State, Bureau of Motor Vehicles v. Waller

Decision Date11 December 1975
Docket NumberNo. 2--674A142,2--674A142
Citation339 N.E.2d 61,167 Ind.App. 231
PartiesSTATE of Indiana, BUREAU OF MOTOR VEHICLES, et al., Appellants (Respondents below), v. Richard L. WALLER, Appellee (Petitioner below).
CourtIndiana Appellate Court

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for appellants.

No appearance for appellee.

WHITE, Judge.

Appellee (Waller) was convicted by the Municipal Court of Marion County on May 4, 1973, of driving a motor vehicle while under the influence of intoxicating liquor. Thereafter, the Commissioner of the Bureau of Motor Vehicles suspended his driving license for one year. Waller petitioned the Superior Court of Marion County for a judicial review of the Commissioner's action. The Superior Court ordered the Commissioner to remove the suspension and he appeals. Since no brief has been filed for appellee Waller we would reverse if the appellants' brief made a prima facie case for reversal 1, but it does not. We therefore affirm.

The facts, as found by the reviewing court, and not challenged by the Commissioner either in the motion to correct errors or in the appellants' brief, are:

'(1) The Petitioner, Richard L. Waller, was convicted of driving under the influence of liquor on August 10, 1970, and received a fine of $32.75 and costs, and his driving license was suspended for sixty (60) days.

'2. The Petitioner, Richard L. Waller, was convicted of driving under the influence of liquor on May 4, 1973, in the Marion Municipal Court, Room No. 13, and received a $28.00 fine and costs of $32.00. He also received a ten (10) day suspended sentence and his driving license was restricted for one (1) year and he was placed on probation for one (1) year.

'3. On June 25, 1973, the Bureau of Motor Vehicles, the Respondents herein, suspended Richard L. Waller's driving license for a period of one (1) year from May 4, 1973, to May 4, 1974.

'4. That the Petitioner, Richard L. Waller, received no administrative hearing, but only received a letter of suspension.

'5. That the Petitioner, Richard L. Waller, was convicted on May 4, 1973, under Burns Indiana Statutes, Annot., § 47--2001B2.

'6. That Senate Bill No. 299 which was enacted on April 10, 1973, is the applicable statute in this case.'

It is the Commissioner's contention that Waller's conviction of May 4, 1973, was a second conviction for driving while intoxicated (DWI) and by the statute then in force, Ind.Ann.Stat. § 47--2001(b)(3) (Burns 1973 Supp.), also known as Senate Bill No. 299 of 1973, Section 1(b)(3), or Senate Enrolled Act No. 299 of 1973, Section 1(b)(3), or Acts of 1973, Public Law No. 83, Section 1(b)(3), the convicting court, (i.e., the Municipal Court of Marion County) was required to suspend Waller's license for one year and when the court failed to do so the Commissioner was authorized and required, by the same statute to do so. The defect in the Commissioner's argument is that the reviewing court (the Superior Court) specifically found: '5. That the Petitioner, Richard L. Waller, was convicted on May 4, 1973, under Burns Indiana Statutes Annot., § 49--2001B2'. § 47--2001(b)(2) was, on May 4, 1973, subsection (b)(2) of Section 1 of P.L. 83 of 1973, which defined and prescribed the penalty for driving while intoxicated, not, as did subsection (b)(3), for 'a second or any subsequent conviction within a three-year period from the date of the first conviction.' 2 Finding No. 5, therefore, is a finding that Waller was convicted on May 4, 1973, merely of having driven a motor vehicle while intoxicated, not of DWI after having been previously convicted of DWI.

What the Commissioner's argument fails to recognize is the rule of law that the more serious consequences which Senate Bill No. 299 of 1973 provides for second offenders cannot be imposed by the convicting court merely because the person it convicts has previously been convicted of driving while under the influence of liquor. As the Indiana Supreme Court said in Minton v. State (1966), 247 Ind. 307, 310, 214 N.E.2d 380, 382, with respect to Ind.Ann.Stat. § 10--3538 (Burns 1965 Supp.) which provided a greater punishment for a second or subsequent offense under the 1935 Narcotic Act amended:

'It has long been established in this state that when a statute imposes a greater punishment upon a second and subsequent conviction of an offense, the former conviction must be alleged in the affidavit or indictment, and proved at the trial. Evans v. State (1898), 150 Ind. 651, 50 N.E. 820.

'This doctrine has been held to apply to the habitual criminal area. Barr v. State (1933), 205 Ind. 481, 187 N.E. 259. 3

'It has also been held applicable to driving 'while under the influence' of intoxicating liquor, where the statute provides for an increased penalty on a second or subsequent conviction. Buchta v. State (1955), 234 Ind. 295, 126 N.E.2d 151.' (Also, In re Sobieski (1965), 246 Ind. 222, 204 N.E.2d 353.)

Of course when a defendant is charged with second offense driving while intoxicated, i.e., charged both with driving while intoxicated and with having been previously convicted of driving while intoxicated (DWI), he may be found guilty of first offense DWI if the State proves the offense charged but fails to prove the prior conviction. Likewise, a defendant so charged may be willing to admit that he is guilty of the offense charged but he may deny, or simply refuse to admit, that he was previously convicted. In such a case the prosecutor may not be prepared to prove the prior conviction. If for that reason, or for any reason whatsoever, the State is willing to accept a plea of guilty to first offense DWI, and the court accepts it, defendant can only be convicted of first offense DWI. (In a charge of second offense DWI, first offense DWI is a lesser included offense. Woods v. State (1955), 234 Ind. 598, 605, 130 N.E.2d 139.)

It appears that this is precisely what happened when Waller was convicted in Municipal Court on May 4, 1973. The evidence (if any) at the Superior Court judicial review trial is not in the record before us nor do we have a copy of the Municipal Court record, but Waller's trial brief states that as a result of plea bargaining in Municipal Court the charge was reduced and he was permitted to plead guilty under 'Burns Indiana Statutes Annot. § 47--2001B2'. As previously noted, the reviewing court's finding No. 2 is that Waller, upon his conviction of May 4, 1973:

'. . . received a $28.00 fine and costs of $32.00. He also received a ten (10) day suspended sentence and his driving license was restricted for one (1) year and he was placed on probation for one (1) year.'

This Municipal Court judgment is authorized by Ind.Ann.Stat. § 47--2001(b)(2) (Burns 1973 Supp.) which is Acts 1973, P.L. 83, Section 1(b)(2), in the following language, which as published in the official edition of the Acts of 1973, and photocopied herein, shows by lines drawn through words what the 1973 amendment deleted from the 1969 version and by bold face type what the 1973 amendment added:

(2) In all cases except those covered by subparagraph (1) above, any person who drives a vehicle upon any highway while under the influence of intoxicating liquor or unlawfully under the influence of narcotic or other habit forming or dangerous, depressant or stimulant drugs shall be guilty of a misdemeanor and upon first conviction shall be imprisoned for not less than five (5) days nor more than six (6) months or, punished by a fine of not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500), or by both such fine and imprisonment; and the court shall recommend the suspension of the current driving license of the person so convicted for a determinate period of not less than two (2) months nor more than one (1) year. [DELETED: and until such person shall give and maintain for a period of three (3) years proof of his financial responsibility in the manner specified in chapter 159 of the Acts of 1947, as amended, and the commissioner of motor vehicles shall thereupon comply with such recommendation, and should the court fail to make the appropriate mandatory recommendation, the commissioner shall proceed to act in the matter as if such recommendation had been made by the court.]

[ADDED: The Court may withhold imposition of that part of the sentence that recommends suspension of the driving license, and in such case the court shall place the person on probation for a period of not less than one (1) year with any reasonable terms of probation, which shall include but not be limited to the provisions that the person shall not commit a violation of any traffic law and the use of the driving privilege shall be restricted to the essential requirements of the person in the performance of the person's employment duties and the necessary driving to and from his place of employment. The court shall specify driving conditions and restrictions, including but not limited to routes and hours of travel, to be placed upon the driving license and signed by the judge of the court. All conditions and restrictions shall be certified by the court to the bureau] of motor vehicles. If the court thereafter finds the person has violated any of the terms of probation, the courtshall then impose that part of the sentence that recommends suspension of the driving license and the period of suspension shall commence with the imposition of the sentence of suspension.]

[ADDED: In any case where the court recommends suspension of the driving license and this part of the sentence is imposed, the commissioner of the bureau of motor vehicles shall comply with such recommendation of suspension and the license of the person shall remain suspended for the determinate time set by the court. Such person shall give and maintain proof of his financial responsibility in the manner specified in IC 1971, 9--2--1, which proof shall continue for a period of three (3) years from...

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4 cases
  • People v. Eason
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    • July 5, 1990
    ...414 Ill. 537, 112 N.E.2d 126 (1953), 94 People v. Ratner, 67 Cal.App.2d Supp. 902, 153 P.2d 790 (1944), 95 and State v. Waller, 167 Ind.App. 231, 339 N.E.2d 61 (1966). D Many of the cases and authorities cited in the preceding sections predate the enactment of habitual offender provisions i......
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    ...Board of Zoning Appeals of Marion County v. Zaphiriou (1978), 176 Ind.App. 422, 376 N.E.2d 110; State, Bureau of Motor Vehicles v. Waller (1975), 167 Ind.App. 231, 339 N.E.2d 61. ISSUE I: Application For Review Timely Inland Steel first argues the Full Board was without jurisdiction to revi......
  • State v. Martin
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    ...administrative suspension of Martin's restricted license. The State cites in support of that contention State v. Waller (1975), 167 Ind.App. 231, 339 N.E.2d 61, where the court by way of obiter dictim at note 6 thereof answered that query in the affirmative, cf. Waller, 339 N.E.2d at 68. 6 ......
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