Glossary E-G
Earned Dismissal
A device generally contained in a plea agreement whereby you are convicted of an offense but earn a dismissal of that conviction by successfully completing probation or doing community service etc. The net result is an order from the court dismissing the conviction from your record, meaning no conviction after the court orders the dismissal.
Be careful though, on job applications or other documents where complete candor is required, if you are asked if you have pled guilty to a crime, the answer is yes, and if the question is whether you have ever been convicted, the answer may be yes, although you are not currently convicted!
The earned dismissal is a great device to eliminate a conviction, but the inartful wording of job applications or security clearances may cause you to lose some of its benefit if a precise question is asked about the mechanics of your earned dismissal.
Elements
The method by which crime is defined by our legislature. Historically, law were composed of both mental elements – mens rea, and physical or behavioral elements – actus reus which combined to form common law crimes.
In most OWI/DUI cases there is no requirement for any mental state or mens rea to be proven and this is a departure from our common law criminal law tradition. Definitionally, and by the elements, in a drinking driving case, typically one of the charges is Operating while Intoxicated. The elements that the State must prove beyond a reasonable doubt are that:
- The defendant.
- Operated a vehicle.
- While.
- Intoxicated.
The State must also prove that the case occurred within a particular county but this burden is simply by a preponderance of the evidence. A second charge often alleged in Indiana is that a person operated a vehicle with .08% A.C.E. or greater by weight of alcohol in the breath or blood. Hence, the elements that must be proved beyond a reasonable doubt are that:
- The defendant.
- Operated a vehicle.
- With .08% or greater by weight of alcohol in the breath or blood.
Endangerment
To prove the element of endangerment in Indiana, the State must prove that the defendant’s manner of operating his vehicle was such that he could have endangered himself, police, or the public.
Typically, a traffic infraction such as speeding or left of center will be sufficient to meet this burden on appeal. There are several recent Indiana cases which reject an allegation of intoxication alone as sufficient to support the endangerment element.
Enhancement
In Indiana, our law provides for more serious penalties for repeat or recidivist criminal behavior. In order to avoid double punishment issues directed toward punishing someone more than one time for the same offense, (that is, you have already served the sentence for your prior conviction, how can you be punished again just for having it on your record) the legal lexicon is now that there does not exist double punishment, rather, your new pending case, called the predicate offense is ‘enhanced’ to a higher level of punishment based on the prior conviction.
Common sense says it is double punishment, legal jargon allows it to punish repeat offenders. The bottom line is that it is the law and it has been upheld constitutionally by the Indiana Supreme Court. In OWI law, a misdemeanor OWI or drinking driving offense is enhanced to a felony offense if you have a prior conviction within 5 years.
Expungement
Note*** There has been a significant drastic change in Indiana expungement law. However, the use of the term ‘expungement’ is a mis-nomer since under Indiana’s new law the conviction is NOT expunged, rather it is SEALED. However, the ‘sealing’ is only for purposes of criminal history, background, and BMV records. It does not remove the conviction and, judge, prosecutors, and law enforcement personnel can still view the conviction. The apparent intent is to seal the conviction so there is less of a dramatic effect on Indiana citizens in the job markets.
In Indiana, the expungement statute provides that your arrest record can be expunged whenever you are arrested but not charged with a crime, or, when any charges against you are dropped or dismissed or you participate in a pre-trial diversion program. You may file an expungement in these cases not earlier than one (1) year after the date of the arrest. [IC 35-38-9-1] The expungement seals any central repository records, or any alphabetically arranged crimianl history system records maintained by a local, regional, or statewide law enforcement agency. It does NOT require sealing of the record in any court in which the charges were filed or the records relating to a diversion or deferral program.
Ironically, if you are convicted of a crime, and if you are eligible for expungement [typically you must wait 5 years after convition for a misdemeanor or low level felony or 8 years or 10 years depending on higher level felonies] then you may seal your conviction records which DOES INCLUDE the court’s files, the files of the Department of Corrections, the files of the Indiana BMV, and the files of any treatment or probation providers in the case. This seems to be a more extensive ‘expungement’ than what is allowed for the person who was never convicted! [IC 35-38-9-2 et.seq.]
Felony
In Indiana, this is a crime charged where the maximum sentence exceeds one year.
Murder is its only felony: min. 45 years, advisory 55 years, max. 65 years
Level 1: min. 20 years, advisory 30 years, max. 40 years
Level 2: min. 10 years, advisory 17.5 years, max. 30 years
Level 3: min. 3 years, advisory 9 years, max. 16 years
Level 4: min. 2 years, advisory 6 years, max. 12 years
Level 5: min. 1 year, advisory 3 years, max. 6 years
Level 6: min. 6 months, advisory 1 year, max. 2.5 years
*With the exception of Level 6 and below, Indiana law now requires 75% of time to be served on most offenses rather than the previous 50% of time with 50% allowed for good time credit. This means instead of day for day credit, you now must serve 3 days to get one day. This is an attempt at a political philosophy known as truth in sentencing. In actuality it simply reduces the incentive for inmates to comply with prison rules and regulations.
Field Tests
These are more properly called standardized field sobriety tests. In essence, they are dexterity or divided attention tests from which a police officer uses his judgment to determine if a person is impaired or intoxicated.
Not all field tests are supported by scientific data as reliable tests. The National Highway Traffic Safety Administration (NHTSA) in the late 70’s and early 1980’s attempted to develop standardized field sobriety tests which offer some scientific reliability and some percentage of predictability in measuring possible impairment.
The 3 NHTSA tests are the one leg stand test, the walk and turn test, and the horizontal gaze nystagmus test. The accuracy of the tests in measuring a predicted quantity of .10% A.C.E. or .08% A.C.E. of alcohol in the body is claimed to be anywhere from 65% to 88% when properly administered and evaluated individually or collectively.
It is crucial for any reliability attributed to these tests that they be administered and graded in the precise way that the research requires, otherwise the tests lose their scientific validity.
Final Pre-Trial Conference
In Indiana, this is a second or subsequent pretrial conference hearing in front of the judge which is subsequent to the first pretrial conference held in the case. There may be as many as a dozen pre-trial conferences depending on the issues, the state of discovery, the negotiations of the parties, and the court’s trial calendar.
The final pretrial hearing is supposed to be the last checkpoint in the proceedings before your case proceeds to trial. In Monroe County, no plea agreements will be accepted, in theory, after the final pretrial conference if the judge enforces that rule.
In addition, if you want a trial, in Monroe County, you must attend the final pretrial and inform the court of that desire in person. Our office, Shapiro & Lozano, will, of course, be with you to assist you. If we inform the court that we have reached an agreement at the final pretrial conference, and, a plea agreement is tendered by that date, then the case will be scheduled on another date for change of plea.
At the change of plea hearing, you will have to watch a video of your rights prior to pleading guilty, and, then, go to court and plead guilty that same day. Our office will not be with you when the video presentation is shown but we will be there representing you when you offer your plea of guilty to the judge pursuant to our plea bargain contract.
Gas Chromatography
A scientific process for measuring the amount of alcohol in the blood, typically more accurate than breath testing if there are quality control standards and chain of custody guidelines in place.
