Preview:

FOR PUBLICATION

FILED
Dec 29 2010, 9:05 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: GREGORY F. ZOELLER Attorney General of Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

APPELLEE PRO SE: RICHARD J. LAKER, JR. Edinburgh, Indiana

IN THE COURT OF APPEALS OF INDIANA
STATE OF INDIANA, Appellant-Plaintiff, vs. RICHARD J. LAKER, JR., Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 24A04-0912-CR-736

APPEAL FROM THE FRANKLIN CIRCUIT COURT The Honorable Clay M. Kellerman, Judge Cause No. 24C02-0812-FD-781

December 29, 2010 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary The State charged Richard Laker with various counts of operating a motor vehicle while privileges are suspended and operating while intoxicated. The State's charges were premised on Laker's alleged operation of a farm tractor. The trial court dismissed all counts, finding that the operation of a farm tractor could not serve as the basis for any of the alleged offenses. We conclude that the operation of a farm tractor cannot sustain charges of operating while privileges are suspended, but it may sustain charges of operating while intoxicated. We affirm in part, reverse in part, and remand. Facts and Procedural History According to allegations in the record, police spotted a white Lexus in a ditch off the side of the road in Franklin County. Officer Mark Fritz was dispatched to investigate. Officer Fritz found Laker at the scene hitching the Lexus to the back of a Massey Ferguson farm tractor. Laker told Officer Fritz that a friend had wrecked the Lexus and had asked him to tow it out. Officer Fritz discovered that Laker did not have a driver's license and that his driving privileges had been suspended. Officer Fritz also observed signs of intoxication, and a chemical breath test later indicated that Laker's blood alcohol concentration was .10. Laker was taken into custody. Officer Fritz checked Laker's driving record and noted a previous conviction for operating while intoxicated. The State filed a four-count information against Laker. Count I alleged that Laker "on or about November 14, 2008, at said County of Franklin and State of Indiana, did then and there unlawfully, knowingly, or intentionally, operate a motor vehicle while his driving privileges were suspended" in violation of Indiana Code section 9-30-10-16. 2

Appellant's App. p. 6. Count II alleged that Laker "unlawfully operate[d] a vehicle . . . with an alcohol concentration equivalent to at least eight-hundredths (.08)" in violation of Indiana Code section 9-30-5-1(a). Id. at 7. Count III alleged that he "operate[d] a vehicle while intoxicated" in violation of Indiana Code section 9-30-5-2(a), id. at 8, and Count IV alleged that Laker had a prior OWI conviction, id. at 9. Officer Fritz completed an affidavit of probable cause which was filed along with the charging information. Officer Fritz's affidavit described the subject vehicle as a "Red Late 60's-Early 70's Massey Ferguson Tractor Model 1080." Id. at 10. In addition, Officer Fritz filled out two "information and summons" tickets which described the subject vehicle as a "Red" "71" "Massey Ferguson." Id. at 11. Laker moved to dismiss the information. Laker asserted that the State's charges were predicated on his operation of the farm tractor and that the operation of the farm tractor could not sustain charges of either operating while driving privileges are suspended or operating while intoxicated. The trial court agreed and dismissed all four counts. The State now appeals. Discussion and Decision A charging instrument must set forth, among other things, the nature and elements of the offense charged in plain and concise language without unnecessary repetition. Ind. Code

Download State of Indiana v. Richard J. Laker, Jr..pdf

Indiana Law