Loe v. StateLoe v. State
- Reporters:
- , ,
- Before:
- Barteau
Lead Opinion
OPINION
BARTEAU, Judge.Seott Loe appeals his conviction following a jury trial of Driving While an Habitual Traffic Offender, a class D felony1. We reverse because the evidence is insufficient.
DISCUSSION
Loe argues that the evidence is not sufficient to support his conviction because the State did not prove that the BMV sent notice of his suspended license to his last known address nor did the State prove that the notice allegedly sent was in compliance with due process requirements. Because we reverse, we address only the issue whether the State was required to prove the contents of the notice.
The BMV determined Loe was an habitual traffic offender on July 17, 1992 and sent notice to Loe of that determination on July 20, 1992. The effective date of the suspension was August 28, 1992, and the suspension was for ten years. Loe was operating a vehicle on April 30, 1998 when he was stopped for disregarding a stop light. He was subsequently charged with driving while suspended as an habitual traffic offender. The State introduced Loe‘s driving record maintained by the BMV, which showed that notice of the suspension had been mailed, but did not contain a copy of the notice, nor indicate the contents of the notice.
An element of the offense of driving while suspended as an habitual traffic offender is a valid suspension. Bishop v. State (1994), Ind.App., 638 N.E.2d 1278, 1279, reh‘g denied; see also Banks v. State (1991), Ind., 567 N.E.2d 1126. In Bishop, this court held that the State‘s failure to prove the contents of the notice sent to the defendant was a failure to prove the suspension was valid because there was no evidence the BMV complied with the notice requirements of Ind.Code 9-380-10-5.2 638 N.E.2d at 1280. Thus, the evidence was insufficient to support the defendant‘s conviction. Id.
The State argues that Bishop is not good law because the Supreme Court recently held that an entry in the BMV‘s record that a notice was sent to the defendant is sufficient to prove that the defendant had knowledge of the suspension. Cruite v. State (1994), Ind., 641 N.E.2d 1264. The State argues that the court in Cruite did not require the State to prove the contents of the notice sent. However, in Cruite the court was not faced with the issue whether the State must prove the contents of the notice sent by the BMV complied with LC. 9-80-10-5. It was addressing only the narrow issue stated as:
In a prosecution for operating a vehicle as an habitual traffic violator, when the defendant‘s driving record maintained by the Bureau of Motor Vehicles indicates that the BMV has sent him suspension notices on the basis of his habitual offender status, may that record by itself satisfy the State‘s initial burden of proving that the defendant knew of the suspension?
*1159The court held that it may, establishing only that an indication in the BMV records that a notice was sent supports an inference that the defendant received notice of the suspension. Cruite did not argue that the evidence was insufficient to prove that the BMV sent him notice that complied in substance with
The court in Cruite answered only the first question of what proof is sufficient to show knowledge of the suspension. But knowledge of the suspension alone does not make the suspension valid if the notice did not comport with the substantive requirements of
This case is on all fours with Bisk-op and we agree with the holding in Bishop that the State must prove the notice complied with
Loe‘s conviction is REVERSED.
SULLIVAN, J., concurs with opinion. RUCKER, J., concurs in Judge SULLIVANS concurring opinion.Notes
. Indiana Code 9-30-10-16.
. IC. 9-30-10-5 provides, in relevant part:
(a) ... the bureau shall mail a notice to the person‘s last known address that informs the person that the person‘s driving privileges will be suspended in thirty (30) days because the person is a habitual violator according to the records of the bureau.
a # Ed 4 J #
(c) The notice must inform the person that the person may be entitled to relief under section 6 of this chapter or may seek judicial review of the person‘s suspension under this chapter.
Concurrence Opinion
concurring and is joined by RUCKER, Judge. |
I agree that Cruite v. State (1994) Ind., 641 N.E.2d 1264, did not directly decide the issue before us. Notwithstanding contrary implications which may be drawn from Cruite, I find Bishop v. State (1994) Ind.App., 638 N.E.2d 1278, on point and clearly applicable.
The reversal here is also warranted by a separate and distinct failure of the notice to comply with
I concur.
RUCKER, J. joins in this opinion.