noting that a New York statute for operating a vehicle while impaired was not substantially similar to Indiana’s statute for operating a vehicle while intoxicated because the Indiana statute required a greater showing of impairment
How later courts described this case
- noting that a New York statute for operating a vehicle while impaired was not substantially similar to Indiana’s statute for operating a vehicle while intoxicated because the Indiana statute required a greater showing of impairment
Written by the judges who cited it.
The opinion
Nov 10 2015, 10:14 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory F. Zoeller Steven C. Litz
Attorney General of Indiana Monrovia, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, November 10, 2015
Appellant-Plaintiff, Court of Appeals Cause No.
55A01-1506-CR-737
v. Appeal from the Morgan Circuit
Court
Justin Bazan, The Honorable Matthew G.
Appellee-Defendant. Hanson, Judge
Trial Court Cause No.
55C01-1502-F6-280
Barnes, Judge.
Case Summary
[1] In this interlocutory appeal, the State of Indiana appeals the trial court’s grant
of a motion to dismiss filed by Justin Bazan regarding the charges of Level 6
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 1 of 7
felony operating a vehicle while intoxicated endangering a person with a prior
conviction within five years and Level 6 felony operating a vehicle while
intoxicated with a prior conviction within five years. We affirm.
Issue
[2] The State raises one issue, which we restate as whether the trial court properly
granted Bazan’s motion to dismiss.
Facts
[3] On May 20, 2014, Bazan was convicted of operating a motor vehicle while
ability impaired in New York pursuant to New York Vehicle and Traffic Law
Section 1192.1. On February 27, 2015, Bazan was charged in Indiana with:
Count 1, Class A misdemeanor operating a vehicle while intoxicated
endangering a person; Count II, Class C misdemeanor operating a vehicle
while intoxicated; Count III, Class A misdemeanor resisting law enforcement;
Count IV, Level 6 felony operating a vehicle while intoxicated endangering a
person with a prior conviction within five years; and Count V, Level 6 felony
operating a vehicle while intoxicated with a prior conviction within five years.
[4] Bazan filed a motion to dismiss Count IV and Count V. He argued that his
2014 conviction in New York was not substantially similar to an Indiana
offense for operating a vehicle while intoxicated and did not qualify as a
previous conviction of operating while intoxicated. The trial court granted
Bazan’s motion. The State then filed a petition for certification of the order for
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 2 of 7
interlocutory appeal, which the trial court granted. We accepted jurisdiction
pursuant to Indiana Appellate Rule 14(B).
Analysis
[5] The State argues that the trial court erred by granting Bazan’s motion to
dismiss. The trial court dismissed two enhanced charges—Count IV, Level 6
felony operating a vehicle while intoxicated endangering a person with a prior
conviction within five years, and Count V, Level 6 felony operating a vehicle
while intoxicated with a prior conviction within five years—because it found
that Bazan’s 2014 conviction did not qualify as a previous conviction of
operating while intoxicated to enhance the charges. “Abuse of discretion is the
appropriate standard for appellate review of a trial court’s decision to dismiss a
charging information.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). An
abuse of discretion occurs only if a trial court’s decision is clearly against the
logic and effect of the facts and circumstances. Pavlovich v. State, 6 N.E.3d 969,
974 (Ind. Ct. App. 2014), trans. denied.
[6] The State contends that Bazan’s 2014 conviction does qualify as a previous
conviction of operating while intoxicated. Under Indiana Code Section 9-30-5-
2(a), “a person who operates a vehicle while intoxicated commits a Class C
misdemeanor.” Under Indiana Code Section 9-30-5-2(b), a person who
operates a vehicle while intoxicated “in a manner that endangers a person”
commits a Class A misdemeanor. “Intoxicated” means under the influence of
alcohol or certain other substances “so that there is an impaired condition of
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 3 of 7
thought and action and the loss of normal control of a person’s faculties.” Ind.
Code § 9-13-2-86.
[7] Those charges may be enhanced to a Level 6 felony if “the person has a
previous conviction of operating while intoxicated that occurred within the five
(5) years immediately preceding the occurrence of the violation of [Indiana
Code Section 9-30-5-2].” I.C. § 9-30-5-3(a)(1). A “previous conviction of
operating while intoxicated” is defined 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, 1983), or IC 9-11-2 (repealed July 1,
1991); or
(B) a crime under IC 9-30-5-1 through IC 9-30-5-9; or
(2) 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.
I.C. § 9-13-2-130. The issue here is whether Bazan’s previous New York
conviction is a conviction “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.” Id.
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 4 of 7
[8] Bazan had a prior conviction in New York for operating a vehicle while ability
impaired. See N.Y. Vehicle and Traffic Law § 1192.1. The applicable statute
provides: “No person shall operate a motor vehicle while the person’s ability to
operate such motor vehicle is impaired by the consumption of alcohol.” Id. A
prima facie case of this offense is established by demonstrating that the
defendant operated a motor vehicle while his ability to do so was impaired by
the consumption of alcohol. People v. McDonald, 811 N.Y.S.2d 492, 493 (N.Y.
App. Div. 2006). “Conviction of [this] offense [does] not require proof of
intoxication, but only that defendant’s driving ability was impaired to any
extent.” Id. (alterations in original). New York also separately prohibits
operating a motor vehicle while in an intoxicated state. See N.Y. Vehicle and
Traffic Law § 1192.3. Under those statutes, the crime of driving while
intoxicated requires a showing that the defendant “is incapable of employing
the physical and mental abilities which he is expected to possess in order to
operate a vehicle as a reasonable and prudent driver.” People v. McNamara, 704
N.Y.S.2d 100, 101 (N.Y. App. Div. 2000). The lesser offense of driving while
impaired, however, requires only a showing that the defendant’s ability to
operate a vehicle was impaired to some extent. Id.
[9] The State argues that Bazan’s New York conviction for operating a vehicle
while ability impaired is substantially similar to an Indiana conviction for Class
C misdemeanor operating a vehicle while intoxicated under Indiana Code
Section 9-30-5-2(a). According to the State, both statutes require “a showing of
impairment and define[] impairment based on similar facts.” Appellant’s Br. p.
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 5 of 7
8. Bazan argues that the statutes are not substantially similar because the New
York statute does not require proof of intoxication; rather, it requires only an
impairment.
[10] In support of the State’s argument, it relies on State v. Akins, 824 N.E.2d 676
(Ind. 2005). In Akins, the issue was whether a defendant’s prior conviction in
Michigan for operating a vehicle while being under the influence of an
intoxicating liquor or having an alcohol content of 0.10 grams or more per 100
milliliters of blood qualified as a previous conviction of operating while
intoxicated and could be used to enhance an Indiana charge for operating while
intoxicated. Our supreme court concluded that the elements of the Michigan
statute were substantially similar to the elements of the relevant Indiana
statutes. Specifically, it found:
little difference between Indiana’s “impaired condition of
thought and action and the loss of normal control” and
Michigan’s impaired control and mental clarity or driving ability
that is “substantially and materially affected.” The Michigan
standard does not require a greater showing of impairment than
that required by Indiana Code § 9-30-5-2(a). Though phrased
somewhat differently, subsection (a) of the Michigan statute
nevertheless describes elements that are substantially similar to
those in subsection 2(a) of the Indiana statute.
Akins, 824 N.E.2d at 678-79. Additionally, when discussing the similarity of
the alcohol content portions of the statutes, the court held that “[v]iolation of
the Michigan standard required a degree of intoxication greater than that under
the Indiana statute, and thus the elements of subsection (b) of the Michigan
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 6 of 7
statute are substantially similar to those in subsection 1(a) of the Indiana
statute.” Id. at 679. Thus, the court concluded that the defendant had a
previous conviction of operating while intoxicated within the past five years in
a jurisdiction in which the elements of the crime were substantially similar to
the elements of a crime described in Indiana Code Sections 9-30-5-1 through 9-
30-5-9. Id.
[11] We conclude that, unlike in Akins, the New York statute here is not
substantially similar to the elements of a crime described in Indiana Code
Sections 9-30-5-1 through 9-30-5-9. The New York statute under which Bazan
was convicted requires only some extent of impairment due to the consumption
of alcohol. On the other hand, Indiana Code Section 9-30-5-2(a), upon which
the State relies, requires a showing of an impaired condition of thought and
action and the loss of normal control of a person’s faculties. The Indiana
statute requires a greater showing of impairment than the New York statute.
The two statutes have markedly different thresholds for establishing a violation.
Consequently, the two statutes are not substantially similar, and we conclude
that the trial court properly dismissed the enhanced charges in this case.
Conclusion
[12] The trial court properly granted Bazan’s motion to dismiss. We affirm.
[13] Affirmed.
[14] Kirsch, J., and Najam, J., concur.
Court of Appeals of Indiana | Opinion 55A01-1506-CR-737 | November 10, 2015 Page 7 of 7