ROBB, J.
On the evening of December 5, 2008, Moore had a couple of beers at her sister’s house. Lynn Roberts, a friend of Moore’s brother, stopped by the house and asked for a ride to check on a friend who had just been released from the hospital. Moore told Roberts she could not drive him because she had been drinking, but told him “if he had a license, then he was more than welcomed [sic] to drive” her car. . . . Roberts accepted the offer, and Moore accompanied him as a passenger.
Indianapolis Metropolitan Police Department officer John Schweers pulled Moore’s car over as it traveled on northbound Sherman Avenue because it lacked a working license plate light. Moore was asleep when the car was stopped. Officer Schweers discovered that Roberts did not have a valid driver’s license. Officer Schweers inquired as to whether Moore would be able to drive the vehicle, but determined she was intoxicated; Moore herself admitted at trial she was too intoxicated to drive that night. Both Roberts and Moore were arrested and the car was impounded and towed.
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The policy behind the public intoxication statute is to prevent intoxicated persons from bothering or threatening the safety of other persons in public places. See Wright, 772 N.E.2d at 456. We do not see how this objective would be frustrated by excluding the circumstances of this case from the definition of public intoxication. [Footnote omitted.] In fact, if we were to hold Moore could be found guilty of public intoxication under these circumstances, a person who consumes too much alcohol one evening and does the responsible thing by calling a cab to take her home could be convicted of public intoxication if the cab was pulled over for speeding or some other moving or equipment violation having nothing to do with the passenger’s intoxicated state. It is clear from the numerous public service announcements and billboards regarding the dangers and consequences of drunk driving and the advertisements on cabs themselves declaring cab fare cheaper than an OWI conviction, that the public policy of this state is to encourage intoxicated persons to use a designated or hired driver for the safety of the public. This is not to say there are not circumstances in which a passenger in a vehicle could properly be convicted of public intoxication. For instance, a public intoxication charge might be appropriate if the passenger was so intoxicated as to be causing a distraction to the driver of the vehicle or to other drivers, or otherwise creating a danger to all those traveling on a public road. The dissent interprets this as creating an exception to the public intoxication statute focusing on an individual’s conduct. The elements of public intoxication are 1) being intoxicated 2) in a public place. Street v. State, 911 N.E.2d 654, 657 (Ind. Ct. App. 2009) trans. denied. As seen in the statutes concerning driving, “intoxication” has a specific meaning which is not merely the state of having consumed alcohol – which is addressed by the blood alcohol content statutes, see Ind. Code § 9-30-5-1(a), (b) – but requires some behavior that would draw attention to the defendant – which is separately addressed by the operating while intoxicated statute, see Ind. Code § 9-30-5-2. “Intoxication” is defined as being under the influence of alcohol “so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties.” Ind. Code § 9-13-2-86. “Public intoxication” then, by its very terms, references behavior. In addition, the policy behind the statute – preventing intoxicated persons from bothering others in a public place – is concerned not with the mere fact of having ingested alcohol but with behaving in a bothersome way because of it. Thus, we do not believe it is inappropriate to consider Moore’s behavior – sleeping in the passenger seat of a car – in evaluating the sufficiency of the evidence supporting her conviction of public intoxication.
Under the circumstances of this case, we agree with Moore that she was not intoxicated in a public place or place of public resort within the meaning of Indiana Code section 7.1-5-1-3. The judgment of the trial court is therefore reversed.
MAY, J., concurs.
VAIDIK, J., dissents with opinion:
According to our Supreme Court in Miles, the key determination is whether the vehicle is in a public place, and in that case, the defendant was in a parked vehicle three or four feet from the traveled portion of a busy highway. If being inside a vehicle on the side of a road is in a public place, then being inside a vehicle on the road is also in a public place. Moore does not dispute that the vehicle in which she was traveling was in a public place according to our Supreme Court in Miles.
The Indiana General Assembly has made no changes to the public intoxication statute in response to Miles in 1966 or even Atkins in 1983. I believe that this long period of time constitutes legislative acquiescence. That is, given these cases, our legislature has agreed that a vehicle that is either stopped near a public road or traveling on a public road and then stopped is in a public place for purposes of the public intoxication statute. . . . .
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I agree with the majority that the policy behind the statute is to prevent intoxicated people from bothering or threatening the safety of other people in public places and that affirming Moore’s conviction discourages the practice of securing a designated driver or a taxicab. . . . .
The majority’s solution is to create an exception by focusing on the individual’s conduct. . . . However, an individual’s conduct has nothing to do with whether that person is in a public place. . . . .
As much as I may disagree with the public policy of criminalizing the act of riding as a passenger in a private vehicle on a public road in a state of intoxication, this is not our call. Given Miles and the legislature’s lack of response to it, I believe that unless and until our legislature makes changes to Indiana Code section 7.1-5-1-3, Moore was in a public place. I therefore would affirm her conviction for public intoxication.