dissenting.
IND.CODE 34-4-380-1 permits recovery of treble damages and attorney fees for pecuniary loss occuring as a result of the offenses against property contained in IND.CODE 35-43. Included therein is IND.CODE 35-43-1-2(a)(1), criminal mischief, a class B misdemeanor, which creates an offense when "(a) person recklessly, knowingly, or intentionally damages property of another person without his consent ..." To paraphrase the essential question posed by this case as stated in the majority opinion: is a prima facie case of criminal mischief made out by proof that a collision and property damage was caused by the deficient driving of an intoxicated driver? Judge Leist answered this question in the negative, and I have reached the same result after study of these several related statutes.
The conclusion which I have reached, namely that the criminal mischief statute was not meant to secure life and property from loss occasioned by the deficient driving of intoxicated drivers is not the. product of any single decisive factor, but instead is based upon the sum of a cluster of contributing factors. Among those factors are the following ones.
1. The element of criminal mischief, namely "without..consent'" has no rational relationship to common circumstances in which two drivers find themselves when upon a public highway.
2. The legislature has chosen to refine the culpability and conduct bases for the criminal liability of intoxicated drivers and reckless drivers in IND.CODE 9-11 and 35-42.
3. The penalty for simply driving while intoxicated provided for in IND.CODE *9129-11 is greater than the penalty provided for in the criminal mischief statute.
4. The state of mind element for the offense of criminal mischief is a greater and more difficult burden upon the prosecution than the one required in order to convict for the more serious offense driving while intoxicated.
5. One target of the treble damage and attorney fee statute is to create and stimulate a realistic system through which the victims of offenses against property can recover their losses. Such losses were not recoverable because they were not covered by insurance or were too small to support a lawsuit. Losses occasioned by the intoxicated driver are not within this target as there is a successful system in place mandated by law for recovery of such losses.
6. Mischievous injury to property is a minor crime which has been around for a very long time and is commonly applied in situations involving a breach of the peace as where rocks are thrown through windows, mail boxes knocked over, gravestones are overturned, and the like. Drunken driving, while a serious offense warranting a severe sanction, does not ordinarily partake of this quality.
The conclusions that appear clearly correct to me here are that the person who drives a car while impaired by alcohol and drives in a deficient manner which causes damage to property or worse, is guilty of several crimes, but one of them is not criminal mischief and consequently the owner of such property has no right to recover treble damages and attorney fees pursuant to the statute. In my view, if the legislature desires to have the result sanctioned in the majority opinion, it should do so in a clear and direct manner.