ATTORNEYS FOR APPELLANT
KAREN M. FREEMAN-WILSON
Attorney General of Indiana
Deputy Attorney General
STATE OF INDIANA, ) ) Appellant-Plaintiff, ) ) vs. ) No. 71A03-0002-CR-71 ) SHAWN M. RANS, ) ) Appellee-Defendant. )
OPINION - FOR PUBLICATION
Clifft v. Indiana Dept of State Revenue, 660 N.E.2d 310, 316 (Ind. 1995)
(citations omitted). Finally, penal statutes are to be strictly construed against the
State to avoid enlarging them by intendment or implication beyond the fair meaning
of the language used. State v. Shelton, 692 N.E.2d 947, 949 (Ind.
Ct. App. 1998).
A previous conviction of operating while intoxicated includes 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 9-30-5-1 through IC 9-30-5-9. Ind. Code § 9-13-2-130(2) (emphasis added).
Here, Rans pled guilty to OWI, a Class A misdemeanor under Indiana Code
Section 9-30-5-2. It is also undisputed that Rans had been previously convicted
of DWVI under Michigan Compiled Laws Section 257.625(3). The dispositive issue, therefore,
is whether Michigan Compiled Laws Section 257.625(3) is substantially similar to Indiana Code
See footnote We conclude that the two statutes are not substantially similar
and, hence, that Rans Michigan DWVI conviction did not constitute a previous conviction
of operating while intoxicated under Indiana Code Section 9-30-5-3.
The Michigan legislature has established essentially three basic alcohol-related driving offenses: operating a vehicle with an alcohol content of 0.10 grams or more per 100 milliliters of blood, operating a vehicle while under the influence of intoxicating liquor (OUIL), and DWVI. See Mich. Comp. Laws § 257.625(1)(a), (1)(b), and (3). Michigans DWVI statute provides:
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 an intoxicating liquor, . . . the persons ability to operate the vehicle is visibly impaired.
Mich. Comp. Laws § 257.625(3). According to the Michigan Supreme Court, visible
impairment is demonstrated when:
the defendants ability to drive was so weakened or reduced by consumption of intoxicating liquor that defendant drove with less ability than would an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be visible to an ordinary, observant person.
People v. Lambert, 235 N.W.2d 338, 342 (Mich. 1975).
The DWVI statute addresses the problem of the driver whose ability has been impaired or reduced, but not eliminated. People v. Walters, 407 N.W.2d 662, 664 (Mich. Ct. App. 1987). [T]he use of the word impaired, rather than the use of a word such as eliminated, suggests that some ability to drive in a normal manner will remain. Id. The offense of DWVI is thus a lesser included offense of OUIL, because the degree of intoxication which the people must prove is lower. Lambert, 235 N.W.2d at 342; cf. Oxendine v. Secretary of State, 602 N.W.2d 847, 851 (Mich. Ct. App. 1999) (observing that test for OUIL is whether the person is substantially deprived of [his/her] normal control or clarity of mind at the time [he/she] is operating the motor vehicle.).
In contrast, the Indiana legislature has defined only two basic alcohol-related driving offenses: operating a vehicle with an alcohol content in excess of 0.10 grams per 100 milliliters of blood, See footnote and OWI. See Ind. Code §§ 9-30-5-1 and 2. A person is intoxicated for purposes of the Indiana OWI statute if he or she is under the influence of . . . alcohol . . . so that there is an impaired condition of thought and action and the loss of normal control of a persons faculties to an extent that endangers a person. Ind. Code § 9-13-2-86. The endangerment element of OWI indicates the level of impairment and extent of lost faculties that must be shown to establish intoxication and obtain a conviction. State v. Krohn, 521 N.E.2d 374, 377 (Ind. Ct. App. 1988). Endangerment is proved by evidence showing that the defendants condition or operating manner could have endangered any person, including the public, the police, or the defendant himself. Blinn v. State, 677 N.E.2d 51, 54 (Ind. Ct. App. 1997). Thus, proof that the defendants condition rendered operation of the vehicle unsafe is sufficient to establish the endangerment element of the offense. Id.
In keeping with the foregoing principles, we cannot say that Michigans DWVI statute is substantially similar to Indianas OWI statute. Our statutory scheme for alcohol-related driving offenses does not encompass the more broadly defined crime of [DWVI]. See Oxendine, 602 N.W.2d at 852 (concluding that DWVI is a more broadly defined crime than OUIL). Michigan Compiled Laws Section 257.625(3) requires proof that the defendant merely operated a vehicle with less ability than would an ordinary, careful and prudent driver[,] i.e., that there was simply a reduction in the ability to drive normally. Lambert, 235 N.W.2d at 342; Walters, 407 N.W.2d at 665. Contrary to this lower threshold of intoxication, Indiana Code Section 9-30-5-2 requires evidence that the defendant lost the ability to drive normally to such an extent that it was unsafe or endangered any person. Blinn, 677 N.E.2d at 54. The definition of OWI under Indiana Code Section 9-30-5-2 cannot reasonably be interpreted to include any visible alcohol-related impairment without regard to whether that impairment exposes others to harm or danger.
We find additional authority for our conclusion in Olmstead v. Commonwealth, 677 A.2d 1285 (Pa. Commw. 1996), affd on other grounds, 707 A.2d 1144 (Pa. 1998). There, the defendant had been convicted in New York of driving while ability impaired, which is committed by voluntarily consuming alcohol such that the defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver. Olmstead, 677 A.2d at 1287. The court in Olmstead held that the New York offense was not substantially similar to the Pennsylvania offense of driving under the influence, which required proof either of a blood alcohol level of 0.10 or greater or that the driver of the motor vehicle was influenced by alcohol to a degree that he or she could not drive safely. Id. The Olmstead court concluded that the New York driving while impaired statute encompassed an even broader range of prohibited conduct and punished much less egregious actions behind the wheel than did the Pennsylvania driving while under the influence statute. Id. In deciding the issue presented in this case, we note that the Michigan Court of Appeals has approved the distinctions recognized in Olmstead in interpreting its own alcohol-related driving statutes. See Oxendine, 602 N.W.2d at 853
Indianas OWI statute is strikingly similar to Pennsylvanias driving under the influence statute, in that both provisions require intoxication to a degree that the driver cannot drive safely. See Blinn, 677 N.E.2d at 54 (proof that defendants condition rendered operation of vehicle unsafe is sufficient to prove endangerment element of OWI); Olmstead, 677 A.2d at 1287 (driver of motor vehicle was influenced by alcohol to degree that he or she could not drive safely). Likewise, Michigans DWVI statute is strikingly similar to New Yorks driving while ability impaired statute. See Lambert, 235 N.W.2d at 342 (requiring defendants ability to drive be so weakened or reduced by consumption of intoxicating liquor that defendant drove with less ability than would ordinary, careful and prudent driver); Olmstead, 677 A.2d at 1287 (requiring drivers physical and mental abilities which he is expected to possess in order to operate vehicle as a reasonable and prudent driver be impaired). Here, as in Olmstead, the two alcohol-related driving offenses at issue have markedly different thresholds for establishing a violation. See Oxendine, 602 N.W.2d at 853.
Accordingly, we conclude that Michigan Compiled Laws Section 257.625(3) is not substantially similar to Indiana Code Section 9-30-5-2. It follows that Rans conviction for DWVI under Michigan Compiled Laws Section 257.625(3) did not constitute a prior conviction of operating while intoxicated under Indiana Code Section 9-30-5-3. To hold otherwise would extend the application of Indiana Code Section 9-30-5-3 to encompass convictions for conduct requiring a lower degree of intoxication than do our existing alcohol-related driving statutes and would be contrary to the well-settled precept that penal statutes be strictly construed against the State to avoid enlarging them beyond the fair meaning of their language. See Shelton, 692 N.E.2d at 949. Absent a previous conviction of OWI within the last five years, Rans cannot be convicted of OWI as a Class D felony. Thus, the trial court did not err when it acquitted Rans on that charge.
BROOK, J., concurs.
SULLIVAN, J., concurs with separate opinion.