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Judges uphold OWI conviction

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The Indiana Court of Appeals concluded today that even though a statute uses the word “and” when saying a driver’s actions, thoughts, and normal control of faculties must be impaired, the state isn’t required to prove all three were impaired in order to get a conviction of operating a vehicle while intoxicated.

In Jeffery S. Curtis v. State of Indiana, No. 20A03-1002-CR-110, Jeffery Curtis appealed his Class C misdemeanor conviction of operating a vehicle while intoxicated. He was pulled over after taking a turn too wide and failed several field sobriety tests. He smelled of marijuana and blew a 0.0 into the portable breath test. Curtis told the officer he was diabetic and needed some sugar. Curtis declined medical attention and was able to eat and drink at the police station.

Curtis refused to submit to a blood draw and was charged with the offense.

Curtis argued that Indiana Code Section 9-13-2-86 requires that in order for the state to prove a driver is intoxicated, the driver must be under the influence of one of the listed substances and the driver’s actions, thoughts, and normal control of faculties must be impaired. Curtis claimed the tests administered established that only his actions were impaired, but the statute requires showing his thoughts, actions, and normal control of his faculties were impaired.

Although it’s the court’s policy to regard “and” and “or” as used in statutes as being strictly of a conjunctive and disjunctive nature, Prewitt v. State, 878 N.E.2d 184 (Ind. 2007), allows for exceptions, noted Judge Ezra Friedlander. In Prewitt, the high court reasoned that appellate courts are “at liberty to make minor substitutions of words where necessary to give vitality to the legislative intent.”

“We are not often confronted with a situation where application of this ‘widely-accepted rule of statutory construction’ cited with approval in Prewitt is warranted. This is such a case, however, and we apply it here,” wrote Judge Friedlander.

The purpose of the statute is public safety and a person who is unable to control his physical movements poses a considerable danger to others when driving, even though he may be able to carry on a lucid conversation or count backward from 20.

“The plain fact is that impairment of any of the three abilities necessary for the safe operation of a vehicle renders the operation of a vehicle dangerous,” he wrote.

The judges affirmed Curtis’ conviction, finding sufficient evidence to support it.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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