                                                                      Dec 28 2015, 8:30 am




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                        Bryan L. Cook
Attorney General of Indiana                               Indianapolis, Indiana

Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                      December 28, 2015
Expungement of J.S.:                                      Court of Appeals Case No.
                                                          16A04-1503-MI-89
                                                          Appeal from the Decatur Superior
State of Indiana, et al.,                                 Court
Appellants,                                               The Honorable Matthew D.
                                                          Bailey, Judge
        v.
                                                          Trial Court Cause No.
                                                          16D01-1402-MI-108
J.S.,
Appellee.




Bradford, Judge.



                                     Case Summary


Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015                   Page 1 of 22
[1]   Effective July 1, 2013, the Indiana General Assembly (the “General Assembly”)

      adopted a law allowing for the expungement of certain conviction records if the

      petitioning individual meets certain requirements. On February 27, 2014,

      Appellee J.S., who held a commercial driver’s license (“CDL”), petitioned to

      have the records relating to his April 6, 2009 convictions for Class A

      misdemeanor operating a vehicle while intoxicated (“OWI”) and Class A

      misdemeanor resisting law enforcement expunged. On July 7, 2014, the trial

      court issued an order granting J.S.’s petition. As part of this order, the trial

      court prohibited the Indiana Bureau of Motor Vehicles from disclosing J.S.’s

      2009 OWI conviction to the Commercial Driver’s License Information System

      (“CDLIS”) as is required by existing federal and Indiana law.


[2]   Appellants the State of Indiana, the Indiana Bureau of Motor Vehicles, and

      Kent W. Abernathy, in his position as Commissioner of the Indiana Bureau of

      Motor Vehicles (collectively, the “BMV”), now appeal the trial court’s order

      prohibiting the BMV from disclosing J.S.’s conviction to the CDLIS. In

      challenging the trial court’s July 7, 2014 order, the BMV argues that the portion

      of the trial court’s ruling relating to the BMV is erroneous as it is inconsistent

      with the intent of the General Assembly. Specifically, the BMV argues that the

      ruling violates both existing federal and Indiana law and would lead to illogical

      and absurd results. Concluding that the BMV is not barred from challenging

      the trial court’s order and that the trial court erred in prohibiting the BMV from

      disclosing J.S.’s conviction to the CDLIS, we reverse and remand to the trial

      court with instructions to amend its July 7, 2014 order to specifically allow the


      Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 2 of 22
      BMV to comply with the existing federal and Indiana laws requiring the BMV

      to disclose J.S.’s conviction to the CDLIS.



                            Facts and Procedural History                                 1




[3]   On April 6, 2009, J.S. was convicted of Class A misdemeanor OWI and Class

      A misdemeanor resisting law enforcement. In 2013, J.S. was convicted of Class

      D felony OWI while having a prior OWI conviction. As a result of his 2013

      conviction, J.S., who had held a CDL, received a lifetime prohibition from ever

      carrying a CDL.


[4]   Following the General Assembly’s adoption of a law allowing for the

      expungement of certain conviction records, on February 27, 2014, J.S.

      petitioned to have the records relating to his April 6, 2009 convictions for Class

      A misdemeanor OWI and Class A misdemeanor resisting law enforcement

      expunged. At the time J.S. filed his petition, he had two pending post-

      conviction petitions challenging his 2009 convictions. J.S.’s petition indicated

      the prosecutor agreed to waive the requirement that J.S. not commit or be

      convicted of any crime within the five preceding years and that expungement of

      the 2009 convictions would resolve his pending petitions for post-conviction




      1
        We held oral argument in the instant matter at Ben Davis High School on December 7, 2015. We wish to
      thank the students, faculty, and staff of Ben Davis for their hospitality. We also wish to commend counsel
      for the high quality of their arguments.

      Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015                     Page 3 of 22
      relief.2 On July 7, 2014, the trial court granted J.S.’s petition and ordered that

      the records relating to J.S.’s 2009 convictions be expunged. In granting J.S.’s

      petition, the trial court also held that the BMV was prohibited from disclosing

      J.S.’s 2009 conviction for operating while intoxicated to the CDLIS.


[5]   On November 10, 2014, the BMV filed a Trial Rule 60(B) motion for relief from

      judgment. In this motion, the BMV argued that if it were to comply with the

      trial court’s July 7, 2014 order, it would be violating existing federal and

      Indiana law. The trial court conducted a hearing on the BMV’s motion on

      January 16, 2015. On February 2, 2015, the trial court issued an order in which

      it denied the BMV’s motion. This appeal follows.



                                  Discussion and Decision
[6]   On appeal, we are faced with the question of whether the trial court erred in

      finding that the BMV was prohibited from reporting J.S.’s 2009 OWI

      conviction to the national CDLIS database following the expungement of said

      conviction.




      2
        Although the version of the Expungement Statute in effect when J.S. filed his expungement petition does
      not appear to have expressly allowed the prosecutor to agree to time period of less than the proscribed five-
      year period during which the petitioning individual was not to have committed any additional crimes, the
      General Assembly has since amended the Statute to place such a decision within the prosecutor’s discretion.
      Moreover, the State conceded during oral argument that it was within the prosecutor’s discretion to agree to
      a period of less than five years.

      Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015                        Page 4 of 22
                                      I. Standard of Review
[7]   In order to determine whether the trial court erred in finding that the BMV was

      prohibited from reporting J.S.’s 2009 conviction to the CDLIS, we must

      interpret the relevant federal and Indiana statutes.

              The interpretation of statutes is a pure question of law we review
              de novo, and we therefore need not defer to the trial court’s
              interpretation. Sanders v. Bd. of Comm’rs of Brown County, 892
              N.E.2d 1249, 1252 (Ind. Ct. App. 2008); Johnson v. Morgan, 871
              N.E.2d 1050, 1052-53 (Ind. Ct. App. 2007). Our goal in
              construing a statute is to determine, give effect to, and implement
              the intent of our General Assembly. Sanders, 892 N.E.2d at 1252
              (citing Sales v. State, 723 N.E.2d 416, 420 (Ind. 2000)). We
              presume that the General Assembly intended that the language
              used in the statute be applied logically and not to bring about an
              unjust or absurd result. Id.

              To determine the intent of the legislature, we examine the statute
              as a whole and also read sections of an act together so that no
              part is rendered meaningless if it can be harmonized with the
              remainder of the statute. Id. (citing City of N. Vernon v. Jennings
              Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind. 2005)). The best evidence
              of legislative intent is the language of the statute itself. U.S. Steel
              Corp. v. N. Ind. Pub. Serv. Co., 951 N.E.2d 542, 552 (Ind. Ct. App.
              2011). Thus, we must give all words their plain and ordinary
              meaning unless otherwise indicated by statute. Id. When the
              language in a statute is ambiguous or uncertain, we may look not
              only to the language, but also to the nature and subject matter of
              the act and the object to be accomplished thereby in ascertaining
              the legislative intent. Johnson, 871 N.E.2d at 1053. If, however,
              the statutory language is clear and unambiguous on its face, we
              will give such a statute its apparent and obvious meaning. U.S.
              Steel, 951 N.E.2d at 552.


      Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015    Page 5 of 22
      Alvey v. State, 10 N.E.3d 1031, 1032-33 (Ind. Ct. App. 2014), aff’d on reh’g, 15

      N.E.3d 72 (Ind. Ct. App. 2014).


                          II. Overview of Relevant Authority
                                 A. Federal Law vs. State Law
[8]   “Under the Supremacy Clause of the United States Constitution, federal law is

      the supreme law of the land, and state law which conflicts with federal law is

      without effect.” Gibson v. Hand, 756 N.E.2d 544, 546 (Ind. Ct. App. 2001)

      (citing Ziobron v. Crawford, 667 N.E.2 202, 206 (Ind. Ct. App. 1996), trans.

      denied). “‘State law actually conflicts with federal law where it is impossible for

      a citizen to comply with both state and federal requirements or if state law

      stands as an obstacle to the accomplishment and execution of the full purposes

      and objectives of Congress.’” Id. (quoting Ziobron, 667 N.E.2d at 206).


                          B. Federal Statutes Relating to CDLs
[9]   In order to promote safe travel, to lower the probability and severity of

      accidents involving commercial motor vehicles throughout the United States,

      and to ensure that persons responsible for driving commercial motor vehicles

      are qualified to operate said vehicles, the federal government passed the Motor

      Carrier Safety Improvement Act of 1999 (“MCSIA”). See Ind. Bureau of Motor

      Vehicles v. Orange, 889 N.E.2d 388, 390-91 (Ind. Ct. App. 2008). To ensure that

      States would comply with the regulations of the MCSIA, the federal

      government conditioned the receipt of federal highway funding upon

      compliance with the MCSIA. See generally, id. at 391 (providing that in order to

      Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 6 of 22
       ensure federal support in highway funding, Indiana enacted Indiana Code

       section 9-24-6-2 which incorporated certain provisions of the MCSIA and

       required the BMV to adopt various rules to regulate individuals holding CDLs).


[10]   Title 49 of the Code of Federal Regulations sets forth certain requirements

       relating to transportation with which States must comply. With regard to an

       individual who holds a CDL, 49 C.F.R. § 384.225(a) provides that the State

       must:


               Post and maintain as part of the CDLIS driver record:
                        (1) All convictions, disqualifications and other
                        licensing actions for violations of any State or local
                        law relating to motor vehicle traffic control (other
                        than parking, vehicle weight, or vehicle defect
                        violations) committed in any type of vehicle.

                        (2) The following medical certification status
                        information:

                        (i) Driver self-certification for the type of driving
                        operations provided in accordance with §
                        383.71(b)(1) of this chapter, and

                        (ii) Information from medical certification
                        recordkeeping in accordance with § 383.73(o) of this
                        chapter.
       Further,


               The State must not mask, defer imposition of judgment, or allow
               an individual to enter into a diversion program that would
               prevent a CLP or CDL holder’s conviction for any violation, in
               any type of motor vehicle, of a State or local traffic control law
       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 7 of 22
               (other than parking, vehicle weight, or vehicle defect violations)
               from appearing on the CDLIS driver record, whether the driver
               was convicted for an offense committed in the State where the
               driver is licensed or another State.


       49 C.F.R. § 384.226 (emphasis added).


[11]   Each State’s CDL program is subject to review by the Federal Motor Carrier

       Safety Administration (“FMCSA”). 49 C.F.R. § 384.307. If the FMCSA finds

       that a State has failed to comply with the above-quoted sections, the State faces

       the loss of its Federal-aid highway funds. Specifically,

               (a) Following the first year of noncompliance. An amount up to
               5 percent of the Federal-aid highway funds required to be
               apportioned to any State under each of sections 104(b)(1), (b)(3),
               and (b)(4) of title 23 U.S.C. shall be withheld from a State on the
               first day of the fiscal year following such State’s first year of
               noncompliance under this part.

               (b) Following second and subsequent year(s) of noncompliance.
               An amount up to 10 percent of the Federal-aid highway funds
               required to be apportioned to any State under each of sections
               104(b)(1), (b)(3), and (b)(4) of title 23 U.S.C. shall be withheld
               from a State on the first day of the fiscal year following such
               State’s second or subsequent year(s) of noncompliance under this
               part.


       49 C.F.R. § 384.401 (emphases added). In addition, the FMCSA could de-

       certify the State’s CDL program or prohibit the State from performing any of

       the following CDL transactions: (1) initial issuance of a CDL license, (2)

       renewal of a CDL license, (3) transfer of a CDL license, or (4) upgrade of a


       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015    Page 8 of 22
       CDL license. 49 C.F.R. § 384.405. The Indiana General Assembly has

       specifically adopted 49 C.F.R. § 384 as Indiana law. Ind. Code § 9-24-6-2(d).


                                C. Indiana’s Expungement Law
[12]   Effective July 1, 2013, the General Assembly adopted a law allowing for the

       expungement of certain criminal conviction records. See generally, Ind. Code

       ch. 35-38-9. With respect to an individual convicted of a misdemeanor,

       including a Class D felony that had been reduced to a misdemeanor, the version

       of this new law that was in effect when J.S. filed his expungement petition

       provided that:

               (b) Not earlier than five (5) years after the date of conviction
               (unless the prosecuting attorney consents in writing to an earlier
               period), the person convicted of the misdemeanor may petition
               the sentencing court to expunge conviction records contained in:
                        (1) a court’s files;

                        (2) the files of the department of correction;

                        (3) the files of the bureau of motor vehicles; and

                        (4) the files of any other person who provided
                        treatment or services to the petitioning person under
                        a court order;
               that relate to the person’s misdemeanor conviction.
               (c) A person who files a petition to expunge conviction records
               shall pay the filing fees required for filing a civil action, and the
               clerk shall distribute the fees as in the case of a civil action. A
               person who files a petition to expunge conviction records may
               not receive a waiver or reduction of fees upon a showing of
               indigency.

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015      Page 9 of 22
               (d) If the court finds by clear and convincing evidence that:
                        (1) the period required by this section has elapsed;

                        (2) no charges are pending against the person;

                        (3) the person does not have an existing or pending
                        driver’s license suspension;

                        (4) the person has successfully completed the person’s
                        sentence, including any term of supervised release,
                        and satisfied all other obligations placed on the
                        person as part of the sentence; and

                        (5) the person has not been convicted of a crime
                        within the previous five (5) years;
               the court shall order the conviction records described in
               subsection (b) expunged in accordance with section 6 of this
               chapter.


       Ind. Code § 35-38-9-2.


[13]   Indiana Code section 35-38-9-6 further provided, in relevant part, that:

               (a) If the court orders conviction records expunged under sections
               2 through 3 of this chapter, the court shall do the following with
               respect to the specific records expunged by the court:
                        (1) Order:
                                 (A) the department of correction;

                                 (B) the bureau of motor vehicles; and

                                 (C) each:
                                         (i) law enforcement
                                         agency; and

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 10 of 22
                                         (ii) other person;
                        who incarcerated, provided treatment for, or
                        provided other services for the person under an order
                        of the court;
               to prohibit the release of the person’s records or information in
               the person’s records to anyone without a court order, other than
               a law enforcement officer acting in the course of the officer’s
               official duty.
                        (2) Order the central repository for criminal history
                        information maintained by the state police
                        department to seal the person’s expunged conviction
                        records. Records sealed under this subdivision may
                        be disclosed only to:
                                 (A) a prosecuting attorney if:
                                         (i) authorized by a court
                                         order; and

                                         (ii) needed to carry out the
                                         official duties of the
                                         prosecuting attorney; and
                                 (B) the Federal Bureau of Investigation
                                 and the Department of Homeland
                                 Security, if disclosure is required to
                                 comply with an agreement relating to
                                 the sharing of criminal history
                                 information.
                        (3) Notify the clerk of the supreme court to seal any
                        records in the clerk’s possession that relate to the
                        conviction.


[14]   However, effective July 1, 2015, Indiana Code section 35-38-9-6(a)(2) was

       amended to read, in relevant part, as follows:

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 11 of 22
        (a) If the court orders conviction records expunged under sections
        2 through 3 of this chapter, the court shall do the following with
        respect to the specific records expunged by the court:
                                                 ****
                 (2) Order the central repository for criminal history
                 information maintained by the state police
                 department to seal the person’s expunged conviction
                 records. Records sealed under this subdivision may
                 be disclosed only to:
                          (A) a prosecuting attorney, if:
                                  (i) authorized by a court
                                  order; and

                                  (ii) needed to carry out the
                                  official duties of the
                                  prosecuting attorney;
                          (B) a defense attorney, if:
                                  (i) authorized by a court
                                  order; and

                                  (ii) needed to carry out the
                                  professional duties of the
                                  defense attorney;
                          (C) a probation department, if:
                                  (i) authorized by a court
                                  order; and

                                  (ii) necessary to prepare a
                                  presentence report;
                          (D) the Federal Bureau of Investigation
                          and the Department of Homeland
                          Security, if disclosure is required to
                          comply with an agreement relating to


Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 12 of 22
                          the sharing of criminal history
                          information;
                          (E) the:
                                  (i) supreme court;

                                  (ii) members of the state
                                  board of law examiners;

                                  (iii) executive director of
                                  the state board of law
                                  examiners; and

                                  (iv) employees of the state
                                  board of law examiners, in
                                  accordance with rules
                                  adopted by the state board
                                  of law examiners;
                          for the purpose of determining whether
                          an applicant possesses the necessary
                          good moral character for admission to
                          the bar;

                          (F) a person required to access
                          expunged records to comply with the
                          Secure and Fair Enforcement for
                          Mortgage Licensing Act (12 U.S.C.
                          5101 et seq.) or regulations adopted
                          under the Secure and Fair Enforcement
                          for Mortgage Licensing Act; and

                          (G) the bureau of motor vehicles, the Federal
                          Motor Carrier Administration, and the
                          Commercial Drivers License Information
                          System (CDLIS), if disclosure is required to
                          comply with IC 9-24-6-2(d) relating to


Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 13 of 22
                                 reporting a conviction for a violation of a
                                 traffic control law.
       (Emphasis Added).


                                                III. Analysis
[15]   The BMV contends that the trial court erred in finding that it was prohibited

       from reporting J.S.’s 2009 conviction for OWI to the CDLIS. Specifically, the

       BMV argues that the trial court’s interpretation and application of Indiana

       Code section 35-38-9-6, as it applies to the BMV, is contrary to the General

       Assembly’s intent. For his part, J.S. argues that Indiana Code section 35-38-9-6

       was clear and unambiguous and the trial court’s interpretation and application

       of said statute was not contrary to the intent of the General Assembly.


         A. Whether the Trial Court’s Ruling is Consistent with the
                        General Assembly’s Intent
                         1. Conflict with Existing Federal and Indiana Law

[16]   The BMV first argues that the trial court’s ruling should be found contrary to

       the General Assembly’s intent because the trial court’s interpretation of Indiana

       Code section 35-38-9-6 is in conflict with both federal and Indiana law. J.S.

       argues, to the contrary, that Indiana Code section 35-38-9-6 can be reconciled

       with the applicable federal regulations because said regulations do not explicitly

       mention expungement, an expunged conviction is not to be treated as a




       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 14 of 22
       conviction under federal law,3 and the FMCSA indicates that there is no

       requirement that a vacated conviction be reported to the CDLIS. The BMV

       responds to J.S.’s argument by claiming that Indiana Code section 35-38-9-6

       does not vacate an expunged conviction but rather provides that an expunged

       conviction should be removed from an individual’s public criminal record and

       limits the circumstances under which it can be disclosed.


[17]   In Gibson, we were confronted with the question of whether the trial court erred

       in granting the petitioner, who was employed as a truck driver, a restricted

       CDL during a period in which his operator’s license was suspended because of

       a chemical test failure. 756 N.E.2d at 545. The State argued that the trial

       court’s order was in conflict with 49 U.S.C.A. § 31311 which provided, in

       relevant part, that

                “(a) General. - To avoid having amounts withheld from
                apportionment under section 31314 of this title, a State shall
                comply with the following requirements:

                ***
                         (10)(A) The State may not issue a commercial
                         driver’s license to an individual during a period in
                         which the individual is disqualified from operating a
                         commercial motor vehicle or the individual’s driver’s
                         license is revoked, suspended, or canceled.



       3
         In making this argument during oral argument, counsel for J.S. cited to a definition of the term
       “conviction” that is located in the chapter of the United States Code discussing the carrying, licensing,
       possession, and transportation of firearms. Counsel, however, provided no citation to a similar definition of
       the term “conviction” from the Code of Federal Regulations, which is the body of federal law at issue in the
       instant case.

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015                       Page 15 of 22
                        (B) The State may not issue a special license or
                        permit (including a provisional or temporary license)
                        to an individual who holds a commercial driver’s
                        license that permits the individual to drive a
                        commercial motor vehicle during a period in which-
                                 (i) the individual is disqualified from
                                 operating a commercial motor vehicle;
                                 or

                                 (ii) the individual’s driver’s license is
                                 revoked, suspended, or canceled.
               ***

               (b) State satisfaction of requirements. - A State may satisfy the
               requirements of subsection (a) of this section that the State
               disqualify an individual from operating a commercial motor
               vehicle by revoking, suspending, or canceling the driver’s license
               issued to the individual.”


       Id. at 547 (quoting 49 U.S.C.A. § 31311).


[18]   In reviewing the trial court’s ruling together with 49 U.S.C.A. § 31311, we

       concluded as follows:

               This federal statute subjects Indiana to a potential loss of federal
               funding if it does not comply with 49 U.S.C.A. § 31311. Clearly,
               the trial court’s grant of Hand’s Petition directly conflicts with 49
               U.S.C.A. § 31311(a)(10), as it requires the BMV to issue Hand a
               restricted CDL during a period in which his operator’s license
               was suspended due to a chemical test failure.

               Consequently, we find that the BMV has presented a prima facie
               case of error. Although Indiana law does not deny Hand the
               issuance of a restricted CDL, the BMV has established that
       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 16 of 22
               Indiana will be subject to a loss of federal funds if it issues Hand
               a restricted CDL. Thus, it would be impossible to issue Hand a
               restricted CDL in compliance with the law of Indiana without
               conflicting and/or creating an obstacle to the accomplishment
               and execution of the full purposes and objectives of Congress, i.e.
               49 U.S.C.A. § 31311(a)(10). See Ziobron, 667 N.E.2d at 206.
               Therefore, we find that the trial court erred in granting Hand’s
               Petition.


       Id.


[19]   The situation before us on appeal is similar to that presented in Gibson. 49

       C.F.R. § 384.226 explicitly provides that the State must not mask, defer

       imposition of judgment, or allow an individual to enter into a diversion

       program that would prevent a CDL holder’s conviction for any violation, in any type of

       motor vehicle, from appearing on the individual’s CDLIS driver record. We believe

       that prohibiting the BMV from reporting the expunged conviction would violate

       49 C.F.R. § 384.226 as it would force the BMV to prevent the conviction from

       appearing on J.S.’s CDLIS driver record. Considering both the plain language

       of the statutes in question and our prior opinion in Gibson, we conclude that the

       trial court’s ruling that the BMV was prohibited by Indiana Code section 35-38-

       9-6 from reporting J.S.’s 2009 OWI conviction directly conflicts with 49 C.F.R.

       § 384.226. See generally, id. at 546 (providing that a state law actually conflicts

       with a federal law when it is impossible for a citizen or entity to comply with

       both the state and federal requirements).


[20]   Because we conclude that Indiana Code section 35-38-9-6 conflicts with federal

       law, we further conclude that pursuant to the Supremacy Clause of the United

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 17 of 22
       States Constitution, 49 C.F.R. § 384.226 controls over Indiana Code section 35-

       38-9-6. See id. Furthermore, it is also of note that because Indiana Code section

       35-38-9-6 conflicts with 49 C.F.R. § 384.226, it also conflicts with Indiana Code

       section 9-24-6-2(d), which expressly adopted 49 C.F.R. § 384 as Indiana law.


                                        2. Illogical or Absurd Results

[21]   The BMV also claims that the trial court’s ruling, which again prohibits the

       BMV from complying with 49 C.F.R. § 384.226, will lead to illogical and

       absurd results as it places Indiana at risk of losing federal highway funding and

       could lead to the de-certification of Indiana’s CDL program. J.S. claims that

       the State’s arguments regarding the potential loss of federal funding or de-

       certification of Indiana’s CDL program are “demagoguery” as the State failed

       to point to any instance where any other state has lost federal funding or has

       had its CDL program decertified for failing to report an expunged conviction.

       Appellee’s Br. p. 10.


[22]   Again, Indiana’s CDL program is subject to review by the FMCSA. 49 C.F.R.

       § 384.307. If the FMCSA finds that Indiana has failed to comply with the

       provisions of 49 C.F.R. §§ 384.225 and 384.226, the FMCSA shall order that a

       portion of Indiana’s Federal-aid highway funds be withheld. Specifically,


               (a) Following the first year of noncompliance. An amount up to
               5 percent of the Federal-aid highway funds required to be
               apportioned to any State under each of sections 104(b)(1), (b)(3),
               and (b)(4) of title 23 U.S.C. shall be withheld from a State on the
               first day of the fiscal year following such State’s first year of
               noncompliance under this part.

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 18 of 22
               (b) Following second and subsequent year(s) of noncompliance.
               An amount up to 10 percent of the Federal-aid highway funds
               required to be apportioned to any State under each of sections
               104(b)(1), (b)(3), and (b)(4) of title 23 U.S.C. shall be withheld
               from a State on the first day of the fiscal year following such
               State’s second or subsequent year(s) of noncompliance under this
               part.



       49 C.F.R. § 384.401 (emphases added). For the 2015 fiscal year, Indiana’s

       Federal-aid highway program apportionments for 23 U.S.C. §§ 104(b)(1), (b)(3),

       and (b)(4) equaled $653,038,989. See https://www.fhwa.dot.gov/legsregs/

       directives/notices/n4510788/n4510788_t1.cfm (last visited December 10,

       2015). Thus, following the first year of noncompliance with the provisions of

       49 C.F.R. §§ 384.225 and 384.226, Indiana could potentially lose over $32

       million dollars of federal aid. That amount would grow to over $65 million

       dollars if Indiana were to fail to comply with the provisions of 49 C.F.R. §§

       384.225 and 384.226 for a second consecutive year. Despite J.S.’s claim that

       the BMV’s argument in this regard is demagoguery because the BMV has not

       presented evidence that the FMCSA has ever ordered that a portion of a state’s

       apportioned funds be withheld, we observe that federal law clearly provides the

       FMCSA with the power to order that said funds be withheld if Indiana were to

       fail to comply with the provisions of 49 C.F.R. §§ 384.225 and 384.226.


[23]   In addition, if Indiana fails to comply with the provisions of 49 C.F.R. §§

       384.225 and 384.226, the FMCSA has the power to de-certify Indiana’s CDL

       program or prohibit Indiana from performing any of the following CDL
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       transactions: (1) initial issuance of a CDL license, (2) renewal of a CDL license,

       (3) transfer of a CDL license, or (4) upgrade of a CDL license. 49 C.F.R. §

       384.405. The BMV asserts that there are currently 171,811 individuals holding

       active CDLs in Indiana, including those holding CDL learner’s permits.

       (Appellant’s Br. 15) The BMV further asserts that decertification of Indiana’s

       CDL program could have staggering effects, both within Indiana and

       nationwide, because decertification of Indiana’s CDL program would prevent

       each of these individuals from obtaining or holding a CDL and companies in

       almost every sector of Indiana’s economy rely on CDL drivers in some form or

       fashion. (Appellant’s Br. 15) Again, despite J.S.’s claim that the BMV’s

       argument in this regard is demagoguery because the State has not presented

       evidence that the FMCSA has ever decertified a state’s CDL program, we

       observe that federal law clearly provides the FMCSA with the power to do so if

       Indiana were to fail to comply with the provisions of 49 C.F.R. §§ 384.225 and

       384.226.


[24]   Given the substantial statutorily proscribed potential negative economic

       implications, it would be illogical and absurd to find that the General Assembly

       intended to create a law that would put Indiana at risk of losing over $32

       million in federal aid or having its CDL program de-certified.


                                            3. Recent Amendment

[25]   Effective July 1, 2015, presumably in response to the instant case and cases like

       it, the General Assembly amended Indiana Code section 35-38-9-6 to explicitly

       provide that records sealed by expungement may be disclosed to “the bureau of
       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 20 of 22
       motor vehicles, the [FMCSA], and the [CDLIS], if disclosure is required to

       comply with IC 9-24-6-2(d) relating to reporting a conviction for a violation of a

       traffic control law.” Ind. Code § 35-38-9-6(a)(2). While the Indiana Supreme

       Court has held that inaction by the legislature can operate as implicit

       acceptance of the judicial interpretation of a law, see Study v. State, 24 N.E.3d

       947, 957 (Ind. 2015), it seems reasonable that the opposite is also true, i.e., that

       action by the legislature to amend a law can help clarify the legislature’s

       original intent in adopting the law. Thus, it is reasonable to infer that the

       General Assembly’s act of amending Indiana Code section 35-38-9-6 indicates

       that the General Assembly intended for the BMV to comply with these

       provisions all along.


[26]   In sum, we cannot foresee a situation where the General Assembly would

       intend to (1) create a law that is in direct conflict with existing state and federal

       law, (2) put Indiana at risk of losing substantial sums of federal aid, or (3) risk

       the de-certification of Indiana’s CDL program. Likewise, we believe that the

       recent amendment to Indiana Code section 35-38-9-2, which expressly allows

       the BMV to comply with the reporting requirements of 49 C.F.R. § 384.225 and

       Indiana Code section 9-24-6-2(d), indicates that the General Assembly has

       always intended for the BMV to comply with said laws.


[27]   We conclude that the trial court’s order prohibiting the BMV from doing so is

       contrary to the intent of the General Assembly. In addition, even if we were to

       conclude otherwise, pursuant to the Supremacy Clause of the United States

       Constitution, any application of Indiana Code section 35-38-9-6 which would

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015   Page 21 of 22
       require noncompliance with the relevant federal authority would be without

       effect. See Gibson, 756 N.E.2d at 546. We therefore reverse the judgment of the

       trial court as it applies to the BMV and remand the matter to the trial court with

       the instruction to amend its July 7, 2014 order to specifically allow the BMV to

       comply with the existing federal and Indiana laws requiring the BMV to

       disclose J.S.’s 2009 OWI conviction to the CDLIS. 4


[28]   The judgment of the trial court is reversed and remanded with instruction.


       Kirsch, J., and Altice, J., concur.




       4
         We disagree with J.S.’s contention that the BMV’s challenge to the trial court’s July 7, 2014 order was
       barred by the doctrines of res judicata, intervention, waiver, or estoppel.

       Court of Appeals of Indiana | Opinion 16A04-1503-MI-89 | December 28, 2015                      Page 22 of 22
