*1 venile and adult criminal history that in-
cludes violent crimes. Foster also used
drugs and regularly alcohol and has never
accepted responsibility for his actions. We principle
are mindful of the that "the maxi- permitted
mum sentence by law should be
reserved for the very worst offenses and Buchanan,
offenders." See 767 N.E.2d at on Based aggra- aforementioned
vating factors properly found by the trial
court, we find that Foster falls into this result,
category. As a we find that the one fifty
hundred and year consecutive
sentence was appropriate in light of the
nature of the offenses Foster committed 7(B).
and Foster's character. App. See R.
CONCLUSION
Based on the foregoing, we find that
Final Instruction was harmless error.
We also find that the trial court properly
denied Foster's motions for discharge.
Finally, we conclude that Foster's one
hundred fifty year consecutive
sentence appropriate in light of the
nature of the offenses he committed and
his character.
Affirmed. BARNES, JJ.,
SHARPNACK and
concur. Indiana,
STATE of Appellant-Plaintiff, AKINS, Appellee-Defendant.
Loren
No. 79A05-0210-CR-520.
Court Appeals of Indiana.
Sept. 17, 2003. *2 Carter, Attorney General
Steve Kobe, Deputy Attor- Indiana, A. Andrew IN, Attorney General, Indianapolis, ney Appellant. for OPINION RILEY, Judge. THE CASE OF
STATEMENT Indiana Appellant-Plaintiff, grant of court's (State), the trial appeals Aking' (Akins), Loren Appellee-Defendant II, Count to Dismiss Motion having a while felony, Ind. conviction, a Class Code affirm.
We ISSUES issue, which we raises one The State follows: Whether restate 257.625(1)(a), substantially simi- statute 9-80-5-1(b), so lar to Ind.Code Aking' constitute may Michigan conviction IV, intoxicatеd" under LC. 9-18-2-1830 and Count operating a vehicle without 1.C. 9-830-5-8. proof of financial responsibility, a Class C misdemeanor, § 9-25-8-2; V, Count AND FACTS PROCEDURAL HISTORY failure to register vehicle, *3 I.C. 9-18-2- 9, 2001, On December Akins drove his 29; VI, and Count making an turn, unsafe car while intoxicated. After hitting curb, a 1.C. Akins swerved into the other lane where 19, On February 2002, Akins filed his the car came to rest. Akins exited his Motion to Dismiss II, Count operating a vehicle, removed the plate, license and fled vehicle while intoxicated while having a on foot. There were two witnesses at the prior conviction, a Class D felony. In his seene of the accident who gave Lafayette Motion to II, Dismiss Count argued Akins Department Police Officers a description that he did not have a qualifying conviction suspect. under Indiana law based on the allegations Eventually, Lafayette Police Officer II, of Count operating a vehicle while in- (Officer Robbins) Robbins saw a suspect, toxicated while having a prior conviction. Akins, matching the description given by On May 2002, the trial court granted Thus, two witnesses. Officer Robbins Aking' motion. May 20, On 2002, the State stopped Akins and asked him ques- some filed a Motion to Correct Error. On Au- tions. Officer Robbins smelled the strong gust 23, 2002, the trial court denied the odor of an alcoholic beverage coming from State's motion. September On 28, 2002, Akins result, breath. As a Officer Robbins the State filed its Motion Requesting Cer- asked Akins how much he had to drink. tification of an Interlocutory Order. On responded Akins that he "had had a few." September 27, 2002, the trial granted court (Appellant's 19). App. p. Officer Robbins the Statе's motion to certify its August then informed Akins that he believed he 2002, order for interlocutory appeal. On was intoxicated and asked him partici- 27, 2002, December this granted court ju- pate in some sobriety field tests in order to risdiction of the interlocutory appeal. check the level of his intoxication. Howev- er, Akins State appeals. refused to now participate in the field Additional facts will sobriety provided tests. be Akins as necessary. also refused to give a breath sample. DISCUSSIONAND DECISION 10, 2001,
On December the State filed an Akins, information against charging him I. Standard Review I, with Count operating a vehicle while intoxicated, a Class A misdemeanor, I.C. outset, At the we note that Akins § 9-80-5-2; II, Count did not a file an Appellee's Brief. When an while intoxicated while having prior Appellee a con does not brief, submit a appel an viction for operating a vehicle while lant may prevail intoxi by making prima a facie cated, a Class D felony, ; case of error. Village College Corner v. III, Count leaving the seene of an accident Town Corner, College West 766 N.E.2d causing damage to personal real or proper 745 (Ind.Ct.App.2002). In this con (other ty vehicle) than a person, another text, "prima facie" is defined as "at first B misdemeanor, Class .C. 9-26-1-4; sight, on appearance, first or on the face of 14, 1999, 1. On October pled guilty Akins the influence intoxicating liquor. County, Berrien driving Operating Previous Conviction IL facie error prima this using By Id. it." Intoxicated While a Vehicle the bur- is relieved standard, court this Ap- for the arguments developing den trial court argues The State remains properly duty that pellee, Motion Akins' it granted when erred Id. Appellee. a vehicle II, operating Count Dismiss question involves This case con- having interpreta The interpretation. statutory § 9- under I.C. viction, felony, re of law question ais of a statute 830-5-8. Rans, 739 courts. for the served *4 reads: Section Indiana Code Appel (Ind.Ct.App.2000). 164, 166 N.E.2d of law under questions review courts late 2 1 or of section violates person who A tо no deference owe and novo standard de felony if: chapter commits this Id. If the conclusions. legal court's a trial of conviction previous person has the unambig and is clear statute language intoxicated; and the while operating interpre judicial to uous, subject not it is while operating of conviction Mont Estate Montgomery tation. of the five within occurred (Ind.Ct.App. 574 N.E.2d 677 gomery, the occur- preceding immediately years language 1997). However, when 2 of 1 or of sectiоn the violation of rence construction, than one to more susceptible chapter. this to determine statute construe we must The intent. Id. legislative apparent while operating conviction A respect courts appellate task conviction a previous includes intoxicated" summa- has been interpretation statutory in which jurisdiction any "in follows: rized as the convic- for which the crime elements legislative implement and ascertain We substantially similar are tion wаs entered ordinary to the effect "giving by intent described of a crime elements to the used language meaning plain and § 9-80-5-9." through I.C. § 9-830-5-1 I.C. is examined statute The in the statute." added). 9-13-2-180(2) (emphasis T.C. lan- and the a whole interpreted charged with scrutinized, Here, including the Akins was itself is guage intoxicated, a I, clause or operating structure Count grammatical 9-30- analysis, this A Within misdemeanor at issue. Class sentence pre and ordi- Akins was undisputed their common words It is 5-2. give we visibly "overemphasizing meaning, viously without convicted nary reading or selective (DWVI) Michigan Com literal a strict 257.625(8)2 The dis- words." Laws Section piled individual therefore, Michi issue, is whether positive Revenue, Dep't v. Indiana Clifft 257.625(8) is Laws Section Compiled gan (citations (Ind.1995) 310, 316 N.E.2d 660 to .C. "substantially similar" to be omitted). are statutes Finally, penal are two statutes that the conclude We the State against construed strictly result, and, as a substantially similar or intendment them enlarging avoid did not Michigan DWVI Akins' meaning the fair beyond implication operat- "previous conviction at 166. constitute N.E.2d 739 used. language < that the judgment indicates ber pertinent 2. The Novem- offense date of Akins'
1097
ing while intoxicated" as required under
gests that some ability to drive in a normal
1.C. 9-30-5-33
manner will remain."
Id. The offense of
DWVI is thus a lesser included
The Michigan legislature
offense of
has established
OUIL, because "the
essentially
degree
three basic
of intoxication
alcohol-related driv-
which
ing
the people
offenses: operating
prove"
must
vehicle with an
is lower.
Id;
alcohol content
grams
of 0.10
or
Oxendine v.
рer
State,
more
Secretary
blood,
100 milliliters of
Mich.App. 346,
a vehicle
N.W.2d
while under the influence of intoxicating
(observing that
test for OUIL is whether
liquor
("OUIL"),
and DWVI. See Mich.
person
"the
is substantially deprived of
257.625(1)(a),
Laws
(1)(b), and
[his/her] normal control or clarity of mind
(8); Rans,
A not, whether licensed or shall not operate a upon a highway or Alternatively, the Indiana legisla other place open to the general public or ture has defined only two basic alcohol- generally accessible to vehicles, motor related driving offenses: operating a vehi *5 including an area designated for the cle with an alcohol content in excess of 0.08 vehicles, parking of within this state grams per 100 blood, milliliters of and when, due to the consumption of an in- OWI. See §§ 9-30-5-1, 1.C. 9-30-5-2. A toxicating liquor, person's the ability to person is intoxicated purposes for of the operate the vehicle is visibly impaired. Indiana OWI if statute he or she is "under Mich, Comp. 257.625(8). Laws Accord- the influence of ... alcohol ... so that ing to the Michigan Supreme Court, visible there is an impaired condition of thought impairment is demonstrated when: and action and the loss of normal control the ability defendant's to drive was so person's faculties." See L.C. 9-13-2- weakened or by reduced consumption of The current definition of "intoxicated" 86. intoxicating liquor that defendant drove ais result of an amendment made effective ability less than would an ordinary, 1, July 2001. time, At that "to an extent careful prudent driver. Such weak- that endangers person" was deleted from ening or reduction of ability to drive the end of the 175-2001, definition. PL. must be visible to an ordinary, observant § 1. The endangerment element was then person. added to the operating while intoxicated People Lambert, v. 296, 395 Mich. 235 section to elevate the class C misdemeanor (1975). N.W.2d 342 to a class A misdemeanor. I.C. 9-30-5- 2(b). However,
The DWVI statute
addresses
the
as stated
above in
footnote
prоblem
of the driver
we must
ability
compare
whose
has
Michigan's drunk-
been
reduced,
or
driving
but not elimi
statutes to Indiana's drunk driving
Rans,
nated.
3. We note that piled July on 257.625(3), Laws Section our state July to legislature amended IC. 9-30-5-2. The Accordingly, 2001. our review utilizes the rule added the endangerment element of to language and elements of I.C. 9-30-5-2 as enhance the Class C misdemeanor ato Class they existed at the time Michigan of Akins' However, A misdemeanor. Akins' was offense in November of 1999. charged with DWVI Michigan under Com- Michigan that conclude Accordingly, we ele Therefore, endangerment the 257.6258) is not impair Laws Section Compiled the level indicates of OWI ment Code See to Indiana substantially similar must that faculties lost and extent ment in November existed as it and ob tion intoxication to establish be shown convie that Akins' Thus, follows it Krohn, v. a conviction. tain Compiled En for (Ind.Ct.App.1988). tion DWVI 374, 377 N.E.2d not consti does showing Laws Section evidence proved is dangerment "prior conviction tute a or condition defendant's the that To § 9-380-5-8. I.C. per any intoxicated" endangered have could manner applica extend would police, or hold otherwise public, son, including the encompass con to of 1.C. State, Blinn himself. defendant a lower de Thus, requiring for conduct victions (Ind.Ct.App.1997). 51, 54 N.E.2d [prior] ren than do our condition intoxication gree of the defendant's proof and would driving statutes is unsafe alcohol-related the vehicle operation dered precept well-settled contrary to the endangerment be establish sufficient against strictly construed be statutes penal Id. offense. element beyond them enlarging to avoid the State principles, foregoing maintaining In language. meaning of their fair stat DWVI Michigan's say cannot we Absent at 169. 739 N.E.2d Indiana's substantially similar ute five the last within OWI statute. A misdemeanor class as a OWI of OWI convicted be Akins cannot years, alcоhol-related for statutory scheme Our felony. See as a Class encompass the does offenses driving *6 did trial court Therefore, that the we find [DWVI]." crime broadly defined "more Akinsg' to Motion granted it when not err 168; also Oxen See at N.E.2d 739 II. Count Dismiss 346, 602 State, Mich.App. dine that (1999) (concluding 847, 852 N.W.2d CONCLUSION crime defined broadly more is a DWVI we conclude foregoing, Based on Laws OUIL). Compiled than Mo- Akins' granted properly trial that the that the 257.625(8) proof requires Section II, a vehi- operating Dismiss Count to "with a vehicle operаted merely defendant intoxicated, felony, 1.C. while cle careful ordinary, an than would ability less § 9-30-5-3. ie., was driver," that there prudent Affirmed. ability to drive in the reduction simply a intoxication. the driver's normally due to J., BARNES, concurs. threshold lower to this Contrary See id. requires intoxication, § 9-80-52 I.C. J., opinion. SHARPNACK, with dissents ability lost the defendant evidence dissenting. SHARPNACK, Judge, that it extent an normally to such to drive disagree I because respectfully dissent I person. any endangered or unsafe Aking's holding majority's with Therefore, Blinn, at 54. N.E.2d See Laws Cоmp. Mich. under conviction § 9-30- under of OWI the definition not constitute § did 257.625 interpreted reasonably be
5-2 cannot intoxicated" impair alcohol-related any visible include purposes im for whether regard ment without trial reverse I would Consequently, or dan to harm others exposes pairment charge of dismissal court's ger. Id. a vehicle while (A) intoxicated as a class D an alcohol related or drug related felony and remand for further proceed- crime 1939, 48, s.52, Acts c. ings. amended, IC 9-4-1-54 (repеaled September 1, 1988), or IC 9-11-2 matter,
As an initial I disagree must (repealed 1, July 1991); or with majority's statement that Akins was previously convicted of operating (B) a crime under IC 9-80-5-1 through visibly ("DWVI") 9-80-5-9; IC or 257.625(8). Comp. Mich. Law Majority (2) in any jurisdiction in which the Opinion at 6. On October elements of the erime for which the con- State of Michigan charged Akins op- viction was entered are substantially erating a being "while under the similar to the elements of a crime de- influence of intoxicating liquor, or having seribed IC 9-380-5-1 through IC 9- an alcohol content grams of 0.10 or more 830-5-9. per blood; 100 milliliters of contrary to 257.625(1)." Comp. [Mich. Law ] Appel- The majority addresses the issue as Appendix lant's at pleaded 68. Akins whether the elements of previous Akins's guilty to operating a vehicle under the Michigan conviction are substantially simi influence of an intoxicating liquor and was lar to (with which sentenced on December 1999. Appel- Akins is currently charged) as it existed at Appendix lant's Thus, at 70-783. Akins's Aking's the time of previous Michigan conv conviction was under Mich. iction.4 I bеlieve that the language of the Comp. Law for operating a statute requires that analyze we whether vehicle while under the influence of intoxi- Aking's the elements of previous Michigan cating liquor ("OUIL"), not under Mich. conviction are substantially similar to the 257.625(8). Law elements of a crime described in Ind.Code The State charged Akins under Ind. §§ 9-30-5-1 through -9 as these statutes Code which provides that: Aking's existed at the time of current of A person who violates section 1 or 2 of fense. *7 chapter this commits a Class D fеlony if: When reviewing statute, a we give must person the has a previous conviction effect and meaning every to word. Allied- of intoxicated; Signal, Ott, Inc. v. 785 N.E.2d previous the conviction of operating (Ind.2003), reh'g denied. Our primary while intoxicated occurred within the goal when construing the meaning of a (5) years five immediately preceding statute is to determine legislature's the the occurrence of the violation of intent. Id. at 1071-1072. Given such def section 1 2or of chapter. this erence to legislative intentions, we inter Further, § Ind.Code 9-13-2-130 defines pret an unambiguous statute to mean what "previous conviction of operating while in- it plainly states, plain and its and obvious toxicated" previous as a conviction: meaning may not be enlarged or restrict
(1) in Indiana of: ed. Id. at 1072. 4. The initially phrases the issue as 5-1 is Further, not relevant analysis. to this whether the previous elements of Akins's the State later upon abandons its reliance Michigan conviction substantially are similar Ind.Code compares 9-30-5-1 аnd Ind.Code to However, Ind.Code 9-30-5-1. as dis- 9-30-5-2 with the statutes. dissent, cussed later in this Ind.Code 9-30- through 9-80-5-1 in IC crime described above, 9-18-2-1830 Ind.Code noted As above, in this nothing As 9-30-5-9." a IC conviction, part, in as previous a defines "a phrase, the limits language statutory "a crime conviction Indiana
previous through in IC 9-80-5-1 described crime 9-80-5-9" through IC IC 9-30-5-1 under same that is the 9-30-5-9," crime to a IC ju- any "in other conviction previous or a if Even offense. charged currently the as of the the elements in which risdiction charged under currently is the defendant entеred was conviction the which for crime convic- previous Ind.Code the elements substantially similar are substantially are the elements where through in IC 9-80-5-1 crime described under any crime elements to the similar conviction previous If the IC 9-30-5-9." will -9 through §§ 9-80-5-1 Ind.Code lan- plain Indiana, the under in occurred convie- previous the definition if meet statute, must determine we the guage we that I believe Consequently, tion. under "a crime conviction previous the the elements whether determine I find should 9-80-5-9." through IC IC 9-30-5-1 Akinsg's are substantial- conviction previous lim- language statutory in the nothing any crime the elements ly similar 9-30-5-1 under IC "a crime phrase, the its -9. through §§ 9-830-5-1 Ind.Code under 9-80-5-9," that is to a crime through IC offense. currently charged the same as the compares majority the Additionally, limit to so intent Aking's legislature's the If it were Ind.Code with conviction previous convic- previous aas qualify would what time of at the it existed as § 9-30-5-2 expressly language tion, see we would as rather than conviction previous Akins's as a con- conviction previous the identified also turns issue This currently exists5 it currently offense same for the viction "a phrases the interpretation the on cur- defendant if the Even charged. 9- through IC 9-830-5-1 under IC crime § 9-80-5- under Ind.Code charged rently in IC 9- described and "a crime 30-5-9" conviction Indiana previous any I find 9-30-5-9." through IC 30-5-1 through -9 will §§ 9-80-5-1 re statutory language nothing the conviec- previous aof definition the meet other than statutes to versions fers previous con- limit the need tion. We legislature If the versions. the current charged offense. currently to the viction previous the comparison intended had versions oc- conviction conviction previous if the Similarly, -9, legislature through §§ jurisdiction, in a different curred example, that for provided, have statute, could must we plain language conviction previous is a conviction previous the elements whether determine in which jurisdiction any "in "are sub- crime for *8 the conviec- for which the crime of elements of a the elements stantially similar (b), a (a) in subsection Except provided 1999, provided § 9-30-5-2 Ind.Code 5. In while intoxi- operates a vehicle person who operates a vehicle who person that: "A C misdemeanor. a Class cated commits A misdemeanor." commits (a) is a (b) subsection in that "intoxi- described provided An offense § 9-13-2-86 Ind.Code operates person ... alco- if A misdemeanor the influence Class "under cated" endangers a manner a vehicle in impaired condition is an that there ... so hol person. normal the loss of thought and action Further, "in- § redefined 9-13-2-86 Ind.Code еxtent to an faculties person's control the influence "under to mean July toxicated" Effective person." endangers a an there is so that ... . alcohol was amended § 9-30-5-2 Ind.Code the loss action and thought and condition 175-2001, statute now 6. The Pub.L. No. person's faculties." aof control of normal provides that: tion was entered substantially are similar toxicating liquor and a controlled to the elements of a crime described in substance.
versions guage Even 5-9 in Code conviction." over timе though §§ of Ind.Code effect 9-30-5-1 through amendments, IC 9-30-5-1 through IC 9-380- the offenses described in Ind. (phrases at the time through in italics -9 the previous may requires the lan added). change (b) [*] urine. milliliters of The of 0.10 grams or breath, [*] person [*] or per 67 milliliters of has an alcohol content blood, [*] more per 210 liters [*] per *# that we determine whether previous person, A not, whether licensed or conviction would be a crime under the shall operate not a vehicle upon current versions §§ 9-80-51 highway or other place open to the through -9. Geise, See generally State v. general public or generally accessi- 596 N.E.2d 245-246 (Ind.Ct.App.1992) ble vеhicles, to motor including an (holding "(bly a literal reading of the area designated for the parking of statutes," the defendant did not have a vehicles, within when, this state due "previous conviction" because the defini to the consumption of intoxicating tion of conviction" only included liquor, a substance, controlled or a the recodified statute, version of the not combination of intoxicating liquor codification). previous and a substance, controlled per-
Turning now to the facts son's ability operate of this case and the vehicle is application visibly of this statutory interpreta- impaired. If person is tion, the issue is whether the elements of charged with violating (1), subsection Akins's a finding guilty Mich. under this subsec- Comp. 257.625(1) Law may are be substantially rendered.
similar to the elements of a crime de- The offense of DWVI under Comp. Mich. - §§ seribed 9-80-5-1 through Law is a lesser included of Mich. 257.625, Law effective fense of OUIL under Mich. Comp. Law 1, 1999, provided, October in part, that: 257.625(1). See State person, A not, whethеr licensed or N.E.2d 164 (Ind.Ct.App.2000), trams. de- shall operate upon a mied.6 Michigan courts have indicated highway or place open to the that the offense of OUIL "would be com general public or generally accessi- if mitted a defendant drove when the 'de vehicles,
ble to motor including an fendant's ability to drive was substantially area designated for the parking of and materially by consumption of affected vehicles, within this state if either of intoxicating liquor'". or person if "the the follоwing applies: substantially deprived of [his/her] normal (a) person The control or clarity of mind at the time [he/ is under the influence
of intoxicating liquor, a controlled she] is operating the motor vehicle." Oz substance, or a combination State, endine v. Sec'y in- 237 Mich.App. *9 In State v. merely operated defendant this court held that a vehicle "with the Michigan elements of a conviction for DWVI ability less than ordinary, would an careful under Comp. 257.625(3) § Mich. Law was not prudent and driver" while the Indiana stаtute substantially similar to the elements of the required showing a endangerment. of 739 § version of Ind.Code 9-30-5-2 because N.E.2d at 168-169. Michigan the required statute proof that the 9-30-5-2(3). It is (1999) (emphasis 847, 851 ments 346, 602 N.W.2d Michigan of the the elements that evident denied. appeal original), in substantially simi- are not of OUIL offense hand, §§ 9-380-5- Ind.Code other On the § 9-80-5- Ind.Code of to the elements lar of a operation the govern -9 through only 2(a). requires statute The Indiana concentration alcohol an vehicle impaired condition "an have that the driver per one alcohol of gram than 0.08 greater loss of nor- and the action thought and of person's of the (100) milliliters hundred while faculties" person's aof mal control (210) liters ten hundred two per or blood that the requires Michigan statute the breath, a vehicle operating person's mate- "substantially and ability be driver's while intoxicated, a vehicle operating while be "substan- or the driver affected" rially conviction, op- awith intoxicated control normal deprived [his/her] tially causing serious intoxicated erating while is [he/she] the time mind at clarity of or death, in viola- operating injury or bodily Thus, a con- motor vehicle." the operating license, in- ignition probationary Law Comp. Mich. under viction the offenses, under persons device terlock showing of 257.625(1) greater a requires under while operating twenty-one age of Ind.Code required than impairment a alcohol, operating and influence the 9-30-5-2(a). the ele- Consequently, highway. a than on place in a vehicle are not substan- statutes the two ments of governs which Only Ind.Code tially similar. intoxicated, is a vehicle operating Mich. However, July comparison a As of here. applicable that: § 9-80-5- provides Ind.Code statute and Law of those 2(b) elements (b), reveals (a) in subsection provided Except as In addi- substantially similar. are statutes a vehicle operates who person a "an had that the driver showing to a C tion a Class commits - and action thought. impaired condition misdemeanor. person's a control of of normal the loss and in (b) subsection described An offense 9-30-5-2(b) includes faculties," Ind.Code if the (a) A misdemeanor is requirement the additional in a man- a vehicle operates person a endangers manner that in a person. a endangers ner is endangerment "The element person. Further, "in- the term § 9-30-5-2. LC. the defendant's by evidence proved influence of: means toxicated" vehi- or manner condition (1) alcohol; in- any person, endangered have cle could (as defined (2) substance controlled a the defen- police, or public, cluding the 35-48-1); IC State, 702 N.E.2d dant." Weaver or a con- alcohol than drug other Thus, "proof that (Ind.Ct.App.1998). substance; or trolled opera- rendered condition the defendant's alcohol, controlled sufficient unsafe is the vehicle tion of combination substances, drugs; or Id. endangerment." establish condition an there is so that person whose that "a argues The State of nor- and the loss action thought materi- substantially аnd ability to drive faculties. person's mal control of alcohol is consumption of by ally affected and to to himself danger by definition agree 7. I Brief at Appellant's others." the elements comparing begin We require- additional that the and conclude ele- with the Akins's *10 ment endangerment renders Ind.Code 9-30-5-2(b) substantially similar to the
Michigan statute. As previously noted, 257.625(1) Comp.
Mich. Law requires a
showing that the ability driver's be "sub-
stantially and materially affected" or the
driver be "substantially deprived of [his/ normal
her] control or clarity of mind at
the time is operating [he/she] the motor
vehicle." requirement The 9-30-5-2(b) that the driver only be
"impaired" but also point to the operation his or her of the vehicle is
rendered unsafe is similar to Michigan's
requirement that the driver be "substan-
tially" result, affected. As a the elements Akinsg'sprevious conviction under Mich. Law are substantially
similar to the elements of 9-
830-5-2(b). Consequently, I conclude that
Akins had a conviction of operat-
ing while intoxicated" as defined Ind.
Code 9-13-2-130.
I would reverse the trial court's dismiss- Aking's
al of motion to dismiss the charge
of operating a vehicle while intoxicated as class felony.
PATHFINDER COMMUNICATIONS
CORPORATION, Appellant-
Plaintiff, MACY, Appellee-Defendant.
Dave
No. 02A04-0303-CV-146.
Court Appeals of Indiana.
Sept.