Colts owner Jim Irsay won't appear at initial hearing on OWI charges

Indianapolis Colts owner Jim Irsay will not appear in court Thursday for an initial hearing on charges related to driving under the influence of prescription drugs.

Attorneys for Irsay have filed a waiver of the initial hearing on misdemeanor charges of operating a vehicle while intoxicated and operating a vehicle with a Schedule I or II controlled substance in his body.

The waiver, which is stamped with today's date, means neither Irsay nor his attorneys will have to appear for the hearing scheduled at 1:15 p.m. Thursday before Hamilton Superior Court magistrate David K. Najjar.

Steven Stoesz, a Westfield attorney who often handles OWI cases in the Hamilton County courts, said the filing of a waiver is not uncommon in misdemeanor cases in which a defendant has bonded out of jail and retained an attorney.

"The purpose of an initial hearing is for the court to advise a person of the charges they are facing, of their Constitutional rights and to set future court dates," Stoesz explained.

"By retaining an attorney, you are basically advising the court you are aware of your rights and the charges and asking the court to give future hearing dates to your attorney."

Defendants facing felony charges cannot waive an initial hearing, Stoesz added.

Even though Irsay will not be in court Thursday, a plea of not guilty will automatically be filed on his behalf.

Andre Miksha, spokesman for the prosecutor's office, declined to comment on the case.

The next step in the legal process for Irsay will be a pre-trial hearing, likely sometime within the next 30 days.

In the court where Irsay's case landed, pre-trial hearings are typically informal meetings between the prosecutor and defense attorney outside the presence of a judge or other judicial officer, Stoesz said. Defendants in misdemeanor cases such as Irsay's often don't attend those hearings, either.

Where the case goes from there is anyone's guess. Irsay could fight the charges or plead guilty in an effort to put the case behind him as quickly as possible.

His attorney, James Voyles, declined to comment.

Irsay was formally charged May 23 with the two misdemeanor OWI counts, alleging he had "oxycodone and/or hydrocodone" in his system when a Carmel police officer pulled him over at 11:40 p.m. on March 16. The charges carry a maximum sentence of 60 days in jail, typically suspended for first-time offenders such as Irsay.

If Irsay chooses to fight the charge that he was intoxicated by the drugs found in his system, the legal fight would come down to the levels of those substances in his system and whether they would constitute intoxication.

A trial for Irsay could include potentially embarrassing public testimony from police officers involved in the case. Police video of his arrest could be played in court and possibly be released to the media.

"There's the battle if they want to have it," Stoesz explained. "The question is, does the client want to go through all of that."

To prove that Irsay was intoxicated, Stoesz said, the prosecutor would likely call a toxicologist to say the level of drugs in Irsay's system was too high and created an intoxicating effect. The defense would likely provide its own expert to say the levels were normal and did not constitute intoxication.

Stoesz said the defense also could challenge the process and method in which Irsay's blood was drawn for the drug test. That was a tactic used in the trial of former IMPD officer David Bisard after he crashed his squad car into a group of motorcyclists, killing one and seriously injuring others. In the Bisard case, that defense tactic was unsuccessful. But in the case of Milwaukee Brewer's star Ryan Braun, accused of violating Major League Baseball's steroid policy, his attorneys were successful in getting damning drug test results thrown about because of questions about how the testing was conducted and the samples handled.

Most people facing a misdemeanor OWI charge, however, don't have the resources, time or inclination to mount that type of legal challenge, Stoesz said.

"The differences between what an average person and someone like Jim Irsay can do are significant," he said. "It comes down to whether or not they want to take that gamble."

It may be preferable in a situation such as Irsay's, Stoesz said, for attorneys and prosecutors to negotiate a settlement that does not make all of the background information and allegations public. He already dodged the most significant bullet when the prosecutor elected not to file four felony drug charges recommended by police.

When Irsay was arrested in March, police filed four preliminary felony charges of possession of a controlled substance against the team owner. Prosecutors, who do not have to follow the preliminary charges leveled by police, did not file the felony drug charges against Irsay when he was formally charged in May.

The prosecutor's office gave no public explanation for that decision.

Irsay's attorneys released a statement thanking the prosecutor "for devoting the necessary care and attention to determine the facts in this matter did not warrant the filing of felony charges relative to Mr. Irsay's prescription medications."

Irsay, 54, was arrested near Horseferry Road and Main Street in Carmel after an officer saw him driving erratically, according to case documents obtained by The Indianapolis Star.

The report said Irsay was unsteady, had trouble standing and was unable to stand heel to toe. Two officers "continuously had to support Irsay in order to prevent him from falling over," the report said.

Irsay was held for several hours at the Hamilton County Jail. The preliminary drug charges were related to pills found in Irsay's vehicle for which he could not immediately provide proof of a prescription. It's unknown whether Irsay subsequently produced prescriptions.

According to police, Carmel officers who took an inventory of Irsay's vehicle "recovered numerous prescription medication bottles containing pills." During the inventory, officers also reported finding $29,029 in cash.

Police records listed 11 pieces of evidence under the notation of "drugs/prescription," but it's unclear if that meant 11 pills or 11 different types of pills. A news release from Carmel police said they were Schedule IV prescription drugs. Those types of drugs include Xanax, Darvocet, Valium, Ativan and Ambien.

Irsay also faces discipline from NFL commissioner Roger Goodell. The league's personal conduct policy says: "It is not enough simply to avoid being found guilty of a crime. ... (Y)ou are held to a higher standard and expected to conduct yourself in a way that is responsible."

Call Star reporter Tim Evans at (317) 444-6204. Follow him on Twitter: @starwatchtim.