State v. Akins

SHARPNACK, Judge,

dissenting.

I respectfully dissent because I disagree with the majority's holding that Aking's prior conviction under Mich. Comp. Laws § 257.625 did not constitute a "previous conviction of operating while intoxicated" for purposes of Ind.Code § 9-80-5-3. Consequently, I would reverse the trial court's dismissal of the charge of operating *1099a vehicle while intoxicated as a class D felony and remand for further proceedings.

As an initial matter, I must disagree with the majority's statement that Akins was previously convicted of operating while visibly impaired ("DWVI") under Mich. Comp. Law § 257.625(8). Majority Opinion at 6. On October 14, 1999, the State of Michigan charged Akins 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; contrary to [Mich. Comp. Law § ] 257.625(1)." Appellant's Appendix at 68. Akins pleaded guilty to operating a vehicle under the influence of an intoxicating liquor and was sentenced on December 6, 1999. Appellant's Appendix at 70-783. Thus, Akins's previous conviction was under Mich. Comp. Law § 257.625(1) for operating a vehicle while under the influence of intoxicating liquor ("OUIL"), not under Mich. Comp. Law § 257.625(8).

The State charged Akins under Ind. Code § 9-80-5-3, which provides that:

A person who violates section 1 or 2 of this chapter commits a Class D felony if:
(1) the person has a previous conviction of operating while intoxicated; and
(1) the previous conviction of operating while intoxicated occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter.

Further, Ind.Code § 9-13-2-130 defines "previous conviction of operating while intoxicated" as a previous conviction:

(1) in Indiana of:
(A) an alcohol related or drug related crime under Acts 1939, c. 48, s.52, as amended, IC 9-4-1-54 (repealed September 1, 1988), or IC 9-11-2 (repealed July 1, 1991); or
(B) a crime under IC 9-80-5-1 through IC 9-80-5-9; or
(2) in any other jurisdiction in which the elements of the erime for which the conviction was entered are substantially similar to the elements of a crime de-seribed in IC 9-380-5-1 through IC 9-830-5-9.

The majority addresses the issue as whether the elements of Akins's previous Michigan conviction are substantially similar to Ind.Code § 9-80-5-2 (with which Akins is currently charged) as it existed at the time of Aking's previous Michigan conviction.4 I believe that the language of the statute requires that we analyze whether the elements of Aking's previous Michigan conviction are substantially similar to the elements of a crime described in Ind.Code §§ 9-30-5-1 through -9 as these statutes existed at the time of Aking's current offense.

When reviewing a statute, we must give effect and meaning to every word. Allied-Signal, Inc. v. Ott, 785 N.E.2d 1068, 1071 (Ind.2003), reh'g denied. Our primary goal when construing the meaning of a statute is to determine the legislature's intent. Id. at 1071-1072. Given such deference to legislative intentions, we interpret an unambiguous statute to mean what it plainly states, and its plain and obvious meaning may not be enlarged or restricted. Id. at 1072.

*1100As noted above, Ind.Code § 9-18-2-1830 defines a previous conviction, in part, as a previous Indiana conviction of "a crime under IC 9-30-5-1 through IC 9-80-5-9" or a previous conviction "in 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 IC 9-80-5-1 through IC 9-30-5-9." If the previous conviction occurred in Indiana, under the plain language of the statute, we must determine if the previous conviction was "a crime under IC 9-30-5-1 through IC 9-80-5-9." I find nothing in the statutory language that limits the phrase, "a crime under IC 9-30-5-1 through IC 9-80-5-9," to a crime that is the same as the currently charged offense. If it were the legislature's intent to so limit what would qualify as a previous conviction, we would see language that expressly identified the previous conviction as a conviction for the same offense as currently charged. Even if the defendant is currently charged under Ind.Code § 9-80-5-2, any previous Indiana conviction under Ind.Code §§ 9-80-5-1 through -9 will meet the definition of a previous conviection. We need not limit the previous conviction to the currently charged offense.

Similarly, if the previous conviction occurred in a different jurisdiction, under the plain language of the statute, we must determine whether the elements of the crime for the previous conviction "are substantially similar to the elements of a crime described in IC 9-80-5-1 through IC 9-30-5-9." As above, nothing in this statutory language limits the phrase, "a crime described in IC 9-80-5-1 through IC 9-30-5-9," to a crime that is the same as the currently charged offense. Even if the defendant is currently charged under Ind.Code § 9-80-5-2, a previous conviction where the elements are substantially similar to the elements of any crime under Ind.Code §§ 9-80-5-1 through -9 will meet the definition of a previous convietion. Consequently, I believe that we should determine whether the elements of Akinsg's previous conviction are substantially similar to the elements of any crime under Ind.Code §§ 9-830-5-1 through -9.

Additionally, the majority compares Aking's previous conviction with Ind.Code § 9-30-5-2 as it existed at the time of Akins's previous conviction rather than as it currently exists5 This issue also turns on the interpretation of the phrases "a crime under IC 9-830-5-1 through IC 9-30-5-9" and "a crime described in IC 9-30-5-1 through IC 9-30-5-9." I find nothing in the statutory language that refers to versions of the statutes other than the current versions. If the legislature had intended a comparison of the previous conviction with prior versions of Ind.Code §§ 9-30-5-1 through -9, the legislature could have provided, for example, that a previous conviction is a previous conviction "in any other jurisdiction in which the elements of the crime for which the conviec*1101tion was entered are substantially similar to the elements of a crime described in versions of IC 9-30-5-1 through IC 9-380-5-9 in effect at the time of the previous conviction." (phrases in italics added). Even though the offenses described in Ind. Code §§ 9-30-5-1 through -9 may change over time through amendments, the language of Ind.Code § 9-13-2-180 requires that we determine whether the previous conviction would be a crime under the current versions of Ind.Code §§ 9-80-51 through -9. See generally State v. Geise, 596 N.E.2d 244, 245-246 (Ind.Ct.App.1992) (holding that "(bly a literal reading of the statutes," the defendant did not have a "previous conviction" because the definition of "previous conviction" included only the recodified version of the statute, not the previous codification).

Turning now to the facts of this case and the application of this statutory interpretation, the issue is whether the elements of Akins's previous conviction under Mich. Comp. Law § 257.625(1) are substantially similar to the elements of a crime de-seribed in Ind.Code §§ 9-80-5-1 through - 9. Mich. Comp. Law § 257.625, effective October 1, 1999, provided, in part, that:

(1) 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.
* * * * * *#
(3) 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 when, due to the consumption of intoxicating liquor, a controlled substance, or a combination of intoxicating liquor and a controlled substance, the person's ability to operate the vehicle is visibly impaired. If a person is charged with violating subsection (1), a finding of guilty under this subsection may be rendered.

The offense of DWVI under Mich. Comp. Law § 257.625(8) is a lesser included offense of OUIL under Mich. Comp. Law § 257.625(1). See State v. Rans, 739 N.E.2d 164 (Ind.Ct.App.2000), trams. de-mied.6 Michigan courts have indicated that the offense of OUIL "would be committed if a defendant drove when the 'defendant's ability to drive was substantially and materially affected by consumption of intoxicating liquor'". or if "the person is substantially deprived of [his/her] normal control or clarity of mind at the time [he/ she] is operating the motor vehicle." Ozendine v. Sec'y of State, 237 Mich.App. *1102346, 602 N.W.2d 847, 851 (1999) (emphasis in original), appeal denied.

On the other hand, Ind.Code §§ 9-380-5-1 through -9 govern the operation of a vehicle with an alcohol concentration greater than 0.08 gram of alcohol per one hundred (100) milliliters of the person's blood or per two hundred ten (210) liters of the person's breath, operating a vehicle while intoxicated, operating a vehicle while intoxicated with a previous conviction, operating while intoxicated causing serious bodily injury or death, operating in violation of a probationary license, ignition interlock device offenses, persons under the age of twenty-one operating while under the influence of alcohol, and operating a vehicle in a place other than on a highway. Only Ind.Code § 9-80-5-2, which governs operating a vehicle while intoxicated, is applicable here. As of July 1, 2001, the statute provides that:

(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor. -
(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.

LC. § 9-30-5-2. Further, the term "intoxicated" means under the influence of:

(1) alcohol;
(2) a controlled substance (as defined in IC 35-48-1);
(3) a drug other than alcohol or a controlled substance; or
(4) a combination of alcohol, controlled substances, or drugs;
so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties.

Ind.Code § 9-18-2-86.

We begin by comparing the elements of Akins's Michigan conviction with the elements of Ind.Code § 9-30-5-2(3). It is evident that the elements of the Michigan offense of OUIL are not substantially similar to the elements of Ind.Code § 9-80-5-2(a). The Indiana statute requires only that the driver have "an impaired condition of thought and action and the loss of normal control of a person's faculties" while the Michigan statute requires that the driver's ability be "substantially and materially affected" or the driver be "substantially deprived of [his/her] normal control or clarity of mind at the time [he/she] is operating the motor vehicle." Thus, a conviction under Mich. Comp. Law § 257.625(1) requires a greater showing of impairment than required under Ind.Code § 9-30-5-2(a). Consequently, the elements of the two statutes are not substantially similar.

However, a comparison of Mich. Comp. Law § 257.625(1) and Ind.Code § 9-80-5-2(b) reveals that the elements of those statutes are substantially similar. In addition to a showing that the driver had "an impaired condition of thought. and action and the loss of normal control of a person's faculties," Ind.Code § 9-30-5-2(b) includes the additional requirement of operating the vehicle in a manner that endangers a person. "The element of endangerment is proved by evidence that the defendant's condition or manner of operating the vehicle could have endangered any person, including the public, the police, or the defendant." Weaver v. State, 702 N.E.2d 750, 753 (Ind.Ct.App.1998). Thus, "proof that the defendant's condition rendered operation of the vehicle unsafe is sufficient to establish endangerment." Id.

The State argues that "a person whose ability to drive is substantially and materially affected by consumption of alcohol is by definition a danger to himself and to others." Appellant's Brief at 7. I agree and conclude that the additional require*1103ment of endangerment renders Ind.Code § 9-30-5-2(b) substantially similar to the Michigan statute. As previously noted, Mich. Comp. Law § 257.625(1) requires a showing that the driver's ability be "substantially and materially affected" or the driver be "substantially deprived of [his/ her] normal control or clarity of mind at the time [he/she] is operating the motor vehicle." The requirement of Ind.Code § 9-30-5-2(b) that the driver not only be "impaired" but also impaired to the point that his or her operation of the vehicle is rendered unsafe is similar to Michigan's requirement that the driver be "substantially" affected. As a result, the elements of Akinsg's previous conviction under Mich. Comp. Law § 257.625(1) are substantially similar to the elements of Ind.Code § 9-830-5-2(b). Consequently, I conclude that Akins had a "previous conviction of operating while intoxicated" as defined by Ind. Code § 9-13-2-130.

I would reverse the trial court's dismissal of Aking's motion to dismiss the charge of operating a vehicle while intoxicated as a class D felony.

. The State initially phrases the issue as whether the elements of Akins's previous Michigan conviction are substantially similar to Ind.Code § 9-30-5-1. However, as discussed later in this dissent, Ind.Code § 9-30-5-1 is not relevant to this analysis. Further, the State later abandons its reliance upon Ind.Code § 9-30-5-1 and compares Ind.Code § 9-30-5-2 with the Michigan statutes.

. In 1999, Ind.Code § 9-30-5-2 provided that: "A person who operates a vehicle while intoxicated commits a Class A misdemeanor." Ind.Code § 9-13-2-86 provided that "intoxicated" was "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 to an extent that endangers a person." Effective July 1, 2001, Ind.Code § 9-30-5-2 was amended by Pub.L. No. 175-2001, § 6. The statute now provides that:

(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.
(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.
Further, Ind.Code § 9-13-2-86 redefined "intoxicated" to mean "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."

. In State v. Rans, this court held that the elements of a Michigan conviction for DWVI under Mich. Comp. Law § 257.625(3) was not substantially similar to the elements of the prior version of Ind.Code § 9-30-5-2 because the Michigan statute required proof that the defendant merely operated a vehicle "with less ability than would an ordinary, careful and prudent driver" while the Indiana statute required a showing of endangerment. 739 N.E.2d at 168-169.