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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man’s 2014 conviction of operating a vehicle while impaired in New York cannot serve as the basis to bring enhanced drunken-driving charges against him because the New York statute is not substantially similar to the elements of a crime described in Indiana Code, the Indiana Court of Appeals held Tuesday.
The state granted Justin Bazan’s motion to dismiss Level 6 felony charges of operating a vehicle while intoxicated endangering a person with a prior conviction within five years and Level 6 felony operating a vehicle while intoxicated with a prior conviction within five years. Bazan was charged with those two offenses, as well as several others in Indiana in 2015, after allegedly driving drunk. He argued the 2014 New York conviction was not substantially similar to an Indiana offense for operating a vehicle while intoxicated and did not qualify as a previous conviction of operating while intoxicated. The trial court agreed and granted his motion.
On interlocutory appeal, the Court of Appeals affirmed in State of Indiana v. Justin Bazan, 55A01-1506-CR-737.
The state argued this case should be controlled by State v. Akins, 824 N.E.2d 676 (Ind. 2005), in which the Supreme Court concluded the elements of a Michigan statute were substantially similar to the elements of the relevant Indiana statutes in a man’s drunken-driving case.
“We conclude that, unlike in Akins, the New York statute here is not substantially similar to the elements of a crime described in Indiana Code Sections 9-30-5-1 through 9-30-5-9. The New York statute under which Bazan was convicted requires only some extent of impairment due to the consumption of alcohol. On the other hand, Indiana Code Section 9-30-5-2(a), upon which the State relies, requires a showing of an impaired condition of thought and action and the loss of normal control of a person’s faculties. The Indiana statute requires a greater showing of impairment than the New York statute. The two statutes have markedly different thresholds for establishing a violation,” Judge Michael Barnes wrote.
“Consequently, the two statutes are not substantially similar, and we conclude that the trial court properly dismissed the enhanced charges in this case.”
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