State v. Rans

• Decision Date: 28 November 2000
• Docket Number: No. 71A03-0002-CR-71.,71A03-0002-CR-71.
• Citation: 739 N.E.2d 164
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Shawn M. RANS, Appellee-Defendant.
• Court: Indiana Appellate Court

739 N.E.2d 164

STATE of Indiana, Appellant-Plaintiff, v. Shawn M. RANS, Appellee-Defendant.

No. 71A03-0002-CR-71.

Court of Appeals of Indiana.

November 28, 2000.

Transfer Denied February 2, 2001.

Karen M. Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

The State challenges the trial court's acquittal of Shawn M. Rans for Operating a Vehicle While Intoxicated ("OWI") with a Previous Conviction of OWI within the Last Five Years, a Class D felony. The State presents a single issue for our review, namely, whether Rans' previous conviction in Michigan of Operating a Vehicle While Visibly Impaired ("DWVI"), a misdemeanor, constitutes a "previous conviction of operating while intoxicated" under Indiana Code Section 9-30-5-3.

We affirm.

FACTS AND PROCEDURAL HISTORY

On or about February 9, 1996, Rans was convicted in Michigan of DWVI, a misdemeanor. See MICH.COMP.LAWS §§ 257.625(3) and (9). On March 21, 1999, Rans was arrested for OWI in St. Joseph County. The State charged Rans with OWI, a Class A misdemeanor, and OWI with a previous conviction of OWI within the last five years, a Class D felony. See IND.CODE §§ 9-30-5-2 and 3. Rans pled guilty to the A misdemeanor OWI, and the trial court entered judgment of acquittal on the D felony OWI, concluding that Rans' Michigan DWVI conviction did not constitute a previous conviction for OWI as required by Indiana Code Section 9-30-5-3. The State filed an unsuccessful motion to correct error. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

This case involves a question of statutory interpretation. The interpretation of a statute is a question of law reserved for the courts. Wayne Metal Prods. Co., Inc. v. Indiana Dep't of Envtl. Mgmt., 721 N.E.2d 316, 317 (Ind. Ct.App.1999), trans. denied. Appellate courts review questions of law under a de novo standard and owe no deference to a trial court's legal conclusions. Id. If the language of a statute is clear and unambiguous, it is not subject to judicial interpretation. Montgomery v. Estate of Montgomery, 677 N.E.2d 571, 574 (Ind.Ct. App.1997). However, when the language is susceptible to more than one construction, we must construe the statute to determine the apparent legislative intent. Id. The task of appellate courts with respect to statutory interpretation has been summarized as follows:

We ascertain and implement legislative intent by "giving effect to the ordinary and plain meaning of the language used in the statute." The statute is examined and interpreted as a whole and the language itself is scrutinized, including the grammatical structure of the clause or sentence at issue. Within this analysis, we give words their common and ordinary meaning, without "overemphasizing a strict literal or selective reading of individual words."

Clifft v. Indiana Dep't 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).¹

Previous Conviction of Operating a Vehicle While Intoxicated

The State argues that the trial court erred when it acquitted Rans of D felony OWI. Specifically, it contends that the trial court improperly concluded that Rans' Michigan DWVI conviction did not constitute a "previous conviction of operating while intoxicated" under Indiana Code Section 9-30-5-3.

Indiana Code Section 9-30-5-3 reads:

A person who violates section 1 or 2 of this chapter commits a Class D felony if:

(1) the person has a previous conviction of operating while intoxicated; and

(2) the previous conviction of operating while intoxicated occurred within the last five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter.

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 Section 9-30-5-2.² 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). Michigan's 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 person's 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 defendant's 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, 395 Mich. 296, 235 N.W.2d 338, 342 (1975).

The DWVI statute addresses the problem of the driver whose ability has been impaired or reduced, but not eliminated. People v. Walters, 160 Mich.App. 396, 407 N.W.2d 662, 664 (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, 237 Mich.App. 346, 602 N.W.2d 847, 851 (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,³ 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 person's 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 defendant's 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 defendant's 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 Michigan's DWVI statute is substantially similar to Indiana's 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), aff'd on other grounds,550 Pa. 578, 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...