The Indiana Court of Appeals split Monday regarding a man’s conviction of misdemeanor operating while intoxicated, with Judge Terry Crone arguing the statute requires the state to prove actual endangerment of the driver or others, not just the possibility of it.

Gregory E. Staten challenged his conviction of Class A misdemeanor operating a vehicle while intoxicated endangering a person and the finding he committed a Class C infraction failing to obey a stop sign. He was also convicted of Class A misdemeanor operating a vehicle with a blood alcohol content of 0.15 or more and Class C misdemeanor operating a vehicle while intoxicated, but those two convictions were later tossed out.

Indiana State Trooper Joshua Greer saw Staten drive his car left of center and through a 3-way stop sign on a school access road. Staten failed field sobriety tests and consented to a chemical test, which showed a BAC of 0.15 percent.

In Gregory E. Staten v. State of Indiana, No. 87A04-1005-CR-393, the three judges vacated the Class C traffic infraction and $5 fine, noting the state conceded that as charged, the evidence was insufficient to prove Staten committed the infraction.

The majority upheld his remaining conviction over Staten’s arguments that the BAC test results were inadmissible because the traffic stop was illegal. The state conceded Staten didn’t violate I.C. Section 9-21-8-32 because the stop sign wasn’t at an entrance to a through highway, but claimed the traffic stop was legal pursuant to I.C. Section 9-21-4-11 because the Indiana Department of Transportation erected the 3-way stop sign there. As a result, the state claimed he violated I.C. Section 9-21-4-18 which says a person must obey signs posted under this chapter.

Judges Cale Bradford and James Kirsch found there was sufficient evidence to determine Staten committed a traffic violation under I.C. Section 9-21-4-18, giving Greer the legal right to stop Staten’s car.

The majority held that the state must prove that Staten was operating his car in a manner that could have endangered anyone, including himself. Greer testified that he saw Staten drive left of center and drive through the stop sign. This is sufficient to support his conviction.

Judge Crone dissented regarding Staten’s Class A misdemeanor OWI endangering a person conviction. There’s no evidence that the DOT erected the stop sign at the intersection, as required by I.C. 9-21-4-11, or whether the access road was open to the public and used for vehicular travel. The traffic stop was invalid, Judge Crone concluded, so his OWI conviction should be vacated.

In addition, Judge Crone said there isn’t sufficient evidence supporting that Staten drove his car in a way that endangered someone.

“With all due respect to my colleagues and the public policy concerns expressed in cases like Outlaw, Krohn, and Staley, I believe that the plain language of the statute requires the State to prove that a defendant operated his vehicle in a manner that actually endangered a person,” he wrote.

In this case, Judge Crone would vacate this conviction and order Staten’s Class A misdemeanor operating a vehicle with a BAC of 0.15 or more be reinstated if not for the invalid traffic stop.