COA re-evaluates public intox opinion in light of Thang, but still affirms

An Indiana Supreme Court decision regarding public intoxication has impacted a decision issued by the Court of Appeals three weeks earlier, but the judges still concluded a woman’s public intoxication conviction cannot stand.

On June 4, a panel of the Court of Appeals reversed Aubrey Thompson’s Class B misdemeanor public intox conviction in a not-for-publication decision after finding there was insufficient evidence to prove that she, while intoxicated and in a public place, had endangered her life or someone else’s life.

The state of Indiana sought a rehearing, citing Thang v. State, 10 N.E.3d 1256 (Ind. 2014), which the justices handed down June 30. Thang was at a gas station intoxicated and his car was in the lot, although no one saw him drive the vehicle. He appealed his conviction for Class B misdemeanor public intoxication, saying there was insufficient evidence he endangered himself or anyone else.

The high court 3-2 decided that proof of the endangerment element outlined in the statute for public intox can be established by reasonable inferences drawn from the evidence.

The state argued that the facts are indistinguishable between the Thompson and Thang cases, so Thompson’s conviction should be affirmed. The state claimed that the element of endangerment is established from the evidence Thompson had driven to her friend’s apartment in an intoxicated state and was about to drive away when police stopped her.

“[A]s the State correctly asserts, our analysis of the interplay between the OWI Statute and the P.I. statute has been nullified by Thang, wherein the supreme court found the two statutes to be “wholly distinguishable,” Judge Patricia Riley wrote. “Accordingly, pursuant to Thang, even though the OWI Statute requires proof beyond the driver’s intoxication to establish endangerment, the element of endangerment for the P.I. Statute is presumed when an intoxicated individual operates a vehicle.”
 
However, the majority again found that Thompson’s conviction must be reversed in Aubrey Thompson v. State of Indiana, 49A02-1307-CR-606. There is no evidence in this case that Thompson drove to her friend’s apartment while intoxicated or that she attempted to drive home while intoxicated, Riley wrote. She was arrested based on the officers’ assumptions she was going to drive away.

Judge Cale Bradford dissented in the original decision and again dissented Thursday. He pointed to the record that said Thompson retrieved her purse from her friend’s apartment and told officers as she was leaving that she was “going to be driving away.”

“I do not believe police must wait for her to operate her vehicle before arresting her for public intoxication,” Bradford wrote.