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Prior conviction counts in sentencing decision

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A prior drunk-driving conviction - reached pursuant to a state statute now repealed and recodified in a newer law - can be used in determining a person's sentence, the Indiana Court of Appeals ruled today.

A unanimous six-page ruling in Wayne Schenk v. State of Indiana, No. 82A01-0806-CR-301, affirms a judgment from Vanderburgh Superior Judge Robert Pigman. The case follows Schenk's arrest in November 2007 on a charge of operating a vehicle while intoxicated. He pleaded guilty as part of an agreement that specified he'd be sentenced to 18 months on an adult alcohol abuse probation service, though the court would determine if any portion of that sentence could be suspended in lieu of a minimum six-month period on home detention.

Finding that Schenk had two prior OWI convictions from 1988 and 2003, the trial court sentenced him to 18 months, with six months executed on home detention and 12 months on probation. Schenk appealed, arguing that the 20-year-old conviction was pursuant to Indiana Code 9-11-2, which was repealed in 1991 and made a part of the revised motor vehicle laws of IC 9-30-5.

Schenk argued the court misinterpreted IC 35-50-2-2(b)(4)(R), which states anyone committing a drunk driving offense with at least two prior unrelated convictions can only receive a partial sentence suspension and, in this case, that minimum was six months.

The appellate panel looked at the legislative intent and also precedent in Holt v. State, 638 N.E.2d 786,787 (Ind. 1994) that determined an uncodified savings clause preserved the prior OWI conviction under an older statute since repealed and recodified.

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

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