A divided Indiana Court of Appeals has reversed one count of operating while intoxicated against a Columbus man, finding that merging the two counts together for sentencing purposes does not satisfy double jeopardy concerns.
After Larry Bass was discovered unconscious inside of his running but stopped vehicle in the middle of an intersection in Columbus, Columbus Police Department Office Benjamin Goodin arrived at the scene and discovered Bass’ eyes were bloodshot and glassy, his eyelids were droopy, his speech was slurred and he could not stand without assistance. Bass consented to a blood draw, which revealed that he had methadone, oxycodone and zolpidem in his blood at the time of the incident.
The state charged Bass with two counts of operating while intoxicated, one as a Class A misdemeanor and one as a Class C misdemeanor. During his bench trial, Bass testified he had an affirmative defense for the Class C misdemeanor charge, specifically that he had prescriptions for each of the controlled substances and that he was taking them in the manner that his doctor had prescribed, a defense under Indiana Code 9-30-5-1(d).
The Bartholomew Superior Court rejected that argument and found Bass guilty as charged. In a subsequent judgment order, the court wrote that the counts would be merged for the purpose of sentencing and ordered Bass to serve one year, with all but 10 days suspended to probation.
On appeal in Larry D. Bass v. State of Indiana, 03A01-1606-CR-1493, Bass argued that the trial court had violated his double jeopardy rights when it entered judgment against him on both misdemeanor counts. In a Wednesday opinion, Indiana Court of Appeals Judge Edward Najam pointed to the case of Kovats v. State, 982 N.E. 2d 409, 414-15 (Ind. Ct. App. 2013), in which the appellate court noted that “if the trial court does enter judgment of conviction on a (guilty finding), then simply merging the offenses is insufficient and vacation of the offense is required.”
Applying that principle, Najam, joined by Judge L. Mark Bailey, said the Bartholomew Superior Court’s action of merging the Class A and Class C misdemeanor OWI counts “was not a sufficient remedy to the apparent double jeopardy concern.” Thus, the majority reversed and remanded the case with instructions to vacate Bass’ Class C misdemeanor conviction.
But Judge Melissa May dissented, noting in a separate opinion that the trial court had agreed to take Bass “at his word” when he said he was prescribed the controlled substances, even though the courts had not seen the prescriptions. Bass argued that such a statement meant he could not have been found guilty on the Class C misdemeanor charge under Indiana Code 9-30-5-1(d), but May wrote that he ignored the court’s next statement that he could not have been taking the substances in the manner in which they were prescribed because he was passed out at the wheel of his car.
Bass’ argument raises a question of statutory construction, May said, and the text of the statute, which offers a defense if a controlled substance is “consumed … under a valid prescription” is ambiguous. The judge said she would have interpreted the phrase to simply mean “having a valid prescription,” so she would hold that the court erred “when it both accepted that Bass had valid prescriptions for the drugs found in his body and found Bass guilty of operating a vehicle with those substances in his body under Indiana Code Section 5-30-5-1(c).”
Instead, May said she would reverse the guilty finding on the Class C misdemeanor charge and remand for the record to show that Bass had been acquitted on that count.