DARDEN, J.
Stutz asserts that the trial court improperly entered a judgment of conviction for Count 2, operating a vehicle with a BAC of at least .15 percent where the trial court also entered a judgment of conviction for Count 1, operating a vehicle while intoxicated as a class C misdemeanor. Citing to Sering v. State, 488 N.E.2d 369 (Ind. Ct. App. 1986), she argues operating a vehicle with a BAC of at least .15 percent is a lesser-included offense of driving while intoxicated, requiring that the conviction on Count 2 be vacated.
In Sering, Sering appealed his convictions for operating a vehicle with a BAC of .10 percent and operating a vehicle while intoxicated. At that time, the former offense was a class C misdemeanor and the latter offense was a class A misdemeanor. In determining whether the former was a lesser-included offense of the latter, the Sering court held as follows:
Having found identity of harm or risk of harm in the two subject alcohol related driving offenses, we must determine whether one risk is greater than the other. We conclude the legislature has determined the risk occasioned by the intoxicated operator is greater than the risk occasioned by the BAC of .10% operator. This legislative intent is evidenced by the disparate classification of the two offenses; operating while intoxicated is a class A misdemeanor while operating with a BAC of .10% is a class C misdemeanor. This disparity is explained by the fact an intoxicated driver has demonstrated an inability to operate a vehicle in a prudent manner.[2] Consequently, we can hypothesize the rationality in the difference in classification if we recognize some individuals may not be legally intoxicated, manifesting an impaired condition and loss of control to such an extent that others are endangered, with a BAC of .10%. If that is a valid assumption, and we believe it is, the greater harm or risk of harm occurs in the operation of a vehicle while intoxicated.
We conclude, therefore, that operating a vehicle with BAC of .10% is a lesser included offense of operating a vehicle while intoxicated because the former offense differs from the latter offense in that a less serious risk of harm to the public interest is required to establish its commission.
Sering, 488 N.E.2d at 376 (original footnotes omitted) (emphasis added).
Effective July 2000, the legislature amended Indiana Code section 9-30-5-1 to add the offense of operating a vehicle with a BAC of at least .15 percent, which it classified as a class A misdemeanor. See I.C. § 9-30-5-1(b). Furthermore, in 2001,
the Legislature substantially altered the [operating while intoxicated (“OWI”)] statutes by redefining intoxication and establishing two separate misdemeanor classes for operating a vehicle while intoxicated. The effect of these changes was to remove the “endangerment” requirement from the general definition of intoxication and create the new offense of Class C misdemeanor OWI without an endangerment requirement.
Vanderlinden v. State, 918 N.E.2d 642, 645 (Ind. Ct. App. 2009) (internal citation omitted), trans. denied.
Thus, there are two statutes that criminalize drunken driving: Section 1 punishes operating a motor vehicle with a certain BAC and elevates the offense if the person’s BAC exceeds a certain threshold; and Section 2 punishes operating a motor vehicle while simply “intoxicated”—without reference to the person’s BAC—and elevates the offense if the manner in which the person operates the vehicle endangers a person.
Simmons v. State, 962 N.E.2d 86, 91-92 (Ind. Ct. App. 2011).
Given the amendments to the applicable statutes, we cannot say that Sering applies. Clearly, the classification of operating a vehicle with a BAC of at least .15 percent as a class A misdemeanor and that of driving while intoxicated as a class C misdemeanor is evidence that the legislature has determined that the former offense constitutes a greater risk than the latter offense. We therefore conclude that class A misdemeanor operating a vehicle with a BAC of at least .15 percent is not a lesser included offense of class C misdemeanor operating while intoxicated. Cf. Rouse v. State, 525 N.E.2d 1278, 1281 (Ind. Ct. App. 1988) (finding that operating a motor vehicle with a BAC of at least .10 percent or more, causing death, could not be the lesser included offense of driving while intoxicated, causing death, because “both offenses are Class C felonies, thus, indicating a legislative determination that the offenses are of equal harm or risk of harm”), trans. denied. We therefore affirm the trial court’s entry of a judgment of conviction for Count 2, operating a vehicle with a BAC of at least .15 percent, a class A misdemeanor. We, however, remand with instructions to the trial court to vacate Stutz’s conviction for operating while intoxicated as a Class C misdemeanor, as it should be merged with the conviction for operating a vehicle with a BAC of at least .15 percent; furthermore, the abstract of judgment shall be amended accordingly.
RILEY, J., and NAJAM, J., concur.