ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Ruth Johnson Joby D. Jerrells
Marion County Public Defender Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Jun 28 2011, 4:01 pm
Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court
No. 49S04-1101-CR-24
BRENDA MOORE, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49F10-0812-CM-276934
The Honorable Israel Cruz, Commissioner
_________________________________
On Transfer from the Indiana Court of Appeals, No. 49A04-1001-CR-46
_________________________________
June 28, 2011
Dickson, Justice.
Brenda Moore appeals her conviction of Public Intoxication, a class B misdemeanor.
Her sentence was modest.1 A divided Court of Appeals panel reversed. Moore v. State, 935
N.E.2d 301 (Ind. Ct. App. 2010). We granted transfer and now affirm the conviction.
Indiana Code § 7.1-5-1-3 states, "It is a Class B misdemeanor for a person to be in a pub-
lic place or a place of public resort in a state of intoxication caused by the person's use of alco-
hol or a controlled substance (as defined in IC 35-48-1-9)" (emphasis added). Established
precedent has long recognized that a person in a vehicle stopped along a highway is in a public
1
The trial court sentenced her to 180 days but suspended 174 days and gave her credit for three
days served before trial.
place for purposes of the public intoxication statute. Miles v. State, 247 Ind. 423, 425, 216
N.E.2d 847, 849 (1966).
On appeal, the defendant notes the standard of review for a claim of insufficient evi-
dence, but she presents no argument asserting this claim. She concedes that she was intoxicated
in a public place under Indiana law but seeks reversal of her conviction alleging (1) that it "vi-
olates the spirit of the public intoxication statute, and the policy behind its enactment," Appel-
lant's Br. at 4, and (2) that punishing her for choosing to consume an alcoholic beverage violates
her natural rights under the Indiana Constitution.
The circumstances that preceded her arrest are not in dispute. The defendant had con-
sumed two tall cans of beer at her sister's house on the evening of December 5, 2008. A friend
of the defendant's brother asked for a ride to visit a friend. The defendant explained to him that
she could not drive because she had been drinking but that he could drive her car if he had a li-
cense. The brother's friend then drove the defendant's car with the defendant riding as a front
seat passenger. When an Indianapolis Metropolitan Police Officer pulled over the car because
the license plate light was not working, the officer determined that the driver did not have a valid
driver's license and that the defendant could not operate the vehicle because she was intoxicated.
The car was stopped on a public roadway, East 13th Street in Indianapolis. The officer observed
that the defendant had red, glassy, bloodshot eyes and slurred speech; she needed to lean against
the car for balance; and she admitted that she had been drinking that night. She admitted, "I
couldn't walk. So I couldn't have driven." Tr. at 19.
1. Conviction as Violating Public Policy
The defendant's principal argument is that her conviction "violates the spirit of the public
intoxication statute, and the policy behind its enactment" because she caused no harm or an-
noyance and "adhered to the popular public service motto 'Don't drink and drive.'" Appellant's
Br. at 4. She favors a policy that would "encourage persons who find themselves intoxicated to
ride in a vehicle to a private place without fear of being prosecuted for a crime." Id. at 5.
Whether conduct proscribed by a criminal law should be excused under certain circums-
tances on grounds of public policy is a matter for legislative evaluation and statutory revision if
2
appropriate. The judicial function is to apply the laws as enacted by the legislature. We decline
the defendant's request to reverse her conviction on public policy grounds.
2. Conviction as Violating a Right to Consume Alcoholic Beverages
The defendant argues that her conviction is a result of her exercising her "freedom of
choice over which beverages to consume, even those containing alcohol." Id. at 8. She cites
language from an early Indiana case that stated, "the right of liberty and pursuing happiness se-
cured by the [Indiana] constitution, embraces the right, in each . . . individual, of selecting what
he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or
they may be within his reach, and that the legislature cannot take away that right by direct
enactment." Herman v. State, 8 Ind. 545, 558 (1855).2
The defendant here, however, suffered no impingement of any alleged constitutional right
to select which beverages to consume. She was subject to the public intoxication statute because
of her conduct after consumption, not due to her beverage selection. The defendant's accounta-
bility under the public intoxication statute does not violate her personal liberty rights under the
Indiana Constitution.
Conclusion
Declining the defendant's invitations to constrain the application of the public intoxica-
tion statute on grounds of public policy and to find a violation of a constitutional right to con-
sume alcohol, we affirm the judgment of the trial court.
Shepard, C.J., and Sullivan and David, JJ., concur. Rucker, J., dissents with separate opinion.
2
The Court in Herman was applying the "pursuit of happiness" language from Article 1, Section
1 of the Indiana Constitution, which provides in relevant part: "WE DECLARE, That all people are
created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these
are life, liberty, and the pursuit of happiness."
3
RUCKER, J., dissenting.
In affirming Moore’s conviction for public intoxication the majority relies primarily on
this Court’s opinion in Miles v. State, 216 N.E.2d 847 (Ind. 1966). In that case we declared that
a person parked alongside a highway was in a public place for purposes of the public intoxication
statute. Id. at 849. I would revisit Miles and declare that it was wrongly decided. Predating
Miles by several decades, this Court declared in State v. Sevier, 20 N.E. 245 (Ind. 1889) that
“[t]he purpose of the [public intoxication statute] is to protect the public from the annoyance and
deleterious effects which may and do occur because of the presence of persons who are in an
intoxicated condition.” Id. at 246-47. It is difficult to perceive how this purpose is advanced by
declaring that the inside of a closed vehicle traveling along a highway is a public place. Writing
for the Court of Appeals in Jones v. State, Judge Barnes points out:
It also is difficult to perceive the public policy behind
criminalizing riding in (as opposed to driving) a private vehicle in
a state of intoxication. In fact, perhaps the better public policy
would be to encourage persons who find themselves intoxicated to
ride in a vehicle to a private place without fear of being prosecuted
for a crime.
881 N.E.2d 1095, 1098 n.2 (Ind. Ct. App. 2008) (reversing conviction for public intoxication
where defendant was sitting in a vehicle parked on private property). I agree. As this Court has
declared “[g]iven the strong state and national interest of keeping persons who are intoxicated
from operating motor vehicles, we think it sound policy to encourage sober drivers to get behind
the wheel and not let their friends drive while drunk.” Smith v. Cincinnati Ins. Co., 790 N.E.2d
460, 462 (Ind. 2003). In this case Moore should not suffer a criminal penalty for taking the
responsible action of allowing a sober friend to drive her car while she was too intoxicated to do
so. I would reverse Moore’s conviction. Therefore I respectfully dissent.