Attorney Marc Lopez recently caught up with his associates about the suspension of constitutional rights, the newest wave of portable breath tests, and a concurring opinion from the Court of Appeals that reads more like a dissent. What follows is a lightly edited transcript of their conversations.
Marc Lopez
It is December 18, 2020. It’s the end of the week, so I’d thought we’d check in with the attorneys here at the Marc Lopez Law Firm.
Zac, the Indiana Supreme Court said no in-person juries until March 1 of next year. Why is that a big deal?
Zac Bailey
A lot of people are sitting and waiting on a trial right now. Under normal circumstances, early trial requests are being made, and people who are in custody are getting trials within 70 days, as the Constitution requires. But that right is suspended right now for in-person jury trials.
Marc Lopez
What was the reason for the Indiana Supreme Court’s decision to say, Hey, no, in-person juries until next year?
Zac Bailey
It’s all COVID-related. The numbers are spiking and we’re seeing it as we go around the state. Individual courthouses—a lot of the time, they’re shutting down because it’s moving through the courthouses. So it’s spreading in the courts, and while a lot of the pre-trial stuff is able to be done virtually, jury trials are a totally different situation.
Marc Lopez
The Indiana Supreme Court said, Hey, no jury trials until March 1. Even before this, though, we know of a couple of different counties that set for trial on criminal cases—high-profile criminal cases, where somebody was in jail—and not enough jurors showed up.
When media and the health department are saying it’s not safe to be in large gatherings, I can totally understand why people would not want to show up for jury duty. In Marion County, we know that there’ve been problems getting jurors to come in during COVID.
Zac, what is the big issue with no in-person jury trials until next year?
Zac Bailey
The biggest issue is people who are in custody—people who can’t afford a bond, or maybe weren’t given a bond based on their charges—they don’t have a way to go to trial to resolve that issue. If somebody is stuck in custody, oftentimes we’ll file a speedy trial request to get that trial as soon as we can. That’s not possible right now.
Marc Lopez
You know, a lot of people will say, Well, too bad—you shouldn’t commit crimes. That’s not the correct response for lots of reasons.
Number one, you’re innocent until proven guilty in the American judicial system, including Indiana. Number two, I don’t think people understand just how easy it is to get in trouble. If somebody walks into a police station and says a person committed the crime, the suspect can easily be charged. You don’t need to have a lot of evidence for criminal charges.
A lot of people call us and say, There’s no evidence against me. Well, if there’s someone saying you did something, that’s more than enough to be charged in Indiana. In some cases, if you don’t have a good attorney, it’s enough to be convicted. It’s amazingly easy to get into trouble.
Then when you’re in jail, you’re missing work. People are losing their jobs for no call, no show when they’re stuck in jail for three or four days. And when they can finally call in, the boss wants to know what happened. Well, I was in jail—that doesn’t help the chances of the person getting their job back.
When you’re charged with a crime, your life still goes on. You’ve still got bills to pay. You’ve still got to take care of your kids. You’ve still gotta feed them. You get people with families missing work and losing jobs—it’s tragic. It’s a snowball effect that we see in our practice.
Zac, what’s our experience been with courts and bonds during COVID?
Zac Bailey
Courts have been pretty receptive to any arguments we’ve had. A lot of times we’re seeing COVID spread through the jails as well, so courts are willing to listen and they’re willing to consider alternate measures besides incarcerating someone.
That may be home detention, or whatever the court feels comfortable with. We’ve been trying to file motions, and present that argument to the courts, and for the most part, they’ve been receptive to the arguments.
Marc Lopez
A lot of counties are doing away with bonds for lower-level offenses, but it’s still pretty easy to get charged with a higher-level offense, where courts are wanting $1,000 or $2,000 to get out of jail. The problem is, the average American savings account in this country is only $3,500. When you’re asking a family to pay a bond of a couple of thousand dollars and they only have $3,500, that can be a hard sell for the family.
Also, when a person’s in jail, they’re not earning any income. They’re losing their job. So again, it’s a snowball effect. The reason why we have early trials in criminal cases is to give a deadline—with staying jury trials until March, we don’t have that anymore.
Zac and I both understand why, but it’s a tragic result for the legal system. Zac—any parting thoughts?
Zac Bailey
Just remember to always plead the Fifth.
Marc Lopez
You really can’t go wrong pleading the Fifth. Thanks so much, Zac.
Switching gears to another interesting thing this week, the news is reporting that Indiana is getting a bunch of handheld breath test machines. Unlike the current breath test machines, these will be able to test for drugs.
A bunch of these are being released across the state, and I think Marion County is getting four of them at $4,000 a piece. There’s been a lot of talk about whether or not this is helpful or will be of any value. Matt, you’re one of the top DUI associates here at the firm. What are your thoughts on this new handheld unit?
Matt Kroes
Honestly, I think it’s an unnecessary step, because those numbers are not admissible in court under any condition. All it does is it gives an officer probable cause to believe you might be operating while intoxicated. So either way, they’re still going to have to go get blood, or they’re still going to have to go do a certified breath test. If the suspect blows zeros on a traditional breath test, they’re still going to go and get blood if they have reason to believe the person is on something else. So I think it’s a cool gadget, but it’s an unnecessary step, in my opinion.
Marc Lopez
I think you’re 100% right, Matt. With a DUI case, there’s usually multiple stages of the investigation, but once a person has performed field sobriety tests and the officer has made observations, the officer’s supposed to use the portable breath test to confirm that the person is intoxicated.
In practice, this means that when someone is obviously intoxicated and they blow zeros on the portable breath test, the officer’s likely to conclude, It must be drugs. Then they ask the person to submit to a certified chemical test, and you and I both that means either a breath test machine or blood from your arm. If you refuse the certified chemical test, there are significant consequences for your driver’s license.
So why do we need this extra step? Why do we need this device to try and figure out if the person’s intoxicated on cocaine or methamphetamines? There’s no real point. It’s not admissible in court and you have to get a blood sample anyway. I don’t understand why anyone in Indiana would spend $4,000 on this machine. It seems like a solution in search of a problem.
The portable breath test right now—you blow into it, the results are back within 10-15 seconds. With this new machine, they’re talking about six minutes before we know what drugs a person’s on. But again, like Matt said, these results are completely inadmissible in court.
In fact, Matt—if somebody asks this law firm at a party or just in casual conversation if we’d ever take the portable breath test, what’s the appropriate response for anybody who’s knowledgeable in DUI law?
Matt Kroes
Absolutely not. I would not take a portable breath test in any scenario.
An additional thing to think about with this new machine is, if they’re using it, they’re searching for something. In practice, if the cops bring this machine out, they’re trying to find something, which has other ramifications—are they just keeping you at the scene to try and find something?
But ultimately, when it comes to the portable breath tests, no, don’t take them.
When it comes to the certified chemical test—the breath test at the station or the blood draw—absolutely do not refuse that test. I repeat, do not refuse. It’s going to have some giant consequences with regard to your driver’s license.
Marc Lopez
We’re talking about Indiana here. We’re not lawyers in other states, but in Indiana, refusing the certified test—the blood draw at the hospital or the breath test at the station—there are terrible consequences for the driver’s license.
I have to give this new machine a complete thumbs down. It’s redundant, it’s expensive, and it’s not telling us anything that can be used in court. I don’t see why we spend money on that. Matt, thanks so much for giving up some time today. I appreciate it, buddy.
Matt Kroes
Absolutely, man.
Marc Lopez
I have Attorney Benitez here. An interesting opinion came out from the Indiana Court of Appeals in the State of Indiana v. Emmanuel Torres.
Attorney Benitez, why is this case kind of interesting?
Anthony Benitez
I think this case is interesting for many reasons. First, you have people at the trial court level that live in the community and see how a law can be applied arbitrarily. Then at the court of appeals level, you also have—even though it’s a concurring opinion—a judge frustrated that this law seems to be arbitrarily applied. And he actually calls on the General Assembly to make changes to this law.
Marc Lopez
Yeah, I found this super-interesting. This Emmanuel case, it’s actually a combined case of Ramon Sanchez and Emanuel Torres, and I think the implication at the trial court level was that police are using the you have to use the turn signal 200 feet before you turn as a reason to pull over anybody they want.
In this particular case, this officer pulled over two individuals with Hispanic last names, and I think the judge is getting frustrated. And super-interesting because the Court of Appeals—while they overturn the trial judge—the concurring opinion says, Hey, this is ridiculous. It’s not fair, and it’s basically giving officers a reason to pull over anybody at any time.
You know, Attorney Benitez. Our office is right in downtown Indianapolis, but on a daily basis, we’re in Danville, we’re in Lebanon, we’re in Carmel, Noblesville, Greenwood, Greenfield—we’re all over the state. And in a lot of these towns, you can’t turn your blinker on for a full 200 feet. I mean, literally.
It’s no surprise that we’re constantly breaking tons of traffic rules, because it’s not feasible to comply with all of them. And I feel the frustration.
Attorney Benitez, why do you think this case is important to our clients?
Anthony Benitez
The Court of Appeals said, All the officer needs is to have a reasonable belief that a traffic violation occurred. So even if the officer’s objectively wrong, it doesn’t matter, the stop is still valid. And that’s not something that came out today. This has been already in place, but it just got reaffirmed again.
Marc Lopez
Anybody watching this, I want to encourage you—there is a point in fighting. In this particular case, the trial judge basically said the stop was invalid because it was impossible to comply, and the prosecutor’s office actually appealed. The defendants did not file a brief. These were not our clients. Otherwise they would have.
Anthony Benitez
Oh, no. We would definitely have written a brief.
Marc Lopez
And so there’s a less stringent standard, so I think this is something, I really do think this is like a first shot: Indiana is okay with pretextual stops, but you have to give us a chance and when it’s not even possible to comply—give a little wiggle room here.
So anybody reading this, don’t think it’s not worth fighting. And I want to encourage anybody listening or watching this, if a judge gets rid of the case in your favor, and then the other party appeals—please file a brief. Even if you can’t afford it. Reach out to somebody. There are organizations that will try to help write briefs if it’s for the common good, and this case clearly would have been for the common good.
Attorney Benitez, do you have any last-minute thoughts for us? Any last bit of advice?
Anthony Benitez
No, I just want to quote what the Court of Appeals judge that concurred wrote. I love his quote: “All Hoosiers will appreciate and benefit from a traffic code that reduces the opportunity for arbitrary enforcement.” And so that’s a good way to end because this applies to our cases and he sees an issue with the way it’s being applied. And so he calls on the General Assembly to make some changes, and hopefully they do make some changes.
Marc Lopez
Absolutely. And that ends this week in review. Anybody watching, remember—always plead the 5th!
