Landon Q. Jones v. Terry Curry, as the Marion County Prosecutor and Ronald Stiver, as the Commissioner of the Indiana BMV

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Nov 14 2014, 9:36 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
IAN W. THOMPSON GREGORY F. ZOELLER
Mooresville, Indiana Attorney General of Indiana
KRISTIN GARN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LANDON Q. JONES, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A02-1403-MI-204
)
TERRY CURRY, as the Marion County )
Prosecutor and RONALD STIVER, as the )
Commissioner of the Indiana Bureau of )
Motor Vehicles, )
)
Appellees-Respondents. )
APPEAL FROM THE MARION CIRCUIT COURT
The Honorable Louis F. Rosenberg, Judge
Cause No. 49C01-1207-MI-28631
November 14, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Landon Q. Jones (“Jones”) appeals an order entered upon his petition for judicial
review of a determination from the Bureau of Motor Vehicles (“BMV”) that he is a habitual
traffic violator (“HTV”). We affirm.
Issue
Jones presents the sole issue of whether Indiana Code section 9-30-10-4(c) prohibits
the BMV from using a conviction that supported an initial HTV determination to also support
a second HTV determination.
Facts and Procedural History
On March 28, 2007, Jones was determined to be an HTV, having committed ten
qualifying offenses.1 His driver’s license was suspended from May 3, 2007 to May 3, 2012.
On June 19, 2012, the BMV sent Jones a notice of suspension, alleging that his
accumulation of ten offenses within a ten-year period (consisting of some new offenses and
those supporting the prior suspension) qualified him as an HTV. Jones requested an
administrative review and an Administrative Law Judge recommended that a five-year
suspension be imposed. This suspension became effective on July 23, 2012.
Jones filed a petition for judicial review challenging the latter suspension. At the
hearing, Jones argued that any conviction used in making the first HTV determination could
not be used in making the second determination. The trial court denied Jones’s petition.
This appeal ensued.
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Although Jones had committed the requisite number of offenses, only nine were specifically referenced in the
BMV determination. Jones did not appeal this first HTV determination.
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Discussion and Decision
Standard of Review
In reviewing a decision of an administrative agency, this Court is bound by the same
standard of review as the trial court. Ind. Bureau of Motor Vehicles v. McNeil, 931 N.E.2d
897, 900 (Ind. Ct. App. 2010), trans. denied. Judicial review of an administrative decision is
limited to whether the agency possessed jurisdiction over the subject matter, whether the
decision was made pursuant to the proper procedures, whether the decision was arbitrary and
capricious, whether the decision was in violation of any constitutional, statutory, or legal
principles, and whether the decision was supported by substantial evidence. Id.The interpretation of a statute presents a question of law. Nash v. State, 881 N.E.2d
1060, 1063 (Ind. Ct. App. 2008), trans. denied. If the language of a statute is clear and
unambiguous, it is not subject to judicial interpretation. Id. If, however, the language is
susceptible to more than one reasonable construction, we must construe the statute in
accordance with apparent legislative intent. Id. The best evidence of legislative intent is the
language of the statute, giving all words their plain and ordinary meaning unless otherwise
indicated by the statute. Chambliss v. State, 746 N.E.2d 73, 77 (Ind. 2001). We will
presume that the legislature intended the language used in the statute to be applied logically
and to avoid an unjust or absurd result. Nash, 881 N.E.2d at 1063.
Moreover, an interpretation of a statute by an administrative agency charged with
enforcing the statute is entitled to great weight unless the interpretation is inconsistent with
the statute itself. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000).
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Analysis
Indiana Code section 9-30-10-4(c) provides:
A person who has accumulated at least ten (10) judgments within a ten (10)
year period for any traffic violation, except a parking or an equipment
violation, of the type required to be reported to the bureau, singularly or in
combination, and not arising out of the same incident is a habitual violator.
However, at least one (1) of the judgments must be for a violation enumerated
in subsection (a) or (b). A judgment for a violation enumerated in subsection
(a) or (b) shall be added to the judgments described in this subsection for the
purposes of this subsection.
(emphasis added.)
Jones does not have a judgment under subsection (a). Subsection (b) is implicated; it
provides in relevant part:
A person who has accumulated at least three (3) judgments within a ten (10)
year period for any of the following violations, singularly or in combination,
and not arising out of the same incident is a habitual violator[.]
(emphasis added.) The qualifying judgments include two offenses relevant here: operation
of a vehicle while intoxicated and operating a motor vehicle while the person’s license to do
so has been suspended or revoked. Id.Jones’s qualifying judgments to support his 2007 HTV determination included an
unsafe start, driving while suspended, operating while intoxicated, driving while suspended,
and several speeding violations. On May 10, 2007, he was convicted of driving while
suspended, with a prior offense within ten years. On July 16, 2008, he was convicted for
failure to use a proper signal and, on May 24, 2010, he was convicted of operating a vehicle
while an HTV. The 2012 HTV determination rested upon the post-suspension offenses and
offenses considered in making the 2007 HTV determination.
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Jones argues that, once he has been determined to be an HTV under subsection (c), he
must have a minimum of ten new convictions to support a second HTV determination within
ten years. He focuses on the phrase “not arising out of the same incident” in contending that
the legislature must have intended that a single judgment cannot be used to support
successive HTV determinations. According to Jones, a proper interpretation of the statutory
provisions at issue would lead to the conclusion that he needed a total of twenty judgments,
including an offense enumerated in subsection (a) or (b), to support two HTV determinations
under subsection (c).
Very recently, a panel of this Court considered a nearly identical contention with
respect to Indiana Code section 9-30-10-4(b). In Hill v. State, 15 N.E.3d 589 (Ind. Ct. App.
2014), the appellant argued that the statutory language, “not arising out of the same incident,”
prohibited the BMV from using a conviction that supported her initial HTV determination to
also support a second HTV determination. The State responded that, so long as the multiple
convictions arise out of “distinct and separate sets of conduct,” one who has the status of an
HTV and incurs an additional conviction properly faces further suspension of driving
privileges. Id. at 591.
The Hill Court agreed with the State that the statutory language at issue does not
include a limitation upon the use of a qualifying conviction to determine HTV status, other
than that predicate convictions must not have arisen from the same incident. Id. at 592. The
Court reasoned as follows:
The primary purpose of suspending a person’s license for being an HTV
is to remove from the highway those drivers who have proven themselves to be
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unfit to drive, and who pose a substantial threat to the safety of others.
Orndorff v. Ind. Bureau of Motor Vehicles, 982 N.E.2d 312, 321 (Ind. Ct.
App. 2012), trans. denied. Consistent with this legislative purpose, the crucial
inquiry of Indiana Code section 9-30-10-4(b) is whether the person has thrice
demonstrated, within a ten-year period, that he or she poses a threat to others’
safety.
The plain language of the statutory provision prohibits the BMV from
using multiple judgments arising from one incident to serve as multiple
predicates for an HTV determination. However, as the State points out, there
is no corollary limitation that one judgment cannot be a predicate to successive
HTV determinations. “[W]e will not read into the statute that which is not the
expressed intent of the legislature” and “it is just as important to recognize
what the statute does not say as to recognize what it does say.” N.D.F. v.
State, 775 N.E.2d 1085, 1088 (Ind. 2002).
Our legislature has declared a policy of identifying dangerous drivers
and restricting their privileges, with a ten-year time frame as the point of
reference. An individual who, like Hill, has accumulated three qualifying
convictions, not arising out of the same incident, within a given ten-year period
may be determined to be an HTV.
Id. at 591-92.
Here, similar to Hill, the crucial inquiry of subsection (c) is whether the person has on
ten occasions demonstrated, within a ten-year period, that he or she poses a threat to others’
safety. Subsection (c) does not include a limitation upon the use of a qualifying conviction to
determine HTV status, other than that predicate convictions must not have arisen from the
same incident.
Conclusion
The trial court properly denied Jones’s petition to revise the determination of the
BMV that he is an HTV.
Affirmed.
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NAJAM, J., and PYLE, J., concur.
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