Marijuana.com

pimpskillet

This is a long story, and i'm thinkin I may have screwed myself here in the long run. About 3 1/2 years ago I was on my way to work early in the morning hours, on state road 331 northbound. My truck was set on cruise at 55 mph, as i wasnt in any hurry, and was getting paid for my drive time. The road is perfectly straight, clear morning, and I see a single car coming my way. As i get close to this car, he slides off to the edge of the road and when i pass, he turns around. No suprise this is a state cop, he pulls me over with the usual, do you know what i pulled you over for, and obviously I have no clue, figure he's just harassing me or maybe my truck looks like someone elses he's dealt with in the past. He tells me i was speeding, and i kind of laughed at him, and handed him my information, think nothing of it, and he goes back to his car.

When he comes back to the truck, he asks me if I've had anything to drink.. once again I chuckled and said no, of course not, maybe its my attitude or something else, but he asks to look in my truck. I have nothing to hide, so like a moron, i let him look. In my cup holder in plain view the entire time, I have a tobacco pipe, that is a lot of times used for smoking marijuana. But there is clearly tobacco in it at the time, so when he finds it, i'm not concerned in the least. I explain to him what it is, and he's not listening to me already. He has me come back to his car with him, and he tries to give me a verbal feild sobrity test, nothing along the lines of walking a line or anything, but writes in his report that I passed his tests fine, but he thinks I did them a little too fast, and this is even in the court documents.

He tells me he thinks i'm intoxicated, then tells me I have to go with him for a urine test, and if i refuse my liscence is instantly suspsended reguardless of anything. At this point I'm becoming a little upset with the entire thing after all, if i do take the extra hour or two to go with him, I'm late for work, and since i'm a new employee, i'm going to get fired for sure. I explain to him again, that its tobacco he's holding, but he does nothing to try to investigate, just tells me to go with him or i'm under arrest. So eventually I do go with him, and to be completely honest, I cant say I have never smoked marijuana, but never during the week, and for sure never before I go to work. By definition his 'evidence' is strictly a tobacco pipe, as there is no residue from anything except tobacco in his possession, to define it as paraphanelia. In my state paraphanelia is this...

IC 35-48-4-8.3
Possession of paraphernalia
Sec. 8.3. (a) A person who possesses a raw material, an instrument, a device, or other object that the person intends to use for:
(1) introducing into the person's body a controlled substance;
(2) testing the strength, effectiveness, or purity of a controlled substance; or
(3) enhancing the effect of a controlled substance;
in violation of this chapter commits a Class A infraction for possessing paraphernalia.
(b) A person who knowingly or intentionally violates subsection (a) commits a Class A misdemeanor. However, the offense is a Class D felony if the person has a prior unrelated judgment or conviction under this section.
(c) A person who recklessly possesses a raw material, an instrument, a device, or other object that is to be used primarily for:
(1) introducing into the person's body a controlled substance;
(2) testing the strength, effectiveness, or purity of a controlled substance; or
(3) enhancing the effect of a controlled substance;


and since i was smoking tobbacco out of it, its not a controlled substance that i'm aware of, hey i bought it in the same state, and that state took the tax money from it and then prosecuted me with that money? I'm confused here....

I failed his urine screen, therefore causing me to get arrested, and all the nifty things that go along with that. Lost my job, and got in to a neat mess in court. At first the court wouldnt let me have a court appointed attorney, and told me to get my own. With no income, and a child I had a hard time trying to figure out what his definition of 'indigent' was. So I never pled, just kept asking for more time. After my 4th or 5th trip, he realized I couldnt afford it, and set a hearing to determine if I could get a pub attorney. I talk to him and he tells me more or less, just to plea, working with this judge on anything is pointless, and not worth his time, just sign this, and if i'm not the person they say I am I'll be fine, and the per se laws arent like A DUI. I didnt like his answers or advice, so i told him I needed to think about it. But without a liscence to drive, and the internet at the time to research, my options were pretty limited. After 7 or 8 months of back and forth, I get tired of them not listening to me when I say he had no right to search my person, because he has no evidence. The judge wont entertain the idea of testing the pipe, so my only proof that I know of that i have is not going to get a second look at all.

Disgusted, and annoyed I pled guilty, and took some class, and put me on probation for a year. Now the time comes when I've had 3 $35,000 - $45,000 dollar jobs fall right thru my fingers due to this crap on my driving record. All in all, the meat of this is truly that I had my civil rights violated by a cop who abused his powers, and a small corrupt town who cares nothing about the law, just their tax money, and 'income' from out of towners. I

Is this completely set in stone? Do i need to write a congressman? Or a state representative or what? The public defneder said that a dui / dwi dosent make it to a higher court so I felt stuck, and trapped into a web of crap that I never did. I'm not a perfect person, and have made mistakes in the past, but I've also been on 2 different fire departments, and a first responder, and do a lot of things to help my local community out in general. I have never had an OWI or anything of the sort, and just find it funny they were so adamit about prosecuting me. This just cost me another job as of yesterday when they pulled my driving record, and took my new work van, laptop, plane tickets and all that away. Now i've gone from upset to pissed off. Any and all help would be greatly appreciated. Thanks for your time.

Eric

 

melman

It does seem that probable cause was seriously lacking,therefore he had no reason for anything that followed.OTOH you consented to a search. I'm hoping Phuzz or Niteshift will come along and correct me if I'm wrong. You most definitely had a lack of effective counsel, which I believe, could be grounds for a retrial. Sorry brother, I know you didn't want to hear that and have to relive all of this. PD's are notorious for this.Most want to get you to "cop to the rap" so they can get back to their more profitable career. Can't see much to blame the judge about,except dragging butt about the PD. I don't care what anyone says, YOU DID NOT HAVE EFFECTIVE COUNSEL. But you have to ask yourself, is it worth it to go through it all over again? What will you gain? You won't even get an apology.

I don't know where you got the idea that your "tobacco"pipe will withstand any test if you have smoked pot in it. There will still be residue. I think the best you can hope for (with an excellent attorney) is to get your license re-instated and this violation expunged from your record. But if it allows you to get better jobs it MIGHT be worth it.

__________________
I may not agree with what you say, but I will defend to the death your right to say it!!

phuzz01

If you really did nothing wrong, you should have plead not guilty and taken it to trial. Make the state prove your guilt beyond a reasonable doubt. Also, the facts in your story do not add up. If the only thing that the trooper had is you going the speed limit, passing all of the SFSTs, and a pipe full of tobacco, you would not have been taken in for a urine test and charged with DWI drugs. I think you are probably leaving out some relevant details.

As far as a civil suit, be my guest. You'll spend a ton of money on an attorney, and the trooper will get paid overtime to appear as a witness. The argument in a civil suit would be that by arresting you, the trooper somehow violated your civil rights. Yet, seeing how you have pled guilty and been convicted of the offense for which you were arrested, I can't see any way how you could possibly win.

pimpskillet

well that pipe was more nostalgic than anything to me, true at one time i smoked out of it, but it had been boiled, then bathed in alcohol a few days and times to clean it out, it was shiny again, but then became black from tobacco tars, belevie me it would and should test fine.. my next question is, that dont they have to keep the evidence they collect for a # of years? and yea i shouldnt have concented, but i had to go to work and didnt want to get him upset, and waste my time... oh well.. live and learn i suppose well my liscence is fine now, this was 3 years ago.. i want the expunged part, and possibly the $$$ i lost from being an independant electrical contractor for 3 years.. to me thats a lotta money thats not in my pocket or my sons mouth, know what i mean?

pimpskillet

the only thing i can think of was my cocky smart ass attidude, but at 6:30 in the am when i've already been driving for an hour, i was a little tired, but thats it, i promise you. so my question stands... possibly an old possession could show up on his computer when he runs my liscence, prompting him to be 'leery' ?! these things i dont know, and i dont think the law wants me to know...

 

phuzz01

According to the OP's story. What do you want to bet that the trooper's account of the facts is different?

I don't know about the OP's state, but in mine, DWI is a Class B Misdemeanor, which does not attach right to counsel. In my state, for DWI, somebody has to hire their own attorney or represent themself. Also, there does not appear to have been a trial in the first place, therefore no retrial. In pleading guilty, he most likely signed an acknowledgement AND WAIVER of rights form.

That's funny, seeing as most PD's have nothing to do with how the case is disposed of in court. They pass their reports to a prosecutor, and the prosecutor decides what to do with it from there.

melman

All I meant was that the less amount of time they have to spend on a "PD" case is more time they can spend with their private practice,thus the opportunity to make larger sums of income. which is why I believe that many PD give short shrift.

pimpskillet

well of course his story will be a little different, I'm not just some stupid kid here man. The state is Indiana, and yes i did sign a waiver, but oj wasnt guilty in court, but he was in a civil suit. This has hurt my career, do you have any idea how much more i have to pay for liabilty insurance for doing residential / commercial electrical work WITH a DUI ? It has made a difference in my life, and I didnt do a damn thing wrong this time.... feel free to ask any questions, I'm here to figure this out not start a fight..

troublemaker_42

By pleading guilty when you were not, you pretty much limited your options pretty severely. Whats done is done, and you really have little recourse at this point. Your best bet would have been to take this to trial. However, you chose to plead guilty, rather than fight what you see as an inappropriate charge. I do sympathize with you, as I too have TWO DUIS on my record (but I honestly deserved both), but you basically ruined any changes for fighting it. Here in SD, the governor occasionally pardons people for professional reasons such as you have stated. That may be one avenue to pursue, if it ever happen in IN. Denying guuilt, however, won't help the pardon process. If you are going to go for a pardon, simply make your case by stating that you've stayerd out of trouble, learned your lesson, and that it won't happen again. It may be a bitter pill to swallow, but you actually stand a better chance of it going away that way than denying responsibilty, or fighting the charge in any way.

phuzz01

I'm just saying that it is not standard practice for us to pull people over that didn't commit any motor vehicle violations, to perform field sobriety tests on people that don't show any signs of impairment, and to take people that pass the FSTs to perform a chemical test. There's got to be more to the story. But without the trooper's side (i.e. police report), how are we to know what really happened?

Let me try to explain this again. If you sue the State of Indiana over this incident, you are arguing that the trooper violated your civil rights for arresting you for a crime that you did not commit. Furthermore, you have to show by a preponderance of the evidence (i.e. >50%) that the trooper either knew that you had done nothing wrong and arrested you anyway, or that he did so negligently.

All that the State has to do to defend itself is present your signed waiver in court. They can say: "the plaintiff admitted that he was guilty, and he was convicted of the offense in a court of law." There is no way, then, that the State is going to be found "responsible" for an unlawful arrest for which there is a plea and finding of guilty in a criminal court. In fact, there is no way that a judge would ever let your lawsuit even make it into court. It would be dismissed well prior to that.

If you really were not guilty of this, then you shouldn't have signed a waiver stating that you understand all of your rights (i.e. right to a trial, right to make the state prove beyond a reasonable doubt, right to discover exculpatory evidence, right to call witnesses on your behalf, right to cross-examine state's witnesses), and that you WAIVE them. Once you waive all of your rights and choose to plead guilty, you just have to live with that choice. You can't change your mind after you have been sentenced. And especially not 3 1/2 years later.