Jun 20 2014, 6:41 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN L. TOMPKINS GREGORY F. ZOELLER
Brown Tompkins Lory & Mastrian Attorney General of Indiana
Indianapolis, Indiana
KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JENNI HILL, )
)
Appellant-Petitioner, )
)
vs. ) No. 29A02-1311-MI-942
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable J. Richard Campbell, Judge
Cause No. 29D04-1308-MI-8146
June 20, 2014
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Jenni Hill (“Hill”) appeals an order entered upon her petition for judicial review of a
determination from the Bureau of Motor Vehicles (“BMV”) that she is a habitual traffic
violator (“HTV”). We affirm.
Issue
Hill presents the sole issue of whether Indiana Code section 9-30-10-4(b) 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 January 3, 2005, Hill was convicted of operating a motor vehicle with an alcohol
concentration of .08 or above. On February 28, 2008, Hill was convicted of failure to report
an accident with excess damage. On March 11, 2008, Hill was convicted of operating a
motor vehicle while intoxicated with a prior offense within five years. After these three
convictions, Hill was determined to be an HTV.
On March 21, 2008, the BMV sent Hill a notice of suspension. This suspension,
effective April 25, 2008, was for a ten-year period. On March 13, 2008, Hill was convicted
of operating a motor vehicle while intoxicated with a prior offense within five years. On
March 18, 2009, Hill was convicted of operating a motor vehicle while intoxicated with a
prior offense within five years. These two post-HTV determination convictions, together
with the previous three convictions, were used by the BMV to make a second HTV
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determination. The BMV notified Hill that a second suspension became effective August 1,
2013, with an expiration date of April 26, 2019.
Hill filed a petition for judicial review challenging the latter suspension. At the
hearing, Hill argued that any conviction used in making the first HTV determination could
not be used in making the second determination. The trial court denied Hill’s petition. This
appeal ensued.
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
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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).
Analysis
Indiana Code section 9-30-10-4(b) 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[.]
The qualifying judgments include: (1) operation of a vehicle while intoxicated; (2) operation
of a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram
of alcohol per one hundred (100) milliliters of the blood or two hundred ten (210) liters of the
breath; (3) operating a motor vehicle while the person’s license to do so has been suspended
or revoked; (4) operating a motor vehicle without ever having obtained a license to do so; (5)
reckless driving; (6) criminal recklessness involving the operation of a motor vehicle; (7)
drag racing or engaging in a speed contest in violation of law; and (8) any felony under an
Indiana motor vehicle statute or any felony in the commission of which a motor vehicle is
used. Id.
Hill’s qualifying judgments to support her first HTV determination were those of
January 3, 2005, February 28, 2008, and March 11, 2008. On March 13, 2008, Hill received
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another conviction for driving while intoxicated. A year later, she received another
conviction for driving while intoxicated. Hill argues that, once she has been determined to
be an HTV, she must have a minimum of three new convictions to support a second HTV
determination within ten years. She 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. The State responds 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. Appellee’s Brief at 7.
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 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
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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.
Conclusion
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. The trial court properly denied Hill’s petition to revise
the determination of the BMV that she is an HTV.
Affirmed.
KIRSCH, J., and MAY, J., concur.
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