Judges uphold OWI conviction

The Indiana Court of Appeals concluded today that even though a statute uses the word “and” when saying a driver’s actions, thoughts, and normal control of faculties must be impaired, the state isn’t required to prove all three were impaired in order to get a conviction of operating a vehicle while intoxicated.

In Jeffery S. Curtis v. State of Indiana, No. 20A03-1002-CR-110, Jeffery Curtis appealed his Class C misdemeanor conviction of operating a vehicle while intoxicated. He was pulled over after taking a turn too wide and failed several field sobriety tests. He smelled of marijuana and blew a 0.0 into the portable breath test. Curtis told the officer he was diabetic and needed some sugar. Curtis declined medical attention and was able to eat and drink at the police station.

Curtis refused to submit to a blood draw and was charged with the offense.

Curtis argued that Indiana Code Section 9-13-2-86 requires that in order for the state to prove a driver is intoxicated, the driver must be under the influence of one of the listed substances and the driver’s actions, thoughts, and normal control of faculties must be impaired. Curtis claimed the tests administered established that only his actions were impaired, but the statute requires showing his thoughts, actions, and normal control of his faculties were impaired.

Although it’s the court’s policy to regard “and” and “or” as used in statutes as being strictly of a conjunctive and disjunctive nature, Prewitt v. State, 878 N.E.2d 184 (Ind. 2007), allows for exceptions, noted Judge Ezra Friedlander. In Prewitt, the high court reasoned that appellate courts are “at liberty to make minor substitutions of words where necessary to give vitality to the legislative intent.”

“We are not often confronted with a situation where application of this ‘widely-accepted rule of statutory construction’ cited with approval in Prewitt is warranted. This is such a case, however, and we apply it here,” wrote Judge Friedlander.

The purpose of the statute is public safety and a person who is unable to control his physical movements poses a considerable danger to others when driving, even though he may be able to carry on a lucid conversation or count backward from 20.

“The plain fact is that impairment of any of the three abilities necessary for the safe operation of a vehicle renders the operation of a vehicle dangerous,” he wrote.

The judges affirmed Curtis’ conviction, finding sufficient evidence to support it.