By now you’ve heard that Marion County Prosecutor  Terry Curry is re-filing DUI charges against David Bisard for the August 2010 fatal crash that killed one motorcyclist and seriously injured two others.  If you’re wondering why, well there are two answers.  One is easy, the other is a little more complicated.

The original DUI charges were withdrawn because then prosecutor Carl Brizzi said the law had not been followed regarding blood draws for fatal crashes.   Brizzi said the blood draw should have been done at a hospital, not a Medcheck facility and therefore the evidence, in his judgment, would have been inadmissible in Court.

During the campaign Curry said he would have filed the DUI charge and if he got elected he would.  That was the easy part.   Where it gets a little complicated is with the second answer.  During his Wednesday news conference Curry cited a recent ruling by the Indiana Court of Appeals as the rationale behind his decision.

The case was Temperly v. State of Indiana.  (see below) The facts are somewhat similar to the Bisard case.  In Temperly, the Defendant was involved in a fatal accident and tested positive for alcohol.  He was tried and convicted.  Temperly challenged his conviction on a number of grounds, including   evidence of the blood alcohol test was not admissible under Indiana Code 9-30-7.   He argued that he was being prosecuted under another section of the Code, 9-30-5 which did not allow for evidence to be admitted under 9-30-7.  The Court did not buy that argument and upheld Temperly’s conviction.

If  I understand Curry’s argument correctly, he is using that same logic; that as long as the blood test followed the procedure laid out in 9-30-7,and Section 9-30-6 there should not be a problem.

If you want to jump off at this point, I won’t be offended.  If you are a glutton for legal punishment, let’s go a little further.

Since the blood draw was not taken at a hospital, the former prosecutor withdrew the charges.  However, since the statute says “A law enforcement officer MAY transport…” a defendant to the hospital Curry’s argument, if I understand it correctly, is that “may” does not indicate a command so law enforcement has some discretion in whether to follow the rule.

However in the previous citation the law says an officer “shall” offer a portable breath test or chemical test to any person who the officer has reason to believe operated a vehicle that was involved in a fatal accident or an accident involving serious bodily injury.  Therefore Curry argues that as long as there is test for alcohol and it follows proper procedure, the blood draw is admissible.

Yes, this whole case may come down to one or two words and what they mean.   Now when I asked the current prosecutor to explain his legal argument during the news conference he declined, however he did agree to come on the radio program next week and help spell out his argument.

I will definitely update this post as soon as that happens, but for now this may have to do.  A copy of the case is embedded below.

Let the school reform begin!  That’s all I could think of when I heard Indiana Governor Mitch Daniels State of the State address Tuesday night.  Daniels spoke for about 32 minutes and half that time was spent outlining his plans to reform education in Indiana.

In a nutshell, here is what the Governor wants to achieve…

• Create more school choice by permitting a portion of school funding to follow current public school students to attend accredited private schools.
• Create more charter schools by creating a new statewide charter school authorizer and allow charters easier access to unused school facilities.
• Evaluate and compensate teachers based on student performance by assessing teachers annually using locally developed evaluation tool and free schools to build their own salary schedule and compensate teachers based on effectiveness.
• Modernize collective bargaining contracts limiting the scope of union contracts to wages and wage-related benefits, contracts can only be set for the known budget cycle and give schools more freedom to set personnel policies.
• Authorize the State Board of Education to grant schools more waivers.
• Permit high school students to graduate a year early and receive a $3,5000 which could be used toward attending any Indiana postsecondary education institution.

I can already here the moaning and gnashing of teeth from the ESQUE (Education Status Quo Establishment).  My counterpart Jon Easter blogged this morning about the gloom and doom of education reform.  In all due fairness, I do believe that people, like Jon, have their hearts in the right place, I just can’t figure out where their heads are.

You cannot tell me that abysmal graduation rates are acceptable.  You cannot tell me that a union contract where layoffs occur based on the last four digits of a teacher’s social security number or dictates when a school can hold an open house or what the temperature of the teacher’s lounge must be are acceptable.  And please don’t tell me that keeping poor African-American children in failing schools with no hope for them to get out is acceptable.

If you are going to oppose education reform as laid out by the Governor, that’s fine.  A healthy debate is a good thing.  But like most issues, a debate isn’t a one-way conversation.  Please bring something to the table.  Please bring an idea or a thought.  Bring something to the table that will lead to improving the quality of education of Indiana.

And if you don’t plan to lead or join the education reformation, please be kind enough to get the hell out of the way so grown folks can get some real work done.

The reformation has begun!

Here’s some reaction to Governor Mitch Daniels State of the State address.  Is anyone really surprised?

Pat Bauer, House Democratic Leader

“Yet for the seventh year in a row, our governor does not use his State of the State speech to talk about the number one problem that concerns most Hoosiers: jobs. This is the address that is supposed to define his vision to the people of Indiana, but when it comes to getting Hoosiers back to work, this governor is wearing blinders.   “Our state’s unemployment rate has hovered around the 10 percent mark for far too long. “We have fewer Hoosiers working now than when this governor took office. “While Mitch Daniels, the candidate for governor, said he was ‘unwilling to stand still while Hoosiers earn 91 cents for every $1 earned by the average American,’ Gov. Daniels chooses to say nothing as Hoosiers now earn close to 85 cents for every $1 earned by the average American.

Jim Merritt, Republican State Senator, Indianapolis

“Indiana Senate Republicans say their caucus stands ready to work with Gov. Mitch Daniels and other lawmakers to balance the state’s two-year state budget and to consider reforms outlined in Tuesday’s State of the State Address.  Gov. Daniels’ remarks have set the tone for a productive legislative session. I believe as lawmakers we need to take these ambitious ideas, build upon them and make lasting improvements to how we educate Hoosier children now and for generations to come.”

Vi Simpson, Senate Democratic Leader

“I was disappointed that the governor did not spend time tonight addressing what is on the minds of over 300,000 unemployed Hoosiers – Jobs. The real state of our state is that too many Hoosiers are out of work and the wages are dropping. “The state’s fiscal condition right now reflects that of Indiana households – high uncertainty about income and tough decisions on how we can best spend limited dollars.  “Governor Daniels has said the overarching vision of his economic plan is ‘to meet the national average in per capita income and average annual wages by 2020.’ Instead, our average personal income has fallen from 34^th in the nation to 40^th. The average income of Hoosier workers has dropped from 90 percent of the national average to 85 percent since 2004. That means we’re not recovering faster than other states…”.

Greg Ballard, Mayor of  Indianapolis

“Under the leadership of Governor Mitch Daniels, Indiana continues to achieve successful government reforms and is well-positioned for future growth. Governor Daniels has aggressively pursued policies that have positioned the state as a national model for infrastructure improvements and attracting private sector jobs and investment, and this has a direct, positive impact on moving the City of Indianapolis and its residents forward. I applaud Governor Daniels for his stewardship, and I thank him for being such a great partner for Indianapolis.”

David Warrick, AFSCME 62

“I commend Governor Daniels for his comments this evening. I respect his commitment to the people of Indiana.  “Governor Daniels has properly stated that the key to putting people back to work and growing the middle class is protecting the jobs that Hoosiers have while seeking opportunities to create new ones. Keeping police officers on the street and teachers in the classrooms means a stronger economy. Starving public services that Hoosiers rely on most is not the way to solve our current budget challenges.  “Some politicians have recently taken to blaming public employees and long-established labor laws aimed at protecting Hoosier workers for our depressed economy. This misinformation is a smear tactic at best. It is imperative that Governor Daniels attacks the real problems facing our state, not the imagined ones.

Eric Holcomb, Chairman Indiana Republican Party

“Governor Daniels delivered another annual reminder that our work is never done and taxpayers can count on this session to be another bold assignment.   While Indiana occupies the pole position when it comes to balancing our budget, living within our means, and creating the best place in America to do business,  the Governor rightly points out it’s no time to rest.  He mentioned multiple areas where legislators and citizens alike have an opportunity for historic accomplishment. “

Despite issues concerning the budget, redistricting and local government reform, Indiana Governor Mitch Daniels spent most of his 7^th State of the State address to address the issue of education reform; which is expected to be the most contentious issue this legislative session.

The Governor called for expanding school choice by allowing a portion of school funding to follow public school students who attend accredited private schools.  Allow more charter schools by creating a new statewide authorizer of charter schools.  It would evaluate and compensate teachers based on student performance.  It would also allow for teacher contracts to be based more on wages and benefits and less on non-educational items, like the temperature of the room or what days staff meetings can be held.  In addition, contracts could be no longer than the state’s two-year budget cycle.  And the high school students who graduate early would be allowed to take a portion ($3,500) of the costs of their fourth year of school and apply that to their first year of college.

With respect to the budget, the Governor called for no tax increases, keeping the state reserves on the positive side and staying away from raiding pension funds and delaying payments to local governments.  He also called for taxpayer refunds when state reserves top 10 percent of annual needs.  He asked for bi-partisan report with respect to redistricting, reforming the state’s criminal justice system and reforming local government; he got polite applause on that last one.

In all, the speech was pretty standard with the Governor, re-iterating themes he’s spelled out for the past few months.  If you were looking for sign that Daniels was running for President, it wasn’t there.  This was a speech that focused on Indiana and Indiana issues.   But then again, it’s hard to run for President if you can’t even run your own state.

As you know Melina Kennedy formally announced Monday she is running for Mayor.  Although her staff did not provide copies of the speech, they did embed it in her website.  I used that to transcribe the speech.  I got about 98% of it, anything omitted were stumbles and small things that had no bearing on the content.   (If you don’t trust me you can compare the two).

Speaking of comparison, it’s interesting how Melina and incumbent Mayor Greg Ballard both portray the City and it challenges.  I’ve embedded a copy of his re-election announcement as well.  I’d be interested to see who you think is closer to reality.

FYI:  I did a word count of both speeches, less than 150 words of text difference between the two.

Editor’s Note:  I realize the point of this blog post is likely a giant waste of time, but heck, sometimes you have to give it the old community college try!

*********

At 11 a.m. today former Deputy Mayor and candidate for Marion County Prosecutor Melina Kennedy will “officially” announce that she is running for Mayor of Indianapolis.   In reality Melina has been running for the job for quite a while; she announced back in August of 2009 that she was forming an exploratory committee.  She’s been going around town speaking at political and neighborhood events and while she hasn’t outlined any specific policies or how she will pay for all the programs she’s promising or what she would do differently than the incumbent Greg Ballard, she hasn’t done a bad job at raising money ($900,000+).   Melina will be a good candidate and she will be a tough competitor, although a close look at her record will likely paint a much different picture than what she will advocate over the course of the campaign.

However, the point of this post isn’t to go into her record, because there will be ample time to walk through that over the next 10 months, but to establish some ground rules now so we don’t have to revisit this issue.  Yes, I do like the current occupant of the 25th floor.  I’ve known him long before he got the job and I frankly don’t he’s done too badly.  They’ve had some missteps along the way, but that’s any administration.  And by any objective measure, I think Indianapolis is doing quite well, overall, compared to a lot of other cities here in the United States; despite the national climate.

Now I know this is the part where you tell me I’m biased, well you would be correct, I am.  I am a political commentator so I get paid to offer up an opinion.  However, like the saying goes, “we are entitled to our own opinions, not our own facts”, so I can assure you, as well as the Kennedy campaign, because I know they read this blog daily that any statement I make regarding Melina will be backed up by the facts.  And if they think I’ve gone too far, they have an open invitation to come on the airwaves and chat.  There’s a good chance we will disagree but she will get a chance to be heard and present her point of view.

Anyone who is familiar with my history with Melina knows the prosecutor’s race back in 2006 wasn’t one of the best moments in our relationship.    However, 2011 is not 2006, so I’m extending the olive branch all she has to do is take advantage of the opportunity.   And think of it this way, as a close Democratic friend told me Friday, if Barack Obama can go Bill O’Reilly’s show the day of the Super Bowl, surely Melina can come sit and visit with humble, little old me.

Of course, my sneaking gut feeling tells me my offer is going to fall on deaf ears, but hey, here’s a chance for Melina to do something her fellow Democrats have been trying to for years, prove me wrong.

While working out Saturday afternoon I nearly fell off the cross-trainer when I saw the story about the shooting of Arizona Congresswoman Gabrielle Giffords.  Giffords was seriously injured, a federal judge was killed along with five other people and 13 were also injured.  It’s unclear at this time what the motives of the alleged shooter, Jared Loughner, 22, were.

Incidents like this really hit home for me for a couple of reasons.  First, as someone who covers politics and attends a lot of these types of  gatherings, having to worry about your personal safety because some lunatic may have a gun and start shooting is never a good thing.

Secondly, there is no excuse for using violence to effect change.   If you have a problem with an elected official, you take your rear end to the voting booth, not the gun store.

Although ultimately the shooter, and anyone who assisted him is responsible for their actions, I frankly think a lot of people on the broadcast side of the business I engage in daily really need to do a self-check over some of the stuff we put out over the airwaves.  It’s one thing to be passionate about an issue and advocate change, but some of my fellow broadcasters can go way off the deep end.  Whether they are on the left, accusing individuals of racism where none exists, or on the right engaging in wild-eyed conspiracies about gold and the Federal Reserve.

I thought it was interesting that Kyle Walker and Ed Treacy both put out a joint statement Saturday condemning the shooting.  That goes to show that violence is not a partisan issue, nor does it discriminate who its victims are when it goes on a rampage.

I have a few questions for my friends who oppose school choice, one of the biggest issues facing lawmakers this legislation session.   Do you think a student attending Notre Dame should get federal financial aid assistance?   Or for that matter, how about someone attending Butler University?  Valparaiso?  The University of Indianapolis?  Kaplan College? Everest College?  Depauw?  Franklin?  If your answer is “yes”, which of course it should be, you should not have a problem with public dollars helping pay for private education at the elementary and high school level.

One of the biggest arguments my friends who oppose school choice make is that it takes money that should go to public schools and gives it to private institutions.  As you can see by my examples above, by following that logic no student should get financial aid to attend a private college or university because that takes money away from traditional public institutions.

Well what about tax dollars going to religious schools?  Doesn’t that violate the Establishment Clause of the Constitution?   It depends.   If you’re giving direct tax dollars to St. School on the Left you are correct.  However, the U.S. Supreme Court has ruled that school voucher programs where the parents are making the choice and not the government are perfectly fine.   As long as three basic criteria are met.

1. The parents or students decide which school to attend, not the state.
2. The program does not create a financial incentive to attend a parochial school.
3. The program doesn’t create a an ongoing state presence in a religiously affiliated school.

I have a feeling my friends who oppose school choice are confusing “public education” with “publicly funded education”.    “Publicly funded education” simply meas schools are paid for with tax dollars and not run by the government.  This is why school choice, if done right, does not run afoul of the law.

It is well established that tax credits which reimburse parents for certain education expenses are perfectly legal and acceptable.  So why not give a parent a check, based on whatever funding formula necessary, and tell them to go pick the accredited school of their choice?  How is this hurting the Republic?   Schools can compete for those dollars and offer parents a wide variety of educational options.  We get better schools, parents get better choices!  Who can argue with this?

And if I were a public school administrator, I would welcome the competition.   And please, spare me the “public schools have to operate under a different set of rules”.  There are number of waivers schools can apply for to reduce state red tape, but here is the dirty little secret,  a good number school administrators like the red tape, that way they can use it as an excuse for not getting anything done; but that’s another blog post for another time.

So if you are one of my friends who oppose school choice based on the theory that you don’t like public money going to private schools, then I am sure you will lobby your state and federal lawmakers to make sure that students at the Art Institute of Indianapolis, Marian College, Martin University and St. Mary’s College never get a dime of federal assistance to attend school.

Good luck with that one.

There have been a few items of note worth reporting this morning for your amusement and entertainment so here they are….

House Minority Leader Pat Bauer won’t say whether Democrats will exercise the “walk out” option this session as a way to halt the Republican agenda.  The last time Democrats were in the minority, 2005,  they walked out and denied the Republicans a quorum, which in effect killed a number of bills on Governor Mitch Daniels’ agenda.  Although the GOP has a 60-40 seat majority in the House, they need at least seven Democrats to conduct business.   Bauer tells me protecting education and working families are their priority and will do what they can.  He also disputes the term “walkout” he says Democrats engaged in a “lengthy caucus discussion” over important bills.

Newly sworn in Secretary of State Charlie White tells me the investigation into allegations he committed voter fraud won’t be a distraction as he begins his term as Secretary of State.  In a Thursday news conference, White told a group of reporters that he “did not commit voter fraud” and says he will “cooperate with investigators”.    White is accused of voting from his ex-wife’s residence although he owned a condo in another part of Fishers.  Special prosecutors investigating the case are expected to turn their findings over a grand jury next month.

About 200 members of the Indianapolis Fraternal Order of Police showed up Thursday night to vote to continue providing legal representation for David Bisard who is accused of driving drunk and killing one motorist and seriously injure two others.  I’ve spoken about this before.  All I can say now is that it is their union, they can do as they wish.

I am five seconds off of giving Dr. Eugene White a new title, “The King of Scotland”.   If you ever saw the film toward the end of the movie Ugandan Dictator Idi Amin really starts to go off the deep end.  I’m thinking Dr. White is starting to have the same problem.  In a recent meeting with Marion County lawmakers he reportedly accused Tony Bennett and the Indiana Department of Education trying hurt IPS by sitting on graduation rate data that was favorable to the school district (yeah, right).  In the past,  White has accused the DOE of engaging  in a “hostile takeover” of the district.  Someone get that man a pair of olive khakis and some medals.

When the Indiana House of Representatives convened on time Wednesday afternoon I made the crucial mistake of getting my hopes up.  I thought to myself that the partisan wrangling would be over and these guys whom I have covered for the past six years will have their act together; not so much.  What should have been a half-hour session turned into two hours of my life that I will never get back.

It took 20 minutes into the session for House Democrats to raise Rule 115, which requires bills to be read by number, title, author and committee reference when introduced on first reading.   A member can object to a bill being read but if he or she doesn’t get a majority in favor of their objection, the bill goes to committee.   Democrats rarely used the rule when they were in the majority.

What this was really all about were two bills regarding “right to work” which House Democrats wanted draw attention to.   Democrats are not big fans of “right to work” and even the Governor has said he’d like to focus on other priorities.  They argued that the “right to work”  bills were bad for Indiana and wanted to stop them before they got out of the gate.  Republicans argued the bills should get a fair hearing and Democrats were being obstructionist and playing partisan politics.

I would find the House Democrats argument more credible if they had followed the rule when they had the majority.  However the one thing their move did illustrate is that when you’re in the minority,  you better know the rules because at times, apart from walking out, that’s all you’ve got.  So  if I were the majority, I’d brush on my rule reading real fast and real quick!