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Gregg Jason Stark
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Gregg Stark’s Answers

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  • I am a misdemeanor drug charge from 2005. Is it possible to get this sealed for career purposes

    It was a possession of marijuana, class A misdemeanor. I now am in health care and want to get my pharmacy tech certificate. However to do so you can not have a charge with controlled substances on your record.

    Gregg’s Answer

    The first question to be answered with reference to Indiana drug laws is to confirm that the former case was a Possession of Marijuana, Class A Misdemeanor only and not an additional Possession of Controlled Substance charge. I mention this because you speak of both a Marijuana possession as well as Possession of Controlled Subtance in association with a 2005 drug offense.

    The reason this is important to confirm is because if the former case was for only a first offense marijuana conviction under 30 grams the crime would be a Class A misdemeanor in Indiana as opposed to a controlled substance Class D felony charge. The misdemeanor could have already been eligible for a dismissal if not dismissed already.

    If this prior in 2005 was in fact as a first offense Marijuana charge I would be curious to learn whether the case was resolved through a conditional discharge, defrerment or witheld prosecution. If so you can legally state that you presently have no conviciton in Indiana for the Marijuana offense if you previously performed all prior obligations of such a program successfully.

    Finally, there could be further relief on the horizon for you as newly implemented legislation within the Indiana criminal code may allow for an Indiana drug crime to be sealed and/or disclaimed from employers if the statutory requirements as to time elapsed with no continued criminal convictions have been satisfied.

    In summation, for immediate comfort, if you suffered in 2005 from a first offense Misdemeanor Possession of Marijuana offense I would encourage you to review with your attorney or applicable paperwork whether the case has already been dismissed per a negotiated witheld prosecution or other like legal terminology.

    Thereafter, review with the attorney the new legislation within Indiana that can potentially seal any such legal prosecution from scrutiny in its entirety.

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  • I'm in Indiana with no arrest record, case was dismissed in 2006. Do I need to check yes when asked "prior criminal record"?

    My case (underage drinking) was later dismissed. No arrest. Happened in 2006. I signed a diversion agreement. I was told it was expunged. The record is still listed on the county's Public Access webpage. Do I need to check yes when asked "prior cr...

    Gregg’s Answer

    It is very important to read whatever question is asked of you thoroughly. For example, a diversion agreement within Indiana if completed successfully allows you to truthfully answer that you have no prior criminal conviction for that offense.

    By the same token, underage drinking prosecutions within Indiana are not always crimes subject to an initial arrest. Common sense and careful review of any questioning will allow you to further state no prior arrests if originally summoned to court by way of mail for the underage drinking charge and not arrested.

    The use of the term "expunged" in Indiana is in my experience one of the most widely and incorrectly used terms by both lawyers not versed in Indiana criminal law as well as layman. In almost all cases where this term has been used, what is intended is to say that the case is dismissed, as opposed to having all records of arrest destroyed, which is what an expungement in Indiana actually means.

    Expungement refers to the destruction of all records related to first offense criminal arrests in Indiana where a dismissal was based upon mistake of identity and other limited basis of law. For example, even where a dismissal was secured through trial and a not guilty verdict on a first offense, expungement in Indiana would not necessarily be applicable.

    In the fact pattern suggested, if specifically asked, "have you ever been charged with a misdemeanor?" you would have to respond in the affirmative despite the diversion agreement secured in Indiana. If the question is phrased in such a limited restrictive way there would be simply be no way to avoid a truthful response that cannot avoid referral to the prior incident.

    Hope exists in the future for Indiana criminal laws will allow for cases of this nature to be sealed and disclaimed if no further criminal convictions accrue and the passage of eight years time has elapsed. This of course is subject to application and interpretation of this recently enacted criminal law in Indiana once individuals eventually qualify.

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  • Deferred Action with criminal mischief?

    My friend got arrested for doing graffiti (not gang related) when he was 17. He finished his probation and the case was closed before he turned 18. He was charged with several criminal mischief misdeamors (occured on the same day, same scheme of c...

    Gregg’s Answer

    Within Indiana there is often a distinction between juvenile court resolutions and case dispositions where one is classified as an adult over eighteen years of age.

    Within Indiana juvenile court, case resolutions are accessible by law enforcement and not the general public. This is significant for if a future adult offense of a criminal nature should occur, law enforcement can still consider the prior juvenile record as to any prosecution options to be considered.

    It is possible that your friend's juvenile case in Indiana could have been resolved outside of juvenile court and with the probation department through a classification many times called an "informal adjustment." This term is not much different from a deferral agreement for adults but is implemented by the juvenile probation case officer. With prosecutor approval, the juvenile allegation would never be prosecuted adding another layer of protection for one who otherwise would have the juvenile court filing accessible by law enforcement at a later date.

    Because apparently the case was held within juvenile court I am not quite clear from your question whether his case earned the equivalent of a deferral such as the informal adjustment formerly mentioned or not. In either event, since the case was within juvenile court and a misdemeanor if within adult court, the case is not considered nearly as serious as other offenses such as adult cases and/or felony prosecutions.

    Nonetheless, to what extent such a legal proceeding may have on other factors determining in your words a, "national threat" affecting issues such as immigration and travel restrictions would be best answered by an immigration attorney I suspect as related to a specific country involved, etc.

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  • When someone agrees to the diversion program for simple assault what could it be?

    First time offender. My wife was the victim of a simple assault. We never received a response from the prosecutor handling the case, just that the person who committed the crime agreed to a diversion program. Thanks for your help.

    Gregg’s Answer

    Not quite clear on the scope of your question but I will try to interpret. First off, there is no crime of "assault" in Indiana unlike some other states. I would think the crime within which the diversion covered was probably for the crime of battery in Indiana.

    It is usually the policy of a county prosecutor or judge in Indiana to determine whether something called, "victim notification" had taken place in order to solicit the input of the agrieved party and his or her thoughts on any proposed resolution of a criminal case of this nature. It is apparent from your question that such notification was apparently not commenced within this criminal prosecution and for that I am sorry.

    If eligible for a diversion program the likelihood is that the offender had no prior convictions or arrests so as to make the accused individual eligible for such an outcome. Usually "behavior modification" classes counseling and the like will be required of the defendant who can typically earn a dismissal if all rehab and other requirements imposed are fulfilled. Eligibility for such a disposition is often dependant on the Indiana county that the battery or domestic violence case is prosecuted in. Sometimes, if the prosecution believes that they have a weak case to present, the assigned proescutor may stretch the eligibility of a deferral agreement as a more favorable alternative to an outright dismissal of such a case.

    Unfortunately you and those involved may not have been properly counseled on the proceedings involved such that your input could have been taken into account. I believe it reasonable for you to contact the deputy prosecutor who handled your wife's case as to the proceedings, outcome and requirements that were imposed within the case. In so doing you will be alerting the prosecutor that you desire to be notified and/or involved should any future issues be brought to the attention of the prosecutor in regard to the defendant's compliance with the terms of the agreement offered.

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  • Is there anyway of getting charges dropped after court is done and over with?

    because my court date was over the other day and i got 1 year probation and now i have to do either 30 days house arrest or 30 days of work release. Which i feel it isnt right on top of 1 year probation and all the terms of probation.. So wonderin...

    Gregg’s Answer

    The first question that must be answered is whether those terms were specifically bargained for within your plea agreement. If so, I would anticipate that as a general matter you will have an extremely difficult time overturning those terms and conditions.

    The legal mechanism in Indiana by which to attempt to alter the terms of the sentence you have specified would be through a process called "modification of sentence." It does not appear from your question as though your desire is to overturn the conviciton itself through a legal appeal, as opposed to changing or modifying the requirements of the conviction itself. Thus, the modification of sentence avenue.

    In Indiana in order to modify a sentence you must file the request within one year of the sentencing order or you will need to acquire the approval of the prosecutor unless otherwise specified in the negotiated agreement. Your attorney would file the petition to modify the terms of the sentence giving compelling reasons as to why the sentencing terms should be altered absent an agreement from the assigned prosecutor within Tippecanoe County if the case was heard in Lafayette.

    Such modification requests may be virtually impossible to have granted or relatively easy depending upon the factual circumstances and/or the position of the deputy prosecutor. A judge may summarily deny the motion without so much as a hearing or grant a modification hearing so as to allow your argument on behalf of altering the sentencing terms to be addressed live in court. I would suggest that this probability for the granting of such a hearing and/or success would best be answered by the defense attorney who had represented you.

    Since your question has been posted online I am theorizing that your case may have been handled by an appointed public defender. In such circumstances depending upon the diligence and/or workload of this attorney you may find ideal responsiveness to your questions lacking. However, I would submit a reasonable request for attention to your concerns via email or fax as one strategy for getting a response from your attorney of record in the event representation was through the county public defender agency.

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  • I am in Indiana and I signed and paid a diversion agreement for underage drinking. Will it show on background check?

    I believe I was told it would be expunged. Happened several years ago. Do I need to check "yes" on criminal history on job applications?

    Gregg’s Answer

    A diversion agreement if successfully complied with allows you to state that you have no conviction of underage drinking. As far as the charge is concerned, the fact that you were charged and prosecuted with underage drinking can show up. However, you will be able to state that the charge was dismissed. To what effect a charge that is later dismissed affects a potential employer or college admissions staff will depend upon the entity involved.

    When filling out a job application it is therefore important to read the question carefully as to what is being requested. If you were originally arrested on the underage drinking charge and the question asks if you have ever been arrested you will have to state in the affirmative. Conversely, if you were not arrested and asked if you have ever been arrested or convicted of a criminal offense, you would be able to respond in the negative.

    Expungement in Indiana is a limited means of relief that allows for a criminal record including an arrest record and charge to be destroyed if a case was dismissed in certain situations for one with no prior arrest record. As it presently stands Indiana criminal law does not allow for an expungement of an arrest record where the dismissal is the result of a deferral agreement absent other factors.

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  • Is shoplifting considered a significant misdemeanor?

    I was 17 years old & got arrested for shoplifiting & i did the diversion program & pay a fee to the state but i never went to court!

    Gregg’s Answer

    Nationwide as a general rule shoplifting as a misdemeanor offense that was eligible for a diversion or sometimes called a "deferral" agreement is not considered as serious as a Theft prosecution. Whereas a Theft is in most states a felony offense, shoplifting charges are usually considered misdemeanors and eligible for the type of agreement you obtained provided no previous encounters with the law.

    This type of agreement as mentioned is most valuable because it usually allows someone with no record the ability to not have to go to court and eventualy get a case dismissed. The fact that you were arrested and charged in Arizona may be accessible to Arizona authorities or law enforcement elsewhere in the future if arrested again. However, the fact that a case can be legally stated to have been dismissed is certainly most helpful toward career goals and signifies a legal recognition that you are worthy of a second chance based upon this one shoplifting error.

    As your case was in Arizona I can only provide general answers from a national perspective and am assuming that you are referring to the seriousness of the case that resulted in the deferral. Finally, as you must always tell the truth on employment applications and the like, what effect such a bout with the law will have is always subject to the interpretation and/or company policy of a prospective employer despite the dismissal obtained as a result of such an agreement obtained in Arizona. On this subject I would question a shoplifting attorney in your state as to the possibility of a sealed record as a result of the successful completion of terms and conditions within your case that may be of additional help in presenting the best legal record possible in the coming years for you.

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  • I got a DUI ten years ago and recently got another one. I was pulled over because the cop said my license plate lights was not w

    I got a DUI ten years ago and recently got another one. I was pulled over because the cop said my license plate lights was not working, which they were working. I passed the field test but he still wanted me t go to the station and take the breath...

    Gregg’s Answer

    I apologize but I am a little unclear as to how to respond to your question as I'm not quite sure what you are asking but I will do the best that I can.

    If you are questioning the legitimacy of the stop and the following evidence as it relates to the prosecution, a dui lawyer is best equipped to handle the specifics of your fact pattern. With that being the case, if you had failed the certified breath test in the jail or police station it will be left to your word versus the arresting officer's as to initial breath test result(s) as well as the probable cause for the stop itself.

    We rely on a justice system in America that is dependant upon the ethical conduct of police officers and the tool of effective cross examination by experienced dui attorneys to cast doubt upon the conduct of cops who may fall below that standard.

    If you believe that the arresting officer has fabricated evidence for the initial stop it will often times be left to either independent witnesses(s) or objective evidence such as proof that can clearly show the license plates working to carry the day. However, by the same token, if objective evidence can demonstrate a certified test above the legal limit it may be quite difficult for even the best dui lawyer to succeed on your behalf without the presence of independent witnessess(s) or the above refrenced objective evidence spoken of that can discredit the statements of an arresting officer sworn under oath. Further, the fact that you have a prior dui may be an additional impediment to a pre trial ability to have the case thrown out of court.

    Seek the help of experienced legal counsel in your area at your earliest opportunty as even the most difficult cases can be won once an investigation into the circumstances develops fully.

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  • What are my chances of getting off easy on a class b misdemeanor with property damage.

    Right now they are charging the wrong person. What will they do when I confess to being the driver that knocked down a stop sign and didnt stop? I have a clean record and driving record.

    Gregg’s Answer

    One should always hope that you will receive some "mitigating" credit for taking responsibility while the wrong person is presently being charged. One should always keep in mind that stepping forward, although admirable and in my mind to be encouraged, will not necessarily allow you to "get of easy" if the facts of the case are alarming.

    Each county prosecutor and judge within the state of Indiana has their own individual thoughts and opinions as to the punishments for certain offenses as well as the weight given to someone in your position who steps forward after the fact to accept responsibility.

    If not careful, without the aid of experienced defense counsel, the fact that you did not come to law enforcement sooner to admit culpability can often be used against you rather than on your behalf. I can tell you that in my experience that the court sytem in a smaller community such as Huntington can be very firm in meeting out punishment for criminal offenses of this nature that may be of less consequence in more urban environments. I would suggest that you confer with criminal attorney in Huntington as soon as possible in order to guide you in the most proper way possible.

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  • How many pretrial do you have before trail

    this will the forth one

    Gregg’s Answer

    In Indiana there is no set amount of pre trial conferences that can take place. As a general rule of thumb I tell my clients that we will take as few or as many pre trial conferences as needed to secure the most favorable pre trial options.

    This process can be somwehat frustrating for clients who get understandably nervous as to the purpose and outcome of each respective court hearing. Although all courts in Indiana are different as each is run by a seperate judge with his or her own philosophy on court scheduling, the intent of pre trial conferences is always to narrow the issues of focus and to determine whether sufficient investigation and/or negotiation has concluded to determine whether the prosecution can be resolved without need for litigated trial.

    Pre trial issues from a defense perspective revolve around whether a case can be dismised without need for trial as "a matter of law" or whether an agreement favorable to the interests of a client can be negotiated and eventually presented to a presiding judge for consideration.

    From a strategic outlook, delay can often be an ally to an Indiana defense attorney especially if demonstrating a firmly held belief to a prosecutor that trial is a real possibility being considered by a client. Moving a prosecution close to a demanded trial date setting with an attorney who has shown a proven ability to succeed at trial often allows the defense lawyer to extract the best agreement terms possible for clients who do not desire the risk of trial.

    The above referenced viewpoint of course presumes that the defense attorney is diligent and capable and not one who is using delay due to procrastination or carelessness. I encourage you to speak with your attorney as to his or her outlook on the case and to update you on the rationale as to the number of pre trial conferences that heve been held to this point.

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