State v. Swayk

• Decision Date: 14 December 1988
• Docket Number: No. 64A03-8702-CR-40,64A03-8702-CR-40
• Citation: 531 N.E.2d 515
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Mark G. SWAYK, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 515

531 N.E.2d 515

STATE of Indiana, Plaintiff-Appellant, v. Mark G. SWAYK, Defendant-Appellee.

No. 64A03-8702-CR-40.

Court of Appeals of Indiana Third District.

Dec. 14, 1988.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

James V. Tsoutsouris, Valparaiso, for defendant-appellee.

GARRARD, Presiding Judge.

Mark Swayk was charged with operating a motor vehicle while his driver's license was suspended as a result of being adjudged an habitual traffic offender in violation of IC 9-12-3-1.

Swayk moved to dismiss the information for its failure to allege his knowing or intentional violation of the act. The parties stipulated that Swayk had been stopped for a routine traffic offense on July 23, 1985; that prior to that date he had been adjudged an habitual traffic offender by the Bureau of Motor Vehicles; that Swayk would testify that he had received no notice from the Bureau finding him to be an habitual traffic offender; and that the only proof the state would be able to produce concerning notice would be the testimony of certain unknown individuals that it was routine policy to send by regular mail notice of such suspensions.

Upon the motion and the stipulations of the parties the trial court granted the motion and dismissed the charge. The state appeals.

We are, thus, called upon to examine the state of the law concerning the necessity of notice or knowledge in prosecutions for driving a motor vehicle while one's license is suspended, particularly where the suspension results from a determination of habitual traffic offender status pursuant to IC 9-12-1-1 et seq.

A review of the decisions in this area discloses the following:

In Roberts v. State (1979), 182 Ind.App. 430, 395 N.E.2d 802 the Fourth District affirmed a conviction of driving while license suspended over the defendant's claim that he had received no notice of the suspension. The reason for the suspension does not appear in the opinion. The court initially rejected Roberts' claim stating that the Bureau of Motor Vehicles had sent notice to Roberts at the address given on his driver's license, but that the address was incorrect and Roberts had failed to keep the Bureau advised of his address as required by IC 9-1-4-36. The court also stated, however, that it was not convinced that IC 9-1-4-52 required proof of intent.

The Third District then decided Sewell v. State (1983), Ind.App., 452 N.E.2d 1018 (Hoffman, J. concurring in result). Sewell was convicted of driving while suspended in violation of IC 9-1-4-52. On appeal he asserted insufficiency of the evidence "because the state failed to introduce evidence that Sewell was aware that his driving privileges were, at that time, suspended." The court affirmed, stating the offense was merely malum prohibitum and proof of intent was unnecessary.

Purvis v. State (1984), Ind.App., 466 N.E.2d 736 was the first decision expressly dealing with the Habitual Traffic Offender statute. Purvis appealed his finding of habitual offender status claiming that he was not present at the court hearing and the state failed to prove that he was the person referred to in the certified abstracts provided by the Bureau. The trial court had required him to appear in its original order, but later orders continuing the hearing had not required him to be present. The First District affirmed. Citing IC 9-4-13-10 which requires a hearing on the show cause order to determine if the accused is the person named in the abstracts or is, in fact, an habitual offender, the court stated that what was required by the statute was that an accused "be given sufficient notice and opportunity to be heard in order to satisfy his due process rights." 466 N.E.2d at 738. ¹

This was followed in 1985 by State v. Martin (1985), Ind.App., 484 N.E.2d 1309 where the state appealed Martin's acquittal of driving while suspended under IC 9-1-4-52. The essential facts were that after a suspension Martin had secured a restricted license by the purchase of high risk insurance. When he allowed the insurance to lapse the commissioner suspended his restricted license without notice or hearing. He was then arrested and prosecuted for driving while suspended. The Fourth District affirmed, holding that due process required notice and hearing before the commissioner invoked a suspension.

Also in 1985, the First District decided Grogan v. State (1985), Ind.App., 482 N.E.2d 300, transfer denied. There the court reversed a conviction for driving while suspended on the basis of a misplaced burden of proof. It concluded the state had the burden of proving the elements of the offense beyond a reasonable doubt. In so doing, however, citing Sewell and Roberts, the court stated that neither criminal intent to violate the law nor knowledge by the defendant of the suspension of his license were elements of the offense. 482 N.E.2d at 303.

Then in 1987 the Third District was confronted with an appeal where the defendant had been convicted of driving while suspended as an habitual offender. Pursuant to IC 9-12-3-1 he was convicted of a class D felony, sentenced to two years imprisonment and had his driver's license suspended for life. Hunter v. State (1987), Ind.App., 516 N.E.2d 73 (Staton, J. dissenting) transfer denied. The court reversed on a record which showed only that Hunter denied knowledge of his suspension and that a copy of a letter addressed to him and advising of the suspension was in the Bureau's file. Noting the statutory requirement of notice contained in IC 9-12-2-1, the majority determined that absent some additional evidence that the letter had been mailed, the evidence was insufficient.

In Burdine v. State (1987), Ind.App., 510 N.E.2d 1385 (Shields, J. dissenting) transfer denied the First District reversed a conviction for driving while suspended in consequence of an habitual offender determination. See IC 9-12-3-1. The facts recited by the court established that Burdine's arrest was the result of a traffic accident he was involved in on September 29, 1985. Burdine knew his license had been suspended presumably as the result of an accident he had on January 1, 1985. In April he moved to Tennessee and did not change his address with the Bureau of Motor Vehicles. He believed his last known address at the Bureau was his father's former residence although he did not pick up his mail there. The Bureau determined on May 27, 1985 that Burdine was an habitual traffic offender but Burdine testified to no knowledge of that determination. The state had presented no evidence that notice of the determination had been mailed to Burdine. The majority rejected the state's argument that the offense was malum prohibitum and held that IC 9-12-3-1 required a showing "that the defendant knew or reasonably could have known that his driving privileges had been suspended as a result of his having been determined to be an habitual traffic offender." 510 N.E.2d 1389. Since there was no showing either that Burdine had actual knowledge or that the state had mailed a notice, the evidence was found insufficient.

Subsequently, in Stanek v. State (1988), Ind.App., 519 N.E.2d 1263 the Third District affirmed a conviction for driving while...