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Gregg Stark’s Answers

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  • Accept pretrial diversion or go to trial for Misdemeanor Paraphernalia Possession?

    Daughter (21, senior in college) stopped for speeding. K-9 hit on car, she was Mirandized & car searched. Turned up a small pipe that daughter did not know was in car, had been placed in console with other unrelated items by a friend when giving h...

    Gregg’s Answer

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    The issue is one of constructive possession. Possession in such circumstance must be established by proving knowledge of the paraphernalia in the vehicle as well as one's ability exercise control over the paraphernalia. If your daughter was operating the vehicle, control will likely be presumed. In such a circumstance consideration for trial would be based upon a witness stating under oath your daughter's lack of knowledge irrespective of presumptive control over the interior of the vehicle. Base upon the uncertainty of trial outcome and financial considerations associated with trial, a guaranteed dismissal through such a diversion is often a wise course of action.

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  • What will happen to me in court in huntington indiana for disorderly conduct

    My husband and I were arguing and he bit me so I bit him back. We were both taken to jail. When he went to court the prosecuter told him they were not peruse ing the charges and he was let go. I was still in jail and when I went to court they told...

    Gregg’s Answer

    In my experience the superior court in Huntington can be quite tough in regard to sentencing. I think it imperative that you seek the assistance of legal counsel immediately as there are deadlines to assert your legal rights. If finances are tight you need to inform the court of your desire to have a public defender appointed for you as soon as possible. If your husband will not be a credible witness against you it is quite possible that the state will have a difficult case against you. In such circumstances a dismissal can often be secured by the state dismissing charges unilaterally or the dismissal of charges through a pre trial deferral type program. I know in many circumstances in Huntington the prosecutor/judge will only allow "open" sentences allowing the judge to decide punishment if convicted through a plea agreement. Pre trial dismissal in some form if one qualifies will allow less uncertainty and anxiety if at all possible. Please know such deferral option may not be eligible based upon prior arrests and/or the position of a given prosecutor's office policy. I wish you the best of luck.

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  • If an "Acceptance Of Plea/Snt" date set & plea includes jail time, will that person be taken into custody/jail on that date??

    this is an agg DUI...3rd offense

    Gregg’s Answer

    In Indiana if the dui sentence is for a misdemeanor conviction, there is not statutory prohibition to delaying the "surrender" date in which to begin serving any required jail time. Nonetheless, depending upon the specific judge and case circumstance it is possible for the judge and/or prosecutor to require that the jail time be served immediately following a guilty plea hearing. It should go without question that the designated attorney must adequately advise one in their care in such a situation far before such a hearing so as to make any and all needed preparations.

    However, when dealing with a felony prison time Department of Corrections sentence, the individual convicted will need to surrender to begin the "executed" (incarceration) component of his or her sentence immediately following the sentencing hearing.

    As a result, in such a circumstance it is imperative that the individual and all loved ones are fully prepared and available to safe keep any and all valuables as well as be prepared to communicate with prison officials as to any and all needed medications a person reporting to incarceration may require.

    Please keep in mind that the procedure in Arizona may be different than what exists within Indiana. Unlike federal law that is uniform in all states, state laws can be much different from one another. I would strongly suggest that this inquiry be forwarded immediately to either the private counsel responsible for the person's representation or the public defender assigned to the case within the Arizona court in question.

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  • Can a lawyer help my son get his license back after DWAI?

    My son was arrested for DWAI, got sentenced to probation and mandatory drug and alcohol sessions in Ithaca NY. When it became difficult to get transportation he moved back to Chenango Co. He has done everything they asked, even when they extend...

    Gregg’s Answer

    I assume you are referring to a dui or dwi case that your son is contending with. Please know that it appears from your question that he may have far more pressing matters to deal in regard a potential revocation of probation. If he had in any way acted in a manner that could have prompted the probation department to file with the court a violation of probation he could have to return to jail to serve the balance of a "suspended" sentence. In other words the amount of time the judge has available to him or her to impose if determined that your son was not in compliance with any or all probationary terms.

    If the meeting scheduled was missed for an excusable reason that will not a prompt a violation of probation, a request for a conditional license, if available in your state, should impress upon the court your son's need for such driving privileges so as to facilitate court ordered treatment.

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  • My son was arrested for dui.

    He does not drink. He is suffering from social anxiety which he is on medication. his sobriety was 0.00. they charged him with dui & improper lane usage. He showed the officer documents for his condition, but he didn't care. What can I do to ...

    Gregg’s Answer

    Depending upon Louisiana state law your son may have a viable defense if he had a lawful prescription for the medication he was taking. However, if he had ingested the medication in a manner contrary to a physician's directive the defense could be compromised. I would strongly suggest consultation with a lawyer in Louisiana who can advise what defenses may be available to your son base upon his present circumstances.

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  • OWI 2 : license susp 30 days /180 restrictive . retraoactive 6.5.12 . They are debate if i should take dui classes ?

    I live in louisville ky and caught a charge owi (d felony ) sentence:1.5 year susp t o prob to 5 actual days . prob term 1.5 ,driver license suspense retroactive 6/5/12 , 30 days suspension /180 days restrictive . my question is i went to sign up ...

    Gregg’s Answer

    In Indiana, almost universally a plea of this nature will be phrased that one must perform an alcohol evaluation and comply with whatever recommendations are recommended by the results of the alcohol evaluation.

    Unless specifically adressed within a plea agreement that is accepted by the presiding judge, conditions of probation that specifically preclude alcohol counseling/classes if recommended post evaluation, are not common. You may wish to ask your Indiana dui lawyer as to his or her thought process as to why such classes were not contemplated by the agreement. You just may find that based upon the attorney's statements that you may have post conviction remedies that may strike this condition of probation if warranted.

    I can tell you that based upon personal experience defending dui cases in southern Indiana that it is often possible to secure far more favorable resolutions for owi cases than in other areas of the state. However, even though that may be the case, I would be somewhat skeptical as to the possibility that continued alcohol treatment as recommended by a probationary alcohol evalulation would not be mandated especially by virtue of a felony dui conviction in Indiana.

    As another poster has stated, if the agreement does not allow for such a provision to be stricken, the option to be considered would be a post conviction relief remedy attempting to nullify the terms of the plea agreement and re opening the prosecution. This Post Conviction Relief (PCR) option would most commonly advance the argument that the terms of your plea agreement were not adequately explained to you such that you would not have proceeded had you known its ramifications.

    Of course although this option of continued court intervention may carry financial benefits to an attorney, it is usually not in the best interests of a client who may face the prospect of not only additional attorney fees but added criminal punishment if convicted once again after unsuccessfully exhausting the court's time to re open the case if permitted.

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  • I was pilled over for DUI and someone else's drugs were found, I was charged with possession as well. What can I do?

    I've never had a possession charge and this could cost me my job.

    Gregg’s Answer

    Although I am only qualified to answer your question in my limited capacity as a dui lawyer in Indiana, I will offer my take on the situation. Obviously, the first prong of attack is to determine whether probable cause existed to pull you over for the initial stop for dui and the ultimate search and seizure of drugs.

    If the initial stop for dui is invalid based upon a lack of probable cause, what is known as "the fruit of the poisonous tree" argument stands for the proposition that any evdience, in this case drugs, obtained as a result of an illegal search is inadmissable in court against the individual targeted for prosecution.

    If probable cause for the dui stop existed, culpability for the drugs within the vehicle depends upon a number of different issues. In most states if the drugs were found within the vehicle your culpability will rest upon the legal standards of either actual or constructive possession.

    Actual possession is a fairly obvious legal concept where if drugs were actually found on the person of one being charged possession follows. More common to these cases involves the concept of constructive possession.

    In constructive possession cases in Indiana if you had knowledge of drugs within your vehicle as well as the abilty to excercise control over the drugs, constructive possession can be imputed to you as a matter of law. If one is driving a vehicle or owns the vehicle stopped in your example, control is generally satisfied in Indiana with the issue of knowledge of the drugs within the car becoming the dispositive issue for consideration.

    I would advise that you confer with an Iowa dui/drug attorney as to how closely Indiana laws mirror those of Iowa in determining how to first assess the validity of your initital arrest for dui. Once that is examined you can explore your potential legal culpability for drug possession based upon the above cited factors bearing upon the standard of constructive possession in the state of Iowa.

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  • What is the typical time a person gets for a first time offense of shoplifting (a bra).She had no previous convictions for anyth

    Is ten months a long time to be sentanced to girls school for shopliftting a bra? She has complied with all that is required,now they are asking my husband and myself to do drug testing? Is this legal? Do we have any rights to refuse(my husband sm...

    Gregg’s Answer

    Your question has a few different angles to it basically dependant upon whether a case is held within an Indiana juvenile court verses an adult court. On a first offense shoplifing in Indiana of this nature I believe it reasonable to expect an experienced defense attorney to be able to dismiss the case either outright or conditional upon completion of certain terms negotiated between lawyer and prosecutor. (class, fines/fees, sometimes community sevice work)

    However, since you mention a sentence of girls school I am making the assumption that this case involves a juvenile. A juvenile court sentence to girls school is usually an extreme measure reserved for repeat juvenile offenders or those who have commited an especially serious act if commited by an adult. If this is in fact a juvenile case in Indiana with a first offense shoplift of a bra, my own personal experience would suggest that this would be quite an extreme sentence. With that being said, there very well could be some extenuating circumstances involved of which I am not aware.

    Within an Indiana juvenile court the parents can be ordered to participate in court ordered activity that is determined to be in the best interests of the juvenile's rehabilitation. As to the specific nature and constitutionality of any court ordered dictates I would always defer to the juvenile lawyer in Indiana who handled the child's defense in order to specifically and more comprehensively advise on all aspects of your questions.

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  • Is a failure to comply with home detention a felony?

    Home detention was never transfered county, so he never reported for it due to this.

    Gregg’s Answer

    In the state of Indiana failure to comply with a sentence of home detention would not be a seperate crime, be it a felony or misdemeanor. If someone is sentenced to a period of home detention and fails to comply with the terms and conditions of the county community corrections program responsible for overseeing the home detention, a report is filed to that effect with the sentencing court.

    At that point the punishment levied for non compliance is not in the form of a new criminal charge absent other factors. Rather, the first consideration for the judge is whether the home detention sentence was being served as a condition of the individual's probation or through what is known in Indiana as a direct commitment sentence.

    If the home detention sentence was being served as a condition of criminal probation in Indiana the length of suspended time on the Defendant's original sentence would be potentially imposed by way of a violation of probation sentence. If so, a court hearing would be scheduled and the Defendant through his attorney would attempt to either challenge the basis of the violation or attempt to negotiate a recommendation with the assigned prosecutor that can either resume the home detention sentence or fashion punishment that prevents all of the suspended jail sentence from being imposed.

    If a direct commitment home detention sentence the issue becomes more problematic as no court hearing to contest the allegations is required and the Defendant can merely be transferred to jail to finish the term of the home detention sentence. This is so because within the state of Indiana a direct commitment sentence is considered executed or jail time served at one's home through home detention. Where the overseeing entity is no longer willling to monitor the Defendant within a residential location, the Defendant's executed time may be shifted to the different location of a county jail.

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  • Can I get OWI while away from vehicle on phone w/ 911 w/ keys in pocket?

    I received an OWI in 2008. I was not driving the vehicle, and was far from the vehicle. In fact I was on the pay phone with 911 to get the vehicle towed when the cops arrived. I tried calling home first, but some of the numbers on phone were stuck...

    Gregg’s Answer

    This is a circumstantial evidence type of case where depending upon the case narrative of the arresting officer, the probable cause affidavit as well as any other witnesses(s) and/or evidence, a conviction for dui can be sustained as a matter of law subject to additional evidence.

    The first question I would pose is whether the case is still presently pending as you refer to a 2008 incident. If so, I would ensure that you address the fact pattern with a qualified dui lawyer in Indiana who can be of greatest help in relating the chances of a dismissal or reduction of charges based upon the investigitive information acquired. If the case has been decided you will need to examine post conviction relief remedies in Indiana.

    In general terms what a dui lawyer will be looking for and examining is whether a circumstantial case can be made by the prosecutor as a matter of law so as to determine eligibility for case dismissal without contested litigation. Specific questions may be whether there could be an alternative explanation as to how the car got to that spot without you driving it. A vehicle at the side of the highway with you beside it will not be as readily explainable as a car in front of a residential home. What was the timeline within which it is alleged you were observed and when testing was conducted? Although not applicable within your case, was the vehicle running? and if so, could explanations for it running without driving it be offered such as to provide heat on a cold winter day. Are there civilian witnesses who called in the incident or witnessed the driving even if not initially provided or designated? All are the types of details that will need to be thoroughly examined to sufficiently respond to your good questions.

    With that communicated, I believe that if the case is still open you have a very strong case and sufficient leverage available toward your legal defense provided no other evidentiary information comes to light.

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