STATE, BUREAU OF MOTOR VEHICLES v. WALLER

WHITE, Judge.

Appellee (Waller) was convicted by the Municipal Court of Marion County on May 4, 1973, of driving a motor vehicle while under the influence of intoxicating liquor. Thereafter, the Commissioner of the Bureau of Motor Vehicles suspended his driving license for one year. Waller petitioned the Superior Court of Marion County for a judicial review of the Commissioner's action. The Superior Court ordered the Commissioner to remove the suspension and he appeals. Since no brief has been filed for appellee Waller we would reverse if the appellants' brief made a prima facie case for reversal1, but it does not. We therefore affirm.

The facts, as found by the reviewing court, and not challenged by the Commissioner either in the motion to correct errors or in the appellants' brief, are:

It is the Commissioner's contention that Waller's conviction of May 4, 1973, was a second conviction for driving while intoxicated (DWI) and by the statute then in force, Ind. Ann. Stat. § 47-2001(b)(3) (Burns 1973 Supp.), also known as Senate Bill No. 299 of 1973, Section 1(b)(3), or Senate Enrolled Act No. 299 of 1973, Section 1(b)(3), or Acts of 1973, Public Law No. 83, Section 1(b)(3), the convicting court, (i.e., the Municipal Court of Marion County) was required to suspend Waller's license for one year and when the court failed to do so the Commissioner was authorized and required, by the same statute to do so. The defect in the Commissioner's argument is that the reviewing court (the Superior Court) specifically found: "5. That the Petitioner, Richard L. Waller, was convicted on May 4, 1973, under Burns Indiana Statutes Annot., § 49-2001B2". § 47-2001(b)(2) was, on May 4, 1973, subsection (b)(2) of Section 1 of P.L. 83 of 1973, which defined and prescribed the penalty for driving while intoxicated, not, as did subsection (b)(3), for "a second or any subsequent conviction within a three-year period from the date of the first conviction."2 Finding No. 5, therefore, is a finding that Waller was convicted on May 4, 1973, merely of having driven a motor vehicle while intoxicated, not of DWI after having been previously convicted of DWI.

What the Commissioner's argument fails to recognize is the rule of law that the more serious consequences which Senate Bill No. 299 of 1973 provides for second offenders cannot be imposed by the convicting court merely because the person it convicts has previously been convicted of driving while under the influence of liquor. As the Indiana Supreme Court said in Minton v. State (1966), 247 Ind. 307, 310, 214 N.E.2d 380, 382, with respect to Ind. Ann. Stat. § 10-3538 (Burns 1965 Supp.) which provided a greater punishment for a second or subsequent offense under the 1935 Narcotic Act amended:

Of course when a defendant is charged with second offense driving while intoxicated, i.e., charged both with driving while intoxicated and with having been previously convicted of driving while intoxicated (DWI), he may be found guilty of first offense DWI if the State proves the offense charged but fails to prove the prior conviction. Likewise, a defendant so charged may be willing to admit that he is guilty of the offense charged but he may deny, or simply refuse to admit, that he was previously convicted. In such a case the prosecutor may not be prepared to prove the prior conviction. If for that reason, or for any reason whatsoever, the State is willing to accept a plea of guilty to first offense DWI, and the court accepts it, defendant can only be convicted of first offense DWI. (In a charge of second offense DWI, first offense DWI is a lesser included offense. Woods v. State [1955], 234 Ind. 598, 605, 130 N.E.2d 139.)

It appears that this is precisely what happened when Waller was convicted in Municipal Court on May 4, 1973. The evidence (if any) at the Superior Court judicial review trial is not in the record before us nor do we have a copy of the Municipal Court record, but Waller's trial brief states that as a result of plea bargaining in Municipal Court the charge was reduced and he was permitted to plead guilty under "Burns Indiana Statutes Annot. § 47-2001B2". As previously noted, the reviewing court's finding No. 2 is that Waller, upon his conviction of May 4, 1973:

This Municipal Court judgment is authorized by Ind. Ann. Stat. § 47-2001(b)(2) (Burns 1973 Supp.) which is Acts 1973, P.L. 83, Section 1 (b)(2), in the following language, which as published in the official edition of the Acts of 1973, and photocopied herein, shows by lines drawn through words what the 1973 amendment deleted from the 1969 version and by bold face type what the 1973 amendment added:

That part of the Municipal Court sentence which relates to Waller's driving license conforms to the wording of the second grammatical paragraph of the above quoted (b)(2) in that it "[i] withhold[s] imposition of [i.e., does not impose] that part of the sentence that recommends suspension of the driving license, and [ii] ... [obeys the command that] the court shall place the person on probation for a period of not less than one (1) year [iii] with any reasonable terms of probation ... [i.e., his driving license was restricted for one year]."

It will be noted that (b)(2) imposes no duty, and confers no authority, on the Commissioner except "[i]n any case where the court recommends suspension of the driving license and this part of the sentence is imposed" (Our italics). In such case "the Commissioner ... shall comply with such recommendation of suspension and the license of the person shall remain suspended for the determinate time set by the court." (Our italics.)4 Thus, when the court does not impose that part of the sentence that recommends a driving license suspension, the Commissioner (or "the bureau") has no authority to suspend the driving privilege of any person convicted merely of driving while under the influence of intoxicating liquor and not also convicted "upon a second or any subsequent conviction".

Nevertheless, the Commissioner contends that he had authority under the first grammatical sentence of (b)(3) to make the suspension he did. That grammatical sentence prescribes what the court's sentence shall be for "[a]ny such person upon a second or any subsequent conviction within a three year period ... [including the requirement that] the court shall recommend the suspension of the current driving license of the person so convicted for a determinate period of not less than one (1) year or more than two (2) years and until such person ... and the commissioner of motor vehicles shall thereupon comply with such recommendation, and should the court fail to make such mandatory recommendation, or should the court fail to make the appropriate mandatory recommendation, the commissioner shall proceed to act in the matter as if such recommendation had been made by the court." (Emphasis added.) In effect, the Commissioner is contending that the convicting court must treat the conviction as a "second or subsequent conviction" regardless of whether or not the state alleges and proves a prior conviction or whether or not the defendant pleads guilty, as charged, to an information or indictment which alleges a prior conviction. That is an essential element of the Commissioner's argument, because unless (1) the court recommends suspension or (2) he fails to recommend suspension when it is mandatory that he do recommend suspension, the Commissioner has no authority under (b)(3) "to act in the matter as if such recommendation had been made by the court."5

We read nothing in P.L. 83 of 1973, Ind. Ann. Stat. § 47-2001 (Burns 1973 Supp.) which purports or attempts to alter, amend, or annul the case law which "has long been established in this state that where a statute imposes a greater punishment upon a second and subsequent conviction of an offense, the former conviction must be alleged in the affidavit or indictment, and proved at the trial." Minton v. State, supra (247 Ind. 307, 310, 214 N.E.2d 380, 382). We therefore need not consider whether such a statutory provision would exceed the legislature's constitutional power. Nor need we consider whether it would be within the legislature's power to confer upon the Commissioner the independent authority to suspend a driving license for a conviction which is in fact a second or subsequent conviction but the fact of the prior conviction was neither alleged, admitted, or proved at the time of the trial or guilty plea on the second conviction.6 As the statutory and case law existed at the time the Commissioner acted to suspend Waller's license, the Commissioner had no authority to do so because no conviction had been certified to him in which the convicting court had recommended suspension or had failed to recommend suspension when it was mandatory to do so.

The judgment is affirmed.

SULLIVAN, P.J., concurs.

BUCHANAN, J., dissents with separate opinion.

BUCHANAN, Judge (dissenting).

I respectfully dissent and would reverse the judgment of the Superior Court of Marion County because in reviewing the Commissioner's suspension of Waller's driver's license, once it found in its Findings of Fact (One and Two) that Waller was twice convicted within a three-year period of operating a vehicle under the influence of intoxicating liquor, it was bound to affirm the Commissioner's action under the mandate of IC 1971, 9-4-1-54(b)(3), Ind. Ann. Stat. § 47-2001(b)(3) (Burns Supp. 1973) [also known as Senate Bill No. 299 of 1973, SECTION 1(b)(3)] (hereinafter (b)(3)). Therefore, Conclusions of Law No. 1 and No. 2, infra, by concluding that Senate Bill No. 299 is discretionary for "second offenders", are erroneous because they ignore Findings of Fact No. 1 and No. 2, which mandate suspension of a driver's license if the motorist has been twice convicted of driving under the influence within a three-year period.

The complete Findings of Fact and Conclusions of Law of the Superior Court of Marion County indicate Waller had been convicted of driving under the influence of intoxicating liquor twice within a three-year period:

The first and second Findings positively state that Waller was convicted of driving under the influence of intoxicating beverage twice within a three-year period and there is evidence in the record to support this finding. When faced with these Findings, the clarity of (b)(3) would seem to defy question. When a motorist has been convicted of "a second or any subsequent conviction within a three-year period" for driving under the influence of intoxicating liquor,

The express language of the statute is neither vague nor ambiguous ... to the contrary. It expresses a clear and unequivocable legislative intent that when "any such person [driving under the influence of intoxicating liquor, etc.] upon a second or any subsequent conviction within a three-year period from the date of the first such conviction" the court is bound to direct the suspension of the driver's license and "should the court fail to make such mandatory recommendation ... the commissioner shall proceed to act in the manner as if such recommendation had been made by the court."

For over thirty years, the statutes regulating licensing of operators of motor vehicles have contained devices similar to subsection (b)(3), limiting judicial discretion as to suspension of licenses under certain conditions and mandating the Commissioner of Motor Vehicles to suspend licenses whether or not direction is received by the court convicting the erring motorist.

An example is Ind. Ann. Stat. § 47-1052 (Burns 1952 Replacement) which, like subsection (b)(3), required the court to recommend suspension of the license for one-year upon a second or subsequent conviction for driving while under the influence of intoxicating liquor. This statute was in effect in 1952 when State ex rel. Smith v. Delaware Circuit Court (1952), 231 Ind. 173, 108 N.E.2d 58, was decided, and the Indiana Supreme Court denied the right of the court to enter a restraining order preventing the Commissioner from acting in accordance with the provisions of § 47-1052 after the court had failed to follow the mandate of the statute.

The same principle was enunciated and followed in State ex rel. Root v. Circuit Court of Allen County (1972), 259 Ind. 500, 289 N.E.2d 503, the court recognizing that the regulation of driving is within the police power of the state and the inherent equity power of courts are thereby limited and accordingly quoted from Underhill v. Franz (1951), 230 Ind. 165, 101 N.E.2d 264:

The thrust of both of these cases is that the courts have neither the inherent equity power nor the legal right to contravene the clearly expressed intent of the legislature and that the courts have no discretion to act under certain conditions.

So once it was determined that Waller was twice convicted within the three-year period (and Waller's trial brief makes this admission), the only course open to the Superior Court of Marion County was to uphold the Commissioner's suspension of Waller's driver's license. Failure to do so was reversible error.

The concern of the majority that Waller's prior conviction was not properly established, is understandable but inapplicable.1

The net effect of their opinion is to assume that Waller's prior conviction might have been improperly established ... an assumption that has no basis in the record. Contrary to Trial Rule 52(A)2 of the Indiana Rules of Trial Procedure, the majority have changed the trial court's Findings by ignoring Findings 1 and 2 and embroidering on Finding 5 a factual conclusion that Waller's prior conviction was not alleged in the affidavit or indictment and proved at trial.

By so mutilating the Findings, the majority have partially emasculated (b)(3) and effectively trimmed the sails of clear legislative intent.

Underhill succinctly states the governing principle here:

Furthermore, the State, as Appellant, need only make a prima facie showing of reversible error inasmuch as Waller failed to file a brief. This it has done. DuFour v. DuFour (1971), 149 Ind.App. 404, 273 N.E.2d 102; Berry v. Town of Fowler (1960), 240 Ind. 443, 166 N.E.2d 333; Kuykendall v. Co. Comm'rs of Marion County (1968), 142 Ind.App. 363, 234 N.E.2d 860; Nunemaker v. Glassburn (1965), 137 Ind.App. 655, 210 N.E.2d 668; Speedway Bd. of Zon. App. v. Standard Concrete Mat. (1971), 150 Ind.App. 363, 276 N.E.2d 589.

As Waller was twice convicted within a three-year period of operating a motor vehicle under the influence of intoxicating liquor the Superior Court had no choice, and was bound to affirm the Commissioner's action under the mandate of (b)(3), and its judgment ordering the Commissioner to remove the suspension of Waller's driver's license was reversible error.