Attorneys for Appellant
Steve Carter
Attorney General of Indiana
Andrew A. Kobe
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 79S05-0402-CR-93
State of Indiana,
Appellant (Plaintiff below),
v.
Loren Akins,
Appellee (Defendant below).
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Appeal from the Tippecanoe Superior Court, No. 79D06-0112-DF-258
The Honorable Michael A. Morrissey, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 79A05-0210-
CR-520
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March 30, 2005
Dickson, Justice.
In this interlocutory appeal, the State challenges the decision of the
trial court granting the defendant's motion to dismiss Count II, which
charged as a class D felony that the defendant operated a vehicle while
intoxicated while having a prior conviction for operating a vehicle while
intoxicated.[1] The issue is whether the defendant's prior conviction in
Michigan qualifies to subject the defendant to the class D felony charge.
The Court of Appeals affirmed the dismissal. State v. Akins, 795 N.E.2d
1093 (Ind. Ct. App. 2003). We granted transfer, 812 N.E.2d 796 (Ind.
2004), and now reverse.
The Court notes that the defendant has chosen not to file an
appellee's brief either at the Court of Appeals or before this Court. This
does not mean the defendant has conceded that the State's position is
correct. See Luthern Hosp. of Fort Wayne, Inc. v. State Dep't of Public
Welfare, 571 N.E.2d 542, 544 n.1 (Ind. 1991). It does mean, however, that
we may apply a less stringent standard of review: the State needs only to
make a prima facie showing of error to merit reversal. See In re Marriage
of Ransom, 531 N.E.2d 1171, 1172 (Ind. 1988); Fagan v. Royer, 244 Ind. 377,
193 N.E.2d 64 (1963); City of Connersville v. Adams, 122 Ind. App. 581, 584-
585, 105 N.E.2d 912, 913-14 (1952). Because we conclude that the dismissal
was incorrect as a matter of law, however, we do not apply this lesser
standard of review in this case.
The dismissed Count II charged the defendant with a class D felony
under Indiana Code § 9-30-5-3, under which a person operating a vehicle
while intoxicated in violation of "section 1 or 2 of this chapter[2]
commits a Class D felony if . . . the person has a previous conviction of
operating while intoxicated that occurred within the five (5) years
immediately preceding the occurrence of the violation of section 1 or 2 of
this chapter." The phrase "previous conviction of operating while
intoxicated" is defined in relevant part as a previous conviction "[i]n any
other jurisdiction in which the elements of the crime for which the
conviction was entered are substantially similar to the elements of a crime
described in Indiana Code sections 9-30-5-1 through 9-30-5-9." Ind. Code §
9-13-2-130.
Count II charged that the defendant was convicted December 6, 1999, of
operating a vehicle while intoxicated in Berrien District Court, Berrien
County, Michigan. In support of its motion to correct error, the State
submitted evidence of the defendant's said Michigan conviction upon the
charge that he "did operate a vehicle . . . while being under the influence
of intoxicating liquor, or having an alcohol content of 0.10 grams or more
per 100 milliliters of blood; contrary to MCL 257.625(1); MSA 9.2325(1).
[257.6251-A]" Appellant's Appendix at 68, 73.
The effect of Count II in this case would be to subject the
defendant, as to the offense of driving while intoxicated, to greater penal
consequences if the elements of his 1999 Michigan conviction "are
substantially similar to the elements of a crime described in Indiana Code
sections 9-30-5-1 through 9-30-5-9." Ind. Code § 9-13-2-130. The Court of
Appeals majority compared the Michigan statute to the Indiana statute as
they both existed in 1999 at the time of the Michigan conviction, and found
that the two statutes were not substantially similar. Akins, 795 N.E.2d at
1097; see also id. at 1197 n.3. Judge Sharpnack disagreed, and we agree
with his dissent on this point. The correct comparison is between the
Michigan statute under which the defendant was convicted and the Indiana
statute at the time of the Indiana offense.
Our statutory definition of "previous conviction of operating while
intoxicated" does not require that the other jurisdiction's statutory
elements were substantially similar, but rather that they are substantially
similar to the elements of the Indiana crime. Ind. Code § 9-13-2-130.
This understanding is bolstered by State v. Geise, 596 N.E.2d 244, 245-46
(Ind. Ct. App. 1992), where the court relied upon the language of the
statute at the time of the offense to conclude that the defendant did not
have a "previous conviction," despite the fact that, prior to modification
of the statute a year before, the defendant would have been deemed to have
had a previous conviction. Judge Sharpnack's interpretation is the correct
one: the language of the Indiana statute in effect at the time of the
Indiana offense should control.
In Michigan, the defendant was charged with and pled guilty to
violation of section 257.625(1). Thus, in accordance with Indiana Code § 9-
13-2-130, the issue is whether the elements of Michigan Compiled Laws
section 257.625(1) are substantially similar to the elements of a crime
described in Indiana Code sections 9-30-5-1 through 9-30-5-9. The Michigan
statute provided in relevant part:
A person, whether licensed or not, shall not operate a vehicle upon a
highway or other place open to the general public or generally
accessible to motor vehicles, including an area designated for the
parking of vehicles, within this state if either of the following
applies:
(a) The person is under the influence of intoxicating liquor, a
controlled substance, or a combination of intoxicating liquor
and a controlled substance.
(b) The person has an alcohol content of 0.10 grams or more per
100 milliliters of blood, per 210 liters of breath, or per 67
milliliters of
urine.
Michigan Compiled Laws section 257.625(1), effective October 1, 1999. The
defendant was charged under this statute with operating a vehicle "while
being under the influence of intoxicating liquor, or having an alcohol
content of 0.10 grams or more per 100 milliliters of blood." Appellant's
Appendix at 68 (emphasis added). The record does not designate whether the
defendant's conviction was based on his violation of subsections (a) or (b)
of the statute.
The elements of subsection (a) of the Michigan statute are
substantially similar to the elements of the crime described in Indiana
Code § 9-30-5-2(a), which provides that "a person who operates a vehicle
while intoxicated commits a Class C misdemeanor." "Intoxicated" in the
Indiana statute is defined as being under the influence of alcohol "so that
there is an impaired condition of thought and action and the loss of normal
control of a person's faculties." Ind. Code § 9-13-2-86. Subsection (a)
of the Michigan statute is violated where a driver "is substantially
deprived of . . . normal control or clarity of mind" while driving, or the
driver's ability is "substantially and materially affected by consumption
of intoxicating liquor." Oxendine v. Sec'y of State, 602 N.W.2d 847, 851
(Mich. Ct. App. 1999) (emphasis in original), appeal denied. We find
little difference between Indiana's "impaired condition of thought and
action and the loss of normal control" and Michigan's impaired control and
mental clarity or driving ability that is "substantially and materially
affected." The Michigan standard does not require a greater showing of
impairment than that required by Indiana Code § 9-30-5-2(a). Though
phrased somewhat differently, subsection (a) of the Michigan statute
nevertheless describes elements that are substantially similar to those in
subsection 2(a) of the Indiana statute.
Likewise, the elements of subsection (b) of the Michigan statute are
substantially similar to the elements of the crime described in Indiana
Code § 9-30-5-1(a), which provides:
A person who operates a vehicle with an alcohol concentration
equivalent to at least eight-hundredths (0.08) gram of alcohol but
less than fifteen-hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person's blood; or
(2) two hundred ten (210) liters of the person's breath;
commits a Class C misdemeanor.
The fact that the alcohol concentration per 100 milliliters required by
Michigan was 0.10 gram in contrast to 0.08 required by Indiana does not
prevent a finding of substantial similarity. Violation of the Michigan
standard required a degree of intoxication greater than that under the
Indiana statute, and thus the elements of subsection (b) of the Michigan
statute are substantially similar to those in subsection 1(a) of the
Indiana statute.
Therefore, because the defendant's prior Michigan conviction was
under either or both subsections (a) and (b) of Michigan Compiled Laws
section 257.625(1), and because these subsections are substantially similar
to Indiana Code §§ 9-30-5-2(a) and 9-20-5-1(a), respectively, the State may
properly proceed under Count II under Indiana Code § 9-30-5-3 on grounds
that the defendant has a previous conviction of operating while intoxicated
within the past five years in a jurisdiction in which the elements of the
crime are substantially similar to the elements of a crime described in
Indiana Code §§ 9-30-5-1 through 9-30-5-9.
We reverse the trial court order granting the defendant's motion to
dismiss Count II and remand this cause for further proceedings.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code § 9-30-5-3.
[2] The defendant is charged in Count I with violating Section 2 under
which operating a vehicle while intoxicated is a class A misdemeanor if
"the person operates a vehicle in a manner that endangers a person." Ind.
Code § 9-30-5-2.