PROSECUTOR'S USE OF PRE-CHARGE SUBPOENA POWER

Where no charges have been filed, a prosecutor may subpoena witnesses, including the target of investigations, pursuant to Ind. Code § 33-39-1-4.  However, if those witnesses invoke their constitutional right against self-incrimination, the prosecutor cannot petition for use immunity and compel them to testify without first filing charges or convening a grand jury.  See In re S.H., 984 N.E.2d 630 (Ind. 2013)(decided March 27, 2013.

In this case, soon after S.C. gave birth at home, the father (S.H.) took S.C. and the infant to the hospital because S.C. was bleeding and the infant had multiple puncture wounds.  The prosecutor petitioned for subpoenas to compel the parents to testify about the circumstances of the infant's birth, but the trial court granted the parents' motion to quash the subpoenas on Fifth Amendment grounds. The trial court then erroneously granted the State's request to grant use immunity to the parents and ordered them to testify. The Indiana Supreme Court reversed the trial court’s ruling and remanded for further proceedings.

CONSEQUENCES OF DUI CONVICTION

In Indiana, a driver whose blood-alcohol content (B.A.C.) registers at or higher than 0.08 is subject to at least a Class C misdemeanor. A B.A.C. of 0.15 or higher or driving while intoxicated is subject to at least a Class A misdemeanor and increased to a Class D felony if the driver had a passenger younger than 18 in the vehicle. Where the arrest is made and other factors determine whether jail time is involved. 

A subsequent arrest and conviction will result in an automatic five-day jail sentence, and two prior convictions mean a mandatory 10-day sentence. Some Indiana counties impose a jail sentence for a first-time conviction. The scope of the consequences and the repercussions for a first-time offender is broader than one might expect.

A driver who fails a chemical test will face a minimum 90-day license suspension, but driving privileges can be suspended up to 180 days. Those who refuse a Breathalyzer test can face a one-year suspension. Indiana allows some first-time offenders to apply for probationary driving privileges, but only after a 30-day suspension. The court may require the installation of an ignition interlock device, which tests blood-alcohol level before the car can be started.

There are employment consequences. Many lose their jobs because of the license suspension. Employers who hire workers in clinical settings are increasingly rejecting anyone with a DWI charge, and anyone whose job requires a commercial driver’s license is likely to face termination.

A common requirement in DUI cases is mandatory counseling for substance abuse, at the offender’s expense. The offender also must sign a form acknowledging a counselor can share information with the court.

There are significant financial implications associated with a DUI arrest.  In addition to attorney fees, convicted persons must pay court costs, fines and alcohol countermeasures fee. The costs continue with counseling expenses and, in some cases, drug testing ordered as a condition of probation. If a court approves a probationary license with an ignition interlock device, the driver bears those costs.

Last but not least, the driver has to consider auto insurance. Although a DWI conviction will not inherently cause insurance rates to rise, its effect on a driver’s record makes it necessary to buy high-risk insurance. Not all companies offer it, and it comes at great expense. In addition, a license suspension triggers requirements set by the Indiana Bureau of Motor Vehicles for reinstatement, with fees attached.

U.S. SUPREME COURT UPHOLDS WARRANTLESS SWAB TO IDENTIFY ARRESTEES

In Maryland v. King, a 5-4 majority of the U.S. Supreme Court held that the Fourth Amendment protection against unreasonable searches and seizures did not prohibit law enforcement from collecting DNA samples from suspects arrested for serious crimes. The majority of the court concluded that taking and analyzing check swabs for DNA to help identify arrestees is like fingerprinting, minimally intrusive and a reasonable police booking procedure under the Fourth Amendment. In dissent, Justice Scalia said the Fourth Amendment forbids searching a person for evidence of a crime when there is no basis to believe they committed the crime. “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection,” Scalia wrote.

Those in support of this opinion see the case as an important weapon in the fight against crime, while critics see the case as a significant infringement on privacy and Fourth Amendment freedoms.

PROBATION/PAROLE CONDITIONS--SOCIAL NETWORKING

In Harris v. State, 985 N.E.2d 767 (Ind.Ct.App. 2013), the court of appeals held that Ind. Code § 11-8-8-8(a)(7), which requires disclosure of email addresses, instant messaging, and chat room user names that the sex offender registrant uses or intends to use, does not impose a burden on registrant's First Amendment freedom to speak anonymously and does not contravene his right to free expression as guaranteed by Article 1, Section 9 of the Indiana Constitution.  This registration requirement does not restrict a defendant's ability to use email, “nor does it limit his use of social networking websites, instant messaging or chat room platforms.” 

However, the court also held that Ind. Code § 35-42-4-12, which prohibits registered sex offenders from using social networking websites, instant messaging services, or chat programs that the offender knows allows a person who is less than eighteen years of age to access or use the website or program, is unconstitutional as applied to Harris, who is a sexually violent predator.  Though content neutral, the statute is not narrowly tailored to serve the State's legitimate interest in protecting children from harmful online communications.  And the State already criminalized illicit expression with minors under child solicitation and inappropriate communication with child statutes. See Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013). The State failed to show that the social networking medium possess qualities allowing the Court to conclude that the substantive evil contemplated by Ind. Code § 35-42-4-12 is created by the medium itself, which would justify a complete ban on expression.  Harris, 985 N.E.2d at 880.

The court reversed Harris’ sex offender internet offense but affirmed his conviction for failure to register as a sex offender. Judge Crone, concurring in result with a separate opinion, noted that in Doe, the Seventh Circuit found Ind. Code § 35-42-4-12 unconstitutional on its face and the protections of Indiana Constitution Article 1, Section 9 "are at least equal to if not greater than those of the First Amendment."

WARRANTLESS USE OF PARCEL WIRE INSIDE HOME VIOLATED FOURTH AMENDMENT

In State v. Lagrone, 985 N.E.2d 66 (Ind.Ct.App. 2013), police violated the Fourth Amendment protections against unreasonable search and seizure when they used a parcel wire to monitor a package of marijuana once Lagrone had carried it into his home.  Due to that violation, warrantless entry into Lagrone's home was not justified under the exigent circumstances exception to the Fourth Amendment because under Kentucky v. King, 131 S.Ct. 1849 (2011), such entry to prevent destruction of evidence is allowed only where the police did not create the exigency by engaging in conduct that violates the Fourth Amendment.    

The installation of the GPS device and the parcel wire into the package Lagrone picked up from a hotel did not violate the Fourth Amendment because any privacy interest Lagrone had in the package was lost when United Parcel Service (UPS) opened the package on its premises.  Nor did police monitoring of the GPS device to track the package en route to Lagrone's home violate the Fourth Amendment, because officers also tracked Lagrone on the highway visually. But the monitoring of the parcel wire to determine when the package was opened constituted a search of Lagrone's home. And information obtained from the parcel wire after the package was inside Lagrone's home, i.e., that the package had been opened, could not have been observed from outside the home. As such, the receipt of that information via the parcel wire without a warrant violated Lagrone’s Fourth Amendment rights. And under King (above) the police cannot use the exigent circumstances exception to justify a forced warrantless entry into the home, based on the electronic signal from the parcel wire located inside the home, without having first obtained a warrant.

REASONABLE SUSPICION TO STOP A CAR BASED ON REAR WINDOW TINT

Indiana’s Window Tint Statute, I.C. 9-19-19-4(c), prohibits operation of a motor vehicle that has windows tinted in such a way that "the occupants of the vehicle cannot be easily identified or recognized through [those] window[s] from outside the vehicle.” In Sanders v. State, 989 N.E.2d 332 (Ind. 2013), a police officer testified that he initiated a traffic stop because he believed the window tint on Erving Sanders’ Chevrolet Suburban was so dark that he could not "clearly recognize or identify the occupant inside."  The officer's belief that the window tint on Sanders’ rear window violated the Window Tint Statute was later invalidated through inspection of the Suburban by Sanders’ expert. Distinguishing Ransom v. State, 741 N.E.2d 419 (Ind.Ct.App. 2000), the Indiana Supreme Court noted that “although the officer was ultimately mistaken in his belief that a violation occurred, the traffic stop was based upon a good faith, reasonable belief that a statutory violation occurred.” Thus, the police officer had reasonable suspicion to stop Sanders’ Suburban and the trial court properly denied his motion to suppress.

INDIANA'S NEW EXPUNGEMENT LAW

People deserve a fresh start or a second chance. So Indiana law regarding previous convictions and how they blemish a person’s record drastically changed on July 1, 2013. The new expungement law marks the first time Indiana has allowed crimes such as driving while intoxicated and drug dealing to be erased by the courts. The goal is to remove the crimes from public background-check engines used by employers so that the offense doesn't prevent a rehabilitated ex-offender from finding a job. The new law keeps potential employers from using the conviction against you in hiring/promoting decisions. Further, the new law punishes employers for contempt of court if job applicants are rejected because of expunged records. Police officers would still be able to view the person's criminal record.

Those petitioning the court to have their records expunged would have to show they've stayed out of trouble since their conviction, and must have successfully completed the entire sentence.  Most of the crimes that could be expunged are nonviolent. Convictions for sex crimes, federal offenses, out-of-state crimes and misconduct of a public official would not be eligible to be erased by the new law.  Certain other conditions must be met, including time frames and fees. 

Some highlights of the new expungement law:

• Provides for the expungement (sealing) of criminal records in situations where there was an arrest but no conviction or where a conviction was overturned on appeal. The person seeking to expunge an arrest record must petition the criminal court to review his or her case but does not have to pay a filing fee.
• If granted, expungement will seal (not destroy) records in court files, the department of corrections and the bureau of motor vehicles, and the state police, and with anyone who treated or provided services to the applicant under a court order.
• Each individual gets one expungement request in his/her lifetime.  However, the statute is silent as to how many times one may seek to seal arrest records. The expungement petition must be brought in the county where the conviction took place.  If you have multiple convictions, the request should be brought in a single petition. If you have convictions in multiple counties, the petitions in each county must all be brought within one year, and that will be considered a single request.
• For arrest records, misdemeanors, and class D Felonies, the expungement petition “shall” be granted if the individual meets the requirements called for in the statute.  No need to convince the judge that granting the expungement is a good idea.  For more serious crimes, the court “may” enter such an order and for the most serious of eligible crimes, the prosecutor’s consent must be obtained.
• The new law also suggests language for use in all Indiana employment Applications.  A prospective employee may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests such as: “Have you ever been arrested or convicted of a crime that has not been expunged by a court?”