of ZERO to two (2) years, the maximum possibly penalty for the most serious DUI offense (assuming no one was killed or injured as the result of a crash).

The Indiana General Assembly gave greater discretion to trial court judges to determine what driver’s license suspension, if any, is appropriate in any given traffic case. Among the factors that most courts will likely consider are: a) prior criminal/traffic history, b) blood alcohol content (if applicable), c) victim input, and d) Prosecutor and traffic/ criminal defense attorney input and argument, among other factors.

Administrative driver’s license suspensions imposed by the Indiana Bureau of Motor Vehicles remain mostly the same, but now, the court may stay such suspensions and instead issue what is now known as a Specialized Driving Permit, or an “SDP“.

2. What Is a Specialized Driving Permit (“SDP“)?

A Specialized Driving Permit, or SDP, follows a petition to the court asking for limited driving privileges in lieu of any driver’s license suspension imposed by the Indiana Bureau of Motor Vehicles or by the court. It can range from no restrictions at all, to only to and from work. All limitations must be specifically spelled out in the final order from the court, and SDP’s have a minimum period of one hundred eighty (180) days.

Specialized Driving Permits (“SDP’s“) replace what were formally known as “Hardship Licenses“, “Probationary Licenses“, “HTO Probationary Licenses“, and, “Work Licenses“. The only driving privileges that can be granted in place of any driver’s license suspension is the new SDP. Terms of an SDP may include hours a person may operate a motor vehicle, geographical locations where a person may operate a motor vehicle, as well as the implementation of alcohol monitoring devices such as the SCRAM bracelet or the ignition interlock device being installed in the person’s vehicle.

The only two (2) groups who are not eligible to receive specialized driving privileges are 1) those who refused a chemical test pursuant to a Lake or Porter County DUI, and 2) those who have previously violated the terms of an SDP. This new law leaves open the question of whether persons previously adjudicated as a “habitual traffic offender” (also, “habitual traffic violator“) or otherwise face a long-term or lifetime driver’s license suspension are eligible to have limited driving privileges under an SDP.

If you have been cited or charged with an Indiana driving offense such as operating while intoxicated (“OWI“) or driving under the influence (“DUI“), the Indiana traffic attorney s of Schwerd, Fryman & Torrenga, LLP can help! SFT Lawyers have more than fifty (50) years of combined experience as Indiana traffic attorney s, and will work to get you the best possible outcome for your traffic ticket or criminal traffic offense. CALL (219) 841-5683 TODAY for a FREE CONSULTATION!

Be Safe – Happy New Year from SFT!

With all of your New Year’s Eve and New Year’s Day activities, we at SFT Lawyers would like to wish you a safe and happy holiday, and a great and promising 2015! Happy New Year, Northwest Indiana!

5 Ways to Avoid a Lake or Porter County DUI This Holiday Season

The Holiday Season is a great time to celebrate with friends and to have a good time, and consuming alcohol is often a part of such celebrations and traditions. However, the Holiday Season is also a time when many people are arrested for a Lake or Porter County DUI. Here is a guide which can help you avoid putting yourself at risk of a Lake or Porter County DUI :

Drink in Moderation. This may be (or seem) an unrealistic alternative for some, but knowing your limit can help you avoid a Lake or Porter County DUI. For the average person, consuming three (3) to four (4) drinks puts you at or over the maximum legal blood alcohol content of 0.08 grams of alcohol per 210 liters of breath, or 100 milliliters (1dL) of blood. You should have an alternative plan for if and when you decide to consume two (2) or more drinks over an average period of time to avoid a Lake or Porter County DUI. A blood alcohol content (BAC) table can be found here.
Be or Bring a Designated Driver. This is a surefire way to make sure all will be safe (and free) to celebrate the holidays this holiday season. Make it fun. Design a random game to decide who will be the designated driver on a particular night out, and stick to it. However, there is no such thing as a “designated slow drinker”. Slow drinking over a long period can still result in becoming intoxicated and getting a Lake or Porter County DUI. A sober driver is a sober driver, not someone who is less intoxicated than the passengers. Stick to your plan and take turns.
Alternate between Alcoholic and Non-alcoholic Drinks. Not only can you stay healthy this holiday season by consuming more fluids (ideally water) between drinks, you can also avoid a Lake or Porter County DUI in the process. Spacing your drinks apart using any kind of nonalcoholic alternative (hot tea, for example), can make your time actually more enjoyable. (You might actually remember those pictures that show up on Facebook the next day, and you might not still be in bed when the children open their presents.)
Avoid Shots of Liquor. This item isn’t on the list for the reason that you think. Shots of liquor are not less likely to make you intoxicated than beer, wine, or mixed drinks. In fact, you consume 1-1/2 ounces of pure ethanol per drink no matter what you are drinking. What makes shots so dangerous is that they are usually consumed in addition to your drink of choice, and usually they do not show up alone. Shots are usually accompanied by other shots. The next think you know you are being arrested for a Lake or Porter County DUI.
Count Your Drinks. This may sound silly, but counting your drinks to yourself may help you avoid making the poor choices that can lead to a Lake or Porter County DUI. The average person metabolizes one (1) average drink per hour. Therefore, if you count the number of drinks you have consumed and subtract the number of hours you have been there, you have a rough general idea of how many drinks are in your system. If you have more than two (2) drinks in your system, you had better call a friend or a cab.

If you have been charged or arrested with a Lake or Porter County DUI, SFT Lawyers can help! CALL TODAY FOR A FREE CONSULTATION! (219) 841-5683.

Disclaimer: This article is for entertainment purposes only, and does not constitute legal advice. Relying upon recommendations in this article does not guarantee or imply that you will not be arrested or charged with driving under the influence by complying with the above.

U.S. Supreme Court Heard Oral Arguments Monday in Facebook Free Speech Case

For the first time, the Nation’s highest court entertained oral arguments Monday on the issue of whether threatening comments posted on Facebook constitute criminal behavior or whether such comments are protected as Facebook free speech by the First Amendment of the United States Federal Constitution. (See SCOTUSBlog Coverage here.) (See Oral Argument Transcript here.) (See Indiana Lawyer article here.)

The key issue in Elonis v. United States is whether, in order to prosecute crimes for threats against a person pursuant to 18 U.S.C. § 875(c), the government must prove that such threats were communicated “with the actual intent to cause fear” or whether such threats must “instill fear in a reasonable person”.

In the case below, Anthony Elonis, aka, “Tone Dougie”, was an aspiring rap artist and recently divorced his wife. On his Facebook free speech page, he made the following remark, allegedly as rap lyrics:

“There’s one way to love you, but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

In another post, Elonis wrote:

“That’s it. I’ve had about enough. I’m checking out and making a name for myself. Enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever imagined and hell hath no fury like a crazy man in a kindergarten class. The only question is which one.”

The government’s position is that any threat communicated that would instill fear in a reasonable person is a crime pursuant to 18 U.S.C. 875(c) due to public safety concerns. The government reasoned that if a particular threat instills fear, it could result in a response, or necessitate a response by schools or other organizations, and should be punished as a deterrent. The government argues that such speech has a de minimus value and that any value of such Facebook free speech is outweighed by the public safety concerns.

Elonis, on the other hand, by his Attorney argued that the comments constitute valuable Facebook free speech. He even compared such words to those of Thomas Jefferson, “The Tree of Liberty must be refreshed…with the blood…of tyrants.” Elonis argued that any attempt at criminalizing such behavior would chill such Facebook free speech, and that the First Amendment should protect against prosecution. He argued that the protections afforded under the First Amendment should be heightened, here, because the words were contained in Mr. Elonis’ rap lyrics, “art” as Elonis’ legal counsel eloquently argued in his Brief to the United States Supreme Court.

Without much reflection, this question seems easy for any legal scholar. However, beneath the surface lies a key distinction; namely, the difference between posting such words on a ‘public’ forum and communicating them directly to a potential victim. The true difference is between active and passive communication. I think there are certainly legitimate concerns from both sides. On one hand, a person shouldn’t be able to find a legal loophole to make threats to his ex wife after the fact. He shouldn’t escape criminal liability simply because of a mere technicality. However, to not hold the government to a standard in which requires intent leaves open the possibility that a person could face criminal liability for mere recklessness or even simple negligence. To do so, in my opinion, would significantly chill a significant amount of valuable Facebook free speech in order to protect from the few reckless or negligent ‘threats’ that may warrant being prosecuted. Our Forefathers felt that free speech was so sacred that even the most undesirable words were protected from the reach of government, except those resulting in immediate, irreparable harm. Thought the content of the Facebook free speech here is undesirable or distasteful to say the least, making it into a crime should require a subjective intent on the part of the speaker.

Happy Thanksgiving from SFT Lawyers

The Attorneys and Staff of Schwerd, Fryman & Torrenga, LLP would like to wish you and your family a Happy Thanksgiving in 2014. May we all give thanks for the countless bounties that we have received, and may all be happy, fed, clothed, and warm on this day. We at SFT wish all of you a safe and happy Thanksgiving Day 2014.

Regards,

–Attorneys and Staff of SFT Lawyers

Criminal Defense Attorneys Convince Indiana Court of Appeals to Reverse 3 Criminal Convictions Last Week

It is somewhat unusual for the Indiana Court of Appeals to reverse so many convictions in a single week, but last week the Indiana Court of Appeals was persuaded by at least three (3) criminal defense attorney s and reversed three (3) criminal convictions pending before it.

According to The Indiana Lawyer, Watters v. State of Indiana, Montgomery v. State of Indiana, and Antwonna Smith v. State of Indiana all resulted in reversals last week, at least in part.

Criminal Defense Attorney s: It Pays Off to Object to Inadmissible Evidence

Deriq Watters v. State of Indiana, 34A02-1403-CR-215 (Ind. App. 2014).

On June 26, 2007, Mr. Watters pled guilty to Dealing Cocaine as a Class B Felony, and a conviction was entered. Pursuant to the Plea Agreement he was sentenced to a total of twenty (20) years, with ten (10) of them executed and ten (10) years suspended. After he had served part of his sentence and was released to serve the remainder of his sentence on probation, Mr. Watters was allegedly arrested in Marion County, Indiana, which was a violation of his probation. The State of Indiana filed a Petition for the Revocation of Probation on June 11, 2014, alleging that Mr. Watters had subsequently been arrested for Robbery, as a Class B Felony in Marion County.

At the probation revocation hearing, the State moved to admit copies of a plea agreement and sentencing order from the Marion County Cause, but those documents were not certified. Mr. Watters’ criminal defense attorney objected to their admission asserting that they were not certified, and therefore not admissible. The documents were admitted, over the criminal defense attorney ‘s objection, and were used as the only evidence that Mr. Watters sustained a new arrest and conviction. Because of the evidence of a new conviction, Mr. Watters was ordered to complete the remainder of this sentence in the Indiana Department of Corrections.

The Indiana Court of Appeals reiterated the looser evidentiary standard in probation revocation matters, but ultimately concluded from prior cases that such documents must be “reliable” in order to be admissible. In order to meet this test of reliability, documents must be certified by the clerk of the courts to demonstrate that they are in fact authentic. Because of this, and because the criminal defense attorney properly objected, the Court held that the documents proving Mr. Watters’ conviction should not have been admitted at the hearing, and therefore that Mr. Watters’ probation should not have been revoked.

Criminal Defense Attorney s: Person May Not be Convicted of Murder and Neglect of a Dependent Causing Bodily Injury on Same Facts

Christopher M. Montgomery v. State of Indiana, 49A02-1312-CR-1039 (Ind. App. 2014).

In this case, the Indiana Court of Appeals reversed a conviction for Neglect of a Dependent Resulting in Serious Bodily Injury as a Class B Felony, because it violates the Double Jeopardy Clause of the Indiana Constitution.

The Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” IND. CONST. art. 1, § 14. Indiana’s Double Jeopardy Clause, much like the Federal Double Jeopardy Clause, prevents the State from being able to proceed against a person twice for the same criminal transgression. The Indiana Supreme Court has held that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Hopkins v. State,
759 N.E.2d 633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).

In Indiana, five (5) additional categories of double jeopardy exist:
(1) conviction and punishment for a crime which is a lesser-included offense of another crime for which the defendant has been convicted and punished; (2) conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished; (3) conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished; (4) conviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished; and (5) conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for which the defendant has been convicted and punished. See Guyton, 771 N.E.2d at 1143; Richardson, 717 N.E.2d at 55-56 (Sullivan, J., concurring).

In this case, the Court observed the relevant statute, Ind. Code § 35-46-1-4,6 and noted that “[t]he offense of neglect of a dependent, absent a resulting injury, is defined as a class D felony.” Id. (citing Ind. Code § 35-46-1-4(a)), and to convict Mr. Montgomery of the Class A or B Felony, which requires serious bodily injury, would violate the Double Jeopardy Clause of the Indiana Constitution.

Criminal Defense Attorney s: To “Inflict” Injury Requires an Intentional Act.

Antwonna Smith v. State of Indiana, 49A02-1312-CR-1015 (Ind. App. 2014).

In this case, Ms. Smith resisted arrest for shoplifting outside a Meijer store and, as the officer took Ms. Smith to the ground, sustained a laceration to knuckle and fingertip. The officer admitted that the asphalt caused his injury.

At trial, the State moved to enhance the misdemeanor for Resisting Law Enforcement to a Class D Felony, because such conduct “inflicted” bodily injury upon the officer. The Indiana Court of Appeals, however, determined that Ms. Smith did not “inflict” bodily injury upon the officer, because by the officer’s own admission, he was injured as he fell to the ground when his knuckle and fingertip struck the asphalt. The Court reasoned that Smith did not “inflict” an injury on the officer or “cause” the officer’s injury, and her
conviction should not have been enhanced to a felony because Smith was “a passive part of the encounter” and “took no actions toward” the officer.

This case seems to imply that to “inflict” or “cause” an injury to an officer, the Defendant must have done something intentionally to bring that about, e.g. punching or kicking the officer, but the case stops well short of making that direct assertion.

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