                                                                            Nov 10 2015, 10:14 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Gregory F. Zoeller                                        Steven C. Litz
      Attorney General of Indiana                               Monrovia, Indiana

      Chandra K. Hein
      Deputy Attorney General
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                         November 10, 2015
      Appellant-Plaintiff,                                      Court of Appeals Cause No.
                                                                55A01-1506-CR-737
              v.                                                Appeal from the Morgan Circuit
                                                                Court
      Justin Bazan,                                             The Honorable Matthew G.
      Appellee-Defendant.                                       Hanson, Judge
                                                                Trial Court Cause No.
                                                                55C01-1502-F6-280



      Barnes, Judge.


                                              Case Summary
[1]   In this interlocutory appeal, the State of Indiana appeals the trial court’s grant

      of a motion to dismiss filed by Justin Bazan regarding the charges of Level 6
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      felony 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. We affirm.


                                                      Issue
[2]   The State raises one issue, which we restate as whether the trial court properly

      granted Bazan’s motion to dismiss.


                                                      Facts
[3]   On May 20, 2014, Bazan was convicted of operating a motor vehicle while

      ability impaired in New York pursuant to New York Vehicle and Traffic Law

      Section 1192.1. On February 27, 2015, Bazan was charged in Indiana with:

      Count 1, Class A misdemeanor operating a vehicle while intoxicated

      endangering a person; Count II, Class C misdemeanor operating a vehicle

      while intoxicated; Count III, Class A misdemeanor resisting law enforcement;

      Count IV, Level 6 felony operating a vehicle while intoxicated endangering a

      person with a prior conviction within five years; and Count V, Level 6 felony

      operating a vehicle while intoxicated with a prior conviction within five years.


[4]   Bazan filed a motion to dismiss Count IV and Count V. He argued that his

      2014 conviction in New York 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 granted

      Bazan’s motion. The State then filed a petition for certification of the order for



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      interlocutory appeal, which the trial court granted. We accepted jurisdiction

      pursuant to Indiana Appellate Rule 14(B).


                                                   Analysis
[5]   The State argues that the trial court erred by granting Bazan’s motion to

      dismiss. The trial court dismissed two enhanced charges—Count IV, Level 6

      felony operating a vehicle while intoxicated endangering a person with a prior

      conviction within five years, and Count V, Level 6 felony operating a vehicle

      while intoxicated with a prior conviction within five years—because it found

      that Bazan’s 2014 conviction did not qualify as a previous conviction of

      operating while intoxicated to enhance the charges. “Abuse of discretion is the

      appropriate standard for appellate review of a trial court’s decision to dismiss a

      charging information.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). An

      abuse of discretion occurs only if a trial court’s decision is clearly against the

      logic and effect of the facts and circumstances. Pavlovich v. State, 6 N.E.3d 969,

      974 (Ind. Ct. App. 2014), trans. denied.


[6]   The State contends that Bazan’s 2014 conviction does qualify as a previous

      conviction of operating while intoxicated. Under Indiana Code Section 9-30-5-

      2(a), “a person who operates a vehicle while intoxicated commits a Class C

      misdemeanor.” Under Indiana Code Section 9-30-5-2(b), a person who

      operates a vehicle while intoxicated “in a manner that endangers a person”

      commits a Class A misdemeanor. “Intoxicated” means under the influence of

      alcohol or certain other substances “so that there is an impaired condition of


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      thought and action and the loss of normal control of a person’s faculties.” Ind.

      Code § 9-13-2-86.


[7]   Those charges may be enhanced to a Level 6 felony if “the person has a

      previous conviction of operating while intoxicated that occurred within the five

      (5) years immediately preceding the occurrence of the violation of [Indiana

      Code Section 9-30-5-2].” I.C. § 9-30-5-3(a)(1). A “previous conviction of

      operating while intoxicated” is defined as a previous conviction:


              (1)      in Indiana of:


                       (A)     an alcohol related or drug related crime under Acts
                               1939, c.48, s.52, as amended, IC 9-4-1-54 (repealed
                               September 1, 1983), or IC 9-11-2 (repealed July 1,
                               1991); or


                       (B)     a crime under IC 9-30-5-1 through IC 9-30-5-9; or


              (2)      in any other jurisdiction in which the elements of the
                       crime for which the conviction was entered are
                       substantially similar to the elements of a crime described in
                       IC 9-30-5-1 through IC 9-30-5-9.


      I.C. § 9-13-2-130. The issue here is whether Bazan’s previous New York

      conviction is a conviction “in which the elements of the crime for which the

      conviction was entered are substantially similar to the elements of a crime

      described in IC 9-30-5-1 through IC 9-30-5-9.” Id.




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[8]   Bazan had a prior conviction in New York for operating a vehicle while ability

      impaired. See N.Y. Vehicle and Traffic Law § 1192.1. The applicable statute

      provides: “No person shall operate a motor vehicle while the person’s ability to

      operate such motor vehicle is impaired by the consumption of alcohol.” Id. A

      prima facie case of this offense is established by demonstrating that the

      defendant operated a motor vehicle while his ability to do so was impaired by

      the consumption of alcohol. People v. McDonald, 811 N.Y.S.2d 492, 493 (N.Y.

      App. Div. 2006). “Conviction of [this] offense [does] not require proof of

      intoxication, but only that defendant’s driving ability was impaired to any

      extent.” Id. (alterations in original). New York also separately prohibits

      operating a motor vehicle while in an intoxicated state. See N.Y. Vehicle and

      Traffic Law § 1192.3. Under those statutes, the crime of driving while

      intoxicated requires a showing that the defendant “is incapable of employing

      the physical and mental abilities which he is expected to possess in order to

      operate a vehicle as a reasonable and prudent driver.” People v. McNamara, 704

      N.Y.S.2d 100, 101 (N.Y. App. Div. 2000). The lesser offense of driving while

      impaired, however, requires only a showing that the defendant’s ability to

      operate a vehicle was impaired to some extent. Id.


[9]   The State argues that Bazan’s New York conviction for operating a vehicle

      while ability impaired is substantially similar to an Indiana conviction for Class

      C misdemeanor operating a vehicle while intoxicated under Indiana Code

      Section 9-30-5-2(a). According to the State, both statutes require “a showing of

      impairment and define[] impairment based on similar facts.” Appellant’s Br. p.


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       8. Bazan argues that the statutes are not substantially similar because the New

       York statute does not require proof of intoxication; rather, it requires only an

       impairment.


[10]   In support of the State’s argument, it relies on State v. Akins, 824 N.E.2d 676

       (Ind. 2005). In Akins, the issue was whether a defendant’s prior conviction in

       Michigan for operating a vehicle while being under the influence of an

       intoxicating liquor or having an alcohol content of 0.10 grams or more per 100

       milliliters of blood qualified as a previous conviction of operating while

       intoxicated and could be used to enhance an Indiana charge for operating while

       intoxicated. Our supreme court concluded that the elements of the Michigan

       statute were substantially similar to the elements of the relevant Indiana

       statutes. Specifically, it found:

               little difference between Indiana’s “impaired condition of
               thought and action and the loss of normal control” and
               Michigan’s impaired control and mental clarity or driving ability
               that is “substantially and materially affected.” The Michigan
               standard does not require a greater showing of impairment than
               that required by Indiana Code § 9-30-5-2(a). Though phrased
               somewhat differently, subsection (a) of the Michigan statute
               nevertheless describes elements that are substantially similar to
               those in subsection 2(a) of the Indiana statute.


       Akins, 824 N.E.2d at 678-79. Additionally, when discussing the similarity of

       the alcohol content portions of the statutes, the court held that “[v]iolation of

       the Michigan standard required a degree of intoxication greater than that under

       the Indiana statute, and thus the elements of subsection (b) of the Michigan

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       statute are substantially similar to those in subsection 1(a) of the Indiana

       statute.” Id. at 679. Thus, the court concluded that the defendant had a

       previous conviction of operating while intoxicated within the past five years in

       a jurisdiction in which the elements of the crime were substantially similar to

       the elements of a crime described in Indiana Code Sections 9-30-5-1 through 9-

       30-5-9. Id.


[11]   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.

       Consequently, the two statutes are not substantially similar, and we conclude

       that the trial court properly dismissed the enhanced charges in this case.


                                                  Conclusion
[12]   The trial court properly granted Bazan’s motion to dismiss. We affirm.


[13]   Affirmed.


[14]   Kirsch, J., and Najam, J., concur.


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