Wednesday, July 01, 2009
Ind. Decisions - Supreme court posts one from yesterday and one for today
State of Indiana v. Anthony W. Pollard is the opinion I wrote up here yesterday, although it hadn't been posted, and in fact still wasn't until this afternoon. In this 12-page opinion, Justice Rucker writes:
The question presented is whether a section of the Indiana Sex Offender Registration Act that we refer to as the “residency restriction statute” constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution. In this case the answer is yes. * * *in State of Indiana v. Jason Cioch, a 5-page, 5-0 opinion, Chief Justice Shepard writes:
Anthony Pollard was charged with, convicted of, and apparently served the sentence for a crime qualifying him as an offender against children before the residency restriction statute was enacted. We conclude that as applied to Pollard, the statute violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed. The trial court thus properly dismissed the information charging Pollard with a violation of the statute. See State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) (declaring “courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant‟s constitutional rights”). We affirm the trial court‟s judgment.
Shepard, C.J., and Dickson and Sullivan, JJ., concur.
Boehm, J., concurs in result and concurs in the opinion except as to Part B3, believing the absence of a scienter element for certain forms of child molesting is not significant in evaluating the punitive character of this statute.
The defendant in this drunk driving prosecution persuaded the trial court to suppress the results of his blood alcohol breath test on grounds that the test machine had not yet been adjusted to reflect daylight saving time since it took effect a few days earlier and the police officer wrote the actual time of day by hand on the test results printed by the machine.
We hold the evidence should not have been suppressed. * * *
The State asserts the trial court erred in suppressing the breath test results merely because of an inaccurate timestamp on the breath test print out. We agree. * * *
The State argues that Officer Chin followed each of the required steps for administering the test and that the procedures require only that the operator to check the evidence ticket for the correct date and time and are silent as to what course of action the operator should take if an anomaly occur.
While Indiana courts have yet to discuss whether the accuracy of the time stamp has anything to do with the reliability of the test results, the Missouri Court of Appeals has discussed the issue. * * *
We find these decisions instructive. Here, Officer Chin followed each of the required steps of the procedure. The record does not indicate that he did anything that calls into question the reliability of the instrument or the evidence ticket when he noticed the erroneous timestamp and wrote the actual time of day on it.
The best authority Cioch offers in support of his position is State v. Johanson, 695 N.E.2d 965 (Ind. Ct. App. 1998). In Johanson, the Court of Appeals affirmed a trial court’s suppression of test results where the machine printed a blank ticket and the operator wrote in all the test information by hand from what he saw on the screen. Without reflecting on whether that was adequate ground for suppression, we think the officer’s action in this instance, noting a Daylight Savings difference, raises only a de minimus concern about the accuracy of the test results. We hold that this evidence is admissible.
Conclusion. We reverse the order of suppression.
Posted by Marcia Oddi on July 1, 2009 02:24 PM
Posted to Ind. Sup.Ct. Decisions