                                                                  FILED
                                                             Apr 11 2017, 6:36 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANTS
Curtis T. Hill, Jr.
Attorney General of Indiana
Aaron T. Craft
Matthew R. Elliott
Deputy Attorneys General
Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Indiana Bureau of Motor                                    April 11, 2017
Vehicles, et al.,                                          Court of Appeals Case No.
Appellants-Respondents,                                    45A03-1611-MI-2457
                                                           Appeal from the Lake Circuit
        v.                                                 Court
                                                           The Honorable George C. Paras,
Daniel N. Newlin,                                          Judge
Appellee-Petitioner.                                       The Honorable Alice A. Kuzemka,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           45C01-1606-MI-198



Bradford, Judge.



                                      Case Summary


Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017                 Page 1 of 6
[1]   On January 25, 2016, as the result of a case out of Kosciusko County, Daniel

      Newlin’s driving privileges were suspended by Appellant-Respondent the

      Indiana Bureau of Motor Vehicles (“BMV”) for two years due to his refusal to

      submit to a chemical test. On June 24, 2016, Newlin filed a verified petition for

      specialized driving privileges in Lake County. The trial court granted his

      motion. The BMV filed a motion to correct error arguing that Newlin was

      ineligible for specialized driving privileges pursuant to Indiana Code subsection

      9-30-16-1(a)(2). The trial court denied the BMV’s motion.


[2]   The BMV argues that the trial court’s grant of specialized driving privileges to

      Newlin with respect to this two-year suspension for refusing to submit to a

      chemical test was not supported by sufficient evidence and was contrary to law.

      We agree that the grant of specialize driving privileges to Newlin was contrary

      to law and not supported by the evidence. Consequently, we reverse and

      remand with instructions.



                             Facts and Procedural History
[3]   Shortly after midnight on December 24, 2015, Newlin was stopped for traveling

      seventy-nine miles per hour in a sixty mile-per-hour zone in Kosciusko County

      and for failing to merge for an emergency vehicle. The officer who stopped

      Newlin observed that Newlin was unsteady, was slurring his speech, and had

      blood-shot eyes. The officer advised Newlin of Indiana’s implied consent law,

      but Newlin refused to submit to a chemical test.



      Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017   Page 2 of 6
[4]   On January 25, 2016, the BMV suspended Newlin’s driving privileges for

      refusing to submit to a chemical test after the BMV received the probable cause

      affidavit. The suspension was a two-year suspension that was to run through

      January 25, 2018.


[5]   On April 14, 2016, the Kosciusko Superior Court convicted Newlin of

      operating while intoxicated, with a blood-alcohol concentration of 0.08 or

      above for the offense committed on December 24, 2015. The trial court

      subsequently suspended Newlin’s driving privileges for one year. The

      suspension has never been stayed by the Kosciusko trial court, nor did that

      court grant specialized driving privileges to Newlin.


[6]   Newlin’s driving privileges were suspended by the BMV again for his failure to

      file insurance. That suspension was only to run through August 2016. On June

      21, 2016, Newlin completed a court-approved alcohol program in Kosciusko

      County. Newlin also obtained insurance.


[7]   On June 24, 2016, Newlin filed a verified petition for specialized driving

      privileges in the Lake Circuit Court. In his petition, Newlin only stated that his

      license had been suspended “for failure to file insurance.” App. p. 8. Newlin

      further stated that he was “not ineligible by any of the exceptions set under Ind.

      Code. section 9-30-16-1 or 9-30-16-5.” App. p. 8. At the hearing, Newlin

      admitted that his privileges had been suspended for refusing to take a chemical

      test.




      Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017   Page 3 of 6
[8]    On July 12, 2016, after the hearing, the trial court in Lake County issued an

       order granting Newlin’s petition for specialized driving privileges. The Lake

       County court also found that Newlin was not ineligible for specialized driving

       privileges, but that he had three administrative suspensions: a suspension from

       May 30, 2016 to August 28, 2016, for failure to file insurance; a suspension

       from January 25, 2016 to January 25, 2018, for refusing a chemical test; and a

       suspension from January 26, 2018, to January 26, 2019, for operating while

       intoxicated. The court, however, stayed all three suspensions. The only

       condition it imposed upon Newlin was that he use an interlock device for 180

       days. In other words, the Lake County trial court lifted the two-year

       suspension for his refusal to submit to a chemical test despite being statutorily

       ineligible.


[9]    On August 10, 2016, the BMV filed a motion to correct error along with three

       exhibits. The BMV argued that Newlin was ineligible for specialized driving

       privileges because one of his suspensions was imposed for his failure to submit

       to a chemical test pursuant to Indiana Code section 9-30-16-1(a)(2). After a

       hearing, the Lake County trial court denied the motion to correct error.



                                   Discussion and Decision
[10]   Newlin did not file an appellee brief. We will not develop an argument for the

       appellee in such cases and we apply a less stringent standard of review. See

       Wharton v. State, 42 N.E.23d 539, 541 (Ind. Ct. App. 2015). “We may reverse if

       the appellant is able to establish prima facie error, which is error at first sight,

       Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017     Page 4 of 6
       on first appearance, or on the face of it.” Id. However, “[t]he appellee’s failure

       to provide argument does not relieve us of our obligation to correctly apply the

       law to the facts in the record in order to determine whether reversal is

       required.” Id.


[11]   The BMV is appealing the denial of its motion to correct error filed with the

       Lake County trial court. Specifically, the BMV argues that the trial court’s

       finding that Newlin was eligible for specialized driving privileges was not

       supported by the evidence and is contrary to law. Pursuant to Indiana Code

       subsection 9-30-16-1(a)(2), a person is ineligible for specialized driving

       privileges if the suspension is “based on the person’s refusal to submit to a

       chemical test offered under IC 9-30-6 or IC 9-30-7.”


[12]   This court reviews a trial court’s decision to deny a motion to correct error for

       an abuse of discretion. Ind. and Ind. Bureau of Motor Vehicles v. Hargrave, 51

       N.E.3d 255, 259 (Ind. Ct .App. 2016). “A trial court abuses its discretion when

       its decision is contrary to law.” Id. Here, as previously mentioned, Newlin’s

       driving privileges were suspended, in part, due to his refusal to submit to a

       chemical test. Therefore, it was contrary to law to award Newlin specialized

       driving privileges and the BMV’s motion to correct error should have been

       granted.


[13]   We reverse and remand with instructions to the trial court to lift the stay of

       Newlin’s two-year suspension for his refusal to submit to a chemical test and to

       revoke his specialized driving privileges.


       Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017    Page 5 of 6
Najam, J, and Riley, J., concur.




Court of Appeals of Indiana | Opinion 45A03-1611-MI-2457 | April 11, 2017   Page 6 of 6
