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Prosecutor: New laws favor victims

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‘Drug-free zones’ shrink, sexting added in criminal-code revisions

By KEVIN KOELLING
Managing Editor

TELL CITY – “Mercy to the guilty is cruelty to the innocent,” County Prosecutor Rod Acchiardo said May 19 in providing information about upcoming changes to the state’s criminal code to local law-enforcement officers.

As the News reported June 2, the state legislature enacted the most extensive revision to the criminal code since 1977. This report describes a second and final part of his presentation. For the most part, the new code will go into effect July 1, but suspects whose alleged crimes were committed before then will be tried under the current code, he said.

Attributed to philosopher and “The Wealth of Nations” author Adam Smith, Acchiardo said the “mercy” quote was used in a presentation for prosecuting attorneys from throughout the state.

“Sometimes we look too much at the (rights of) the criminal defendant and not enough at the victim in this society,” he said. “Our priority is to public safety … this new code addresses that issue and treats those committing the more serious violent crimes to longer terms in the (state) Department of Correction.”

The prosecutor had explained some reductions and some increases in penalties for various crimes, with harsher punishment aimed at violent criminals. That will be accomplished through initial sentencing and elimination of certain credits, like those earned by pursuing education.

“When comparing the old law to the new law, look at the actual time,” he told the officers gathered in a training room at the Tell City Police Department. “You can’t just look at the years, but the years they’ll actually serve … on the books it looks like they’re easing up on them, but they’re not. With these other changes, they’re actually going to serve more time for the more serious felonies.”

He agrees with many of the changes, Acchiardo said.

“One of the things I have a problem with is the way they treat (drug) manufacturing (and) dealing,” he said. “To me, that is as serious as murder and as serious as any of these other things … there’s a difference between the guy who’s using meth and the guy who’s selling meth. This is kind of decriminalizing the whole lot of it. I think that’s a mistake (but) it’s the law and it’s our elected legislature, so we deal with that.” The penalties  for dealing Schedule 1 and 2 drugs such as  methamphetamine, heroin and cocaine do carry “enhancing circumstances” officers must be aware of when they’re conducting investigations, however, he noted. Circumstances that can extend a sentence – called enhancements – include possession of a firearm or presence of a child during the commission of a felony, prior convictions, sale of illegal drugs to someone under 18 years old or in “drug-free zones.”

“The drug-free zones have been shrunken,” Acchiardo said. “You don’t have to be as far away anymore. You can be much closer to some of these places and qualify for that. A prior conviction in any jurisdiction for dealing in a controlled substance, including an attempt or conspiracy … it doesn’t have to be the actual conviction, but it does not include marijuana.”

School buses are drug-free zones under the law, he continued, and that enhancement can be applied for an offense committed “in, on or within 500 feet – it used to be 1,000 – of school property” while anyone under 18 years old and three years younger than the offender “is reasonably expected to be present.” The latter circumstance can be ambiguous unless arrest occurs, for example, at 2 a.m., he added. The same reasonable expectation for minors to be present applies to public parks. Youth program centers and family housing complexes were eliminated, but “if you actually see people out there at the time, that obviously would allow me to enhance these, even though the time may not be exactly when there will be a lot of people there.”

Also included in the revision are changes from sentencing Classes A through D to Levels 1 to 6. Acchiardo discussed them as inserting “minuses” such as “B-minus” to existing classes.

Some drug-possession sentences will be reduced – including going from felonies to misdemeanors –  under the revisions, Acchiardo said, “especially with the pills and things, they really watered this down a little bit. Dealing in marijuana, hash oil, hashish or salvia, this was another change. If it’s less than 30 grams, it’s a Class A misdemeanor. To get it to a Level 6 (Class D), you have to have a prior drug offense, which in most cases probably isn’t that difficult.”

Possession of illegal drugs with intent to sell them will be more difficult to prosecute, the prosecutor continued.

“It used to be if you stop a guy on the road and you find 40 pounds of marijuana in his trunk, you can assume he’s in possession with intent to distribute,” he said. “They’re saying now they don’t like that. They want you to prove that there was some (indicator) of intent beyond the amount. It applies to all drug-dealing offenses, If the drugs are concealed, the presence of a scale, some kind of a drug ledger, some sort of packaging material that shows that they’re going to individually sell them  – all of those show possession with intent to distribute.”

Penalties were significantly lowered for possession offenses, Acchiardo went on.

“We have the ability to divert most possession cases if we choose to,” he explained. “The legislature’s very concerned about separating addicts from dealers. Again, I would have separated the dealers a little bit more heavily than they did.”

“How do we deal with these changes?” he asked the officers. “You just have to be careful and collect additional evidence to the extent you can that shows that there are enhancing circumstances.”

Some changes were made to the statute concerning habitual offenders, Acchiardo said, and possession of a firearm while committing a drug crime can add at least five years to a sentence. A criminal-gang enhancement “can actually double a sentence,” he added.

Changes were also made to traffic laws, the prosecutor continued. License-suspension changes will go into effect Jan. 1, 2015.

“Window-tinting violations now have the same protections as seatbelt stops,” the prosecutor told the police officers. “You’re prohibited from inspecting (windows) or detaining the driver, the passenger or the vehicle for a violation of this statute unless you develop independent probable cause.”

Probationary and hardship licenses will be eliminated, to be replaced with a “specialized driving privilege” for which a driver must carry a court order detailing its conditions, Acchiardo said.

It will become more difficult to be labeled a habitual traffic violator, and once so designated, a driver may be granted a specialized driving privilege. Current law prohibits a habitual violator from holding any license.

A habitual violator who causes serious injury or death will be charged with a Level 5, now a Class C, felony, and “there are no more lifetime suspensions unless you kill someone,” the prosecutor said. Everything concerning leaving the scene of an accident “combines everything into one statute; if you hit something, you have to stop or you’re responsible for the consequences regardless of what you thought you did. For property-damage crashes, the driver is not allowed to simply call the sheriff and leave their information. If they’re unable to locate the property owner, they have to remain at the scene.”

The definition of a highway work zone has been simplified, Acchiardo continued. It had been subject to complicated Indiana Department of Transportation guidelines, but will now mean simply the area between signs designating a zone.

Under the new law, “there’s going to be no more differentiation between mopeds, scooters, motorized bicycles; they’re all going to be motor-driven cycles,” he said. “They all must be registered. They all must be plated. They divide them into two categories. Class A motor-driven cycles require insurance and require an operator’s license. Class B motor-driven cycles, that is with an engine of 50cc or less, no license, no insurance (but) it requires identification” with an endorsement for motor-driven cycles.

In addition, operators of Class B motor-driven cycles must be at least 15 years old, can’t drive on sidewalks or interstate highways or faster than 35 mph, an increase from the current 25 mph.

The use of drones is becoming more common, especially in drug interdiction over large remote areas, Acchiardo said.

With some exceptions he didn’t elaborate upon, he added, “a law-enforcement officer must obtain a search warrant in order to use an unmanned aerial vehicle.”

Officers may not compel someone to reveal contents of electronic devices such as cell phones unless they have consent, probable cause or a search warrant.

Officers also can’t use real-time tracking instruments for cellular devices unless a court order is obtained, upon probable cause or under exigent circumstances, he explained, adding if tracking is conducted based on exigent circumstances, “the law-enforcement personnel must seek a court order based on probable cause no later than 72 hours after initial use.” Those rules don’t apply “with respect to a person required to be tracked or monitored as a condition of bail, probation, parole, community corrections, sex-offender registration or part of a sentence,” the prosecutor continued.

He said theft is now a Level-6 felony “only if it is at least $750 and less than $50,000 or the person has a prior unrelated conviction for theft or criminal conversion. The threshold – $750 – is pretty high.” Indiana is one of the last states to differentiate between misdemeanor and felony theft, he added.

Burglary is currently defined as someone breaking into a building to commit a felony, Acchiardo said.

“My question was ‘what happens if he breaks into somebody’s house and he steals something under $750?’ It’s a misdemeanor … but now they say ‘with the intent to commit a felony or theft.’ So even if it’s misdemeanor theft, that’s still burglary.” Sentencing will depend on the type of structure entered, such as a dwelling and whether injury occurred or a deadly weapon was used.

Acchiardo noted churches were removed as a specific category.

Stealing a firearm can bring a felony charge regardless of its value, he added.
The significant change to arson law, he continued, is that a separate count may be charged for each person injured in an incident.

“Removing and confining” language currently appears in statutes for kidnapping and confinement offenses, but the referral to “removing” now appears solely in the kidnapping law, the prosecutor said.

“Moderate bodily injury” has been added to language in a battery statute and means “any impairment of a physical condition that includes substantial pain,” which is subject to interpretation, he said.

The definition of criminal gang activity is being expanded to include “knowingly or intentionally commits an act with the intent to benefit, promote or further the interests of a criminal gang” or “for the purpose of increasing the person’s own standing or position within a criminal gang.”

As an enhancement, criminal gang affiliation can double a sentence and may not be suspended.

“Sexting” has been added to the criminal code, Acchiardo said, and applies to a person less than 18 years old. The age difference and relationship of the other person and whether “the person depicted in the image or who received the image acquiesced to the conduct” will be taken into account.

“It’s kind of Pandora’s Box,” Acchiardo said. “I know a lot of these kids are doing this stuff.”

“Neglect of a dependent” has been expanded to “reckless supervision of a child” and a new law –  institutional criminal mischief – was created to address recklessly damaging the property of an agricultural operation, he continued. Trespassing will become easier to prosecute as several current requirements are dropped.

Firearms are legal in school parking lots under the new law if the person is legally entitled to possess it, it’s locked in the trunk or stored in the glove compartment or out of plain sight of the locked vehicle.

A new “lifeline law” will provide immunity from arrest to people who help others get medical help when they’ve had too much to drink.

Acchiardo said he raised the last law he discussed “with trepidation,” saying, “we’ve never had an issue with this; I don’t think we ever will … the child-seduction statute now includes law-enforcement officers. Apparently (the legislature) felt the need to include that.”

A 2013 edition of the criminal code includes before-and-after language referring to the July 1 changes but may not be current. “I’ve been told there have been changes made since that” edition was published, Tell City Police Chief Greg Hendershot said.

“What I’m giving you is the most current law that we have today,” Acchiardo said. Further changes could come out of a meeting scheduled for June 20 of the legislature.