FILED
Apr 11 2017, 6:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS
Curtis T. Hill, Jr.
Attorney General of Indiana
Aaron T. Craft
Matthew R. Elliott
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Bureau of Motor April 11, 2017
Vehicles, et al., Court of Appeals Case No.
Appellants-Respondents, 45A03-1611-MI-2457
Appeal from the Lake Circuit
v. Court
The Honorable George C. Paras,
Daniel N. Newlin, Judge
Appellee-Petitioner. The Honorable Alice A. Kuzemka,
Magistrate
Trial Court Cause No.
45C01-1606-MI-198
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017 Page 1 of 6
[1] On January 25, 2016, as the result of a case out of Kosciusko County, Daniel
Newlin’s driving privileges were suspended by Appellant-Respondent the
Indiana Bureau of Motor Vehicles (“BMV”) for two years due to his refusal to
submit to a chemical test. On June 24, 2016, Newlin filed a verified petition for
specialized driving privileges in Lake County. The trial court granted his
motion. The BMV filed a motion to correct error arguing that Newlin was
ineligible for specialized driving privileges pursuant to Indiana Code subsection
9-30-16-1(a)(2). The trial court denied the BMV’s motion.
[2] The BMV argues that the trial court’s grant of specialized driving privileges to
Newlin with respect to this two-year suspension for refusing to submit to a
chemical test was not supported by sufficient evidence and was contrary to law.
We agree that the grant of specialize driving privileges to Newlin was contrary
to law and not supported by the evidence. Consequently, we reverse and
remand with instructions.
Facts and Procedural History
[3] Shortly after midnight on December 24, 2015, Newlin was stopped for traveling
seventy-nine miles per hour in a sixty mile-per-hour zone in Kosciusko County
and for failing to merge for an emergency vehicle. The officer who stopped
Newlin observed that Newlin was unsteady, was slurring his speech, and had
blood-shot eyes. The officer advised Newlin of Indiana’s implied consent law,
but Newlin refused to submit to a chemical test.
Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017 Page 2 of 6
[4] On January 25, 2016, the BMV suspended Newlin’s driving privileges for
refusing to submit to a chemical test after the BMV received the probable cause
affidavit. The suspension was a two-year suspension that was to run through
January 25, 2018.
[5] On April 14, 2016, the Kosciusko Superior Court convicted Newlin of
operating while intoxicated, with a blood-alcohol concentration of 0.08 or
above for the offense committed on December 24, 2015. The trial court
subsequently suspended Newlin’s driving privileges for one year. The
suspension has never been stayed by the Kosciusko trial court, nor did that
court grant specialized driving privileges to Newlin.
[6] Newlin’s driving privileges were suspended by the BMV again for his failure to
file insurance. That suspension was only to run through August 2016. On June
21, 2016, Newlin completed a court-approved alcohol program in Kosciusko
County. Newlin also obtained insurance.
[7] On June 24, 2016, Newlin filed a verified petition for specialized driving
privileges in the Lake Circuit Court. In his petition, Newlin only stated that his
license had been suspended “for failure to file insurance.” App. p. 8. Newlin
further stated that he was “not ineligible by any of the exceptions set under Ind.
Code. section 9-30-16-1 or 9-30-16-5.” App. p. 8. At the hearing, Newlin
admitted that his privileges had been suspended for refusing to take a chemical
test.
Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017 Page 3 of 6
[8] On July 12, 2016, after the hearing, the trial court in Lake County issued an
order granting Newlin’s petition for specialized driving privileges. The Lake
County court also found that Newlin was not ineligible for specialized driving
privileges, but that he had three administrative suspensions: a suspension from
May 30, 2016 to August 28, 2016, for failure to file insurance; a suspension
from January 25, 2016 to January 25, 2018, for refusing a chemical test; and a
suspension from January 26, 2018, to January 26, 2019, for operating while
intoxicated. The court, however, stayed all three suspensions. The only
condition it imposed upon Newlin was that he use an interlock device for 180
days. In other words, the Lake County trial court lifted the two-year
suspension for his refusal to submit to a chemical test despite being statutorily
ineligible.
[9] On August 10, 2016, the BMV filed a motion to correct error along with three
exhibits. The BMV argued that Newlin was ineligible for specialized driving
privileges because one of his suspensions was imposed for his failure to submit
to a chemical test pursuant to Indiana Code section 9-30-16-1(a)(2). After a
hearing, the Lake County trial court denied the motion to correct error.
Discussion and Decision
[10] Newlin did not file an appellee brief. We will not develop an argument for the
appellee in such cases and we apply a less stringent standard of review. See
Wharton v. State, 42 N.E.23d 539, 541 (Ind. Ct. App. 2015). “We may reverse if
the appellant is able to establish prima facie error, which is error at first sight,
Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017 Page 4 of 6
on first appearance, or on the face of it.” Id. However, “[t]he appellee’s failure
to provide argument does not relieve us of our obligation to correctly apply the
law to the facts in the record in order to determine whether reversal is
required.” Id.
[11] The BMV is appealing the denial of its motion to correct error filed with the
Lake County trial court. Specifically, the BMV argues that the trial court’s
finding that Newlin was eligible for specialized driving privileges was not
supported by the evidence and is contrary to law. Pursuant to Indiana Code
subsection 9-30-16-1(a)(2), a person is ineligible for specialized driving
privileges if the suspension is “based on the person’s refusal to submit to a
chemical test offered under IC 9-30-6 or IC 9-30-7.”
[12] This court reviews a trial court’s decision to deny a motion to correct error for
an abuse of discretion. Ind. and Ind. Bureau of Motor Vehicles v. Hargrave, 51
N.E.3d 255, 259 (Ind. Ct .App. 2016). “A trial court abuses its discretion when
its decision is contrary to law.” Id. Here, as previously mentioned, Newlin’s
driving privileges were suspended, in part, due to his refusal to submit to a
chemical test. Therefore, it was contrary to law to award Newlin specialized
driving privileges and the BMV’s motion to correct error should have been
granted.
[13] We reverse and remand with instructions to the trial court to lift the stay of
Newlin’s two-year suspension for his refusal to submit to a chemical test and to
revoke his specialized driving privileges.
Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017 Page 5 of 6
Najam, J, and Riley, J., concur.
Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017 Page 6 of 6