                                                                                    FILED
                                                                              Jan 31 2018, 9:41 am

                                                                                    CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Gabriel J. Quearry                                         Curtis T. Hill, Jr.
      Quearry Law, LLC                                           Attorney General of Indiana
      Plainfield, Indiana
                                                                 Kyle Hunter
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Brent Orange,                                              January 31, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 29A02-1707-MI-1549
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court No. 6
      Indiana Bureau of Motor                                    The Honorable Gail Bardach,
      Vehicles,                                                  Judge
      Appellee-Plaintiff                                         Trial Court Cause No.
                                                                 29D06-1706-MI-4637



      May, Judge.


[1]   Brent Orange appeals the trial court’s denial of his petition for specialized

      driving privileges. He argues he is statutorily entitled to a hearing and the trial

      court erred when it did not hold a hearing prior to its denial of his petition. He

      Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018                     Page 1 of 9
      also contends the trial court abused its discretion when it denied his petition on

      its merits. We affirm.



                             Facts and Procedural History
[2]   On May 18, 2017, Orange filed a petition for specialized driving privileges in

      Hamilton County. He requested the court grant him specialized driving

      privileges so he could drive back and forth from his employment, his probation

      meetings, and his court-ordered Alcoholics Anonymous meetings. He also

      asked the trial court to issue an order that “waives any and all fees or penalties

      that Orange would otherwise be required to pay in order to obtain specialized

      driving privileges.” (App. Vol. II at 7.)


[3]   On May 25, a Deputy Hamilton County Prosecutor filed an appearance on

      behalf of the State. On May 31, 2017, Orange submitted a proposed order to

      set a hearing on the matter. On June 6, 2017, the trial court, using a revised

      copy of Orange’s submitted proposed order, denied Orange’s petition and

      struck out all language in the order regarding the scheduling of a hearing.



                                  Discussion and Decision
                Hearing on Orange’s Petition for Specialized Driving Privileges

[4]   Orange argues the trial court erred when it did not grant his request for a

      hearing on his petition for specialized driving privileges pursuant to Indiana




      Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018   Page 2 of 9
      Code section 9-30-16-3. 1 He “concedes that I.C. § 9-30-16-1 et seq. does not say

      that a trial court must hold a hearing on a petition for specialized driving

      privileges but neither does the statute contain an express provision permitting a

      trial court to summarily deny such a petition.” (Br. of Appellant at 8.)

      Therefore, he claims, the trial court should have granted his motion for a

      hearing.


[5]   Our standard of review for issues that require us to interpret a statute is well-

      settled:


               A question of statutory interpretation is a matter of law. In such
               interpretation, the express language of the statute and the rules of
               statutory interpretation apply. We will examine the statute as a
               whole, and avoid excessive reliance on a strict literal meaning or
               the selective reading of words. Where the language of the statute
               is clear and unambiguous, there is nothing to construe.




      1
       Orange has had his driving privileges suspended both by the Bureau of Motor Vehicles and by court order.
      Orange’s Verified Petition for Specialized Driving Privileges indicates his “petition to stay the suspension of
      his driving privileges and grant him a specialized driving privilege is verified in compliance with Ind. Code §
      9-30-16-4.” (App. Vol. II at 6.) Indiana Code section 9-30-16-4(a) allows an “individual whose driving
      privileges have been suspended by the bureau by an administrative action and not by a court order” to
      petition the court for specialized driving privileges. Indiana Code section 9-30-16-4(d)(1) requires that a
      verified petition for specialized driving privileges be filed “in the county in which the individual resides.”
      Ind. Code § 9-30-16-4(d)(1). Orange filed his petition for specialized driving privileges in Hamilton County,
      but on his petition listed his address as Marion County. Therefore, his petition was not properly filed.
      “An individual who seeks specialized driving privileges must file a petition for specialized driving privileges
      in each court that has ordered or imposed a suspension of the individual’s driving privileges.” Ind. Code § 9-
      30-16-3(a). In his petition for specialized driving privileges before the Hamilton Superior Court, Orange
      indicates his “driving privileges were suspended by the Hamilton Superior Court 6 on January 31, 2017 for a
      period of 365 days.” (App. Vol. II at 6.) Thus, it would seem he meant to file his petition pursuant to
      Indiana Code section 9-30-16-3. As we previously have overlooked such an error and decided a case on the
      merits, see Jones v. State, 62 N.E.3d 1205, 1206 n.1 (Ind. Ct. App. 2016), we will also do so here.



      Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018                          Page 3 of 9
              However, where the language is susceptible to more than one
              reasonable interpretation, the statute must be construed to give
              effect to the legislature’s intent. The legislature is presumed to
              have intended the language used in the statute to be applied
              logically and not to bring about an absurd or unjust result. Thus,
              we must keep in mind the objective and purpose of the law as
              well as the effect and repercussions of such a construction.


      Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied. “When

      interpreting a statute, this Court must ascertain the legislative intent by looking

      at the whole of the act. We must examine the law existing before, the changes

      made and the apparent intent for making the changes.” Van Orman v. State, 416

      N.E.2d 1301, 1305 (Ind. Ct. App. 1981). Further, “it is just as important to

      recognize what a statute does not say as it is to recognize what it does say.”

      Rush v. Elkhart Cty. Plan Comm’n, 698 N.E.2d 1211, 1215 (Ind. Ct. App. 1998),

      trans. denied. We may not “read into a statute that which is not the expressed

      intent of the legislature.” Id. Finally, we “will not add something to a statute

      that the legislature has purposely omitted.” Id.


[6]   Indiana Code section 9-30-16-3(b) states, in relevant part:


              (b) An individual who seeks specialized driving privileges must
              file a petition for specialized driving privileges in each court that
              has ordered or imposed a suspension of the individual’s driving
              privileges. Each petition must:


                       (1) be verified by the petitioner;


                       (2) state the petitioner’s age, date of birth, and address;


      Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018     Page 4 of 9
                       (3) state the grounds for relief and the relief sought;


                       (4) be filed in a circuit or superior court; and


                       (5) be served on the bureau and the prosecuting attorney.


              A prosecuting attorney shall appear on behalf of the bureau to
              respond to a petition filed under this subsection.


      Indiana Code chapter 9-30-16 was enacted in 2014 and became effective

      January 1, 2015. See Indiana Legislative Public Law 217-2014, Section 154

      (adding Indiana Code chapter 9-30-16). The new law changed significant

      statutory language, as well as revised the word “restricted” in the earlier statutes

      to “specialized.” Compare Indiana Code chapter 9-24-15, entitled “Issuance of

      Restricted Driver’s License Because of Hardship” with Indiana Code section 9-

      30-16-3, entitled “Grant of specialized driving privileges[.]”


[7]   Prior to 2015, a person whose driving privileges had been suspended could “file

      a verified petition for a restricted driving permit for the sole purpose of driving

      to and from work and in the course of employment during the period of the

      driving license suspension” if “because of the nature of the individual’s

      employment the suspension would work an undue hardship and burden upon

      the individual’s family or dependents.” Ind. Code § 9-24-15-2 (1991) (repealed

      2015). See also Gibson v. Hernandez, 764 N.E.2d 253, 256-7 (Ind. Ct. App. 2002)

      (holding restricted driving privileges may not be granted “for the purpose of




      Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018   Page 5 of 9
      transporting [] children to and from school and doctor’s appointments in

      emergencies”), trans. denied.


[8]   Following the filing of a petition for restricted driving privileges, Indiana Code

      section 9-24-15-4 (1991) (repealed 2015) directed: “(b) The clerk of court shall

      docket the verified petition in the name of the petitioner against the prosecuting

      attorney of the county[;] (c) The prosecuting attorney shall appear in person or by

      deputy and be heard by the court on the petition.” (emphasis added). Thus,

      according to the plain language of the statute, the trial court was required to

      hold a hearing on petitions for restricted driving privileges prior to the repeal of

      the relevant statutes in 2015.


[9]   That language did not survive the statute’s repeal. 2 The corresponding

      language in the current statute requires the prosecuting attorney to “appear on

      behalf of the bureau to respond to a petition,” Ind. Code § 9-30-16-3(b), but

      does not include language the appearance must be made in person as was

      required by Indiana Code section 9-24-15-4 (1991) (repealed 2015). Therefore,

      we conclude the legislature intended to change the language of the statute to

      remove the requirement that the trial court hold a hearing regarding a petition

      to grant specialized driving privileges after the suspension of a petitioner’s




      2
        In 2015, the legislature enacted three statutes to govern the grant of specialized driving privileges: Indiana
      Code section 9-30-16-3 covers those whose driving privileges were suspended pursuant to a court order;
      Indiana Code section 9-30-16-3.5 covers those whose driving privileges were suspended under statutory-
      specific circumstances who only want to drive to and from work; and Indiana Code section 9-30-16-4 covers
      those whose driving privileges were suspended by an administrative agency. None of these sections includes
      a requirement that a trial court hold a hearing on a petition.

      Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018                          Page 6 of 9
       driver’s license. See Ind. Dept. of State Rev., Sales Tax Div. v. Cable Brazil, Inc., 177

       Ind. App. 450, 458-9, 380 N.E.2d 555, 559-60 (1978) (“presumption is raised

       that the Legislature intended to change the law unless it clearly appears an

       amendment was made only to express more clearly the original intention of the

       Legislature”), reh’g denied.


[10]   We note that our holding addresses only whether a trial court is required to

       hold a hearing pursuant to Indiana Code section 9-30-16-3. While a trial court

       is not required to hold a hearing under the statute, it may still err if it fails to

       grant a petitioner’s request for a hearing when the petition raises claims of possible

       merit. See, e.g., Osmanov v. State, 40 N.E.3d 904, 910 (Ind. Ct. App. 2015) (trial

       court may err if it does not grant a request for a hearing when petition for post-

       conviction relief raised claims of possible merit). However, as we note infra.,

       Orange’s petition did not raise claims of possible merit, and thus the trial court

       properly denied his request for a hearing.


                   Denial of Orange’s Petition for Specialized Driving Privileges

[11]   “[T]he decision to grant or deny a petition for specialized driving privileges is

       reviewable only for an abuse of discretion.” Jones v. State, 62 N.E.3d 1205, 1207

       (Ind. Ct. App. 2016). An abuse of discretion occurs when the decision of the

       trial court is “clearly against the logic and effect of the facts and circumstances

       before the court or if the court has misinterpreted the law.” Id. In our review,

       we neither reweigh the evidence or judge the credibility of witnesses. Id. The

       trial court has “almost unfettered discretion” when deciding whether to grant a

       petition for specialized driving privileges. Id. at 1207 n.3.
       Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018      Page 7 of 9
[12]   Orange argues the trial court abused its discretion when it denied his petition

       for specialized driving privileges


               because nothing in the trial court’s order provides a legal or
               factual basis for denying Orange’s petition: nothing in the order
               states that Ind. Trial Rule 12(C) was the legal basis for denying
               Orange’s petition, and the Hamilton County Prosecutor, who
               “appear[ed] on behalf of the [BMV] to respond to” Orange’s
               petition filed under I.C. § 9-30-16-3(b), did not file response
               objecting to Orange’s petition nor moved for judgment on the
               pleadings to “attack the legal sufficiency” of Orange’s petition.


       (Br. of Appellant at 9-10.) However, the case he cites to support this premise,

       Key v. State, 48 N.E.3d 333 (Ind. Ct. App. 2015), involves interpretation of the

       expungement statute, which is not relevant to this case. Additionally, Orange

       cites no authority to support his arguments that the trial court was required to

       provide a legal or factual basis for its ruling, and that the Hamilton County

       Prosecutor was required to file a reply to his petition attacking its legal

       sufficiency. Thus, he has waived his argument for failure to make a cogent

       argument. See Srivastava v. Indianapolis Hebrew Congregation, Inc., 779 N.E.2d 52,

       54 n.1 (Ind. Ct. App. 2002) (Indiana Appellate Rule 46(A)(8)(a) requires the

       argument to be supported by cogent argument, as well as citations to statutes

       and cases relied upon. Failure to include cogent argument with support

       therefor results in waiver of the argument.), trans. denied.


[13]   Waiver notwithstanding, there can be no question that the trial court properly

       exercised its discretion when it denied Orange’s petition for specialized driving

       privileges. Orange’s driving record, which includes information only for the

       Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018   Page 8 of 9
       past ten years, indicates Orange has accumulated twenty-seven different driving

       suspensions and his reinstatement eligibility date is “Indefinite.” (App. Vol. II

       at 10.) The suspensions stem from Orange’s failure to pay fines, failure to file

       insurance information, operation of a vehicle while intoxicated, failure to

       appear for driver safety program, and chemical test failure. He has been

       adjudicated an habitual traffic violator multiple times. Based thereon, we

       conclude the trial court did not abuse its discretion when it denied his petition

       for specialized driving privileges. See Jones, 62 N.E.3d at 1208 (affirming denial

       of Jones’ petition for specialized driving privileges based on his status as an

       habitual traffic violator with over twenty traffic-related convictions in a ten-year

       period).



                                                Conclusion
[14]   As an issue of first impression, we hold Indiana Code section 9-30-16-3 does

       not require the trial court to hold a hearing prior to making a decision on a

       petition for specialized driving privileges. Additionally, the trial court did not

       err when it did not hold a hearing because Orange’s petition did not assert any

       claims of merit. Finally, the trial court did not abuse its discretion when it

       denied Orange’s petition for specialized driving privileges. Accordingly, we

       affirm.


[15]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.

       Court of Appeals of Indiana | Opinion 29A02-1707-MI-1549 | January 31, 2018   Page 9 of 9
