Analysis on Developments in Indiana Law and Practice

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Voyles To Be Honored As Fifty-Year Practitioner

James H. Voyles, Jr. will be one of 26 practitioners honored by the Indianapolis Bar Association for reaching the 50-year practice milestone in 2018. Open to both members and non-members of the Indianapolis Bar Association, the celebration is scheduled for May 10, 2018 between 5:30 pm and 7:30 pm at Woodstock Country Club.

Click here to register.

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Voyles in the IN Lawyer: Putting Renowned Criminal Defense Lawyer Voyles on Hot Seat Pays Off for Legal Aid

James Voyles was featured in the September 21, 2016 edition of the Indiana Lawyer in an article titled “Putting Renowned Criminal Defense Lawyer Voyles on Hot Seat Pays Off for Legal Aid.” Voyles is the subject of the Indiana Legal Aid Society’s 75th Anniversary Roast on Friday, September 23, 2016, at the Crane Bay Event Center, beginning at 6:30 pm.

The Indianapolis Legal Aid Society is dedicated to ensuring that qualified low-income persons living in the Central Indiana community have access to quality legal assistance for civil disputes.

Case Update: Habitual Traffic Violator Offenses

On August 28, 2013, the Indiana Supreme Court made a significant decision for those who are charged with driving while an habitual traffic violator (“HTV”).

For decades, Indiana courts have considered driving while a HTV to be a status offense.  As the Indiana Supreme Court stated in State v. Starks, 816 N.E.2d 32 (Ind. 2004), the act of driving while knowing that your license is suspended is the crime.  The underlying crimes don’t matter.  Even if one of the underlying offenses that led to that status was later vacated, courts would not void the later conviction for driving while a HTV.  This position was backed by the Court’s decision in White v. State, 497 N.E.2d 893 (Ind. 1986), which held that a harmless procedural error was not enough to invalidate a guilty plea.

Yesterday’s decision in State v. Oney, 49S05-1212-CR-00668 (opinion issued 8/28/2013), opened the door for having some HTV convictions vacated, despite the “status offense” rationale of Starks and like cases.  In Oney, the defendant was convicted of OWI in 1986, 1989, and 1993.  As a result of these three convictions, he was determined to be a HTV, and his driver’s license was suspended for 10 years.  He was arrested for OWI again in 1999, and pled guilty to driving while a HTV, which led to a lifetime license suspension.

Oney sought to have his 1989 conviction vacated because the judge coerced him into pleading guilty while he still maintained his innocence.  The trial court granted his post-conviction relief petition.  Without this conviction, he would not have been a HTV in 1999.  Oney next sought to vacate his conviction for driving while a HTV based upon his successful PCR on one of the underlying offenses.  The trial court in that case granted the petition.  The Court of Appeals then reversed the trial court’s decision, upholding the rule of Starks.

The Indiana Supreme Court in its recent decision distinguished Oney’s case from Starks.  The Court decided that the reason for Oney’s 1989 conviction being vacated was not a mere procedural technicality, but rather a substantive issue related to the defendant’s guilt or innocence of the actual offense.  Specifically, Oney entered a guilty plea while maintaining his innocence.  Without a sufficient factual basis for the guilty plea, the Court decided that the plea could not be accepted and any subsequent convictions for driving while a HTV that depended on that first conviction were also voidable.

The circumstances of Oney were unusual, but the Indiana Supreme Court has created a new argument for avoiding a driving while a HTV conviction and the lifetime license suspension that goes with it, provided, where possible, the practitioner structures his PCR arguments in terms of substantive, rather than procedural, error.

Expungement and Restricted Access to Criminal History Records

Some of the most frequently asked questions from our clients involve remedies available for removing an entry from adult criminal history record for Indiana state arrests and convictions. There are several such remedies.


Expungement, Ind. Code § 35-38-5

Expungement is the most complete remedy, but it is available in only a limited set of circumstances: when an individual is arrested but no criminal charges or filed, or when all criminal filed against a person are dropped because of mistaken identity, no offense was in fact committed, or there was an absence of probable cause. When an expungement petition is successful, no information concerning the arrest may be placed or retained in any state central repository for criminal history.


Restricted Access of Records Relating to Arrest, Ind. Code § 35-38-5

Beginning in 2011, a new “restricted access” remedy was created. It applies to a person who was charged with a crime that: was not prosecuted, resulted in dismissal, resulted in acquittal, or resulted in a conviction that was later vacated. The petition can be filed after 30 days after an acquittal or dismissal, or 365 days after a conviction is vacated. A successful petition results in a court order restricting the disclosure of the records related to the arrest to a noncriminal justice organization.


Restricted Access of Records Relating to Conviction, Ind. Code § 35-38-8

Also beginning in 2011, a person who is generally not a sex or violent offender and was convicted of a misdemeanor or Class D felony that did not result in injury to a person can petition the court to restrict disclosure of the records relating to the conviction. Unlike records relating to an arrest that results in a dismissal, a person petitioning for restricted access of records after a conviction must wait at least eight years after the completion of his or her sentence.


Limited Access to the Limited Criminal History of a Person Discharged from Probation, Imprisonment, or Parole, Ind. Code § 35-38-5

A final remedy applies 15 years after a person is discharged from probation, imprisonment, or parole for the last conviction for a crime. Under those circumstances, a person may petition the state police department to limit access to the person’s limited criminal history to criminal justice agencies.

Case Update: Criminal Liability for Protected Persons and No-Contact Orders

The Indiana Court of Appeals addressed whether a protected person can be held criminally liable for aiding, inducing, or causing another person to violate the no-contact order today in Melissa Patterson v. State of Indiana. Patterson obtained a no-contact order against her fiance after an incident where she was the victim of domestic battery. She was subsequently found to be living with him, and she was later charged with aiding a violation of the no-contact order.

In a case of first impression in Indiana, Judge Friedlander wrote for a 2-1 majority that “the General Assembly did not intend that the prohibitions in I.C. § 35-46-1-15.1 should be applied to a protected person under a no-contact order.” Citing the Ohio Supreme Court case of State v. Lucas, 795 N.E.2d 642 (Ohio 2003), the majority recognized a compelling public policy interest in insulating the protected person from prosecution, because otherwise “a violator of a protection order could create a real chill on the reporting of the violation by simply threatening to claim that an illegal visit was the result of an illegal invitation.”

Case Update: Delay in Notice of an Habitual Traffic Violator Suspension

The Indiana Court of Appeals addressed delay in notifying a driver of an habitual traffic violator suspension today in Thomas v. Indiana Bureau of Motor Vehicles. Thomas was notified by the Indiana Bureau of Motor Vehicles that he was being suspended as an habitual traffic violator about 3 1/2 years following his last qualifying offense.

Relying on the Indiana Supreme Court’s decision in Ind. Spine Group, PC v. Pilot Travel Ctrs, LLC, 959 N.E.2d 789 (Ind. 2011), Judge Bradford wrote for the Court that the general 10 year statute of limitations period from Ind. Code 34-11-1-2 applied, making the notice timely. The Court also rejected Thomas’s argument that the doctrine of laches applied to defeat his suspension, reasoning that the public interest was served by his suspension. But the Court’s opinion does not appear to completely foreclose the possibility of invoking laches in future HTV notice cases.

The Dog Day Is Over

The United States Supreme Court held oral argument today in two cases involving the use of drug-sniffing dogs originating from Florida.

Florida v. Jardines, case no. 11-564, concerns the propriety of using a drug-sniffing dog to search private property. Florida v. Harris, case no. 11-817, concerns the amount of evidence of training required before a court can use a drug dog alert as a basis for a search. Lyle Denniston at SCOTUSblog has an excellent summary of the cases.

Professor Orin Kerr at Volokh Conspiracy speculates that the justices will conclude the use of the drug-sniffing dog on private property in Jardines was violative of the Fourth Amendment, and that the training of the dog in Harris was adequate and therefore not a violation of the Fourth Amendment.


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