ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
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FILED
In the Jun 24 2010, 2:11 pm
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
_________________________________ tax court
No. 49S02-1006-CR-328
CURTIS OUTLAW,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Marion Superior Court,
No. 49F19-0901-CM-4126
The Honorable Rebekah Pierson-Treacy, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0904-CR-340
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June 24, 2010
Per Curiam.
In 2001, the legislature established two separate misdemeanor classes for operating a
vehicle while intoxicated. Operating a vehicle while “intoxicated” is a Class C misdemeanor.
See Ind. Code § 9-30-5-2(a) (2004). Operating a vehicle while intoxicated “in a manner that
endangers a person” is a more serious Class A misdemeanor. See I. C. § 9-30-5-2(b) (2004).
Here, there was evidence Outlaw was intoxicated, including that he smelled of alcohol,
his eyes were bloodshot, his speech slurred and he failed three field sobriety tests. The State
concedes, however, there was no evidence that Outlaw operated his vehicle in an unsafe manner.
Outlaw was convicted of the Class A misdemeanor and was sentenced to 365 days.
The Court of Appeals reversed that conviction on grounds that, although the State proved
Outlaw was intoxicated, the State failed to present any evidence on the element of endangerment.
See Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App. 2009).
The State has petitioned to transfer jurisdiction, arguing that evidence of “intoxication”
should be sufficient to prove “endangerment” as was the case before the current version of
Indiana Code section 9-30-5-2. See Outlaw, 918 N.E.2d at 381-82. We conclude the Court of
Appeals correctly rejected the State’s argument for the reasons explained in its decision.
We grant transfer, adopt and incorporate by reference the opinion of the Court of Appeals
pursuant to Indiana Appellate Rule 58(A)(1). The Class A misdemeanor conviction is reversed.
Shepard, C.J., and Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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