*1 hereby error, conviction is Finding defendant’s no reversible affirmed. Reported N.E.2d 294. at 338
Note. — Ralph Vehicles, Indiana, W. Bureau of Motor State Vehicles, Natta, of Motor of Bureau Van Safety Director, Littleton, Re- Division R. Charles Improvement sponsibility v. and Driver L. Richard Waller. December 1975.] Filed 2-674A142.
[No. *3 Sendak, Attorney General, Theodore L. Dwyer, Robert E. Deputy Attorney General, appellants. for appearance appellee.
No for Appellee (Waller) by the was convicted Munici White, J. pal County May 4, 1973, driving Court of Marion
motor vehicle while under the influence of intoxicat- ing liquor. Thereafter, the Commissioner of the suspended driving Bureau of Motor li- Vehicles his year. cense petitioned Superior for one Waller County judicial Marion for a review of the Commissioner’s Superior action. The Court ordered to re- the Commissioner appeals. move the and he brief been Since no has appellee filed appellants’ for we would if the Waller reverse prima reversal1, brief made a case for but does not. facie therefore We affirm. facts, reviewing court,
The as found and not chal- lenged by the Commissioner either the motion to correct appellants’ brief, errors or in the are: Petitioner, Waller, The Richard L. “[1] was convicted liquor August under the influence of on costs, received fine of $32.75 his suspended sixty (60) days. license was Petitioner, “2. Waller, Richard L. convicted liquor under the May 4, 1973, influence of Court, Municipal Marion Room No. and received fine costs of He $28.00 also $32.00. received a ten day suspended sentence and his license was re- (1) year placed stricted for one and he probation *4 (1) year. for one 25, 1973, “3. On June Vehicles, Bureau of Motor herein, suspended Respondents Richard L. Waller’s Speedway Zoning Appeals Board of Standard Concrete Ma- 1. v. terials, App. 363, 366, Ind. Inc. 276 N.E.2d 589. period year May 4, license for May 4,1974. 1973, one from Petitioner, Waller, “4. That Richard L. received no hearing, only administrative pension. but received a letter of sus- Petitioner, That Waller, “5. on Richard L. was convicted May 4, 1973, Statutes, Annot., under Burns Indiana 47-2001B2. § That April
“6. 10,1973, Senate No. Bill 299 which enacted on was applicable is the statute this case.” It is the Commissioner’s contention that Waller’s May 4, 1973, was a second conviction for while force, by (DWI)
intoxicated the statute then (B) Ann. Stat. 47-2001 § Supp.), 1973, also known as Bill No. 299 of Senate 1973, 1(b) (3), SECTION Enrolled Act No. 299 of Senate 83, 1(b)(3), 1973, Law SECTION or Acts of Public No. 1(b) (3), convicting court, (i.e., Municipal SECTION County) required suspend of Marion Waller’s year for one and when the court failed to do so the required, was authorized and the same argument statute to do so. The defect in the Commissioner’s reviewing (the Superior Court) specifically Petitioner, Waller, “5. found: That the Richard L. was con May 4, 1973, Annot., on victed under Burns Indiana Statutes was, May 47-2001B2”. 47-2001B2 subsection § P.L. SECTION 1 of defined and prescribed penalty intoxicated, not, as (b) (3), any subsequent did for “a subsection second or con three-year period within a viction from the date the first Finding 5, therefore, finding No. conviction.”2 is a May 4, 1973, merely having was convicted on Waller intoxicated, a motor vehicle while not of driven after DWI having previously been convicted DWI. 83, 1973, 299, 1973, 299, 1973, P.L. S.B. No. S.E.A. No. came into April 10, emergency of an virtue clause and
effect on re- February by applicable 21, 1974, provisions placed of P.L. 35 of emergency (P.L. 35, 1974, an clause. also had has now been which placed re- 102,1975.) P.L. *5 236 recognize is argument to fails
What Commissioner’s consequences which the more serious the rule of law that provides second offenders for of Bill No. 299 1973 Senate convicting merely because imposed cannot be driving previously been convicted person has it convicts Supreme liquor. the Indiana while under the influence As 307, 310, (1966), 214 Ind. 247 said in Minton v. State 380, respect Ann. 10-3538 382, to Ind. Stat. N.E.2d with greater punishment provided a for Supp.) which 1965 Act subsequent offense the 1935 Narcotic a second or amended: long that when has established this state “It been greater upon imposes punishment and a a second a statute subsequent offense, the former conviction an conviction indictment, proved alleged and in the affidavit
must be
651,
(1898),
Ind.
at
N.E. 820
v. The State
150
50
the trial. Evans
apply
to
to the habitual
has been held
doctrine
“This
(1933),
Ind.
187
205
area. Barr
State
criminal
v.
N.E. 259.3
(then
Although
that
the habitual criminal statutes
Barr notes
3.
1926], now
and
9-2207
[Burns
2340
and
§§2339
§§
Ind. Ann. Stat.
9-2208)
proved,
pleaded
require
specifically
to
convictions
be
quotes opinions
English
and American courts
cites and
it
[1898],
820)
(including
150 Ind.
50 N.E.
Evans v. State
imposed
greater penalty
regardless
require
for a
a
statute whenever
is
it
Long
quoted
(1872),
subsequent
v. State
36 Texas
is
conviction.
approval of
the reasons for the rule:
its statement of
“
again
offense,
prisoner
not tried
his first
but he
is
over
‘The
having
right
question
a
has
to know that
of his
committed
first
jury,
presented to
if
be
that
be
shown
he
is to
offense
did commit
punishment
offense,
his
will be increased
a former
may
any
points
thereby,
rebut
fact
manner the law
so that he
this
may
identity certainly
raised,
question
The
be
out to him.
he has a
record'. He
the
new
make
intention
offense?
statement of
right
that he is not
named in the former
show
'
jurisdiction
try
might
the court had no
also show that
judgment
aside,
case,
of conviction had
set
been
or that
acquitted.
him,
granted
How he to
that he had been
is
trial
notified
indictment of
of these defenses unless
guilty
to hold him as
of a
second
State
or third
Campbell,
previous
case,
Ch.J.,
English
in an
Lord
observed:
“A
charge
does not
an offense. It is
may
only
punishment.
of a fact which
affect the
the averment
person guilty
previous
jury
find
they only
offense;
do not-find the
previously
it,
he
convicted of
as a
historical
fact.”
Reg.
198, 201,
Eng.
(1853), Dears,
Reprint,
C.C.
v. Clark
. .
.’”
applicable
“It has also been held
‘while under
intoxicating liquor,
the influence’
vides for an
pro
where the statute
penalty
subsequent
increased
on a second or
(1955),
conviction. Buchta v. State
234 Ind.
[Also,
N.E.2d
151.”
In re
Sobieski
It that this happened what when Waller Municipal May 4, was convicted in Court on 1973. The evi- (if any) Superior judicial dence at the Court review trial is not in the record before us copy nor do we have a record, Municipal Court but Waller’s trial brief states that bargaining plea Municipal charge as a result of Court the permitted plead reduced and he guilty under previously “Burns Indiana Statutes Annot. 47-2001B2”. As § reviewing noted, finding Waller, court’s upon No. 2 is that May 4,1973: his conviction of “. . . received a fine and costs of $28.00 He also $32.00. (10) day suspended received a ten sentence and his (1) year
license was restricted for one placed and he was probation (1) year.” for one
238 judgment by Ann. 'Municipal is authorized This 47~2001(b) Supp.) (2) which is Acts Stat. 1(b) following language, in the P.L. SECTION as-published oflicial edition of Acts of herein, through drawn words photocopied shows lines deleted from version what amendment type amendment what added: bold face “ (2) except by subparagraph In all cases those covered (T) above, high- any person upon who drives a vehicle way intoxicating liquor under or influence of unlawfully the influence of narcotic other habit or forming dangerous, drugs depressant or or shall stimulant " guilty upon be óf a misdemeanor shall first conviction imprisoned (5) days for not less than five nor more ..be months, (6) punished by than six a fine of not less than twenty-five ($25.00) more hundred dollars nor than five imprisonment; ($500), or fine dollars both such recommend the cur- .'and-the shall court de- license of the so convicted for a rent more than two months nor period of not less terminate nn --saefe-pe-i-aon shall-g-ivo-aad year. -a»d- imt-i1 one than commioaionog n of—fehe—Aoto 1017,"-as- nmen^e^-a-nd —(cid:127)the n the-ap' ommeada-tion;- a-nd-shoaid fail-to make *7 n (cid:127)shftll-ppeeeed-4«~aet in the raa#fee-i^s--i-f--s-aeh-re<iommenda- n tioh-had-boon by the court. made part may of the imposition of that withhold The Court (cid:127) driving suspension li- -of the recommends that sentence cense, such, place person the shall in case the court . and. year period probation (1) than with not less one for of on any probation, which include but of shall terms reasonable provisions person shall not that the to the hot be limited any of the law and the use of traffic violation commit a re- driving privilege to the essential be restricted shall per- person performance the in the of quirements the of necessary driving employment and duties and the to son’s employment. specify court driv- place from his of shall restrictions, including ing not limited and but conditions placed upon driving travel, of the to routes and hours be by signed judge the of the court. All conditions license'and the bureau certified the court shall be and restrictions per- thereafter finds the of motor If the court vehicles. any probation, court terms of the has violated of the son impose part recom- shall mends of then the sentence that that of period suspension driving and the the license of imposition suspension the the of shall commence with suspension. of sentence any suspension In case of where the court recommends part im- the license and this of sentence is the posed, the commissioner of the of motor vehicles bureau comply suspension shall with such recommendation of person suspended the of license shall remain for the person give determinate time set court. Such shall proof responsibility and maintain manner tinue for a proof of his financial in the specified 9-2-1, proof con- IC shall period years of three the date of first from responsibility.” of financial part Municipal That of the relates sentence which wording license of Waller’s conforms to the grammatical paragraph quoted (b) (2) second of the above impose] imposition [i.e., that withhold of does not “[i] [s] part suspension of the that recommends of the sentence driving license, [obeys . . . the command that] [ii] period place probation shall for a (1) year any one not less than reasonable terms [iii] [i.e., probation . . . his license was restricted for year].” one (2) imposes duty, (b) will no and confers
It be noted that authority, except case no “[i]n suspension the court recommends
where the driv part ing imposed’’ license and this the sentence is italics). “the (Our In such case . . Commissioner . comply with such recommendation of shall suspended person shall remain the deter license (Our italics.)4 court.” Thus, set time when minate following sub-paragraph Immediately immediately (c) paragraph sub-paragraph is an preceding unlettered which reads: any person is convicted for a violation of subsection “Whenever imposes part and the court (b) this section sentence suspension, judge require shall that recommends any operator’s or to him of chauffeur’s license such surrender *8 impose part the court does not sentence that driving suspension, recommends a license the authority (or bureau”) suspend “the has no to privilege person merely convicted intoxicating liquor under the influence of con- not also “upon subsequent a second or victed conviction”. Nevertheless, the Commissioner contends that he had au thority grammatical (b) under the (3) first sentence suspension grammatical he
make the did. That sen prescribes tence what the court’s sentence shall be “[a]ny person upon subsequent for such a second or year period within a three [including conviction . . . requirement suspension the court shall recommend the that] person license of the current so convicted period year (1) not less than one a determinate or more years (2) and until such than two . . . and com thereupon comply shall recommendation, missioner with such the court to make mandatory and should such recorrió fail mendation, or should the court fail appropriate to make the recommendation, mandatory proceed commissioner shall act in the matter as such recommendation had been if (Emphasis added.) effect, court.” made In the Com contending convicting missioner is that the court must treat subsequent a regard as “second or conviction conviction” alleges proves less whether or not the state prior pleads or whether or not the guilty, defendant as charged, alleges to an information indictment which That is an essential conviction. element of the Commissioner’s argument, suspen because unless the court recommends sion or he fails to recommend when mandatory suspension, that he do recommend the Commis- immediately person and shall forward the same the bureau of conviction, the abstract of motor vehicles with and the bureau shall suspend driving privilege any person so convicted.” imposes part “and the court The words of the sentence that recom- suspension” mends were added the 1973 amendment. authority in the matter “to act sioner has no *9 by the court.”5 had been made if such recommendation as 1973, 47- nothing Ind. Ann. in P.L. Stat. read We attempts purports or to Supp.) which long amend, alter, case law which “has or annul the in this that where a statute been established state greater punishment upon imposes a second and a offense, subsequent of an the former conviction indictment, alleged proved in affidavit or at must be the dissenting opinion (b) (3) treats the “mandate” of a The as Commissioner, mandate to the court which reviews the action obviously in is It is a mandate to the Criminal Court which it which not. charged (1) having previously with a has been been having (2) thereafter driven intoxicated convicted and in which DWI and judicially court been determined. both have nothing in State rel. v. Delaware Circuit There is whatsoever ex Smith 58, or ex Root v. 231 Ind. 108 N.E.2d State rel. Circuit Court County (1972), 259 Ind. 289 N.E.2d Court which Allen supports contention that authorizes the the dissent’s offense conviction as a second to treat a first offense Commissioner apparent prior merely an conviction. his records show conviction Neither only because power. Both are concerned case concerns the Commissioner’s pendente lite, reviewing enjoin, power to of a court with suspension driving privileges. revocation or Both Commissioner’s original Supreme actions in tine Indiana cases were cases writs had exceeded their Court and in both prohibition granted reviewing were because the courts jurisdiction. In the Delaware Circuit Court case that pendente restraining judicial its lite order in a review court had issued now, at Then to the review case bar. the review statute case similar (now 9-2-l-5[g]) provides filing petition that “the such IC revoking judicial Commissioner’s administrative review of the order [for driving privileges] suspend suspending shall not or act or the order grant any stay and the court shall not thereof [of Commissioner] (Our emphasis.) Supreme pending The determination.” final general jurisdiction equitable the trial court had no also held that privilege property principles right. a a since the driver’s license is not County judicial now was not a review what is The Allen case bar), proceeding 1971, 9-2-l-5(g) (as but was a is the case at IC pursuant permit to petition to IC 9-5-2-1 “for a restricted (1972 Supp.)”. (259 -2, Ind. at Burns’ Ind. Ann. Stat. 47-2721-2722 §§ conformity suspension 501.) in case had been Commissioner’s court’s recommendation when that with the criminal trial made court breathalyzer pursuant had to that the driver “failed take the test found 1971, (Ibid implied 47-2003c-f statute, -4, consent to to Indiana law under the IC 9-4-4.5-1 at (1972 Supp.)”. 501.) Ann. That §§ Burns Ind. Stat. absolutely nothing question to has do before the court case in this case for the restricted simple this is not an action for reason license, suspension nor driver’s does involve a for refusal sobriety test. to take a the trial.” State, supra 307, 310). Minton (247 v. We statutory pro- therefore need not consider whether such a legislature’s vision power. would exceed the constitutional legisla- Nor need we consider whether within the it would be power upon independent ture’s to confer authority suspend to license for a conviction which subsequent a second or conviction but fact of fact alleged, admitted, proved conviction was neither at the guilty plea time of the trial or on the second con- statutory viction.6 As the and case law existed at the time license, suspend Commissioner acted Waller’s. authority Commissioner had no to do so because no conviction convicting had been certified him in which had suspen- recommended or had failed to recommend mandatory sion when it do so. *10 judgment
The
affirmed.
is
Apparently
statutory authority
there is such
in California and
Bright, Director,
116;
Rept.
Louisiana. Cook v.
etc.
25 Cal.
Department
Safety (1975),
App.,
Comeaux v.
Public
La.
Dissenting Opinion respectfully dissent and would reverse J. —I Buchanan, judgment Superior County of of Marion because reviewing suspension of driv- in' Commissioner’s Waller’s Findings license, (One and once it found in its of Fact er’s three-year Two) twice within that Waller was convicted period operating influence of a vehicle under the of intoxicat- ing liquor, was to affirm the action bound Commissioner’s (b) (3), Ind. mandate of IC 9-4-1-54 Ann. Stat. under the Supp. (b) (3) (Burns 1973) known as Senate 47-2001 [also (b) 1(b) (hereinafter (3)] SECTION Bill No. 299 Therefore, 2, infra, of Law 1 and (3)). No. Conclusions No. concluding discretionary Bill 299 is No. Senate they ignore offenders”, because Find- are erroneous “second which mandate ings No. No. of Fact 1 and license if motorist been twice has driver’s convicted three-year period. influence within a Findings complete of Fact and Law Conclusions of County Superior indicate Court of Marion had been Waller intoxicating liquor influence of under the convicted three-year period: twice within FACT
“FINDINGS OF Waller, Petitioner, Richard L. convicted “The August liquor under the influence costs, a fine of and his received $32.75 sixty days. suspended for *11 ' Waller, Petitioner, Richard L. was convicted “2. The driving liquor May 4, 1973, influence on under the of of Court, Municipal Room No. Marion received the of He also fine and costs ten received a $32.00. a $28.00 driving suspended day sentence and his license was (10) year placed probation he was for-one restricted year. for one 25, 1973, Vehicles, the of Bureau June Motor On “3. herein, suspended Richard Respondents L. Waller’s the 244
driving 1973 to period May (1) year license for a of one from May 4,1974. Petitioner, Waller, “4. That L. the Richard received no hearing, only administrative but a letter of sus- received pension. Petitioner, Waller, “5. That the con- Richard L. May 4, 1973, Statutes, victed on Annot. 47-2001B2. under Burns Indiana “6. That Bill Senate No. April enacted 10,1973 applicable is statute in this case.
“CONCLUSIONS OF LAW “1. Senate Bill No. 299 IC [Now does 9-4-1-54] mandatory not make it driving suspend court to a defendant’s if previously license even he was convicted of driv- ing liquor, influence of April “2. discretionary That Bill Senate No. is with driving trial court as suspends to whether or he not license of a second offender or issues the defendant a driving restricted license. “3. Bill April 10, That Senate No. as enacted on vague ambiguous, is every and therefore benefit given charged of doubt must be who defendant with a violation of said statute. Respondents “4. legal That right no have under the provisions of Senate Bill No. overrule a court’s trial judgment. Respondents “5. That the act of 25, 1973, on June suspending in and arbitrary Petitioner’s license is capricious process and was without due of law.” Findings The first and positively second state that Waller intoxicating was convicted under the influence beverage three-year period twice within a and there is evi- support finding. dence the record to this When faced Findings, clarity these seem to would defy question. aWhen motorist has been convicted “a any subsequent second three-year within a period” for under the influence intoxicating liquor, . . shall “. current the court recommend the so convicted for a , period , year determinate not less than one .
245 comply thereupon shall commissioner of motor vehicles make recommendation, court fail such such should recommendation, fail mandatory court or should the recommendation, appropriate mandatory to make the if such the matter as proceed shall to act in commissioner (Emphasis court.” made recommendation had been added.) express language vague nor of the statute is neither ambiguous contrary. expresses It a clear ... to the unequivocable legislative “any intent that when such intoxicating upon liquor, [driving under the influence of etc.] three-year any subsequent or within a a second court period from the date the first such conviction” the is bound to direct the driver’s mandatory fail make such recommenda- “should the court proceed to in the . . shall act manner tion . the commissioner by the had been made court.” as if such recommendation licensing thirty years, regulating For over the statutes operators of similar motor vehicles have contained devices (b) (3), limiting judicial sus- discretion as to to subsection mandating conditions and pension of licenses under certain suspend of Motor licenses the Commissioner Vehicles convicting direction is received the court whether not erring motorist. Re example 1952 is IndAnn.Stat. 47-1052 An § (3), required which, (b) court placement) subsection like one-year upon suspension of license for to recommend subsequent conviction for a second or intoxicating liquor. This statute the influence of ex rel. Smith v. Delaware Circuit in 1952 when effect State decided, (1952), Ind. 108 N.E.2d Court 231 right Supreme denied the and the Indiana restraining preventing the Commissioner order to enter acting provisions with the 47-1052 in accordance from follow the mandate had failed to of the statute. after the court principle was enunciated and followed in State The same County (1972), Allen Circuit Court rel. Root v. ex recognizing" Ind. N.E.2d the court regulation police power is within the of the státe equity and the power thereby inherent of courts are limited accordingly quoted from Underhill v. Franz 165, 101 N.E.2d 264: “ power ‘A court anything has no to do which is not *13 by authorized special statute, thereby, procedure law and when its is defined judicial essentially its function is controlled remedy and the prescribed, is confined to the mode procedure provided so excludes resort another to procedure.’ or different 173, Id. at [Citations 101 omitted] 503, N.E.2d at 267.” 289 N.E.2d at 507. The thrust of both of these cases is that the courts have equity right neither power legal the inherent nor the con- clearly expressed legislature travene the intent of the the courts have no discretion to act under certain conditions. once
So it was determined that Waller was twice convicted three-year period within the (and trial brief Waller’s makes admission), only this open Superior course to the County uphold of Marion was to the Commissioner’s sus- pension of Waller’s driver’s license. Failure to do so reversible error. majority
The concern prior that Waller’s conviction properly established, was not inap- is understandable but plicable.1 opinion net effect of their is to assume that Waller’s
prior
might
improperly
have been
.
established . .
assumption
an
Contrary
that has no basis in the record.
52(A)2
Procedure,
Rule
Trial
the Indiana Rules of Trial
majority
changed
Findings by
have
the trial court’s
majority opinion
Compare
(1975),
1.
with Lewis v. State
166
App.
Ind.
247 Finding" embroidering'on Findings 5 ignoring 1 and 2 arid not conviction was a factual conclusion Waller’s . proved at trial. alleged in the affidavit or indictment mutilating Findings, majority By partially have so effectively clear trimmed the sails of emasculated legislative intent. governing succinctly principle here: states
Underhill anything power not-au- has which is “a court no do by a procedure defined and when is- thorized law its essentially judicial special thereby.” function its controlled statute only Furthermore, State, make Appellant, need as showing inasmuch as Waller prima error facie of reversible v. done. DuFour DuFour This has failed to file brief. 102; Berry Town App. v. N.E.2d (1971), 149 Ind. Kuykendall 333; (1960), N.E.2d v. 240 Ind. Fowler County (1968), 142 Ind. App. Marion Comm’rs. Co. 860; Nunemaker v. Glassburn N.E.2d App. 668; Speedway Zon. App. Bd. 210 N.E.2d v. *14 App. N.E. Mat. Concrete Standard 2d 589. three-year period convicted within a was twice
As Waller intoxicating operating a vehicle under influence motor choice, Superior no and was Court had bound liquor the (b) action under mandate of the Commissioner’s affirm ordering judgment (3), and its remove license was reversible driver’s suspension of Waller’s error. Reported at N.E.2d
Note. —