Brent Orange v. Indiana Bureau of Motor Vehicles , 92 N.E.3d 1152 ( 2018 )

FILED
Jan 31 2018, 9:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gabriel J. Quearry Curtis T. Hill, Jr.
Quearry Law, LLC Attorney General of Indiana
Plainfield, Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brent Orange, January 31, 2018
Appellant-Defendant, Court of Appeals Case No.
29A02-1707-MI-1549
v. Appeal from the Hamilton
Superior Court No. 6
Indiana Bureau of Motor The Honorable Gail Bardach,
Vehicles, Judge
Appellee-Plaintiff Trial Court Cause No.
29D06-1706-MI-4637
May, Judge.
[1] Brent Orange appeals the trial court’s denial of his petition for specialized
driving privileges. He argues he is statutorily entitled to a hearing and the trial
court erred when it did not hold a hearing prior to its denial of his petition. He
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also contends the trial court abused its discretion when it denied his petition on
its merits. We affirm.
Facts and Procedural History
[2] On May 18, 2017, Orange filed a petition for specialized driving privileges in
Hamilton County. He requested the court grant him specialized driving
privileges so he could drive back and forth from his employment, his probation
meetings, and his court-ordered Alcoholics Anonymous meetings. He also
asked the trial court to issue an order that “waives any and all fees or penalties
that Orange would otherwise be required to pay in order to obtain specialized
driving privileges.” (App. Vol. II at 7.)
[3] On May 25, a Deputy Hamilton County Prosecutor filed an appearance on
behalf of the State. On May 31, 2017, Orange submitted a proposed order to
set a hearing on the matter. On June 6, 2017, the trial court, using a revised
copy of Orange’s submitted proposed order, denied Orange’s petition and
struck out all language in the order regarding the scheduling of a hearing.
Discussion and Decision
Hearing on Orange’s Petition for Specialized Driving Privileges
[4] Orange argues the trial court erred when it did not grant his request for a
hearing on his petition for specialized driving privileges pursuant to Indiana
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Code section 9-30-16-3. 1 He “concedes that I.C. § 9-30-16-1 et seq. does not say
that a trial court must hold a hearing on a petition for specialized driving
privileges but neither does the statute contain an express provision permitting a
trial court to summarily deny such a petition.” (Br. of Appellant at 8.)
Therefore, he claims, the trial court should have granted his motion for a
hearing.
[5] Our standard of review for issues that require us to interpret a statute is well-
settled:
A question of statutory interpretation is a matter of law. In such
interpretation, the express language of the statute and the rules of
statutory interpretation apply. We will examine the statute as a
whole, and avoid excessive reliance on a strict literal meaning or
the selective reading of words. Where the language of the statute
is clear and unambiguous, there is nothing to construe.
1
Orange has had his driving privileges suspended both by the Bureau of Motor Vehicles and by court order.
Orange’s Verified Petition for Specialized Driving Privileges indicates his “petition to stay the suspension of
his driving privileges and grant him a specialized driving privilege is verified in compliance with Ind. Code §
9-30-16-4.” (App. Vol. II at 6.) Indiana Code section 9-30-16-4(a) allows an “individual whose driving
privileges have been suspended by the bureau by an administrative action and not by a court order” to
petition the court for specialized driving privileges. Indiana Code section 9-30-16-4(d)(1) requires that a
verified petition for specialized driving privileges be filed “in the county in which the individual resides.”
Ind. Code § 9-30-16-4(d)(1). Orange filed his petition for specialized driving privileges in Hamilton County,
but on his petition listed his address as Marion County. Therefore, his petition was not properly filed.
“An individual who seeks specialized driving privileges must file a petition for specialized driving privileges
in each court that has ordered or imposed a suspension of the individual’s driving privileges.” Ind. Code § 9-
30-16-3(a). In his petition for specialized driving privileges before the Hamilton Superior Court, Orange
indicates his “driving privileges were suspended by the Hamilton Superior Court 6 on January 31, 2017 for a
period of 365 days.” (App. Vol. II at 6.) Thus, it would seem he meant to file his petition pursuant to
Indiana Code section 9-30-16-3. As we previously have overlooked such an error and decided a case on the
merits, see Jones v. State, 62 N.E.3d 1205, 1206 n.1 (Ind. Ct. App. 2016), we will also do so here.
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However, where the language is susceptible to more than one
reasonable interpretation, the statute must be construed to give
effect to the legislature’s intent. The legislature is presumed to
have intended the language used in the statute to be applied
logically and not to bring about an absurd or unjust result. Thus,
we must keep in mind the objective and purpose of the law as
well as the effect and repercussions of such a construction.
Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied. “When
interpreting a statute, this Court must ascertain the legislative intent by looking
at the whole of the act. We must examine the law existing before, the changes
made and the apparent intent for making the changes.” Van Orman v. State, 416
N.E.2d 1301, 1305 (Ind. Ct. App. 1981). Further, “it is just as important to
recognize what a statute does not say as it is to recognize what it does say.”
Rush v. Elkhart Cty. Plan Comm’n, 698 N.E.2d 1211, 1215 (Ind. Ct. App. 1998),
trans. denied. We may not “read into a statute that which is not the expressed
intent of the legislature.” Id. Finally, we “will not add something to a statute
that the legislature has purposely omitted.” Id.[6] Indiana Code section 9-30-16-3(b) states, in relevant part:
(b) An individual who seeks specialized driving privileges must
file a petition for specialized driving privileges in each court that
has ordered or imposed a suspension of the individual’s driving
privileges. Each petition must:
(1) be verified by the petitioner;
(2) state the petitioner’s age, date of birth, and address;
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(3) state the grounds for relief and the relief sought;
(4) be filed in a circuit or superior court; and
(5) be served on the bureau and the prosecuting attorney.
A prosecuting attorney shall appear on behalf of the bureau to
respond to a petition filed under this subsection.
Indiana Code chapter 9-30-16 was enacted in 2014 and became effective
January 1, 2015. See Indiana Legislative Public Law 217-2014, Section 154
(adding Indiana Code chapter 9-30-16). The new law changed significant
statutory language, as well as revised the word “restricted” in the earlier statutes
to “specialized.” Compare Indiana Code chapter 9-24-15, entitled “Issuance of
Restricted Driver’s License Because of Hardship” with Indiana Code section 9-
30-16-3, entitled “Grant of specialized driving privileges[.]”
[7] Prior to 2015, a person whose driving privileges had been suspended could “file
a verified petition for a restricted driving permit for the sole purpose of driving
to and from work and in the course of employment during the period of the
driving license suspension” if “because of the nature of the individual’s
employment the suspension would work an undue hardship and burden upon
the individual’s family or dependents.” Ind. Code § 9-24-15-2 (1991) (repealed
2015). See also Gibson v. Hernandez, 764 N.E.2d 253, 256-7 (Ind. Ct. App. 2002)
(holding restricted driving privileges may not be granted “for the purpose of
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transporting [] children to and from school and doctor’s appointments in
emergencies”), trans. denied.
[8] Following the filing of a petition for restricted driving privileges, Indiana Code
section 9-24-15-4 (1991) (repealed 2015) directed: “(b) The clerk of court shall
docket the verified petition in the name of the petitioner against the prosecuting
attorney of the county[;] (c) The prosecuting attorney shall appear in person or by
deputy and be heard by the court on the petition.” (emphasis added). Thus,
according to the plain language of the statute, the trial court was required to
hold a hearing on petitions for restricted driving privileges prior to the repeal of
the relevant statutes in 2015.
[9] That language did not survive the statute’s repeal. 2 The corresponding
language in the current statute requires the prosecuting attorney to “appear on
behalf of the bureau to respond to a petition,” Ind. Code § 9-30-16-3(b), but
does not include language the appearance must be made in person as was
required by Indiana Code section 9-24-15-4 (1991) (repealed 2015). Therefore,
we conclude the legislature intended to change the language of the statute to
remove the requirement that the trial court hold a hearing regarding a petition
to grant specialized driving privileges after the suspension of a petitioner’s
2
In 2015, the legislature enacted three statutes to govern the grant of specialized driving privileges: Indiana
Code section 9-30-16-3 covers those whose driving privileges were suspended pursuant to a court order;
Indiana Code section 9-30-16-3.5 covers those whose driving privileges were suspended under statutory-
specific circumstances who only want to drive to and from work; and Indiana Code section 9-30-16-4 covers
those whose driving privileges were suspended by an administrative agency. None of these sections includes
a requirement that a trial court hold a hearing on a petition.
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driver’s license. See Ind. Dept. of State Rev., Sales Tax Div. v. Cable Brazil, Inc., 177
Ind. App. 450, 458-9, 380 N.E.2d 555, 559-60 (1978) (“presumption is raised
that the Legislature intended to change the law unless it clearly appears an
amendment was made only to express more clearly the original intention of the
Legislature”), reh’g denied.
[10] We note that our holding addresses only whether a trial court is required to
hold a hearing pursuant to Indiana Code section 9-30-16-3. While a trial court
is not required to hold a hearing under the statute, it may still err if it fails to
grant a petitioner’s request for a hearing when the petition raises claims of possible
merit. See, e.g., Osmanov v. State, 40 N.E.3d 904, 910 (Ind. Ct. App. 2015) (trial
court may err if it does not grant a request for a hearing when petition for post-
conviction relief raised claims of possible merit). However, as we note infra.,
Orange’s petition did not raise claims of possible merit, and thus the trial court
properly denied his request for a hearing.
Denial of Orange’s Petition for Specialized Driving Privileges
[11] “[T]he decision to grant or deny a petition for specialized driving privileges is
reviewable only for an abuse of discretion.” Jones v. State, 62 N.E.3d 1205, 1207
(Ind. Ct. App. 2016). An abuse of discretion occurs when the decision of the
trial court is “clearly against the logic and effect of the facts and circumstances
before the court or if the court has misinterpreted the law.” Id. In our review,
we neither reweigh the evidence or judge the credibility of witnesses. Id. The
trial court has “almost unfettered discretion” when deciding whether to grant a
petition for specialized driving privileges. Id. at 1207 n.3.
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[12] Orange argues the trial court abused its discretion when it denied his petition
for specialized driving privileges
because nothing in the trial court’s order provides a legal or
factual basis for denying Orange’s petition: nothing in the order
states that Ind. Trial Rule 12(C) was the legal basis for denying
Orange’s petition, and the Hamilton County Prosecutor, who
“appear[ed] on behalf of the [BMV] to respond to” Orange’s
petition filed under I.C. § 9-30-16-3(b), did not file response
objecting to Orange’s petition nor moved for judgment on the
pleadings to “attack the legal sufficiency” of Orange’s petition.
(Br. of Appellant at 9-10.) However, the case he cites to support this premise,
Key v. State, 48 N.E.3d 333 (Ind. Ct. App. 2015), involves interpretation of the
expungement statute, which is not relevant to this case. Additionally, Orange
cites no authority to support his arguments that the trial court was required to
provide a legal or factual basis for its ruling, and that the Hamilton County
Prosecutor was required to file a reply to his petition attacking its legal
sufficiency. Thus, he has waived his argument for failure to make a cogent
argument. See Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52,
54 n.1 (Ind. Ct. App. 2002) (Indiana Appellate Rule 46(A)(8)(a) requires the
argument to be supported by cogent argument, as well as citations to statutes
and cases relied upon. Failure to include cogent argument with support
therefor results in waiver of the argument.), trans. denied.
[13] Waiver notwithstanding, there can be no question that the trial court properly
exercised its discretion when it denied Orange’s petition for specialized driving
privileges. Orange’s driving record, which includes information only for the
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past ten years, indicates Orange has accumulated twenty-seven different driving
suspensions and his reinstatement eligibility date is “Indefinite.” (App. Vol. II
at 10.) The suspensions stem from Orange’s failure to pay fines, failure to file
insurance information, operation of a vehicle while intoxicated, failure to
appear for driver safety program, and chemical test failure. He has been
adjudicated an habitual traffic violator multiple times. Based thereon, we
conclude the trial court did not abuse its discretion when it denied his petition
for specialized driving privileges. See Jones, 62 N.E.3d at 1208 (affirming denial
of Jones’ petition for specialized driving privileges based on his status as an
habitual traffic violator with over twenty traffic-related convictions in a ten-year
period).
Conclusion
[14] As an issue of first impression, we hold Indiana Code section 9-30-16-3 does
not require the trial court to hold a hearing prior to making a decision on a
petition for specialized driving privileges. Additionally, the trial court did not
err when it did not hold a hearing because Orange’s petition did not assert any
claims of merit. Finally, the trial court did not abuse its discretion when it
denied Orange’s petition for specialized driving privileges. Accordingly, we
affirm.
[15] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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