Drunken-driving conviction upheld for motorist parked at courthouse

Dave Stafford fro wwwtheindianalawyer.com

A woman who was intoxicated while she attended to business at the courthouse in Crawfordsville lost her appeal of a felony drunken-driving conviction Wednesday.

A driver saw Courtney West drinking beer behind the wheel of her car while parked outside the Montgomery County Courthouse on July 1, 2013. He called 911 and an officer was dispatched, pulling up to block West’s running car. The officer asked West what she was doing, and she replied, “I’m trying to pull out, you were in my way.”

West was asked to step out of the car, and she failed a battery of field sobriety tests. Her blood alcohol content tested 0.23 percent while at the police station. She was convicted of Class D felony operating a vehicle while intoxicated and Class D felony operating a vehicle with a blood alcohol content above 0.15 percent.

The appeals panel found evidence was sufficient to affirm the OWI conviction. Senior Judge Patrick Sullivan noted a revised statute was took effect the day of West’s arrest, and the circumstances of West’s case prevailed upon the court for the first time to interpret the definition of “operator” under the revised law.

In 2013, the General Assembly amended I.C. 9-13-2-117.5, defining “operate” as “to navigate or otherwise be in actual physical control of a vehicle.” Applying the plain language of the statute, Sullivan wrote, “A reasonable finder of fact could conclude from this evidence that West was in ‘actual physical control’ of the running car when (the officer) approached her, and thus she operated the vehicle as defined by statute.”

The panel did remand the case, though, to vacate the operating with a BAC over 0.15 percent conviction. The trial court erred by entering judgment on the charge prior to merging it with the OWI conviction. “(M)erger was insufficient to remedy the double jeopardy violation,” the court held.

The case is Courtney West v. State of Indiana, 54A05-1404-CR-173.