Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Nov 14 2014, 9:36 am

any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEES:

IAN W. THOMPSON                                         GREGORY F. ZOELLER
Mooresville, Indiana                                    Attorney General of Indiana

                                                        KRISTIN GARN
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LANDON Q. JONES,                                   )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )   No. 49A02-1403-MI-204
                                                   )
TERRY CURRY, as the Marion County                  )
Prosecutor and RONALD STIVER, as the               )
Commissioner of the Indiana Bureau of              )
Motor Vehicles,                                    )
                                                   )
       Appellees-Respondents.                      )


                       APPEAL FROM THE MARION CIRCUIT COURT
                          The Honorable Louis F. Rosenberg, Judge
                             Cause No. 49C01-1207-MI-28631


                                        November 14, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

        Landon Q. Jones (“Jones”) appeals an order entered upon his petition for judicial

review of a determination from the Bureau of Motor Vehicles (“BMV”) that he is a habitual

traffic violator (“HTV”). We affirm.

                                                   Issue

        Jones presents the sole issue of whether Indiana Code section 9-30-10-4(c) prohibits

the BMV from using a conviction that supported an initial HTV determination to also support

a second HTV determination.

                                   Facts and Procedural History

        On March 28, 2007, Jones was determined to be an HTV, having committed ten

qualifying offenses.1 His driver’s license was suspended from May 3, 2007 to May 3, 2012.

        On June 19, 2012, the BMV sent Jones a notice of suspension, alleging that his

accumulation of ten offenses within a ten-year period (consisting of some new offenses and

those supporting the prior suspension) qualified him as an HTV. Jones requested an

administrative review and an Administrative Law Judge recommended that a five-year

suspension be imposed. This suspension became effective on July 23, 2012.

        Jones filed a petition for judicial review challenging the latter suspension. At the

hearing, Jones argued that any conviction used in making the first HTV determination could

not be used in making the second determination. The trial court denied Jones’s petition.

This appeal ensued.

1
 Although Jones had committed the requisite number of offenses, only nine were specifically referenced in the
BMV determination. Jones did not appeal this first HTV determination.

                                                     2
                                  Discussion and Decision

                                     Standard of Review

       In reviewing a decision of an administrative agency, this Court is bound by the same

standard of review as the trial court. Ind. Bureau of Motor Vehicles v. McNeil, 931 N.E.2d

897, 900 (Ind. Ct. App. 2010), trans. denied. Judicial review of an administrative decision is

limited to whether the agency possessed jurisdiction over the subject matter, whether the

decision was made pursuant to the proper procedures, whether the decision was arbitrary and

capricious, whether the decision was in violation of any constitutional, statutory, or legal

principles, and whether the decision was supported by substantial evidence. Id.

       The interpretation of a statute presents a question of law. Nash v. State, 881 N.E.2d

1060, 1063 (Ind. Ct. App. 2008), trans. denied. If the language of a statute is clear and

unambiguous, it is not subject to judicial interpretation. Id. If, however, the language is

susceptible to more than one reasonable construction, we must construe the statute in

accordance with apparent legislative intent. Id. The best evidence of legislative intent is the

language of the statute, giving all words their plain and ordinary meaning unless otherwise

indicated by the statute. Chambliss v. State, 746 N.E.2d 73, 77 (Ind. 2001). We will

presume that the legislature intended the language used in the statute to be applied logically

and to avoid an unjust or absurd result. Nash, 881 N.E.2d at 1063.

       Moreover, an interpretation of a statute by an administrative agency charged with

enforcing the statute is entitled to great weight unless the interpretation is inconsistent with

the statute itself. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000).


                                               3
                                          Analysis

       Indiana Code section 9-30-10-4(c) provides:

       A person who has accumulated at least ten (10) judgments within a ten (10)
       year period for any traffic violation, except a parking or an equipment
       violation, of the type required to be reported to the bureau, singularly or in
       combination, and not arising out of the same incident is a habitual violator.
       However, at least one (1) of the judgments must be for a violation enumerated
       in subsection (a) or (b). A judgment for a violation enumerated in subsection
       (a) or (b) shall be added to the judgments described in this subsection for the
       purposes of this subsection.

(emphasis added.)

       Jones does not have a judgment under subsection (a). Subsection (b) is implicated; it

provides in relevant part:

       A person who has accumulated at least three (3) judgments within a ten (10)
       year period for any of the following violations, singularly or in combination,
       and not arising out of the same incident is a habitual violator[.]

(emphasis added.) The qualifying judgments include two offenses relevant here: operation

of a vehicle while intoxicated and operating a motor vehicle while the person’s license to do

so has been suspended or revoked. Id.

       Jones’s qualifying judgments to support his 2007 HTV determination included an

unsafe start, driving while suspended, operating while intoxicated, driving while suspended,

and several speeding violations. On May 10, 2007, he was convicted of driving while

suspended, with a prior offense within ten years. On July 16, 2008, he was convicted for

failure to use a proper signal and, on May 24, 2010, he was convicted of operating a vehicle

while an HTV. The 2012 HTV determination rested upon the post-suspension offenses and

offenses considered in making the 2007 HTV determination.

                                             4
       Jones argues that, once he has been determined to be an HTV under subsection (c), he

must have a minimum of ten new convictions to support a second HTV determination within

ten years. He focuses on the phrase “not arising out of the same incident” in contending that

the legislature must have intended that a single judgment cannot be used to support

successive HTV determinations. According to Jones, a proper interpretation of the statutory

provisions at issue would lead to the conclusion that he needed a total of twenty judgments,

including an offense enumerated in subsection (a) or (b), to support two HTV determinations

under subsection (c).

       Very recently, a panel of this Court considered a nearly identical contention with

respect to Indiana Code section 9-30-10-4(b). In Hill v. State, 15 N.E.3d 589 (Ind. Ct. App.

2014), the appellant argued that the statutory language, “not arising out of the same incident,”

prohibited the BMV from using a conviction that supported her initial HTV determination to

also support a second HTV determination. The State responded that, so long as the multiple

convictions arise out of “distinct and separate sets of conduct,” one who has the status of an

HTV and incurs an additional conviction properly faces further suspension of driving

privileges. Id. at 591.

       The Hill Court agreed with the State that the statutory language at issue does not

include a limitation upon the use of a qualifying conviction to determine HTV status, other

than that predicate convictions must not have arisen from the same incident. Id. at 592. The

Court reasoned as follows:

               The primary purpose of suspending a person’s license for being an HTV
       is to remove from the highway those drivers who have proven themselves to be

                                               5
       unfit to drive, and who pose a substantial threat to the safety of others.
       Orndorff v. Ind. Bureau of Motor Vehicles, 982 N.E.2d 312, 321 (Ind. Ct.
       App. 2012), trans. denied. Consistent with this legislative purpose, the crucial
       inquiry of Indiana Code section 9-30-10-4(b) is whether the person has thrice
       demonstrated, within a ten-year period, that he or she poses a threat to others’
       safety.

               The plain language of the statutory provision prohibits the BMV from
       using multiple judgments arising from one incident to serve as multiple
       predicates for an HTV determination. However, as the State points out, there
       is no corollary limitation that one judgment cannot be a predicate to successive
       HTV determinations. “[W]e will not read into the statute that which is not the
       expressed intent of the legislature” and “it is just as important to recognize
       what the statute does not say as to recognize what it does say.” N.D.F. v.
       State, 775 N.E.2d 1085, 1088 (Ind. 2002).

              Our legislature has declared a policy of identifying dangerous drivers
       and restricting their privileges, with a ten-year time frame as the point of
       reference. An individual who, like Hill, has accumulated three qualifying
       convictions, not arising out of the same incident, within a given ten-year period
       may be determined to be an HTV.

Id. at 591-92.

       Here, similar to Hill, the crucial inquiry of subsection (c) is whether the person has on

ten occasions demonstrated, within a ten-year period, that he or she poses a threat to others’

safety. Subsection (c) does not include a limitation upon the use of a qualifying conviction to

determine HTV status, other than that predicate convictions must not have arisen from the

same incident.

                                         Conclusion

       The trial court properly denied Jones’s petition to revise the determination of the

BMV that he is an HTV.

       Affirmed.



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NAJAM, J., and PYLE, J., concur.




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