ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL W. REED STEVE CARTER
Reed & Earhart Attorneys at Law, P.C. Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
OPINION - FOR PUBLICATION
II. whether the statute violates substantive due process under the United States Constitution.
III. whether the statute violates the Privileges and Immunities Clause of the Indiana Constitution;
IV. whether the statute violates the Eighth Amendment of the United States Constitution.
Appellants Brief, p. 11-12.
In assessing a claim under the Equal Protection Clause, our first inquiry involves the applicable level of scrutiny. Platt v. State, 664 N.E.2d 357, 364 (Ind. Ct. App. 1996), trans. denied, cert. denied, 520 U.S. 1187, 117 S.Ct. 1470, 137 L.Ed.2d 683 (1997). Laws that involve a suspect classification and those that burden the exercise of fundamental rights receive the strictest scrutiny. Id. In order to survive strict scrutiny, a state action must be a necessary means to a compelling governmental purpose and be narrowly tailored to that purpose. Id.
Classifications not involving a suspect class or a fundamental right are reviewed under a rational basis standard. State v. Alcorn, 638 N.E.2d 1242, 1244 (Ind. 1994). A statute can survive a rational basis scrutiny if the classification in the statute bears some rational relationship to a legitimate governmental goal. Id. at 1245.
Shepler concedes that he is not a member of a suspect class and that no fundamental rights are involved. Therefore, the State need only show that the statute bears a rational relationship to a legitimate state interest. Shepler also concedes that the State has a legitimate interest in highway safety and in keeping those likely to be impaired off of the road. See Brown v. State, 744 N.E.2d 989, 995 (Ind. Ct. App. 2001). However, he contends there is no rational relationship between the classification in the statute and the States interest in highway safety because the statute does not quantify the level of controlled substance necessary to cause impairment.
Our review of the record reveals testimony that it is not possible to determine the amount of marijuana or cocaine present in a persons body because everyone reacts differently to the ingestion of substances and each persons body processes substances differently. Further, there is no accepted agreement as to the quantity of a controlled substance needed to cause impairment. Shepler has presented no evidence to the contrary. We therefore agree with the State that it was reasonable for the legislature to differentiate between alcohol and controlled substances and to prohibit driving with any controlled substance in the body.
The Arizona Court of Appeals reached a similar result in State v. Phillips, 873 P.2d 706 (Ariz. Ct. App. 1994). In that case, Phillips challenged the constitutionality of a statute which prohibited the operation of a vehicle with a controlled substance in the body. Specifically, Phillips argued that unlike alcohol, there was no quantification established for unlawful drugs.
At trial, a toxicological expert testified that unlike the blood alcohol concentration test used to measure alcohol impairment, there is no useful indicator of impairment for drugs because they are fundamentally different from alcohol. The toxicologist further testified that there could be no meaningful quantification because of the dangers inherent in the drugs themselves and in the lack of potency predictability. Phillips presented no evidence to the contrary. In light of this testimony, the appellate court concluded as follows:
We believe that the legislature was reasonable in determining that there is no level of illicit drug use which can be acceptably combined with driving a vehicle; the established potential for lethal consequences is too great. The state has a compelling legitimate interest in protecting the public from drivers whose ability may be impaired by the consumption of controlled substances and the legislature reasonably could have concluded that the per se prohibition embodied in section 28-692(A)(3) provided an effective deterrent to such activity. And . . . the legislature could have rationally determined that the absence of a reliable indicator of impairment necessitated a flat ban on driving with any proscribed drugs in ones system. . . . We find this statute to be a constitutional exercise of the states police power.
Id. at 710.
Section 9-30-5-1 likewise does not violate the Equal Protection Clause of the United States Constitution. We believe that Indianas Legislature reached a reasonable judgment in enacting a similar ban.
Appellants Brief, pp. 8-9.
Article I, Section 23 of the Indiana Constitution provides in pertinent part as follows:
The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.
Our supreme court has held that Section 23 should be applied and interpreted
independent of the Equal Protection Clause. Collins v. Day, 644 N.E.2d 72,
75 (Ind. 1994). Specifically, the supreme court has stated that the independent
interpretation and application should revolve around the following analysis:
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated.
Id. at 80. The court emphasized that in applying the two-part standard,
we must give considerable deference to the legislatures balancing of the competing interests
As to the first prong, Shepler is correct that Section 9-30-5-1 creates different classes. Those classes are those defendants who operate a motor vehicle with alcohol in the body and those who operate a motor vehicle with a controlled substance in the body. Those who drive with controlled substances in the body are treated differently because the statute does not quantify the amount of the controlled substance necessary to cause impairment. The two classes are treated differently because there is no accepted agreement as to the amount of controlled substances necessary to cause impairment. The disparate treatment is therefore reasonably related to inherent characteristics that distinguish the unequally treated classes.
To satisfy the second prong of Collins, the preferential treatment afforded by the statute must be uniformly applicable to all persons similarly situated. 644 N.E.2d at 80. Shepler has not shown that the statute is not uniformly applied. See Fleming v. International Pizza Supply, 707 N.E.2d 1033, 1038 (Ind. Ct. App. 1999), trans. denied (second prong of Collins satisfied where appellant failed to show that the statute was not uniformly applied). All defendants who drive with any Schedule I or Schedule II controlled substances in their body are subject to criminal prosecution, and thus the law is uniformly applied. Accordingly, Section 9-30-5-1 does not violate the Privileges and Immunities clause of the Indiana Constitution.