In this interlocutory appeal, the State of Indiana appeals the trial court’s grant of a motion to dismiss filed by Justin Bazan regarding the charges of Level 6 felony operating a vehicle while intoxicated endangering a person with a prior conviction within five years and Level 6 felony operating a vehicle while intoxicated with a prior conviction within five years. We affirm.
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On May 20, 2014, Bazan was convicted of operating a motor vehicle while ability impaired in New York pursuant to New York Vehicle and Traffic Law Section 1192.1. On February 27, 2015, Bazan was charged in Indiana with: Count 1, Class A misdemeanor operating a vehicle while intoxicated endangering a person; Count II, Class C misdemeanor operating a vehicle while intoxicated; Count III, Class A misdemeanor resisting law enforcement; Count IV, Level 6 felony operating a vehicle while intoxicated endangering a person with a prior conviction within five years; and Count V, Level 6 felony operating a vehicle while intoxicated with a prior conviction within five years.
Bazan filed a motion to dismiss Count IV and Count V. He argued that his 2014 conviction in New York was not substantially similar to an Indiana offense for operating a vehicle while intoxicated and did not qualify as a previous conviction of operating while intoxicated. The trial court granted Bazan’s motion. …
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[Indiana misdemeanor OWI] charges may be enhanced to a Level 6 felony if “the person has a previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of [Indiana Code Section 9-30-5-2].” I.C. § 9-30-5-3(a)(1). A “previous conviction of operating while intoxicated” is defined as a previous conviction:
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(2) in any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a crime described in IC 9-30-5-1 through IC 9-30-5-9.
I.C. § 9-13-2-130. The issue here is whether Bazan’s previous New York conviction is a conviction “in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a crime described in IC 9-30-5-1 through IC 9-30-5-9.” Id.
Bazan had a prior conviction in New York for operating a vehicle while ability impaired. See N.Y. Vehicle and Traffic Law § 1192.1. The applicable statute provides: “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” Id. … New York also separately prohibits operating a motor vehicle while in an intoxicated state. See N.Y. Vehicle and Traffic Law § 1192.3. Under those statutes, the crime of driving while intoxicated requires a showing that the defendant “is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. McNamara, 704 N.Y.S.2d 100, 101 (N.Y. App. Div. 2000). The lesser offense of driving while impaired, however, requires only a showing that the defendant’s ability to operate a vehicle was impaired to some extent. Id.
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We conclude that, unlike [the Michigan offense at issue] in [State v.] Akins, [824 N.E.2d 676 (Ind. 2005),] the New York statute here is not substantially similar to the elements of a crime described in Indiana Code Sections 9-30-5-1 through 9-30-5-9. The New York statute under which Bazan was convicted requires only some extent of impairment due to the consumption of alcohol. On the other hand, Indiana Code Section 9-30-5-2(a), upon which the State relies, requires a showing of an impaired condition of thought and action and the loss of normal control of a person’s faculties. The Indiana statute requires a greater showing of impairment than the New York statute. The two statutes have markedly different thresholds for establishing a violation. Consequently, the two statutes are not substantially similar, and we conclude that the trial court properly dismissed the enhanced charges in this case.
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Affirmed.
Kirsch, J., and Najam, J., concur.