A Look at the New Criminal Code

This week’s blog topic, the revamping of the Indiana Criminal Code, is a lengthy one.  For those interested in the Indiana Criminal Code though, it is well worth the read.  We start out with the drastic change to the sentencing scheme. If you or a loved one is facing any criminal charges, don’t hesitate to call our Indianapolis criminal lawyers at Banks & Brower, we offer free case evaluations and free consultations.

Sentencing

Class Current (Advisory) Level New (Advisory)
Murder 45-65 years (55) Murder 45-65 years (55)
A 20-50 years (30) 1 20-40 years (30)
2 10-30 years (17.5)
B 6-20 years (10) 3 3-16 years (9)
4 2-12 years (6)
C 2-8 years (4) 5 1-6 years (3)
D 0.5-3 years (1.5) 6 0.5-2.5 years (1)

 

  • If court imposes the advisory sentence, the court is excused from issuing a statement of reasons for the sentence it imposes. Currently, a statement of reason is required in every case. This is designed to encourage the use of advisory sentences. (I.C. 35-38-1-1.3)
  • Pretrial Diversion

o   Amends I.C. 33-39-1-8 to allow a prosecuting attorney to withhold prosecution against an accused person if the person is charged with a misdemeanor, a Level 6 felony, or a Level 5 felony

  • Suspendibility of Sentences (Mandatory minimum sentence)

o   Prior Law (I.C. 35-50-2-2) Repealed

  • Any felony with a prior felony conviction within 7 years for a Class C felony and 3 years for a Class D felony.
  • List of 30 examples such as murder, rape, and a number of Class A felonies.

o   New Law (I.C. 35-50-2-2.2)

  • All sentences can be suspended except:
    • Minimum for Murder and Level 1 (heinous 9) – may only suspend that part of a sentence in excess of the minimum sentence
    • Minimum for Levels 2 and 3 with a prior unrelated felony – may only suspend that part of a sentence in excess of the minimum sentence if the person has a prior unrelated felony conviction.
  • Exception – no mandatory minimum for Level 2 and 3 drug offenses, even with a prior felony
  • Sentence Modification: I.C. 35-38-1-17

o   Court may reduce or suspend the sentence and impose any sentence the court was authorized to impose at the time of sentencing. Prosecutor consent not required. Does not apply if binding plea agreement.
o   Defendant may not waive a sentence modification in a plea agreement.
o   Limits the filing of petitions to modify a sentence to 1 per year and no more than 2 during sentence.
o   Removes the requirement that the court hold a hearing.

  • Commitments to DOC – Level 6 Offenders

o   After 6-30-14, a person convicted of a Level 6 felony may not be committed to the DOC if the person’s earliest possible release date is less than 91 days from the date of sentencing, unless the commitment is due to the person violating a condition of probation, parole, or community corrections by committing a new criminal offense.
o   After 6-30-15, a person convicted of a Level 6 felony may not be committed to the DOC if the person’s earliest possible release date is less than 366 days from the date of sentencing, unless the commitment is due to the person violating a condition of probation, parole, or community corrections by committing a new criminal offense.

  • Habitual Offender (IC 35-59-2-8)

o   All felonies qualify, including drug offenses, Title 9 offenses, and misdemeanors enhanced to a felony.
o   Three levels

  • Murder and level 1-4 felonies
  • Level 5 felonies
  • Level 6 felonies

o   Murder through level 4 felonies

  • 2 prior unrelated felonies
  • Limited to one Class D felony or level 6 felony
  • Sentences:
    • 6 to 20 years

o   Level 5 felonies

  • 2 prior unrelated felony convictions
  • Limited to one Class D felony or Level 6 felony
  • Not more than 10 years have elapsed since the defendant’s release from supervision of any sentence on a Class C or D felony or a Level 5 or 6 felony and the commission of the current offense
  • Sentences:
    • 2 to 6 years

o   Level 6 felonies

  • 3 prior unrelated felony offense
  • Not more than 10 years have elapsed since the defendant’s release from supervision of any sentence on a Class C or D felony or a level 5 or 6 felony and the commission of the current offense.
  • Sentences:
    • 2 to 6 years

o   LWOP for Habitual Offender Repealed. (I.C. 35-50-2-8.5)
o   Other issues:

  • No right to Voir Dire
  • Sentences attaches to the highest felony charged.
  • If the underlying conviction is set aside, the sentence applies to next highest felony.
  • Habitual Substance Offender Repealed (I.C. 35-50-2-10)
  • Use of Firearm Enhancement

o   Amends 35-50-2-11 to increase the sentence for use of a firearm from 5 years to between 5 and 20 years
o   An additional fixed term equal to the longest sentence imposed for an underlying felony
Changes to Offenses
Crimes Against the Person
Battery (35-42-2-1):

  • Merges battery and battery by bodily waste
  • Battery resulting in “moderate bodily injury” added as a level 6 felony

Sex Offenses:

  • Rape/criminal deviate conduct (35-42-4-1):

o   Offense of criminal deviate sexual conduct (35-42-4-2) was deleted as a separate offense and merged into Rape by including “other sexual conduct” in Rape statute, which is defined in 35-31.5-2-221.5 as follows:

  • “Other sexual conduct” means an act involving:
    • A sex organ or one person and the mouth or anus of another person; or
    • The penetration of the sex organ or anus of a person by an object.”
  • Child Solicitation (35-42-4-6)

o   Current: Class D felony, Class C if computer is used.
o   New: Child Solicitation starts as a Level 6 felony, and is increased to a Level 5 if a computer network is used and the person travels to meet the child or has a prior conviction for the same offense.

  • Child Seduction (35-42-4-7)

o   Current: all child solicitation is a Class D felony
o   New: this statute contains an error. Level 5 and 6 offenses contain the same elements. Thus, a person may not be sentenced to more than a Level 6 offense.
o   HEA 1006 (2014) adds a new Level 6 felony, if a law enforcement officer is at least 5 years older than a child who is 16 or 17 years of age fondles or touches a child with the intent to arouse or satisfy the sexual desires of either the child or the law enforcement officer, if the law enforcement officer’s contact with the child occurred in the course of the officer’s official duties. Offense increased to a Level 5 felony if the law enforcement officer engages in sexual intercourse or other sexual conduct with the child.

  • Sexual Battery (35-4-2-8):

o   Current: class D felony; Class C if use or threat of force, deadly weapon, or drug.
o   HEA 1006; Level 6 felony; Level 4 if use or threat of force, deadly weapon or drug

  • Sexual Misconduct with a Minor (intercourse or “other sexual conduct”) (35-42-4-9):

o   Current: Class C; Class B if at least 21; Class A if use or threat of deadly force, while armed, use of drug or SBI.
o   HEA 1006: Level 5; Level 4 if at least 21; Level 1 if use or threat of deadly force, while armed, use of drug, or SBI.

  • Sexual Misconduct with a Minor (fondling or touching) (35-42-4-9)

o   Current: Class D; Class C if at least 21; Class B if use or threat of deadly force, while armed, use of drug, or SBI. No higher than Class B felony.
o   HEA 1006: Level 6; Level 5 if at least 21; Level 2 if use or threat of deadly force, while armed, use of drug, or SBI.
Robbery (I.C. 35-42-5-1) and Carjacking (I.C. 35-42-5-2)

Enhancement Factors Current New
Basic offense Class C Level 5
Deadly Weapon or Bodily Injury to person other than D. Class B Level 3
Serious Bodily Injury to person other than D. Class A Level 2

o   Carjacking was repealed because it is included in Robbery.
Crimes Against Property
Arson (I.C. 35-43-1-1)

Enhancement factors Current HEA 1006
Basic offense Class B Level 4
Bodily Injury to person other than D. Class A Level 3
Serious Bodily Injury to person other than D. Class A Level 2
  • HEA 1006 creates a separate offense for each person who suffers bodily or SBI
  • Reduces the sentence for arson with intent to defraud from a Level 5 felony to a Level 6 felony.

Computer Tampering (I.C. 35-43-1-4 repealed and replaced by I.C. 35-43-1-7 (offense against intellectual property) and I.C. 35-43-1-8 (computer tampering))

Enhancement factors Current HEA 1006
Basic offense Class D Level 6
For purpose of terrorism Class C
For purpose of terrorism and SBI Class B
To defraud or obtain property Level 5
If loss is $5,000 or more Level 5
Impairs gov. operation, public communication or service Level 5
Endangers human life Level 4

Burglary (I.C. 35-43-2-1)

Enhancement factors Current HEA 1006
Basic offense Class C Level 5
Dwelling Class B Level 4
Bodily injury to any person other than D Class A Level 3
Serious bodily injury to any person other than D Class A Level 2
Dwelling and SBI to any person other than D Class A Level 1
With deadly weapon Class B Level 2

Theft/Receiving Stolen Property (I.C. 35-43-4-2)

Enhancement factors
Any value Class D
Less than $750 A misdemeanor
Value is $750-$49,999; property is a firearm; or prior for theft or conversion Level 6
Greater than $50,000 Level 5
Greater than $100,000 Class C Level 5
Valuable metal, relates to public safety, transportation, etc. Class C Level 5
  • Measure value using fair market value; also retain existing statute allowing use of retail price tag on a commercial item to ascertain value.
  • Give prosecutors the option of aggregating multiple thefts to reach dollar threshold
  • The arrest statute (35-33-1-1) was not amended to authorize a law enforcement officer to make misdemeanor arrest for theft not committed in the officer’s presence to preserve the ability of police to arrest and prosecutors to charge based on the proposed changes.
  • Repeal “receiving stolen property” portion of statute (redundant; included in definition of Theft).
  • Maintain Auto Theft and Receiving Stolen Auto Parts as a Level 6 felony in all cases despite dollar value, and one step higher (Level 5) upon second conviction, due to the threat posed by car theft rings and a recognition that most stolen cars have a value of at least $750.
  • Check deception (currently a misdemeanor, increased to Class D felony if amount at least $2,500 and property acquired was motor vehicle) would track Theft (misdemeanor up to $750; Level 6 felony up to $50,000; then Level 5).

Forgery/Counterfeiting (I.C. 35-43-5-2)

  • Adds new offense of Making or Delivering a False Sales Document as a Level 6 felony. Section 488 of HEA 1006 repeals I.C. 35-43-5-17 which was former offense of delivery of a false sales document as a Class D felony
  • Adds new offense of Possession of a Fraudulent Sales Document as a Level 6 felony.
  • Changes Forgery from a Class C felony to a Level 6 felony.

Deception (I.C. 35-43-5-3)

  • Keeps Deception an A misdemeanor
  • Adds a new Level 6 felony if the offense results in financial loss to the governmental entity.
  • Adds a new Level 6 felony to knowingly or intentionally falsely represent an entity as a disadvantaged business enterprise or women-owned business enterprise in order to qualify for certification under a program conducted by a public agency.

Check Deception (I.C. 35-43-4-4)

  • Keeps Check Deception as an A misdemeanor.
  • Changes enhanced offense from Class D felony to a Level 6 felony and reduces the dollar amount from $2500 to $750 to enhance offense a Level 6 felony.
  • Adds new Level 5 felony if dollar amount is at least $50,000.

Welfare Fraud (I.C. 35-43-5-7)

  • Keeps Welfare Fraud as A misdemeanor.
  • Changes enhanced offense from Class D felony to a Level 6 felony and increase the dollar amount from $250-$2,499 to $750-$49,000 to enhance offense to a Level 6 felony.
  • Changes enhanced offense from Class C felony to a Level 5 felony and increases the dollar amount from at least $2500 to $50,000 to enhance offense to a Level 5 felony.

Medicaid Fraud (I.C. 35-43-5-7.1)

  • Makes same changes to Welfare Fraud.

Insurance Fraud (I.C. 35-43-5-7.2)

  • Makes same changes as made to Welfare Fraud

Check Fraud (I.C. 35-43-5-12)

  • Changes offense from a Class D felony to an A misdemeanor
  • Offense enhanced to a Level 6 felony if amount is $750-$49,999
  • Offense is a Level 5 felony if amount is at least $50,000

Inmate Fraud (I.C. 35-43-5-20)

  • Changes offense from a Class C felony to a Level 6 felony if the inmate is a pretrial detainee
  • Offense enhanced to a Level 5 felony if the inmate has been convicted of an offense or adjudicated a delinquent.

Legend Drug Deception (I.C. 35-43-10-3 and 4)

  • Changes offense from a Class D felony to a Level 6 felony
  • Enhanced sentence resulting in death changed from a Class A felony to a Level 2 felony

Crimes Against Public Administration
Obstruction of Justice (I.C. 35-44.1-2-2)

  • Adds “or offer of goods, services, or anything of value” to types of inducements to a witness or informant to withhold or avoid testifying or providing evidence

Unlawful Manufacture or Sale of a Police or Fire Insignia (I.C. 35-44.1-2-8)

  • Changes the enhanced sentence from a Class B to a Level 4 felony for committing offense with knowledge or intent that badge or identification will be used for an act of terrorism under I.C. 35-47-12.

Obstruction of Traffic (I.C. 35-44.1-2-13)

  • Creates new offense as a B misdemeanor to recklessly, knowingly or intentionally obstruct vehicular or pedestrian traffic.
  • Enhances offense to a Level 6 felony if offense results in SBI.

Trafficking (I.C. 35-44.1-3-5)

  • Deletes carrying a cellular telephone or other wireless or cellular communications device into a penal facility without authorization from the offense of trafficking with an inmate as a D felony
  • Changes the name of the offense of carrying a deadly weapon into a penal facility without authorization to “carrying a deadly weapon into a correction facility” and enhances the offense to a Level 5 felony

Sexual Misconduct by Service Provider (I.C. 35-44.1-3-10)

  • HEA 1269 amends this offense to provide that a service provider who knowingly or intentionally engages in sexual intercourse or other sexual conduct with a person who is subject to lawful detention or lawful supervision commits sexual misconduct, a Level 5 felony. Makes it a Level 4 felony if the person is less than 18 years of age.

Crimes Against Public Health, Order and Decency
Intimidation

  • Amends I.C. 35-45-2-1 to enhance the offense of intimidation from a Level 6 felony to a Level 5 if the person to who the threat is communicated is a judge, bailiff, prosecutor or deputy prosecutor.

Criminal Gang Activity

  • Amends I.C. 35-50-2-15(b) to provide that the state may seek to have a person sentenced to an additional consecutive fixed term equal to the sentence imposed if the state shows that the person:

o   Knowingly or intentionally was a member of a criminal gang while committing the offense; and

  • Committed the felony offense:
    • At the direction of or in affiliation with a criminal gang; or
    • With the intent to benefit, promote, or further the interests of a criminal gang, or for the purposes of increasing the person’s own standing or position with a criminal gang.

o   Amends I.C. 35-50-2-15(g) to provide . . . evidence that a person was a member of a criminal gang or committed a felony at the direction of or in affiliation with a criminal gang may include the following:

  • An admission of criminal gang membership by the person.
  • A statement by:
    • A member of the person’s family
    • The person’s guardian; or
    • A reliable member of the criminal gang.
  • The person having tattoos identifying the person as a member of a criminal gang
  • The person having a style of dress that is particular to members of a criminal gang
  • The person associating with one or more members of a criminal gang
  • Physical evidence indicating the person is a member of a criminal gang
  • And observation of the person in the company of a known criminal gang member on multiple occasions
  • Communications authored by the person indicating criminal gang membership.

Reckless supervision (I.C. 35-46-1-4.1)

  • Creates a new offense as a B misdemeanor for a person who provides child care on behalf of a child care center or home to recklessly supervise a child
  • Offense is an A misdemeanor if the offense results in SBI and Level 6 felony if the offense results in death of a child.

Drug Laws:

  • All crimes committed under I.C. 48, et. al. are completely suspendible unless 35-5-2-2.1 applies (Suspension; persons with juvenile record)

Drug Dealing Crimes (Schedule I, II, III Controlled Substance)

Weight Offense Level Minimum (Time actually served) Advisory (Time actually served) Maximum (Time actually served)
Under 1 gram and no enhancer Level 5 Felony 1 year (.75) 3 years (2.25) 6 years (4.5)
1 to 5 grams or under 1 gram and an enhancer Level 4 Felony 2 years (1.5) 6 years (4.5) 12 years (9)
5 to 10 grams or under 5 grams and an enhancer Level 3 Felony 3 years (2.25) 9 years (6.75) 16 years (12)
Over 10 grams or 5 to 10 grams and an enhancer Level 2 Felony 10 years (7.5) 17.5 years (13) 30 Years (22.5)

 

  • Enhancing Circumstances I.C. 35-48-1-16.5

o   Manufacturing (i.e. manufacturing meth starts at Level 4)
o   Possession of a firearm
o   Prior conviction for dealing; in any jurisdiction, for dealing in a controlled substance (not marijuana) including an attempt or conspiracy
o   In the presence of a child
o   To a person under 18 and 3 years junior
o   In a drug free zone
o   Committed offense:

  • On a school bus; or
  • In, on or within 500 feet of
    • School property while person under 18 was reasonably expected to be present; or
    • A public park while a person under 18 was reasonably expected to be present.

o   Reduces from 1000 feet to 500 feet
o   Eliminates youth program center and family housing complex
o   House version reduced to 250 feet but was strict liability and included child care centers and family housing complex

  • Delivered or financed the delivery of the drug to a person under 18 and 3 years junior
  • Manufactured or financed the manufacture
  • Committed the offense in the physical presence of a child under 18, knowing the child was present and might be able to see or hear the offense

Possession Offenses

  • Penalties were significantly lowered for possession offenses
  • The legislature is very concerned about separating addicts from dealers
  • Possession Cocaine/Narcotic Drug (Sch. I & II) and Meth

o   Poss. of Cocaine (I.C. 35‐48‐4‐6)
o   Poss. of Meth (I.C. 35‐48‐4‐6.1)

Possession Offense Level
< 5 grams Level 6
5-10 grams OR <5 grams Level 5
10-18 grams OR 5-10 grams with enhancer Level 4
>28 grams OR 10-28 grams with enhancer Level 3

 

  • Possession Controlled Substance

o   Class A misdemeanor (was FD)
o   Level 6 if there is an enhancer

  • Possession of Marijuana

o   Class B misdemeanor (was Class A misdemeanor)
o   Class A misdemeanor with prior conviction for a drug offense
o   Level 6 if >30g marijuana (or >2g hash etc.) AND prior conviction for drug offense
o   Adds tacking provision (in any 30 day period)
o   I.C. 35-48-4-11

  • Possession and Manufacture of Paraphernalia

o   No change
Driving Privilege Suspensions

  • I.C. 35-48-4-15 (effective January 1, 2015)
  • Court MAY, not shall
  • Removes suspensions for:

o   All possession offenses
o   Dealing in counterfeit substance
o   Conspiracy to commit offenses
o   Motor vehicle registrations
o   Ability to register vehicles in future
o   Ability to receive license or permit for 6 months
Firearms Legislation
SEA 169
New Gun Offenses

  • I.C. 35-47-2-7(b) Criminal Transfer of a Handgun

o   New Level 5 felony
o   A person who knowingly or intentionally sells, gives, or in any other manner transfers the ownership or possession of a handgun to another person who the person knows:

  • (1) Is ineligible for any reason other than the person’s age to purchase or otherwise receive from a dealer a handgun; or
  • (2) Intends to use the handgun to commit a crime

o   I.C. 35-47-2-7(d) Defense to Prosecution

  • Provides a defense to Criminal Transfer of a Handgun when providing to a person legally ineligible to possess a handgun, if:
    • (1)  the accused person contacted NICS to request a background check; and
    • (2) the accused person received authorization  from NICS to provide the individual the firearm
  • (1)I.C. 35-47-2-7(c) Straw Purchase of a Handgun

o   New Level 5 felony
o   A person who purchases a handgun with the intent to:

  • (1) resell or otherwise provide the handgun to another  person who the person knows is ineligible for any reason to purchase or otherwise receive from a dealer a handgun;
  • (2) resell or otherwise provide the handgun to another  person who the person knows intends to use the handgun  to commit a crime; or
  • (3) transport the handgun outside Indiana to be resold  or otherwise provided to another person who the  transferor knows:
    • (A) is ineligible to purchase or otherwise receive a handgun; or
    • (B) intends to use the handgun to commit a crime
  • Level 3 felony if:

o   The other person uses the handgun to commit murder (For both Criminal Transfer of a Handgun and Straw Purchase

  • Firearm Enhancement

o   Expands I.C. 35-50-2-11 (Penalty for use of Firearm
o   Allows the state to seek a sentencing enhancement of between 5 and 20 years if a person uses a firearm to commit a felony under I.C. 35-42 that resulted in death or serious bodily injury, kidnapping, or criminal confinement as a level 2 or 3 felony

  • Firearm Enhancement to I.C. 35-43-4-2(a)(1)(B) Theft

o   Makes Theft a Level 6 felony if the property is a firearm, regardless of value
SEA 229 (Firearm Matters)

  • I.C. 35-47-9-2(a) Firearms in School Parking Lots

o   Level 6 felony
o   A person who knowingly or intentionally possesses a firearm:

  • (1) in or on school property; or
  • (2) on a school bus
  • I.C. 35-47-9-2(b) New Defense

o   It is  a defense to a prosecution under subsection (a) that:

  • (1) the person is permitted to legally possess a  firearm; and
  • (2) the firearm is:
    • (A) locked in the trunk of the person’s motor vehicle;
    • (B) kept in the glove compartment of the locked motor vehicle; or
    • (C) stored out of plain sight in the person’s locked motor vehicle
  • I.C. 35-47-9-2 (c) New Class A misdemeanor

o   A person who is permitted to legally possess a firearm and who knowingly, intentionaly, or recklessly leaves the firearm in plain view in a motor vehicle that is parked in a school parking lot.

  • A person may not be charged under I.C. 35-47-9-2(a) (Level 6 felony) if the person may be charged under I.C. 35-47-9-2(c) (Class A misdemeanor)

Search Warrant and Privacy
HEA 1009

  • Seeks to address the use of drones and electronic monitoring (cell phones, computers)
  • Also amends I.C. 35-33-5 (Search and Seizure)
  • I.C. 35-33-5-11 Electronic Communications

o   A law enforcement officer may not compel a user to provide any form of stored electronic use data without a search warrant
o   A judge may issue a court order for electronic user data held in electronic storage by a provider regardless of whether the data is held in Indiana or elsewhere, and the provider shall comply, if doing business in Indiana.

  • I.C. 35-46-8.5 Unlawful Photography and Surveillance on Private Property

o   Creates a new Class A misdemeanor
o   A person who knowingly or intentionally places a camera or electronic surveillance equipment that records images or data on the private property of another without consent

  • I.C. 35-33-5-8 Issuance of Warrant without Affidavit

o   Expands current list to include:

  • (4) in writing by electronic mail or other electronic transmission
  • Provides that a judge may issue a search or arrest  warrant without the standard affidavit if the judge  receives testimony subject to the penalties for perjury  in writing by electronic mail or other electronic transmission

SEA 101 (Agricultural Operations and Trespass)
I.C. 32-30-6-1 “Agricultural Operation”

  • Includes any facility used for the production of crops, livestock, poultry, livestock products, poultry products, horticultural products or for growing timer.
  • This definition has been expanded into the institutional criminal mischief and criminal trespass

SEA 88 (Mental Health Witnesses in Criminal Cases)
I.C. 35-36-2-2 Insanity Defense

  • Amended to include the language “The court shall appoint 2 or 3 competent disinterested psychiatrists, psychologists, physicians who have expertise in determining insanity

HEA 1155 (Expungement)
Effective March 26, 2014
I.C. 35-38-9-11(a)

  • A person may not waive the right to expungement under this chapter as part of a plea agreement. Any purported waiver of the right to expungement in a plea agreement is invalid and unenforceable as against public policy.

I.C. 35-38-9-1

  • After 1 year, a person who was arrested (no conviction) or whose conviction was overturned on appeal may file a verified petition to have arrest records expunged.

Expungement of Arrest Records

  • The petition must be granted unless

o   Criminal charges are pending against the petitioner; or
o   The petitioner is currently participating in a pretrial diversion program
Expungement of Convictions

  • I.C. 35-38-9-2 through I.C. 35-38-9-5
  • The burden of proof for the petitioner has been changed from clear and convincing evidence to a preponderance of the evidence
  • The petitioner may file the petition for expungement in any circuit or superior court in the county of conviction
  • The provision prohibiting the waiver of filing fees for the petition for expungement has been removed
  • The provision prohibiting the expungement of a conviction because the petitioner’s driver’s license was currently suspended has been removed.
  • “Successful completion of sentence” now only requires that petitioner has paid all fines, fees, costs, and restitution relating to the conviction
  • Waiting period under I.C. 35-38-9-4 (Above Level 6 felony)

o   Reduced from 8 years after the completion of the petitioner’s sentence to either 8 years after conviction or 3 years after completion of sentence, whichever is later

  • Waiting period under I.C. 35-38-9-5 (Public Officials or Serious Bodily Injury)

o   Reduced from 10 years after the completion of the petitioner’s sentence to either 10 years after conviction or 5 years after completion of sentence, whichever is later

  • The requirement that a court considering a petition for the expungement must consider the oral or written statement of the victim of the crime in making its determination on the expungement petition (I.C. 35-38-9-9(d))
  • The expungement of a conviction for a crime of domestic violence does NOT restore the person’s right to possess a firearm, as the right to possess a firearm may be restored only in accordance with I.C. 35-47-4-7
  • Conviction records expunged under I.C. 35-38-9-2 and I.C. 35-38-9-3 may be released to the additional individuals (I.C. 35-38-9-6):

o   Defense attorneys (upon court order)
o   Probation department (upon court order)
o   Indiana Supreme Court, Board of Law Examiners, and employees of Board of Law Examiners
o   Person required to access expunged records to comply with the Secure and Fair Enforcement for Mortgage Licensing Act
SEA 63 (Nonsupport of a Child)
I.C. 35-46-1-5 Nonsupport of a Child amended

  • Level 6 felony
  • Enhanced to a Level 5 felony if the person has a previous conviction under this section; (current law), D felony if at least $15,000 in unpaid child support due for one child

I.C. 35-50-2-6(c) Conversion to Lower Felony

  • The sentencing court may convert a Class C felony conviction to a Class D felony or a Level 5 felony conviction to a Level 6 if, after conducting a hearing, the court finds:

o   The person has successfully completed probation
o   The person has satisfied other obligations required by sentence
o   The person has paid in full all child support arrearages due that are named in the information and no further arrearage is due
o   The person has not been convicted of another felony since the person was sentenced; and
o   There are no criminal charges pending against the person
HEA 227 (Alcohol and Medical Emergencies; Crime Studies)
I.C. 7.1-5-1-6.5 Indiana Lifeline Law expanded

  • Provides that a person is immune from arrest or prosecution for Public Intoxication or Illegal Consumption if the arrest or prosecution is due to the person:

o   Reporting a medical emergency
o   Being a victim of a reported sex offense
o   Witnessing and reporting what the person reasonably believes to be a crime
I.C. 7.1-5-1-6.6 Court Custody and Deferral

  • Allows a court to defer entering a judgment of conviction for an individual arrested for an alcohol offense if arrested because another person reported that the person needed medical assistance due to the use of alcohol
  • Conditions:

o   No prior conviction for an alcohol offense
o   Pleads guilty to the offense; and
o   Agrees to be placed in the custody of the court

  • Court shall dismiss if person completes custody terms

I.C. 35-381-7.1(b)(12) New Sentencing Mitigating Circumstance

  • The person was convicted of a crime relating to a controlled substance and the person’s arrest or prosecution was facilitated because the person requested emergency medical assistance for an individual who reasonably appeared to be in need of medical assistance due to the use of alcohol or a controlled substance.

Title 7 Changes
Effective July 1, 2014
New Laws

  • I.C. 7.1-5-7-1

o   Class C misdemeanor to show a Fake ID to get alcohol, up from infraction

  • I.C. 7.1-5-7-9

o   Class B misdemeanor to rent, provide, or arrange a place for minors to consume alcohol, the “social host law”

  • I.C. 7.1-5-7-10

o   Minor in Tavern moved to a Class C infraction from a Class C Misdemeanor

  • Many additional statutes have “knowingly or intentionally” inserted.

Repealed:

  • I.C. 7.1-5-19-16

o   Sale to inmate – Covered by harsher trafficking statutes

  • I.C. 7.1-5-10-18

o   Taking alcohol from a train

  • I.C. 7.1-5-10-19

o   Taking alcohol from a boat
HEA 1006 Credit Time Changes
Offenses after July 1, 2014
Old 3 class system (I.C. 35-50-6-3) (50% credit time)

  • Class I – 1 day for 1 day
  • Class II – 1 day for 2 days
  • Class III – no credit

New 4 class system (35-50-6-3.1)

  • Class A – 1 day for 1 day (Level 6 felons and Misdemeanors). No change from current law.
  • Class B – 1 day for 3 days (Murder – Level 5 felons)
  • Class C – 1 day for 6 days (Credit restricted felon)
  • Class D – no credit
  • Other notes:

o   Credit time changed from 50% to 25% for all offenses, except Level 6 and misdemeanors which remain at 50%
o   Credit restricted felons are assigned to Class C and may not be re-assigned to Credit Class A or B
o   Provides that a person on home detention as a condition is entitled to earn credit time.
Education Credit (I.C. 35-50-6-3.3)

  • Associates/Bachelors degrees must be earned(vs. received) during period of incarceration
  • Not more than 1 year for associates
  • Not more than 2 years for bachelors
  • Vocational increased from ½ year to 1 year
  • Credit time earned must be proportional to time served and earned while incarcerated
  • Maximum Education Credit time one can earn is the lessor of:

o   2 years or
o   1/3 of executed sentence
o   Current law allows 4 years for educational credit
o   Educational credit deducted from the release date after subtracting all other credit time (net v. gross sentence)
Pretrial Credit

  • A person awaiting trial is assigned to a credit class on the most serious offense charged. However, credit time is adjusted to the lower offense if the person is convicted of an offense that permits increased credit time.

o   Ex: charged with a level 5 and convicted of a level 6. Given credit at 50% vs. 25% for pretrial detention despite being charged with level 5
Home Detention Credit

  • I.C. 35-38-2.5-5

o   Provides that credit time is day for day (no good time allowed)

HEA 1279
Effective January 1, 2015

  • I.C. 9-19-19-4 Window Tint

o   Same protection as seat-belts
o   “A vehicle may be stopped to determine compliance with this section. However the vehicle, contents of the vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this section.”
New Law

  • I.C. 9-24-16-12.5 Fake I.D./Application

o   (a) A person who knowingly sells, offers to sell, buys,  produces, forges, counterfeits, or offers a false identification card that  could reasonably be mistaken for a valid identification card required by  this chapter tobe issued by the bureau but that has not been issued by  the bureau commits a Class B misdemeanor.
o   (b) A person who:

  • (1) Knowingly or intentionally uses false information in an application:
    • (A) for an identification card issued under this chapter; or
    • (B) for a renewal, amendment, or replacement of an identification card issued under this chapter; or
  • (2) Knowingly or intentionally makes a false statement or otherwise commits fraud in an application for an identification card issued under this chapter; commits application fraud, a Level 6 felony

License Suspensions

  • Most mandatory suspensions based off of conviction have been removed;

o   Operating While Intoxicated
o   Driving While Suspended/Operator Never Licensed
o   Title 7 suspensions

  • Administrative suspensions stay in place;

o   BMV Point Accrual
o   OWI PC Affidavit/Refusal
o   Failure to Appear
o   Child Support
OWI Suspensions

  • Now dictated by 9-30-5-10

o   Any OWI suspension is 0-2 years, regardless of priors
o   OWI causing SBI or Death is 0-5 years
Specialized Driving Privileges Suspensions

  • New Section, 9-30-16
  • All suspensions other than OWI governed by this statute.
  • (c) Except as specifically provided in this chapter, for any criminal conviction in which the operation of a motor vehicle is an element of the offense, a court may suspend the person’s driving privileges for a period up to the maximum allowable period of incarceration under the penalty for the offense.
  • Eliminates Probationary and Hardship licenses.
  • Combines both into a single Specialized Driving Privilege.

o   “Privilege” to help deal our Sovereign Citizens.
o   MUCH more flexible than current requirements.

  • Judge controls terms of the SDP
  • Can incorporate new treatment
  • Applicable for every suspension except:

o   CDL licenses (though they can surrender the CDL)
o   Suspensions based on refusal to take a chemical test
o   Persons who do not have an operator’s license

  • SBI has a mandatory one year, but is eligible for a SDP.
  • Death is mandatory 2 year, not eligible for an SDP.
  • Ineligible if more than one violation of an SDP in past 5 years
  • Duties of driver with an SDP:

o   Insurance carry copy of order with them when driving
o   Produce copy to officer

  • Statutory Problems

o   Errors in penalty clause

  • Violation refers to Section 2, which is only SBI and death descriptions
  • No statutory violation for driving in violation of SDP so long as Section 5 refers to the wrong section

o   Out of state convictions

  • Current suspension indicates that the BMV shall suspend for the minimum, which is now zero.

Habitual Traffic Violator

  • HTVs are eligible for Specialized Driving Privileges.
  • If a court finds by clear and convincing evidence that a person is a HTV under I.C. 9-30-10-4, the court:

o   (1) shall order:

  • (A) that the person is a HTV; and
  • (B) the bureau to suspend the person’s driving license; and
    • (2) may order that the person is eligible for specialized driving privileges under I.C. 9-30-16
  • HTV Causing Death or SBI is a Level 5 Felony

Habitual Vehicular Substance Offender

  • HB1006 eliminates the Habitual Substance Offender
  • HB1279 creates a new Habitual Vehicular Substance Offender statute;

o   Same aggravator of 1-8 years
o   Does not count possession cases
o   Does count C Misdemeanor OWIs
o   Requires 2 priors in 10 years or 3 priors in any time frame

  • Statutory problems

o   Refers to prior occurrences as opposed to convictions.
o   Wording indicates that the priors must be within 10 years of each other, but make no reference to the current offense
o   Unclear wording on whether current offense, once found guilty, counts as a conviction for purposes of the enhancement.
Leaving the Scene

  • Significant changes to statute
  • Combines all the duties into one statute
  • Changes some duties regarding property crashes-allows driver to notify Sheriff if they cannot locate the property owner
  • Changes the burden of knowledge to outcome

o   A person’s duty is to stop and remain after an accident and provide their information
o   The driver only must know that they were in an accident, not what they hit for the duty to apply.
o   Penalty depends on result
Motor Driven Cycles

  • No more mopeds, scooters, or motorized bicycles . . . they are all motor driven cycles
  • All must be registered and plated
  • Divided into two categories

o   Class A MDCs

  • Require insurance
  • Require Operators License

o   Class B MDCs

  • 50cc (other requirements removed)
  • No license, no insurance
  • Required ID card with MDC Endorsement
  • At least 15 years old
  • No interstates or sidewalks
  • Not faster than 35 mph
  • HTV – MDC is an affirmative defense that only applies if driver meets the above requirements.

Banks & Brower is a law firm with it’s primary office in Indianapolis and satellite office in Fishers/Noblesville.  We focus on Criminal Defense, Family Law, and Personal Injury.  Call us at 317-870-0019 to discuss your legal situation today.