                                                         Jun 20 2014, 6:41 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

JOHN L. TOMPKINS                                      GREGORY F. ZOELLER
Brown Tompkins Lory & Mastrian                        Attorney General of Indiana
Indianapolis, Indiana
                                                      KATHY BRADLEY
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

JENNI HILL,                                   )
                                              )
      Appellant-Petitioner,                   )
                                              )
              vs.                             )      No. 29A02-1311-MI-942
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Respondent.                    )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                         The Honorable J. Richard Campbell, Judge
                             Cause No. 29D04-1308-MI-8146


                                     June 20, 2014

                              OPINION - FOR PUBLICATION

BAILEY, Judge
                                      Case Summary

       Jenni Hill (“Hill”) appeals an order entered upon her petition for judicial review of a

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

violator (“HTV”). We affirm.

                                            Issue

       Hill presents the sole issue of whether Indiana Code section 9-30-10-4(b) 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 January 3, 2005, Hill was convicted of operating a motor vehicle with an alcohol

concentration of .08 or above. On February 28, 2008, Hill was convicted of failure to report

an accident with excess damage. On March 11, 2008, Hill was convicted of operating a

motor vehicle while intoxicated with a prior offense within five years. After these three

convictions, Hill was determined to be an HTV.

       On March 21, 2008, the BMV sent Hill a notice of suspension. This suspension,

effective April 25, 2008, was for a ten-year period. On March 13, 2008, Hill was convicted

of operating a motor vehicle while intoxicated with a prior offense within five years. On

March 18, 2009, Hill was convicted of operating a motor vehicle while intoxicated with a

prior offense within five years. These two post-HTV determination convictions, together

with the previous three convictions, were used by the BMV to make a second HTV




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determination. The BMV notified Hill that a second suspension became effective August 1,

2013, with an expiration date of April 26, 2019.

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

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

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

appeal ensued.

                                  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


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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).

                                           Analysis

       Indiana Code section 9-30-10-4(b) 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[.]

The qualifying judgments include: (1) operation of a vehicle while intoxicated; (2) operation

of a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram

of alcohol per one hundred (100) milliliters of the blood or two hundred ten (210) liters of the

breath; (3) operating a motor vehicle while the person’s license to do so has been suspended

or revoked; (4) operating a motor vehicle without ever having obtained a license to do so; (5)

reckless driving; (6) criminal recklessness involving the operation of a motor vehicle; (7)

drag racing or engaging in a speed contest in violation of law; and (8) any felony under an

Indiana motor vehicle statute or any felony in the commission of which a motor vehicle is

used. Id.

       Hill’s qualifying judgments to support her first HTV determination were those of

January 3, 2005, February 28, 2008, and March 11, 2008. On March 13, 2008, Hill received


                                               4
another conviction for driving while intoxicated. A year later, she received another

conviction for driving while intoxicated. Hill argues that, once she has been determined to

be an HTV, she must have a minimum of three new convictions to support a second HTV

determination within ten years. She 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. The State responds 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. Appellee’s Brief at 7.

       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 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




                                                5
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.

                                         Conclusion

       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. The trial court properly denied Hill’s petition to revise

the determination of the BMV that she is an HTV.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




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