                                                        Feb 26 2014, 5:55 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

CASEY C. MORGAN                                GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, L.L.P.            Attorney General of Indiana
Huntington, Indiana
                                               JUSTIN F. ROEBEL
                                               Deputy Attorney General
                                               Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

CHAD E. HUCKER,                                )
                                               )
      Appellant-Defendant,                     )
                                               )
              vs.                              )    No. 35A02-1307-CR-575
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                    APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                          The Honorable Jeffrey Heffelfinger, Judge
                              Cause No. 35D01-1209-CM-644




                                    February 26, 2014



                             OPINION - FOR PUBLICATION



ROBB, Judge
                                   Case Summary and Issue

          Chad E. Hucker appeals his convictions for operating a vehicle while intoxicated and

operating a vehicle with a schedule I or II controlled substance, both Class C misdemeanors.

Hucker raises a single issue for our review: whether Indiana Code section 9-30-5-1(c),

which proscribes the operation of a vehicle with a schedule I or II controlled substance,

violates Article 1, Section 23 of the Indiana Constitution (the “Equal Privileges and

Immunities Clause”). Concluding the statute does not violate the Indiana Constitution’s

Equal Privileges and Immunities Clause, we affirm.

                                 Facts and Procedural History

          On the evening of September 17, 2012, Hucker went to the Save On Liquor Store in

Huntington, Indiana, to purchase alcohol. Another patron in the store, Courtney Finney, saw

Hucker and noticed that he was acting peculiarly. Hucker had slow, slurred speech. He was

swaying back and forth and even lost his balance and fell at one point. Hucker left the liquor

store after he was refused service. Shortly after, Finney left the store and witnessed Hucker

in the parking lot, where he seemed to be struggling to get into his vehicle. Finney observed

Hucker sit in his car for several minutes before driving out of the parking lot and running

over a curb on his way out. Finney then contacted the police to report a possible intoxicated

driver.

          Huntington City Police Officer Whitney Stoffel was dispatched to investigate. Upon

observing Hucker’s vehicle drift out of its lane and follow another vehicle too closely,

Officer Stoffel initiated a traffic stop. Officer Stoffel observed signs of intoxication, and


                                               2
Hucker explained that his behavior may be a result of recently taking his prescription Xanax.

Hucker performed three field sobriety tests. He passed the horizontal gaze nystagmus test

but failed the one leg stand and walk and turn tests. Officer Stoffel informed Hucker of the

Indiana Implied Consent Law, and Hucker agreed to submit to a urinalysis test. He tested

positive for benzodiazepine in excess of 1500 ng/mL and THC Metabolite of 114 ng/mL.

         Hucker was charged with operating a vehicle while intoxicated and operating a

vehicle with a schedule I or II controlled substance, Class C misdemeanors. A jury trial was

held May 2, 2013, at which Hucker testified in his own defense. Hucker testified he had a

prescription for Xanax but admitted to taking it in excess of the recommended dosage on the

day of the incident. Hucker also admitted to smoking marijuana but said he last smoked

marijuana two or three weeks before the incident. The jury found Hucker guilty on both

counts. This appeal followed.

                                  Discussion and Decision

                                 I.     Standard of Review

         Hucker contends Indiana Code section 9-30-5-1(c) violates the Equal Privileges and

Immunities Clause of the Indiana Constitution. A statute challenged under the Indiana

Constitution “stands before us clothed with the presumption of constitutionality until clearly

overcome by a contrary showing.” Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.

1996).     The party challenging the constitutionality of a statute bears the burden of

establishing a constitutional violation, and all doubts are resolved against that party. Id.




                                              3
                                       II.      Article 1, Section 231

        The Indiana Constitution’s Equal Privileges and Immunities Clause states that “[t]he

General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities,

which, upon the same terms, shall not equally belong to all citizens.” IND. CONST. art. 1, §

23. In Collins v. Day, our supreme court conducted a thorough examination of the history,

purpose, and text of Section 23. 644 N.E.2d 72, 75-81 (Ind. 1994). The court concluded

Section 23 imposes two requirements on statutes that result in disparate treatment to differing

classes of people: “First, the disparate treatment accorded by the legislation must be

reasonably related to inherent characteristics which distinguish the unequally treated classes.

Second, the preferential treatment must be uniformly applicable and equally available to all

persons similarly situated.” Id. at 80. The court also noted that courts must give substantial

deference to legislative discretion when considering a statute challenged under Section 23.

Id.

        At the outset, Hucker seems to concede that the first prong of the Collins test is

satisfied, citing this court’s decision in Shepler v. State, 758 N.E.2d 966, 971 (Ind. Ct. App.

2001), trans. denied, and purports to make his challenge only under the second prong of the


        1
           The State argues that Hucker has forfeited his constitutional claim by failing to file a motion to
dismiss before the trial court. Contrary authority exists as to whether a constitutional claim may be raised for
the first time on appeal. Compare Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992) (stating “the
constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte
by this Court”) with Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985) (stating that “[g]enerally, the failure to file a
proper motion to dismiss raising the Constitutional challenge waives the issue on appeal”). More recently,
however, our supreme court has acknowledged this conflict and stated that appellate courts have discretion to
address a constitutional claim on the merits, despite the possibility of forfeiture for failure to raise the issue
below. See Plank v. Cmty. Hosps. of Indiana, Inc. 981 N.E.2d 49, 53-54 (Ind. 2013). We believe it is best
practice to decide a case on the merits where possible, and we will do so in this case. That said, we are mindful
that Hucker’s brief cites factual sources never considered by the trial court and which the State had no prior

                                                         4
test. Hucker maintains that members within the identified class are unequally treated because

criminal exposure under the statute varies depending upon factors such as “the dosage taken,

the preparation and route of administration, whether an individual is a chronic user, the

detection limit cutoff for any specific test, the nature of the molecule or its metabolite, the ph

[sic] and concentration of the individual’s urine and the specific individual’s metabolism.”

Brief of Appellant at 4. Hucker’s argument misunderstands the Collins test. The second

prong of the Collins test requires that a statute must apply equally and uniformly to all

persons who share those characteristics that are the basis of the classification. See Collins,

644 N.E.2d at 79-80. Assuming it is proper under Section 23 to create classifications based

on persons who drive with a schedule I or II controlled substance and persons who do not,

Indiana Code section 9-30-5-1(c) is not unconstitutional. As the court in Shepler correctly

pointed out, “[a]ll defendants who drive with any Schedule I or Schedule II controlled

substances in their body are subject to criminal prosecution, and thus the law is uniformly

applied [to all members of the class].” 758 N.E.2d at 971.

        The State observes, rightly, that Hucker’s argument would be more properly launched

under the first prong of the Collins test. Hucker essentially argues that disparate treatment of

persons driving with schedule I or schedule II controlled substances is not “reasonably

related to inherent characteristics” of the users of those substances. To Hucker, the factors

noted in his brief distinguish various schedule I and schedule II controlled substances and

render the statute’s classification over-inclusive. In other words, the statute treats as identical


opportunity to contest.

                                                5
a number of controlled substances that have varying effects on the human body. A fair point,

but one that is better placed before the General Assembly, not this court. The disparate

treatment to persons who operate a vehicle with a schedule I or schedule II controlled

substance is reasonably related to inherent characteristics among those persons—namely, the

usage of those controlled substances causes impairment and the amount necessary to cause

impairment is not easily quantifiable. See Shepler, 758 N.E.2d at 971; see also Bennett v.

State, 801 N.E.2d 170, 177-78 (Ind. Ct. App. 2003). Given the “substantial deference” we

must provide the General Assembly in generating such classifications, Collins, 644 N.E.2d at

80, we cannot find the statute unconstitutional under Section 23.

                                        Conclusion

       Concluding Indiana Code section 9-30-5-1(c) does not violate Article 1, Section 23 of

the Indiana Constitution, we affirm.

       Affirmed.

BARNES, J., and BROWN, J., concur.




                                             6
