Drunken driving conviction affirmed; lesser included charge vacated

A Marion Superior Court conviction in a drunken driving case was affirmed Thursday by the Indiana Court of Appeals, but the court ordered a lesser included charge on which the driver was convicted be merged.

The court ruled in Brenda Stutz v. State of Indiana, 49A02-1110-CR-960, that Stutz’s conviction for Class A misdemeanor operating a vehicle with a blood alcohol content of at least 0.15 percent should stand, but remanded the case to the trial court with instructions to vacate a lesser included conviction for Class C misdemeanor operating while intoxicated, holding that the two charges should be merged.

The court noted that the General Assembly amended the state’s drunken driving statutes in 2000, creating Class C misdemeanor violations in which the “endangerment” requirement was removed.

“Clearly, the classification of operating a vehicle with a BAC of at least .15 percent as a class A misdemeanor and that of driving while intoxicated as a class C misdemeanor is evidence that the legislature has determined that the former offense constitutes a greater risk than the latter offense,” Judge Carr Darden wrote in a unanimous opinion.

Stutz cited Sering v. State, 488 N.E.2d 369 (Ind. Ct. App. 1986), in which a defendant appealed his convictions for operating a vehicle with a BAC of .10 percent and operating a vehicle while intoxicated, which at the time were Class A and Class C misdemeanors respectively. That ruling held that the risk of someone operating at a level above .10 percent is greater than that of a driver who is intoxicated to a lesser degree. “This legislative intent is evidenced by the disparate classification of the two offenses,” the court ruled in Sering.