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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27708
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my son was arrested for a DUI in the state of OHIO in Jan 2011

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my son was arrested for a DUI in the state of OHIO in Jan 2011 and was taken to Jail on Public intoxication yesterday in the State of Indiana, will his punishment be more severe because of his prior arrest. will the judge know about his prior arrest?

The court should have a copy of your son's entire criminal record. So, yes, both the prosecutor and the judge should know about his prior offense.

This offense, even if it is his second alcohol related offense is a less serious offense than a DUI. You can see the Indiana law here:

IC 7.1-5-1-3
Public intoxication prohibited; failure to enforce by a law enforcement officer
Sec. 3. (a) Subject to section 6.5 of this chapter, it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance (as defined in IC 35-48-1-9), if the person:
(1) endangers the person's life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.
(b) A person may not initiate or maintain an action against a law enforcement officer based on the officer's failure to enforce this section.

A class B Indiana misdemeanor can be punished by up to 6 months of jail and a fine of up to $1,000. I do not see jail as a real possibility in this instance, despite a DUI in another state 2 years ago. He's going to end up with a fine, and I would not expect even the amount of the fine to be enhanced due to a two-year old DUI in another state. This time, he was not driving. He was likely just disorderly and loud.

Customer: replied 4 years ago.

since this is second offense do you think it is possible to be eligible for the pre trial diversion program the county this happened in gives this to most first time public intoxication offenders he was in Bloomington Indiana At IU but the arrest happened at an off campus area

Hi Linda,

This is going to depend on the policy in the prosecutor's office. There's no legal reason that he couldn't get diversion but his eligibility would be determined by the prosecutor who may not wish him to have it.

If pretrial can't be negotiated, however, a lawyer may be able to get him a deferral. Generally that has more stringent rules of supervision, but it would come down to a dismissal at the end as well if he completed his program successfully. It heightens his accountability which would appease the prosecutor, but won't ruin his life and would be a perfectly reasonable alternative.
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