Our statutory definition of "previous conviction of operating while intoxicated" does not require that the other jurisdiction's statutory elements were substantially similar, but rather that they are substantially similar to the elements of the Indiana crime. Ind. Code § 9-13-2-130. This understanding is bolstered by State v. Geise, 596 N.E.2d 244, 245-46 (Ind.Ct.App. 1992), where the court relied upon the language of the statute at the time of the offense to conclude that the defendant did not have a "previous conviction," despite the fact that, prior to modification of the statute a year before, the defendant would have been deemed to have had a previous conviction. Judge Sharpnack's interpretation is the correct one: the language of the Indiana statute in effect at the time of the Indiana offense should control.
Schenk contends that IC 35-50-2-2's reference to "two (2) prior unrelated convictions under IC 9-30-5" reflects the Indiana General Assembly's intent to exclude convictions under IC 9-11-2 from consideration when determining whether a portion of a sentence is non-suspendable. While Schenk cites to our court's ruling in State v. Geise, 596 N.E.2d 244 (Ind.Ct.App. 1992) to support his argument, we find our Supreme Court's decision in Holt v. State, 638 N.E.2d 786, 787 (Ind. 1994) to be more closely aligned with the facts in this case. Holt had his driving privileges revoked for life under IC 9-12-3-1, the predecessor to IC 9-30-10-16. Three years later, the police caught Holt driving while intoxicated and charged him with OWI and with "driving after his privileges had been forfeited for life."
Even though the offenses described in Ind. Code §§ 9-30-5-1 through -9 may change over time through amendments, the language of Ind. Code § 9-13-2-130 requires that we determine whether the previous conviction would be a crime under the current versions of Ind. Code §§ 9-30-5-1 through -9. See generally State v. Geise, 596 N.E.2d 244, 245-246 (Ind.Ct.App. 1992) (holding that "[b]y a literal reading of the statutes," the defendant did not have a "previous conviction" because the definition of "previous conviction" included only the recodified version of the statute, not the previous codification).
The savings clause requires that such a reference in a repealed and replaced statute "shall be treated . . . as a reference to the new provision." In the second case, State v. Geise (1992), Ind. App., 596 N.E.2d 244, the defendant had a prior DWI conviction under IC 9-11-2. That statute was repealed by P.L. 2-1991 and was replaced by IC 9-30-5.