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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
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Experience:  Handling criminal and probation matters for over 14 years.
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I was arrested on 7/19/11 for OWI with a BAD of. 15 or higher

Resolved Question:

I was arrested on 7/19/11 for OWI with a BAD of. 15 or higher which is a C misdemeanor in Indiana. I posted bail 10 hrs later and was told by the bondsman that my initial hearing would be august 2nd. When I called to confirm the court date I was told that no charges had been filed. I checked on to see the status of my case and it said on 7/19/11 State's notice of inability to proceed with initial hearing filed. The next action was 7/19/11 Court orders release of defendant due to state's inability to proceed. It should be noted that at the time of my arrest I was not driving and denied that I was driving. The officer who arrested me did not pull me over. He claimed he saw me driving and turned around then arrested me while I was walking into my fathers house. Does this mean they were unable to proceed for lack of evidence? Also how long does the state have to file formal charges and do they have a certain time period to schedule an initial hearing after my arrest.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 5 years ago.
Thank you for using JustAnswer!

The facts that you describe suggest that they were not able to proceed due to a lack of evidence.

You may want to consider filing a petition to have your arrest records expunged so that they don't appear on future background checks. Indiana law outlines how you go about this process:

IC 35-38-5
Chapter 5. Expungement of Arrest Records
IC 35-38-5-1
Petition; grounds; verification; filing; contents; service; notice of opposition; hearing
Sec. 1. (a) Whenever:
(1) an individual is arrested but no criminal charges are filed against the individual; or
(2) all criminal charges filed against an individual are dropped because:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;
the individual may petition the court for expungement of the records related to the arrest.
(b) A petition for expungement of records must be verified and filed in the court in which the charges were filed, or if no criminal charges were filed, in a court with criminal jurisdiction in the county where the arrest occurred. The petition must set forth:
(1) the date of the arrest;
(2) the charge;
(3) the law enforcement agency employing the arresting officer;
(4) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;
(5) the date of the petitioner's birth; and
(6) the petitioner's Social Security number.
(c) A copy of the petition shall be served on the law enforcement agency and the state central repository for records.
(d) Upon receipt of a petition for expungement, the law enforcement agency shall notify the court of the name and address of each agency to which any records related to the arrest were forwarded. The clerk shall immediately send a copy of the petition to each of those agencies. Any agency desiring to oppose the expungement shall file a notice of opposition with the court setting forth reasons for resisting the expungement along with any sworn statements from individuals who represent the agency that explain the reasons for resisting the expungement within thirty (30) days after the petition is filed. A copy of the notice of opposition and copies of any sworn statements shall be served on the petitioner in accordance with the Rules of Trial Procedure. The court shall:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on information contained in sworn statements submitted by individuals who represent an agency, the petitioner is not entitled to an expungement of records.
(e) If a notice of opposition is filed and the court does not summarily grant or summarily deny the petition, the court shall set

the matter for a hearing.
(f) After a hearing is held under this section, the petition shall be granted unless the court finds:
(1) the conditions in subsection (a) have not been met;
(2) the individual has a record of arrests other than minor traffic offenses; or
(3) additional criminal charges are pending against the individual.
As added by P.L.311-1983, SEC.3. Amended by P.L.295-1989, SEC.1; P.L.159-1994, SEC.1.

IC 35-38-5-2
Delivery of records to individual or destruction
Sec. 2. If the petition for expungement is granted, the law enforcement agency shall within thirty (30) days of receipt of the court order, deliver to the individual or destroy all fingerprints, photographs, or arrest records in their possession.
As added by P.L.311-1983, SEC.3.

IC 35-38-5-3
Effect of grant of petition
Sec. 3. Whenever the petition of an individual under section 1 of this chapter is granted, no information concerning the arrest may be placed or retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional, or statewide law enforcement agency. However, this chapter does not require any change or alteration in any record (such as a police blotter entry) made at the time of the arrest or in the record of any court in which the criminal charges were filed.

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Customer: replied 5 years ago.
Can you think of any other reason that the state would be unable to proceed with the initial hearing? How long would they have to decide to file them? Based on my research I am inclined to agree with you, but I am curious as to what kind of time period they have to change their mind. Thanks in advance.
Expert:  JB Umphrey replied 5 years ago.
I was not the officer, the officer's command officer, or the prosecuting attorney that reviewed the charges for authorization. I have no idea what information is in the police report (something that you can request/purchase from the police department records bureau), however, if I were to speculate, one of the key elements of proving an OWI case is that the defendant was driving/operating the auto.

If that element of proof is missing, as you say it is, it would not at all surprise me for the command officer or the reviewing prosecutor to say: "no way," let you go, and they're not going to go back and change their mind.

Now, if this was a different situation where you had refused to take the breath test and they were waiting for lab results to come back from a blood draw, that would be a reason. But that's not the case here. You blew.

Hope this helps!
Customer: replied 5 years ago.
Relist: Incomplete answer.
Expert did not answer my follow-up questions.
Expert:  JB Umphrey replied 5 years ago.
Please clarify: what additional information are you seeking?
Customer: replied 5 years ago.
How long does the state have to file the charges and is there any other reason that the state would file a notice of inability to proceed?
Expert:  JB Umphrey replied 5 years ago.
From the facts that you've described, there is no other reason for the state to file a notice of inability to proceed. Again, you may find it helpful to contact the police department's records bureau and purchase a copy of the police reports related to your arrest.

They have 2 years to file misdemeanor charges in Indiana.
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