Ryan,

Compare these two sentences: “He has a conviction for a theft that didn’t occur.” “He has a conviction for a theft that keeps him from getting hired.”

Both sentences seem to have the same basic structure as the relevant language of the statute at issue, with the prepositional phrase “for a theft” modifying “conviction” in both sentences, just as “of operating while intoxicated” modifies “conviction” in the statutory language. In the first sentence the clause introduced by the relative pronoun “that” clearly modifies “theft” and in the second sentence it clearly modifies “conviction.” The word that the clause modifies is revealed by the substance of the modifying clause. In the statute at issue the substance of the modifying clause provides no such clarification. So the court of appeals’ reliance on the fact that “of operating while intoxicated” modifies “conviction” seems wholly misguided and irrelevant. In its place, it seems it should have used either the Rule of Lenity or “propinquity” (a word used in the opinion, representing a principle advanced by the defendant), which would have led to a different result — one upholding the trial judge and in favor of the defendant.

I’m no grammarian—I didn’t even go to Catholic school, let alone teach it—but I also think the Court of Appeals got it wrong.

In my view, “of” makes “operating while intoxicated” an adjectival phrase that modifies the noun “conviction,” and the relative pronoun “that” tells the reader to apply “within the five years . . .” to the now-modified noun.

Take this analysis with a grain of salt. I wasn’t certain what a gerund was until I read your post.