RANDALL L. CABLE, ATTORNEY AT LAW
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Recent Court Decisions
DIVORCE
CHILD SUPPORT
Dissolution of Marriage is the legal terminology for getting a divorce. Where there are children involved, often one party will be awarded custody and the other spouse will have to pay child support. Child support is determined by the income of the parties as well as other factors. You can get an idea as to the support that may be established by going to http://www.indygov.org/cgi-bin/courts/support.cgi.
CURRENT MARION COUNTY CASES
Here's a site to find out what's happening in the Marion County Courts currently listing cases of possible interest to the public: http://www.indygov.org/courts/cases/index.htm
RECENT DECISIONS OF INTEREST
A significant decision of the Indiana Court of Appeals which is expected to be transferred to the Indiana Supreme Court involved the decision in Vaughn v. State wherein the Court of Appeals placed restrictions upon who is included in the domestic violence concept of Domestic Battery. Practice had been to prosecute for domestic battery in any situation involving any semblance of a domestic relationship. Under the statutory language of a person "who is or was living as if a spouse of the other person" anyone that had been or was currently in a relationship with another qualified for prosecution under this charge. A Domestic Battery conviction carries a number of consequences for one being convicted of such offense including the prohibition of ever possessing a firearm. Vaughn was arrested, charged and convicted of domestic battery for having struck a former girlfriend. The Court determined the statute as applied to Vaughn was unconstitutionally vague. The mere fact that one had lived together and even had sexual relationship was not enough to establish that the individual had lived as if the spouse of the other.
Under the operating a vehicle while intoxicated statutes, commonly referred to as DUI or DWI, the law requires that the State prove that the Defendant "operated" a vehicle while intoxicated. The Indiana Court of Appeals recently addressed the issue of "operating" in the case of Nichols v. State. Prior court decisions had established that an operator is one who drives or is in actual physical control of a motor vehicle or is exercising control over or steering a motor vehicle (in the case of a vehicle being towed). Additionally, the term is not restricted to just public highways as other locations including the drive-thru of a bank or fast food restaurant would be included. Factors to be looked at in determining whether a person was operating or in control of a vehicle include whether the person was asleep or awake; whether or not the motor was running; the location of the vehicle and the circumstances surrounding the vehicle being where it was found and the intent of the person behind the wheel. The Nichols decision places emphasis on the intent issue as Nichols, who had been asleep upon being awakened allowed the vehicle to roll backwards and attempted to stop the vehicle by applying the brakes.
Indiana law provides that if you write a check that is dishonored you may be liable for the amount of the check as well as treble damages (three times the amount of the draft) and attorney fees incurred in the collection on the draft. Actions on a bad check must be commenced by the filing of a law suit within 3 years after dishonor of the draft or ten (10) years after the date of the draft, whichever period expires first. In Clark v. University of Evansville the Indiana Court of Appeals determined that Clark's partial payment of the debt after the dishonoring of the check tolled (extended) the time period for an action on the draft as an admission of continued indebtedness. However, the penal allowing of treble damages and attorney fees is controlled by a strict adherence of a two year time period for commencement of the suit. So beware of writing a bad check or what action you take afterwards regarding attempts to collect on the check.
A point often overlooked by Defendants, attorneys and the Court is the imposition of a fine or court costs in the situation where the Defendant enters into a guilty plea agreement. All too often Prosecutors and Defense Attorneys will reach a plea agreement that addresses the major concerns of the parties, such as whether or not a jail/prison sentence is to be imposed and the period of probation to follow. Other terms such as conditions of probation, driver license suspensions and payment of fines and costs are often not expressed in writing. This may be in part that the parties understand that normally these matters will flow from a conviction or plea. In Briscoe v. State the Indiana Court of Appeals indicated, in following a line of prior decisions, that terms not contained in the written plea agreement may not be imposed by the Court even if the Court had orally discussed the possible imposition of such terms or even if they were enumerated in the advisement of rights executed by the Defendant.