The Indiana Court of Appeals disagreed with the state’s argument that prosecutorial discretion extends to the determination of which conviction should be vacated after a finding of double jeopardy.
Indianapolis Colts defensive end Fili Moala was convicted of Class C misdemeanors operating a vehicle with an alcohol concentration between 0.08 and 0.15 and operating a vehicle while intoxicated; the convictions were merged by the trial court. He was also convicted of Class B misdemeanor public intoxication.
Moala and the state agree that the operating while intoxicated conviction and the public intoxication conviction violate double jeopardy, but they disagree as to which conviction should be vacated. The state wanted to drop the Class B misdemeanor public intoxication conviction because the Class C misdemeanor operating while intoxicated could have more severe penalties, such as license suspension, and may lead to a future Class D felony charge if Moala is arrested again for drunk driving.
The appellate judges noted there is not a less serious form of either offense to remedy the double jeopardy issue. Moala argued that the lower class offense should be vacated and the judges agreed.
“As we do not believe non-punitive sanctions should be considered as part of the penal consequences of a conviction, we also do not believe potential future consequences should be considered in determining the penal consequences of a conviction. Considering future consequences would be speculative and raises the possibility of disparate treatment in sentencing,” wrote Chief Judge Margret Robb in Fili Moala v. State of Indiana, 49A02-1109-CR-870.
The judges also rejected the state’s argument that it should have the discretion to determine which conviction should be vacated upon a finding of double jeopardy.
They reversed the Class C misdemeanor operating while intoxicated conviction and ordered the trial court vacate it.