Moala v. State, 2012 Ind. App. LEXIS 305

Moala stopped for speeding in Indianapolis; odor of alcohol and bloodshot eyes observed; Moala admitted consuming five or six drinks; he performed poorly on field sobriety tests and chemical test showed BAC .10; charges: OWD causing endangerment (A misdemeanor), operating with BAC .08–.15 (Class C), public intoxication (Class B); bench trial resulted in convictions and a complex merging/sentencing order; trial court ultimately merged Count II into Count I (OWD} ; Count III (Public Intoxication) sentenced separately; both sentences served concurrently; State moved to dismiss but final order kept both counts, leading to Moala’s appeal; Indiana Court of Appeals vacates the lesser conviction to cure double jeopardy]),
Moala appeals on double jeopardy grounds, arguing the evidence supports both OWD and public intoxication from the same incident; State concedes double jeopardy but seeks to dismiss the public intoxication count; appellate court agrees a double jeopardy violation occurred and must remedy

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether double jeopardy violated by convicting both OWD and public intoxication	Moala argues same evidentiary facts support two offenses	State concedes violation but seeks to vacate public intoxication	Double jeopardy exists; one conviction must be vacated
Appropriate remedy for the double jeopardy violation	Vacate the lesser-punished conviction (OWD) to cure violation	State suggests vacating public intoxication or exercising prosecutorial discretion	Vacate the OWD conviction; leave public intoxication intact

Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual-evidence test for same-offense double jeopardy; remedy via vacatur of one conviction)
Smith v. State, 881 N.E.2d 1040 (Ind. Ct. App. 2008) (vacate higher or lesser offense depending on penal consequences under Richardson)
Jenkins v. State, 726 N.E.2d 268 (Ind. 2000) (vacate the one with less severe penal consequences)
Newgent v. State, 897 N.E.2d 520 (Ind. Ct. App. 2008) (double jeopardy; vacate less serious conviction)
Williams v. State, 892 N.E.2d 666 (Ind. Ct. App. 2008) (double jeopardy; vacate respective conviction)
Owens v. State, 742 N.E.2d 538 (Ind. Ct. App. 2001) (double jeopardy; vacate lesser conviction)
Noble v. State, 734 N.E.2d 1119 (Ind. Ct. App. 2000) (equal-severity double jeopardy cases; vacate second count)
Schrefler v. State, 660 N.E.2d 585 (Ind. Ct. App. 1996) (license suspension not punitive for double jeopardy purposes)
Hunter v. State, 802 N.E.2d 480 (Ind. Ct. App. 2004) (suspension of driving privileges is remedial; not punitive for DJ)
H.M. v. State, 892 N.E.2d 679 (Ind. Ct. App. 2008) (juvenile delinquency findings and later penalties discussed for DJ context)