Pebley v. State, 34A02-9609-CR-558

• Decision Date: 20 October 1997
• Docket Number: No. 34A02-9609-CR-558,34A02-9609-CR-558
• Citation: 686 N.E.2d 168
• Parties: Charles L. PEBLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 168

686 N.E.2d 168

Charles L. PEBLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 34A02-9609-CR-558.

Court of Appeals of Indiana.

Oct. 20, 1997.

William C. Menges, Jr., Howard County Public Defender, Kokomo, for Appellant-Defendant.

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge.

Charles L. Pebley appeals his conviction for Driving While Suspended as a Habitual Traffic Violator, a Class D Felony. After being stopped by Kokomo police on October 26, 1995, a records check revealed that Pebley's driver's license was suspended. Pebley was arrested, convicted of Driving While Suspended as a Habitual Traffic Violator and sentenced to three years imprisonment with eighteen months executed and eighteen months suspended. Pebley raises several issues on appeal, one of which is dispositive: whether Pebley's license suspension was invalid due to lack of an advisement that Pebley could seek judicial review in the notice of suspension mailed by the Bureau of Motor Vehicles.

We reverse.

The three elements of Driving While Suspended are: (1) operating a motor vehicle; (2) while driving privileges are suspended; and (3) a showing that the defendant knew his driving privileges were suspended. Griffin v. State, 654 N.E.2d 911, 912 (Ind.Ct.App.1995). In order to effectively suspend a defendant's license, Indiana Code § 9-30-10-5 (1992) requires:

(a) ... the bureau shall mail a notice to the person's last known address that informs the person that the person's driving privileges will be suspended in thirty (30) days....

* * * * * *

(c) The notice must inform the person that the person may be entitled to relief under section 6 of this chapter or may seek judicial review of the person's suspension under this chapter.

Both proof of mailing and proof of the contents of the notice are evidentiary prerequisites to establishing a valid license suspension. Griffin, 654 N.E.2d at 912; Bishop v. State, 638 N.E.2d 1278 (Ind.Ct.App.1994), reh. denied; Borton v. State, 563 N.E.2d 182, 183 (Ind.Ct.App.1990).

The July 21, 1994 suspension notice mailed to Pebley, which is identical to the notice found insufficient in Griffin, contained the following language:

The Bureau of Motor Vehicles has determined that you qualify as a Habitual Traffic Violator (Indiana Code § 9-30-10-4(B)). Therefore, your driving privileges will be suspended for a ten year period effective AUG 31, 1994. If our records contain a clerical error, you may request an administrative review (see enclosed form). You may be entitled to a probationary license after serving five consecutive years of this suspension. Consult your attorney for additional information.

Record at 94.

Indiana Code § 9-30-10-5 requires that a notice of suspension contain two advisements. Griffin, 654 N.E.2d at 912. First, the notice must contain an advisement that the person may seek relief under Indiana Code § 9-30-10-6 (1992). Id. That section provides a procedure whereby a person receiving notice of an impending license suspension may file a petition with the BMV to correct any clerical errors that appear in the person's driving record. Id. This type of advisement was provided to Pebley.

Second, the notice must contain an advisement that the person may seek judicial review of the suspension determination. Id. Indiana Code § 9-30-10-7 (1992) provides that a person determined to be a Habitual Traffic Violator may file a petition for judicial review in a circuit, superior, county, or municipal court in the county in which the person resides. Id. This type of advisement was absent from the notice sent to Pebley. Therefore, the July 21, 1994 suspension notice did not sufficiently comply with IC 9-30-10-5(c). Id. "Proof of the content of the suspension notice is an evidentiary prerequisite to a valid suspension. The notice delivered here failed to comply with the statute. As [the defendant's] license suspension was invalid, his conviction of operating a motor vehicle while privileges are suspended cannot stand." Griffin, 654 N.E.2d at 912 (citation omitted).

The state makes two arguments against application of Griffin. First, the State argues that Griffin should be overruled. Second, the State contends that it did sufficiently apprise Pebley of his right to judicial review under IC 9-30-10-7.

The State argues that Griffin should be overruled because proof of the contents of the BMV's notice of suspension is not an element of the crime of Driving While Suspended. The State contends that the defense of an invalid suspension therefore amounts to a collateral attack on the BMV's underlying Habitual Traffic Violator determination.

The State's argument is erroneous. A necessary element of the crime of Driving While Suspended is that a defendant's driver's license be validly suspended. Fields v. State, 679 N.E.2d 898, 900 (Ind.1997) (" 'If there is no valid suspension, then a driver cannot lawfully be convicted of Operating a Motor Vehicle After License Suspended as an Habitual Traffic Violator' ") (quoting Brown v. State, 677 N.E.2d 517, 519 (Ind.1997)); Loe v. State, 654 N.E.2d 1157, 1158 (Ind.Ct.App.1995) ("An element of the offense of driving while suspended as an habitual traffic offender is a valid suspension.") For a suspension to be valid, the BMV must comply with the three requirements of IC 9-30-10-5: (1) a notice of suspension must be mailed to a defendant's last known address; (2) the notice must contain an advisement that the defendant has the right to administrative review through the BMV; and (3) the notice must contain an advisement that the defendant has the right to judicial review of the BMV's determination in a county court. IC 9-30-10-5. Since proof of a valid suspension is required as an element of the crime of driving while suspended, an evidentiary prerequisite to conviction for this crime is proof of mailing the notice of suspension to the defendant's last known address and proof of the contents of the BMV's notice of suspension.

Nor does this evidentiary prerequisite amount to a collateral attack on the BMV's Habitual Traffic Violator determination. The determination of whether Pebley is a Habitual Traffic Violator, a determination that relies on the validity of underlying convictions, is separate from the question of whether the suspension of Pebley's license was valid. In this...