According to Curtis, I.C. § 9-13-2-86 requires an evidentiary showing of impaired conditions of a person’s “thought, and action and loss of normal control of a person’s faculties.” Appellant’s Brief at 16 (emphasis in original). He claims the evidence in this case established only an impairmentof action.
Curtis was convicted under I.C. § 9-30-5-2, which provides: “(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.” As used in this statute, “intoxicated” is defined by I.C. § 9-13-2-86 as follows:
“Intoxicated” means under the influence of:
(2) a controlled substance (as defined in IC 35-48-1);
(3) a drug other than alcohol or a controlled substance;
(4) a substance described in IC 35-46-6-2 or IC 35-46-6-3; or
(5) a combination of substances described in subdivisions (1) through (4);
so that there is an impaired condition of thought and action and the loss of
normal control of a person’s faculties.
Curtis contends that because the final clause in the statute employs the conjunctive “and”, i.e., “an impaired condition of thought and action and the loss of normal control of a person’s faculties”, all conditions specified in the list must be proven in order to attain a conviction under this provision. I.C. § 9-13-2-86 (emphasis supplied). We are called upon to determine the meaning of I.C. § 9-13-2-86 in this regard.
. . . .
In Prewitt v. State, 878 N.E.2d 184 (Ind. 2007), our Supreme Court addressed the argument that because the three actions a court may take upon a finding of probation violation are listed in the disjunctive (i.e., the court may continue probation “or” extend it, “or” execute all or part of the suspended sentence), it may not impose more than one of them upon a finding of violation. See Ind. Code Ann. § 35-38-2-3(g) (West, Westlaw through 2010 2nd Regular Sess.). The Court rejected this argument, reasoning that the normal interpretation of those terms “should not be followed rigidly in all cases”, especially “when such an application flies in the face of a clearly contrary legislative intent[.]” Prewitt v. State, 878 N.E.2d at 186 (quoting Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207, 211 (1981)). The Court reiterated that our appellate courts are “at liberty to make minor substitutions of words where necessary to give vitality to the legislative intent.” Id. (quoting Dague v. Piper Aircraft Corp., 418 N.E.2d at 211). Specifically, the Court noted, our “courts have the power to change and will change “and” to “or” and vice versa, whenever such conversion is required by the context, or is necessary to … effect the obvious intention of the legislature.” Id. (quoting Ind. Dep’t of State Rev. v. Stark-Wetzel & Co., 150 Ind. App. 344, 276 N.E.2d 904, 910 (1971)). We are not often confronted with a situation where application of this “widely-accepted rule of statutory construction” cited with approval in Prewett is warranted. This is such a case, however, and we apply it here.
. . . .
The plain fact is that impairment of any of the three abilities necessary for the safe operation of a vehicle renders the operation of a vehicle dangerous. It is perhaps for this reason that our courts have consistently construed I.C. § 9-30-5-2 and I.C. § 9-13-2-86 such that impairment of thought, action, and the loss of normal control of faculties is not proven in separate, element-by-element fashion. Rather, it is established by evidence of certain behaviors and traits evincing impairment, irrespective of whether that evidence established particularized impairment of action, and impairment of thought, and loss of control of faculties. See, e.g., Gatewood v. State, 921 N.E.2d 45, 48 (Ind. Ct. App. 2010) (“[e]vidence of impairment may include: ‘(1) the consumption of significant amounts of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; [and] (7) slurred speech’”), trans. denied. (Quoting Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999)).
Viewed thus, a person’s unfitness to operate a vehicle, i.e., his impairment, is to be determined by considering his capability as a whole, not component by component, such that impairment of any of the three abilities necessary for the safe operation of a vehicle equals impairment within the meaning of I.C. § 9-30-5-2. Indeed, one might argue that impairment of any of the three necessarily implies impairment of the others. [Footnote omitted.]
In summary, we reject Curtis’s invitation to construe I.C. § 9-30-5-2 such as to require separate proof of impairment of action, and impairment of thought, and loss of control of faculties because such a construction would “[fly] in the face of a clearly contrary legislative intent.” Prewitt v. State, 878 N.E.2d at 186 (quoting Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d at 211). Instead we conclude that this provision means what our courts have impliedly construed it to mean for years, i.e., that impairment is established by proof of certain behaviors and traits evincing impairment, irrespective of whether that evidence established particularized impairment of action, thought, and loss of control of faculties.
BARNES, J., and CRONE, J., concur.