dissenting.
I respectfully dissent with the majority's conclusion that Moore was not in a public place or place of public resort within the meaning of Indiana Code section 7.1-5-1-3. I would therefore affirm her conviction for public intoxication. __
Indiana Code section 7.1-5-1-3 provides, "It is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance (as defined in IC 35-48-1-9)." With respect to intoxicated people in private vehicles, the Indiana Supreme Court has held that a defendant may be convicted of public intoxication for being inside a vehicle parked on the shoulder of a busy highway. Miles v. State, 247 Ind. 423, 425, 216 N.E.2d 847, 849 (1966). Likewise, this Court has held that a conviction for public intoxication may stand where the defendant was a passenger in a car traveling on a public road when it was stopped by police. Atkins v. State, 451 N.E.2d 55, 56-57 (Ind.Ct.App.1983) (applying Miles ). Although the majority tries to distinguish these cases, I believe that they cannot be distinguished from the factual scenario presented in this case. According to our Supreme Court in Miles, the key determination is whether the vehicle is in a public place, and in that case, the defendant was in a parked vehicle three or four feet from the traveled portion of a busy highway. If being inside a vehicle on the side of a road is in a public place, then being inside a vehicle on the road is also in a public place. Moore does not dispute that the vehicle in which she was traveling was in a public place according to our Supreme Court in Miles.
The Indiana General Assembly has made no changes to the public intoxication statute in response to Miles in 1966 or even Atkins in 1983. I believe that this long period of time constitutes legislative acquiescence. That is, given these cases, our legislature has agreed that a vehicle that is either stopped near a public road or traveling on a public road and then stopped is in a public place for purposes of the public intoxication statute. See, eg., Breaston v. State, 907 N.E.2d 992, 995 (Ind.2009) ("In the more than two decades since this Court issued Starks, the relevant portions of the consecutive sentencing statute have remained unchanged. Both stare decisis and legislative acquiescence support this result."). In fact, Judge Barnes made a plea to the General Assembly in the 2008 case of Jones v. State, 881 N.E.2d 1095 (Ind.Ct.App.2008). Although Jones involves a private vehicle on private property and the conviction was reversed on appeal, which is not the issue in this case, Judge Barnes, writing for a unanimous court, added:
We also question whether it serves the purpose of the statute to convict persons of public intoxication who are passengers in a private vehicle traveling on a public road. We note that Judge Sullivan, who voted to concur in Atkins, later questioned the wisdom of that vote. See Whatley v. State, 708 N.E.2d 66, 68-69 (Ind.Ct.App.1999) (Sullivan, J., concurring in result) ("[A] public place must be accessible to the public, and I find it difficult to accept the premise that the inside of a closed vehicle traveling upon the highway is accessible to members of the public."). It also is difficult to perceive the public policy behind criminal*307izing 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:
Id. at 1098 n. 2 (emphasis added). Desplte Judge Barnes' plea, there have been no amendments to Indiana Code section 7.1-5-1-3 since Jones. This furthers my conclusion that there has been legislative acquiescence.
I agree with the majority that the policy behind the statute is to prevent intoxicated people from bothering or threatening the safety of other people in public places and that affirming Moore's conviction discourages the practice of securing a designated driver or a taxicab. However, the General Assembly has criminalized being or becoming intoxicated in a vehicle commonly used for the public transportation of passengers or in or upon a common carrier. See Ind.Code § 7.1-5-1-6. This act was criminalized in Indiana as early as 1983. See Burns Ind. Stat. Ann. §§ 12-616 (1956 Repl.), 12-105 (1983); see also Atkins, 451 N.E.2d at 56. The statute has been amended as recently as 2001, see P.L. 213-2001, See. 3, which demonstrates that the legislature is aware of the statute's existence. Under the Indiana Code, a taxicab is a common carrier. See Ind.Code §§ 7.1-1-3-8 ("earrier" means "[a] common carrier, whether licensed under the laws of this state or not"), 8-2.1-17-4, - 13, -16 (a taxicab, among other modes of transportation, is a common carrier); see also Black's Law Dictionary 226 (8th ed.2004) ("common carrier" is "[a] commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee"). Judge Shields determined in Aikins that Indiana Code section 7.1-5-1-6's existence does not evidence an intent by the legislature not to expose people to criminal liability for being intoxicated as passengers in private vehicles. See Atkins, 451 N.E.2d at 56.
things: The majority's solution is to create an exception by focusing on the individual's conduct. Specifically, the majority opines that "a public intoxication charge might be appropriate if the passenger was so intoxicated as to be causing a distraction to the driver of the vehicle or to other drivers, or otherwise creating a danger to all those traveling on a public road." Op. at 305. However, an individual's conduct has nothing to do with whether that person is in a public place. We have continually held that public intoxication requires only two presence in a public place and intoxication. See Street v. State, 911 N.E.2d 654, 657 (Ind.Ct.App.2009) (noting that culpability is not an element of the offense), trans. denied. Simply put, an individual's conduct or extreme level of intoxication has no nexus to whether that person is in a public place. Although the majority relies on the definition of intoxication found in Title 9 (Motor Vehicles), which requires an impaired condition of thought and action and the loss of normal control of a person's faculties, Title 7.1 (Alcohol and Tobacco) does not contain a definition of intoxication. See Wright v. State, 772 N.E.2d 449, 457 (Ind.Ct.App.2002) ("Despite the fact that the public intoxication statute does not provide a specific definition of intoxication, we do not agree with Wright's pronouncement that the statute is unconstitutionally vague.").
As much as I may disagree with the public policy of criminalizing the act of riding as a passenger in a private vehicle on a public road in a state of intoxication, this is not our call. Given Miles and the legislature's lack of response to it, I believe that unless and until our legislature makes changes to Indiana Code section *3087.1-5-1-3, Moore was in a public place. I therefore would affirm her conviction for public intoxication.