The Marc Lopez Law Firm has a traffic infraction case in its third year. It started in a town court, was refiled into superior court, and just got an opinion issued from the Indiana Court of Appeals. Attorneys Marc Lopez and Matt Kroes recently discussed this little case that keeps on going. What follows is a lightly edited transcript of their conversation.
Marc Lopez
Matt, how long ago did this guy hire us?
Matt Kroes
This occurred back in August 2019, so it’s been about two-and-a-half years. This case has been going on for a long time.
Marc Lopez
So a little background: This guy calls the firm and tells us he has a commercial driver’s license. That gets our attention, because we know that anything involving alcohol can have serious ramifications for a CDL.
So this guy explains he got a ticket for blowing 0.04 on the breath machine. This isn’t enough for a DUI / OVWI, but for CDL drivers, it’s enough for a Class C infraction. So our guy was given a ticket.
Matt Kroes
Right, so a CDL driver charged with any type of alcohol offense risks losing their CDL privileges. It doesn’t matter if it’s a felony DUI or a Class C traffic infraction.
The prosecutors are all bound by federal law, which prevents states from offering CDL drivers alternatives to alcohol-related convictions. As a result, we knew from the start we wouldn’t be able to plead this guy guilty. This was always going to be a trial.
Marc Lopez
Just to recap: This guy was in his commercial vehicle, and the officer pulled him over for some sort of traffic violation. The officer smelled alcohol, so he ran the guy through field sobriety tests. He didn’t appear to be intoxicated, but he did blow 0.04, which is right at the threshold for operating a commercial vehicle.
So this guy called our office and said, I have an attorney, and they say there’s no way to beat this. I need to just admit liability and pay the fine.
Matt, what was our response?
Matt Kroes
Don’t give up. If you don’t fight this case, you might as well surrender your CDL. For the client where commercial driving is all they know, this is a no-brainer. We needed to go to trial. No sort of plea or admission was going to work.
This was originally filed at the town court level, and the client was found guilty of the infraction. Even though he was only ordered to pay a fine, accepting the Class C infraction ultimately would have resulted in a CDL suspension.
So the next move was to file for a trial de novo in a superior court. At this point, we knew that the admission of the breath test ticket was the only issue. If the ticket is excluded, the State doesn’t have a case. If the ticket comes in, our client loses his CDL for a year.
Marc Lopez
So what Matt’s talking about is hearsay, which is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is generally inadmissible. The Supreme Court of Indiana has held that breath-test results as shown by a printout are hearsay.
The reason that this isn’t a bigger deal is that Indiana has written a special rule into the law for DUI / OVWIs. In cases involving DUI / OVWI arrests, evidence of the alcohol concentration in the defendant’s blood is admissible. It’s a statutory exception for a particular kind of hearsay.
The thing is, this exception didn’t seem to apply to our guy. He wasn’t charged under the DUI / OVWI statute because he only blew 0.04. And the statute he was charged under doesn’t have a corresponding exception that says chemical test results are admissible.
So the question was: Are the breath-test results admissible? Or are they hearsay?
Matt Kroes
Well, the superior court judge agreed with the town court and ruled the results were admissible. She was also intrigued though, and left it open for us to appeal the order. So we took it to the Court of Appeals.
Marc Lopez
I want to emphasize this—the judge that ruled against us in the trial de novo said, I might be wrong. You guys are welcome to appeal this.
I just thought that was really generous of her.
Matt Kroes
I agree 100%. She did us a favor—even encouraged us to appeal so we could get to the bottom of this.
So we took things one step further and filed an interlocutory appeal. We asked for oral argument, but the Court of Appeals said, No thanks. They did reverse the lower courts though, so at the end of the day, we go what we wanted.
Marc Lopez
This is huge, but the case isn’t over yet. We have to wait and see what the State does next. But for now, this is a victory.
I’m proud of the trial team, I’m proud of the appeal team, and I’m proud of the license team. I’m just so happy. Everything really came together.
Excellent work, Mr. Kroes! Proud of you.
