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Sunday, December 02, 2012

Ind. Courts - "Refusing blood test order gets DWI suspect 90 days"

Rebecca S. Green reported in the Saturday Fort Wayne Journal Gazette:

FORT WAYNE – James Osenkowski Jr. will be spending the holidays in the Allen County Jail.

On Thursday, he was sentenced to 90 days in jail by Allen Superior Court Judge Wendy Davis for refusing a court order to have his blood drawn after he was arrested for operating a motor vehicle while intoxicated.

He is the first to be so charged under Allen County’s new policy dealing with those who refuse to submit to certified chemical breath tests and blood draws.

In September, Allen County Prosecutor Karen Richards announced a shift in how her office will handle drunken-driving arrests and suspects who refuse to submit to a certified breathalyzer test at the jail.

Now her office obtains a search warrant from a judge forcing the driver to stick an arm out and get a blood test.

While Indiana law requires anyone who refuses chemical breath tests to have his or her driver’s license suspended for a year, the refusals left prosecutors with little or no evidence to effectively prosecute the case. * * *

When he appeared in court Thursday morning for a hearing on a charge of indirect contempt, Osenkowski was subdued and remorseful, apologizing profusely to the judge for refusing her order on Nov. 18.

Davis said his remorse kept him from getting a sentence of 180 days on the indirect contempt charge.

Indirect contempt involves obstructing court process or refusing a judge’s order outside the presence of the judge. Direct contempt involves misbehavior within the courtroom or in front of the judge.

The warrants give the prosecutors the ability to force a suspected drunken driver to comply with a blood draw, but McAlexander said they do not want to see anyone get hurt.

So the judges are holding those, starting with Osenkowski, in indirect contempt. Prosecutors originally asked for a sentence of 180 days in jail for Osenkowski. Davis declined, citing his obvious remorse.

Since the policy change, prosecutors have had to seek fewer than 20 warrants for the blood draws. McAlexander said that the arrested person usually complies when the consequences are spelled out for them.

Posted by Marcia Oddi on December 2, 2012 12:38 PM
Posted to Indiana Courts