dissent">SULLIVAN, Justice,

dissenting.

I respectfully dissent. I think the in-" struction used by the trial court here (and approved by the Court of Appeals in Stephenson v. State, 648 N.E.2d 395 (Ind.Ct.App.1995), trans. denied), is faithful to this court's directives in Micinski v. State, 487 N.E.2d 150 (Ind.1986).

Micinski reversed a conviction for leaving the scene of an accident involving personal injury on grounds that the defendant was entitled to an instruction to the effect *1179that he needed to have "knowledge that there was an injury accident." 487 N.E.2d at 152. That holding-which drew two dissents-is not at issue in today's case. Micinski then went on to address defendant's claim that the evidence was insufficient on the element of eausation to support his conviction on two counts of driving under the influence causing bodily injury. On this issue, our court unanimously rejected defendant's claim, saying:

The [defendant urges and the] Court [of Appeals] agreed and held:

To convict under this statute, the state must prove beyond a reasonable doubt that the defendant (1) operated a vehicle (2) while intoxicated, and (8) that the intoxication did directly and proximately ecause serious bodily injury.

In effect, this construction of the statute leads the jury to ask a "but-for" kind of question: "Is it the driver's intoxication that caused him to hit the vie-tim?" We conclude that this is not what the legislature intended. The statute creates a crime-driving while intoxicated-and adds higher penalties if the commission of this offense results in serious injury or the death of another person. There is, of course, a need to show causation; in the typical case a showing that the driver ran into the vietim would suffice. We find nothing in the statute to indicate that the General Assembly intended to require that the State prove a causal link between the driver's intoxication and the fact that injury resulted from his driving.

487 N.E.2d at 153 (citation omitted). It seems to me clear from this language that Micinski sets the bar for proving causation at a level lower than that required by the majority today. Support for my reading of Micinski comes, I think, from the fact that Micinski explicitly disapproved Higginbotham v. State in which the Court of Appeals held:

Based upon these cireumstances we hold defendant was harmed by the lack of instruction on causation. The instruction did trace the wording of the statute as far as the "results in" language. It also spoke in terms of loss of normal control of one's faculties caused by use of alcohol. However, the instruction did not require the jury to find, in order to convict defendant, that the death was caused by or a consequence of the operation of a vehicle with loss of normal control of faculties because of intoxication.

427 N.E.2d 896, 900 (Ind.Ct.App.1981). It seems to me that the majority today resurrects the Higginbotham standard that Mi-cinski rejected. _

It is true, as the majority says, that Micinski goes on to discuss the hypothetical of the child darting into the street and says that a defendant is "entitled to ask a jury to find him not guilty because there is reasonable doubt whether he caused the collision." 487 N.E.2d at 154. I think the "substantial causation" language used by the trial court handles this hypothetical adequately-if I hit a child darting into the street, my driving is not a substantial cause of the accident. This was the explicit holding of Stephenson, a case in which we unanimously denied transfer.

I would affirm the judgment of the trial court.

Citation profile

Relationships

How this case has been treated — in progress