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Courts

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Refusing blood test order gets DWI suspect 90 days

– James Osenkowski Jr. will be spending the holidays in the Allen County Jail.

On Thursday, he was sentenced to 90 days in jail by Allen Superior Court Judge Wendy Davis for refusing a court order to have his blood drawn after he was arrested for operating a motor vehicle while intoxicated.

He is the first to be so charged under Allen County’s new policy dealing with those who refuse to submit to certified chemical breath tests and blood draws.

In September, Allen County Prosecutor Karen Richards announced a shift in how her office will handle drunken-driving arrests and suspects who refuse to submit to a certified breathalyzer test at the jail.

Now her office obtains a search warrant from a judge forcing the driver to stick an arm out and get a blood test.

While Indiana law requires anyone who refuses chemical breath tests to have his or her driver’s license suspended for a year, the refusals left prosecutors with little or no evidence to effectively prosecute the case.

According to Chief Deputy Prosecutor Michael McAlexander, Osenkowski, 27, of the 4800 block of Franke Road in New Haven, was pulled over in the 5600 block of St. Joe Road on Nov. 18.

He blew a blood-alcohol concentration of 0.20 percent, more than twice the legal limit of 0.08 percent, on the portable breath test.

But when Osenkowski was taken for a formal breathalyzer test, he refused the certified chemical test. When prosecutors obtained the warrant from Davis, Osenkowski continued to refuse, McAlexander said.

According to court records, Osenkowski has prior convictions for drunken driving, which makes another arrest a felony.

He is now formally charged with DWI with a prior conviction as well as driving while suspended, according to court records.

When he appeared in court Thursday morning for a hearing on a charge of indirect contempt, Osenkowski was subdued and remorseful, apologizing profusely to the judge for refusing her order on Nov. 18.

Davis said his remorse kept him from getting a sentence of 180 days on the indirect contempt charge.

Indirect contempt involves obstructing court process or refusing a judge’s order outside the presence of the judge. Direct contempt involves misbehavior within the courtroom or in front of the judge.

The warrants give the prosecutors the ability to force a suspected drunken driver to comply with a blood draw, but McAlexander said they do not want to see anyone get hurt.

So the judges are holding those, starting with Osenkowski, in indirect contempt. Prosecutors originally asked for a sentence of 180 days in jail for Osenkowski. Davis declined, citing his obvious remorse.

Since the policy change, prosecutors have had to seek fewer than 20 warrants for the blood draws. McAlexander said that the arrested person usually complies when the consequences are spelled out for them.

So far, about five people have refused and are in the process of being held in contempt of court.

Those in jail for contempt of court do not receive any time cut off their sentence for good behavior, as one would if serving time for a felony or a misdemeanor.

Osenkowski won’t get out of jail on this charge alone at least until the end of February.

rgreen@jg.net

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