Finney v. StateFinney v. State
- Reporters:
- ,
- Before:
- Ratliff
STATEMENT OF THE CASE
Arthur R. Finney appeals his conviction of driving a motor vehicle when his blood alcohol content was .10% or greater, as a class D felony, 1 contending the statute under which he was charged is unconstitutional, and that the class C misdemeanor charge was an insufficient basis for enhancement to a class D felony. We affirm.
FACTS
An Indiana State Police Officer observed Finney driving a vehicle on U.S. Highway 41 in Evansville on November 20, 1984. The vehicle crossed the center line four or five times and was being driven in an erratic manner. The officer stopped the car and noticed that the driver, Finney, had bloodshot eyes and that he had a noticeable odor of alcohol about him. Finney was taken to *1031 the police station where an intoxilyzer test was administered which revealed his blood alcohol to be .10%. Prior to administering the intoxilyzer test, Finney successfully completed several dexterity tests. Finney was charged with driving a vehicle when his blood alcohol level was .10% or greater, a class C misdemeanor (Count I); operating a motor vehicle while intoxicated, a class D felony (Count I A); operating a motor vehicle while intoxicated, a class A misdemeanor (Count II); and operating a motor vehicle while intoxicated, a class D felony (Count II A). Trial by jury resulted in conviction of Counts I and I A, and aequit-tal on Counts II and II A. The court then sentenced Finney to four years in the Indiana Department of Correction to be served on the Alcohol Intensive Supervision Program, and his driver‘s license was suspended for two (2) years.
ISSUES
1. Is Indiana Code section 9-11-2-1 which prohibits a person from driving a motor vehicle with ten-hundredths percent (.10%), or more by weight of alcohol in his blood unconstitutional?
2. Can the class C misdemeanor under Indiana Code section 9-11-2-1 form the basis for an enhancement to class D felony status under Indiana Code section 9-11-2-37
DISCUSSION AND DECISION
ISSUE ONE
Finney contends
First, we observe that statutes are presumed to be constitutional, and the burden is upon the party challenging a statute to show unconstitutionality. Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585; Sidle v. Majors (1976), 264 Ind. 206, 341 N.E.2d 763; Hunter v. State (1977), 172 Ind.App. 397, 360 N.E.2d 588, cert. denied (1977) 434 U.S. 906, 98 S.Ct. 306, 54 LEd.2d 193. Before a statute will be declared repugnant to the constitution, either state or federal, its fatal constitutional defects must be clearly apparent. Johnson, 404 N.E.2d at 591. No such defect is clearly apparent here.
©
The legislature, in the exercise of the police power, and pursuant to its authority to regulate traffic upon the public highways, had the constitutional authority to prohibit a person having a blood alcohol of .10% or more to drive a motor vehicle upon the highways. See Andrews v. City of Marion (1943), 221 Ind. 422, 47 N.E.2d 968 (the legislature, under the police power, may enact laws for the regulation and control of traffic on the public highways); 15 LLE., Highways, § 151 (“In the exercise of its police powers, the State, through the Legislature, has the right to regulate and control the public highways and the use thereof, for the purpose of protecting the highways and promoting the safety, peace, health, morals, and general welfare of the people.“)
Statutes making the operation of a motor vehicle by a person with a blood alcohol level of .10% or higher unlawful are constitutional, and have withstood vagueness, overbreadth, equal protection and due process challenges. Fuenning v. Superior Court of Maricopa County (1983), 139 Ariz. 590, 680 P.2d 121; Johnston v. City of Fort Smith (1985), 15 Ark.App. 102, 690 S.W.2d 358; Roberts v. State (1976), Fla., 329 So.2d 296; People v. Graven (1984), 124 Ill.App.3d 990, 80 Ill.Dec. 149, 464 N.E.2d 1132; State v. D‘Agostino (1984), 203 N.J.Super. 69, 495 A.2d 915; State v. Ferrell (1985), 75 N.C.App. 156, 330 S.E.2d *1032 225; State v. Tanner (1984), 15 Ohio St.3d 1, 472 N.E.2d 689; State v. Dwinell (1984), 119 Wis.2d 305, 349 N.W.2d 739.
Neither is
Although Finney was charged under both
ISSUE TWO
Finney next argues his conviction under
Judgment affirmed.
ROBERTSON, P.J., and NEAL, J., concur.
Notes
. The relevant statutory provisions are:
”Ind.Code Ann. § 9-11-2-1 (Burns Supp. 1985) ‘A person who operates a vehicle with ten-hundredths percent (.10%), or more by weight of alcohol in his blood commits a class C misdemeanor.’
”Ind.Code Ann. § 9-11-2-2 (Burns Supp. 1985) ‘A person who operates a vehicle while intoxicated commits a class A misdemeanor.’
”Ind.Code Ann. § 9-11-2-3 (Burns Supp. 1985) ‘A person who violates section 1 or section 2 of this chapter commits a class D felony if:
1) he has a previous conviction of operating while intoxicated; and
2) the previous conviction of operating while intoxicated occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or section 2 of this chapter.‘”
. Article I, section 14 of the Constitution of the State of Indiana provides that “[njo person shall be put in jeopardy twice for the same offense.”
The Fifth Amendment to the Constitution of the United States, made applicable to the states by the Fourteenth Amendment, provides “nor shall any person be subject for the same offense to be twice put in jeopardy ...”