      MEMORANDUM DECISION
                                                                                     FILED
      Pursuant to Ind. Appellate Rule 65(D), this                                Feb 15 2018, 8:39 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the                             CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
      purpose of establishing the defense of res judicata,                            and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT
      Curtis T. Hill, Jr.
      Attorney General of Indiana
      Aaron T. Craft
      Deputy Attorney General
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana, et al.,                                February 15, 2018

      Appellants-Respondents,                                  Court of Appeals Case No.
                                                               45A03-1707-MI-1649
              v.                                               Appeal from the Lake Circuit Court.
                                                               The Honorable Marissa J.
                                                               McDermott, Judge.
      Martin Ferrell,                                          Trial Court Cause No.
      Appellee-Petitioner.                                     45C01-1705-MI-134




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   The State of Indiana and the Indiana Bureau of Motor Vehicles appeal the trial

      court’s denial of their motion to correct error after the court granted specialized

      driving privileges to Martin Ferrell. We reverse and remand.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-MI-1649 | February 15, 2018           Page 1 of 5
                                                     Issue
[2]   The State and the BMV raise two issues, which we consolidate and restate as:

      whether the trial court erred in denying the motion to correct error because

      Ferrell is statutorily ineligible for specialized driving privileges.


                               Facts and Procedural History
[3]   On March 19, 2017, Ferrell was ordered to submit to a chemical test under

      circumstances that are not explained in the record. Ferrell refused to submit to

      the test. On March 20, 2017, the BMV administratively suspended his driving

      privileges for two years due to his failure to comply with the order.


[4]   On May 1, 2017, Ferrell filed a verified petition for specialized driving

      privileges. The trial court held a hearing on the petition. A deputy prosecutor

      appeared for the State and had no objection to the petition if Ferrell was

      required to use an ignition interlock device for ninety days.


[5]   After the hearing, the court granted Ferrell’s petition on May 9, 2017. The

      court conditioned Ferrell’s privileges on his use of an ignition interlock device

      for ninety days as requested by the State. In compliance with the court’s order,

      the BMV noted in its records that the suspension ended on May 9, 2017.


[6]   Next, the State and the BMV, through a deputy attorney general, filed a motion

      to correct error. The court denied the motion without a hearing, concluding the

      deputy prosecutor “waived the BMV’s right to now object.” Appellants’ App.

      Vol. II, p. 13. This appeal followed.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-MI-1649 | February 15, 2018   Page 2 of 5
                                    Discussion and Decision
[7]    The State and the BMV argue the trial court should have granted their motion

       to correct error. They characterize their claim as addressing “the sufficiency of

       the evidence supporting the trial court’s order.” Appellants’ Br. p. 13. We view

       the appeal as raising a question of law rather than of fact, specifically whether

       the trial court had the statutory authority to grant specialized driving privileges

       to Ferrell.


[8]    Ferrell did not file an appellee’s brief. Under these circumstances, an appellant

       need only demonstrate a prima facie showing of error to merit reversal. State v.

       Atkins, 824 N.E.2d 676, 677 (Ind. 2005). Prima facie error is “‘error at first

       sight, on first appearance, or on the face of it.’” State v. Miracle, 75 N.E.3d

       1106, 1108 (Ind. Ct. App. 2017) (quoting Wharton v. State, 42 N.E.3d 539, 541

       (Ind. Ct. App. 2015)). Further, the interpretation of a statute is a question of

       law, and we apply a de novo standard of review with no deference to the trial

       court’s legal conclusions. Hurley v. State, 75 N.E.3d 1074, 1077 (Ind. 2017).


[9]    The BMV has the authority to suspend persons’ driving privileges for various

       types of misconduct. For example, if a person refuses an order to submit to a

       chemical test, the BMV shall suspend the person’s driving privileges for one

       year, or for two years if the person has a conviction for operating while

       intoxicated in the prior two years. Ind. Code § 9-30-6-9 (2015).


[10]   When the BMV administratively suspends a person’s driving privileges, the

       person may petition a court for specialized driving privileges, thus staying the

       Court of Appeals of Indiana | Memorandum Decision 45A03-1707-MI-1649 | February 15, 2018   Page 3 of 5
       administrative suspension. Ind. Code § 9-30-16-4 (2016). The court’s power to

       grant such privileges is not unlimited. A person’s whose driving privileges have

       been suspended for “refusal to submit to a chemical test offered under IC 9-30-6

       or IC 9-30-7” is “ineligible for specialized driving privileges.” Ind. Code § 9-30-

       16-1 (2016).


[11]   Pursuant to the plain language of Indiana Code section 9-30-16-1, Ferrell was

       ineligible for specialized driving privileges because his underlying misconduct

       was a refusal to take a chemical test. As a result, the trial court lacked statutory

       authority to grant such privileges to Ferrell. See Ind. Bureau of Motor Vehicles v.

       Newlin, 74 N.E.3d 569, 572 (Ind. Ct. App. 2017) (trial court erred in denying

       BMV’s motion to correct error as to grant of specialized driving privileges;

       Newlin was ineligible for the privileges because his license was suspended for

       failure to submit to a chemical test).


[12]   Further, we agree with the State and the BMV that the doctrine of waiver is

       inapplicable under the circumstances of this case. It is true that the State can

       waive its rights as a litigant through failure to object. See, e.g., State v. Keith, 507

       N.E.2d 245, 245 (Ind. Ct. App. 1987) (State did not object, and thus waived

       any claim of error, when trial court sentenced defendant on misdemeanor

       charges that should have been dismissed, thus precluding later felony charges

       arising out of the same incident). However, waiver does not prevent the State,

       in a motion to correct error, from showing that the trial court’s decision was

       contrary to law. Here, under Indiana Code section 9-30-16-1, the trial court

       had no authority to grant the specialized privileges Ferrell sought. The deputy

       Court of Appeals of Indiana | Memorandum Decision 45A03-1707-MI-1649 | February 15, 2018   Page 4 of 5
       prosecutor’s failure to object did not prevent the trial court from correcting the

       error in response to a motion to correct erroneous sentence.


[13]   The State and the BMV have demonstrated prima facie error in the denial of

       their motion to correct error. Ferrell’s specialized driving privileges must be

       revoked, and his two-year suspension must be reinstated.


                                                Conclusion
[14]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings not inconsistent with this opinion.


[15]   Reversed and remanded.


       Crone, J., and Altice, J., concur.




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