*1 instructions; 8) of the whether of the
substance tendered instruction
covered other instructions which were (1992), Ind.,
given. Nichols v. State 185-86.
We conclude that the evidence present
the record does not a reasonable
inference of sudden heat so as to warrant voluntary manslaughter
an instruction on
as a lesser included offense. We further referring
find that tendered instruction voluntary manslaughter B as a class
felony felony rather than a class A would proper
not have if been even there had
been evidence of sudden heat. judgment court is af- trial
firmed.
SHEPARD, C.J., DeBRULER, KRAHULIK, JJ.,
GIVAN concur.
George MAHER, Jr., Appellant- E. Below,
Defendant Indiana, Appellee-
STATE of
Plaintiff Below.
No. 71A03-9211-CR-370.1 Indiana, Appeals
Court of
Third District.
April opinion majority Judge This is the 2000th decision Staton.
STATON, Judge. pled count George guilty E. to one Maher cocaine, Felony.2 D possession of a Class portion his sentence appeals the Maher 85-48-4-15(a) by IND.CODE imposed alia, requires, which inter (Supp.1992), possession for of co upon the conviction that the "the court shall ... order caine (1) suspended person's operator's license be (2) ability register person's] [and by the suspended" bu motor vehicles be one of motor vehicles for at least reau (180) more eighty days but not hundred years. presents one issue than two review, for our which we restate fol lows: portion
Whether the
of Maher's sentence
35-48-4-15(a)
required by
his
IC
violates
rights.
constitutional
required by
affirm the sentence as
85-48-4-15(a).
4, 1992, Maher
IC
On June
cocaine,
pled guilty
possession
a Class
Felony.
trial court sentenced Maher
D
year
to one
with the
of Corree-
suspended
court then
tions. The trial
placed
probation
Maher on
sentence
85-48-4-15,
year.
for one
Pursuant to IC
op-
suspended
trial court also
Maher's
register
license and his
erator's
in the
Indiana for a
motor vehicle
State of
period of six months. Maher motioned to
portion
stayed.
this
of the sentence
have
Following
hearing,
granted
the trial court
stay
suspensions
Maher's motion to
appeal.
pending recog-
that Indiana should
nize
as a fundamental
contends that
35-48-4-15 is unconstitu-
clause,
equal protection
under
tional
process,
privileges
substantive due
and the
pro-
and immunities clause. IC 85-48-4-15
part:
vides in relevant
(a)
person
if a
is convicted of an offense
...,
shall,
under
the court
[IC 35-48-4-6]
any
in addition to
other
order
court
Rehak,
Bend,
appel-
for
Michael P.
South
enters,
person's:
order that the
lant.
(1) operator's
suspended;
license be
Carter,
Gen.,
Atty.
Pamela
Deana M.
Mclntire,
Gen.,
(2)
Atty.
existing
Deputy
registrations
Office of
motor vehicle
Gen.,
Atty.
Indianapolis,
appellee.
suspended;
IND.CODE
(3) ability
register
legislature
motor vehicles be
must
pre-
be afforded a
sumption
constitutionality.
suspended;
IND.
21; Ruge, supra,
CONST. Art.
at 677.
the bureau of motor vehicles for a
period specified by the court of at least
prove
The burden
is Maher to
a constitu-
tional violation. Id.
eighty
days
one hundred
but not
*3
(2) years.
more than two
arguments
Maher makes two
under
First,
equal protection.
IC
in
85-48-4-15
I.
travel,
fringes
right
second,
on the
to
Right
Fundamental
right
IC 85-48-4-15 chills the
migrate.
to
ability
to drive is of First,
supra,
Ruge,
stated:
do not
"[wle [ ]
paramount importance
society today,
in our
right
think that
the fundamental
to inter
he
asks this court to declare the
implies
right
state travel
a fundamental
to
possess
right,
to
a driver's license a
not a
drive since
suspension
per
...
of a
[the]
privilege.
son's
necessarily
driver's license does not
Supreme
Neither
Indiana
[the
Court]
person's
curtail that
freedom to move from
Supreme
nor the United States
Court has
Shapiro
state to state.
Thompson,
See
v.
ever held that there exists a fundamental
618,
1822,
394 U.S.
89 S.Ct.
fundamental
under
the California
alienage,
upon
origin,
based
national/ethnic
Constitution).
inherently suspect.
and race as
Graham
contention,
support
In
of his
Richardson,
365,
1848,
U.S.
S.Ct.
points out that the loss of his license means
29 L.Ed.2d
McLoughlin
the loss
job
support.
of his
and the loss of
Florida,
184,
288,
379 U.S.
85 S.Ct.
However,
stated,
in Ruge,
the court
(1964).
L.Ed.2d 222
The class of individu
"there
right
exists no fundamental
to drive
by
als affected
IC
are those
upon
right
based
employ
fundamental
convicted of the
listed in
offenses
IC
ment. See Massachusetts Board
Retire
48-4-15(a)
"dealing
"possession
of" or
307,
Murgia,
ment v.
427 U.S.
96 S.Ct.
in" a controlled substance. Because Maher
2562,
(1976) (governmental
Equal Protection Because the Indiana Constitution The in State offers two interests explicitly vests the Assembly General with is of IC 35-48-4-15. The first interest power legislate, likely exclusive an act highway safety keeping those wrong side of the on the parked car drugs off the road. impaired we reached Corby. Just before street reducing the distribution second interest vehicle, driver parked requiring the convicted rear of the drugs by and use of car out pulled car of the public trans- take get [Maher] rides or individuals was illegal drug trans- Because front of me. to consummate portation [Maher] street, scrutiny the wrong side parked on this level Under actions.3 lane on the eastbound pulled he from the least re to use required is not State lane, nearly westbound Corby to the conclude the mechanism. strictive police causing basis for the accident with a reasonable provided [the State my light on I activated the classification, equal protection cruiser]. Maher's stopped the vehi- police car and marked arguments fail. cle.
IIL.
[*]
#
u
[*]
#
[*]
record,
Record,
we conclude
p. 7. On this
Process
Due
Substantive
convincing
the
clear and
evidence
there is
35-48-4-15
that IC
Maher contends
by
safety is forwarded
purpose
highway
of
process. Because
due
violates substantive
to Maher.
of IC 35-48-4-15
application
right is
contends that
Maher
process
due
reject Maher's substantive
involved,
this court to review
he has asked
claim.
serutiny stan
the strict
the statute under
parts
in
I
However, we concluded
dard.
IV.
II,
that Maher
opinion
this
and
of
implicate a "fundamental
failed to
has
Immunities Clause
Privileges and
by the State are
rectly involved in the criminal
pect of his criminal
less the defendant
pose
the statute.
restriction
right". The
continue
suspensions
not a
and
substantive
decline
and use
the rational
of
81,
(1990),
Probable
fers the
Officer
Because Maher
possession of
convincing evidence that
forwarded
reasonable
[*]
206
to do so. The
Andrews' "Affidavit
of
N.E.2d
to use
purposes of
Cause"
drugs.
of
Ill.App.3d
due
required by
relationship
State
#
mobility for the distribution
See,
322,
by
process
driving
method
cocaine,
not
pled guilty to the offense
which states:
has used and is
argues
Because
conduct. Without clear
[*]
Illinois
323.
rationally
highway safety and
622,
purposes forwarded
State
requires
as an
test and
to ensure the
we
[*]
we
152
we believe that
85-48-4-15
in
v.
must
driving is di
should
conduct, the
integral as
related
Ill.Dec.
Support
[*]
Lawrence
more,
again of
likely to
rely
apply
pur
[*]
un
are
we
80,
of
of
Baldwin v. Fish
olates
munities Clause
absolute.
of
Clause.
of
same
B
1852, 1860,
Clause
tions
the State
nonresidents
this is a Nation
opment of a
Some
ty
States,
nonresident, equally.
Only with
Montana,
State
enjoy."
of
privileges which the citizens
formation,
"immunities"
"was
are
the Nation as a
distinctions between
A
Maher contends IC
However,
and are
prohibited because
who ventures
treat all
HOFFMAN, Judge, dissenting.
eri v.
Motor Vehicles
of
I respectfully dissent.
The continued
Cal.3d
188 Cal.Rptr.
possession of a driver's
P.2d
the
Supreme
California
license is an entitle-
Court
ment or property interest which cannot be
held that a driver's license is a fundamental
away
taken
procedural
without
pro-
right
due
purposes
applying
for
of
indepen
cess.
dent standard of review to the DMV's deci-
Additionally,
properly
if
bring
license;
Maher could
right
fundamental
to have a driver's
privileges
claim,
and immunities
it still must
right
there is no fundamental
to drive based on
decided whether IC
right
35-48-4-15 burdens one
employment;
of
and the
privileges
the
upon
immunities
which bears
of an individual's driver's
license
vitality
the
single
entity.
Nation as a
implicate
right
right
does not
the
to travel or the
Construction,
Building
United
migrate. Ruge, supra.
Because Maher has
U.S. at
sion to and safe following general welfare providing court made Berlinghieri opinion: in its pertinent observations Terpstra Indiana. people of ty 889, 846. (1988), App., Ind. 529 N.E.2d society, State travel-oriented present "In our high license is an promotes driver's the retention of a IND.CODE safety is a highway every person way safety, who and as important 846), omit- (Terpstra license. at compelling obtained such a state interest [Citation might agree with While we [the due ted.]. substantive statute does not violate exist al- that there process. observation DMV's] transportation, ternative means society is that reality contemporary systems may not transportation public many travellers
meet the needs transportation, such other forms of
taxicabs, economically feasible are not population. large portion of the
for a INFANT M.D. OF
In re the ADOPTION
required
license is
Whether a driver's
McINTYRE, Appellant-
Marcus
bread, commuting to
delivering
only for
Respondent,
work,
or the elder-
transporting
children
meeting
appointments,
at-
ly,
medical
functions, or
tending
political
or
social
Medaris,
and Helen
Gale MEDARIS
pur-
any
of these or other
combination
Appellees-Petitioners.
suspension of
revocation or
poses,
No. 18A05-9207-CV-253.
license,
period,
for a six-month
that
even
a severe
can and often does constitute
Indiana,
Appeals of
Court of
hardship.
personal and economic
[Cita
*6
Fifth District.
tion omitted.]"
April
Id.,
Cal.Rptr. at
driver's or his son.
he cannot himself
Clearly, possession the continued of his paramount importance
driver's license is of economic personal Maher on a as well as
level; therefore, impor- due to its utmost society, necessity today's tance and
right to drive is fundamental.
Where, here, a fun- a statute burdens right, must show a com- damental the State interest,
pelling legitimate than a or rather seruti- statute will not survive "strict purposes of substantive due
ny" review for By
process analysis. FHeying at 1129.
mandating the of a convicted license, IND.
drug offender's driver's reduces the sale CODE § drugs by
and distribution of automobile. removes from the
The statute also road likely who are to be under
drivers notes, drugs. As the State influence our