Here's the statute you claim he violated:
Might want to read the bold text more carefully, there.
I'd start with this:
It appears to me that you would charge him with the wrong statute, and that if the facts are as stated in the report, he's guilty of a class C felony unless he satisfies the latter part of the statute.
I also think you're wrong about not charging him with more. Being drunk while on duty as a police officer AND causing death by driving under the influence should be separate crimes.
It also seems that he satisfies the involuntary manslaughter statute, which makes him guilty of another felony:
.
There are probably a number of other charges that should result from this as well.
I hope to God that nobody here tries to defend this conduct, either. This is beyond atrocious.
No, FPD is absolutely correct. You need to look at how the statute is broken up. (b) operates independently of (a).
Each color represents the element of a separate offense/enhancement. Italics represents severability and defenses.IC 9-30-5-5
Classification of offense; death; death of law enforcement animal
Sec. 5. (a) A person who causes the death of another person when operating a motor vehicle:
(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person's blood; or
(B) two hundred ten (210) liters of the person's breath;
(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's blood; or
(3) while intoxicated;
commits a Class C felony. However, the offense is a Class B felony if the person has a previous conviction of operating while intoxicated within the five (5) years preceding the commission of the offense, or if the person operated the motor vehicle when the person knew that the person's driver's license, driving privilege, or permit is suspended or revoked for a previous conviction for operating a vehicle while intoxicated.
(b) A person at least twenty-one (21) years of age who causes the death of another person when operating a motor vehicle:
(1) with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:
(A) one hundred (100) milliliters of the person's blood; or
(B) two hundred ten (210) liters of the person's breath; or
(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's blood;
commits a Class B felony.
(c) A person who causes the death of a law enforcement animal (as defined in IC 35-46-3-4.5) when operating a motor vehicle:
(1) with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person's blood; or
(B) two hundred ten (210) liters of the person's breath; or
(2) with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's blood;
commits a Class D felony.
(d) A person who violates subsection (a), (b), or (c) commits a separate offense for each person or law enforcement animal whose death is caused by the violation of subsection (a), (b), or (c).
(e) It is a defense under subsection (a)(2), (b)(2), or (c)(2) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner's professional practice.
As added by P.L.2-1991, SEC.18. Amended by P.L.53-1994, SEC.6; P.L.97-1996, SEC.4; P.L.96-1996, SEC.4; P.L.33-1997, SEC.9; P.L.1-2000, SEC.9; P.L.120-2000, SEC.1; P.L.175-2001, SEC.9; P.L.82-2004, SEC.2; P.L.76-2004, SEC.4; P.L.2-2005, SEC.36; P.L.102-2010, SEC.1.
Also, it is a principle of Indiana's constitutional jurisprudence that where there is a specific statute, it generally must be used in place of a general statute. As such, Invol Manslaughter probably isn't the appropriate charge. The section you bolded ( and I shaded red below) corresponds to the death of a fetus, not to the death of a born person.
I do not know of any successful prosecution in Indiana for manslaughter based upon someone committing OWI causing death. It has been done once or twice in NY, but their statutory scheme is different from ours.IC 35-42-1-4
Involuntary manslaughter
Sec. 4. (a) As used in this section, "child care provider" means a person who provides child care in or on behalf of:
(1) a child care center (as defined in IC 12-7-2-28.4); or
(2) a child care home (as defined in IC 12-7-2-28.6);
regardless of whether the child care center or child care home is licensed.
(b) As used in this section, "fetus" means a fetus that has attained viability (as defined in IC 16-18-2-365).
(c) A person who kills another human being while committing or attempting to commit: (1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or
(3) battery;
commits involuntary manslaughter, a Class C felony. However, if the killing results from the operation of a vehicle, the offense is a Class D felony.
(d) A person who kills a fetus while committing or attempting to commit:
(1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury;
(3) battery; or
(4) a violation of IC 9-30-5-1 through IC 9-30-5-5 (operating a vehicle while intoxicated);
commits involuntary manslaughter, a Class C felony. However, if the killing results from the operation of a vehicle, the offense is a Class D felony.
(e) If:
(1) a child care provider recklessly supervises a child; and
(2) the child dies as a result of the child care provider's reckless supervision;
the child care provider commits involuntary manslaughter, a Class D felony.
As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.28; P.L.261-1997, SEC.5; P.L.133-2002, SEC.65; P.L.7-2010, SEC.1.
Best,
Joe