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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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