Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel , or the law of the case.

ATTORNEYS FOR APPELLANT : ATTORNEY FOR APPELLEE : GREGORY F. ZOELLER MICHAEL B. TROEMEL Attorney General of Indiana Lafayette, Indiana CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana


## IN THE

COURT OF APPEALS OF IND IANA

STATE OF INDIANA, ) ) Appellant

- Respondent, ) ) vs. ) No. 79A02

- 1110

- PL

- 952 ) ANGELA BENNETT, ) ) Appellee

- Petitioner. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Michael A. Morrissey, Judge Cause No. 79D06

- 1107

- PL

- 16
February 16, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge2 Case Summary The State of Indiana appeals the trial court’s order granting Angela Bennett a restricted driver’s license . Because t he record shows that Bennett has a prior convi ction that disqualifies her from receiving a restricted license, we reverse. Facts and Procedural History The record shows that Bennett’s driver’s license was suspended in 2006 for ten
years for being a habitual traffic violator (HTV) . Appellant’s App. p. 6. Bennett was determined to be a HTV because she accumulated three operating while intoxicated convictions within ten years

– 1 998, 2004, and 2006 . Tr. p. 2 , 4

. In 2011, Bennett filed a Verified Petition for Hardship License pursuant to Indiana
C ode chapter 9

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- 10 . She alleged , among other things, that she had served five years of her ten

- year license suspension and had “never been convicted of a violation described in
I.C. 9

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- 10

- 4(a).” Appellant’s App. p. 4, 5 ; see Ind. Code § 9

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- 10

- 4(a)(3 ) (listing , among other disqualifying violations , “ Failure of the driver of a motor vehicle involved in an accident resulting in death or injury to any person to stop at the scene of the accident and give the required information and assistance”)

. Bennett ’s four

- page Official Driver Record, however, shows that she was convicted of leaving the scene of an accident resulting in injury in October 1992 under Cause No. 79E01

- 9205

- CF

- 199

. Appellant’s App. p. 8 (listing Bennett’s conviction as “accident leaving the scene

injury/death/entrapment”)

.3

At the hearing on Bennett’s petition for a hardship license , she explained the circumstances surrounding her 1992 conviction for leaving the scene of an accident resulting in injury: [I]t happened 20 years ago I was 23 years old, . . . alcohol was not involved. We hit a vehicle, it knocked me out. I didn’t tell on my girlfriend, . . . she drove me to my dad’s and my dad took me over to the Lieutenant Reed. [ 1 ] It was under a thousand dolla rs damage. It was an arm s ocket pulled out and I paid full restitution for the damage. Tr. p. 5. Bennett clarified that it was “a passenger” who was injured, but she did not say whether it was a passenger in her car or the car that she hit. Id. The State argued that
Bennett was ineligible for a restricted driver’s license because of her 1992 conviction for leaving the scene of an accident resulting in injury , which is specifically listed under
S ection 4(a). Bennett’s attorney , on the other hand, argued that she was eligible for a restricted license because her ten

- year HTV suspension had nothing to do with her 1992 conviction for leaving the scene of an accident resulting in injury. The trial court found the issue “interesting” and took the matter under advisement

. Id. at 9. The court later issued Bennett a restricted license in an order which provides in part : Indiana Code 9

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- 10

- 9(e)(2) precludes the granting of probationary driving privileges where the petitioner has a conviction described in section 9

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- 10

- 4(a). Sectio n 4(a)(c) does not simply incorporate by reference Indiana’s leaving the scene statute, but rather specifically states “Failure of the driver of a motor vehicle involved in an accident resulting in death or injury to any person to stop at the scene of the accident and give the required information and assistance ”. (emphasis added) Here, Petitioner’s driving history shows a conviction entered October 26, 1992 for “A ccident leaving the scene

- injury/death/entrapment”. The Court recognizes that this conviction was entered for leaving the scene

1 It is unclear what “the Lieutenant Reed” means or even refers to.4

of an accident resulting in injury. However, Petitioner testified

. . . that the victim drove the petitioner in petitioner’s car, following the crash, to the residence of petitioner’s father who then transported the peti tioner and presumably the v ictim to a medical care provider for treatment. Further, section 4(a)(3) requires the giving of “required information”. The victim of petitioner’s leaving the scene conviction was a friend of this petitioner, accompanied the pe titioner away from the scene of the accident, and petitioner ultimately paid for the victim[’]s medical treatment. The underlying facts of petitioner’s leaving the scene are significantly different from what this Court feels was the legislative intent in prohibiting probationary driving privileges where a motor vehicle accident results in injury and the driver departs without any regard for the well being of the victim. Although Petitioner was previously convicted of leaving the scene of an accident resul ting in injury, the Court cannot find that petitioner failed to give the required information and assistance to the victim. Therefore, the Petitioner’s prior leaving the scene of accident conviction does not bar the granting of probationary driving privil eges. Appellant’s App. p. 10. The State now appeals. See Ind. Code § 9

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- 10

- 10 (authorizing the State to appeal the trial court’s judgment). Discussion and Decision The State argues that the trial court erred in issuing Bennett a restricted d river’s
license. The trial court’ s authority to grant a restricted license to one certified as a HTV is very limited ; such authority must be found in the statute itself

. See Bowen v. Mullin , 182 Ind. App. 325, 326, 395 N.E.2d 314, 315 (1979)

. Indiana Code section 9

- 30

- 10

- 9 allows a trial court to issue a restricted driver’s license (also known as a hardship license) to certain HTVs

. The parties agree that

s ubsection (e) of the restricted

- license statute applies here : (e) If a court finds that a per son: (1) is a habitual violator under section 4(b) or 4(c) of this chapter;5 (2) does not have any judgments [ 2 ] for violations under section 4(a) of this chapter ; (3) does not have any judgments or convictions for violations under section 4(b) of this chap ter, except for judgments or convictions under section 4(b)(5) of this chapter that resulted from driving on a suspended license that was suspended for: (A) the commission of infractions only; or (B) previously driving on a suspended license; (4) has not b een previously placed on probation under this section by a court; and (5) has had the person’ s driving privileges suspended under this chapter for at least three (3) consecutive years and has not violated the terms of the person’ s suspension by operating a vehicle for at least three (3) consecutive years; the court may place the person on probation under subsection (d). Ind. Code § 9

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- 10

- 9(e) ( e mphasis added). Section 4(a), in turn, lists “Failure of the driver of a motor vehicle involved in an acciden t resulting in death or injury to any person to stop at the scene of the accident and give the required information and assistance.” Indiana Code section 9

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- 1

- 1 requires drivers who are involved in accidents resulting in injury to a person to stop immed iately , return to the scene, and provide certain information, such as name, address, registration number, and (if requested) driver’s license. Violating this section is at least a Class A misdemeanor and

can be a Class B, C, or D felony depending on the c ircumstances

. Ind. Code § 9

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- 1

- 8(a). Bennett was a HTV under Section 9

- 30

- 10

- 4(b) because she accumulated three OWI convictions in ten years. See Appellee’s Br. p. 5

- 6. As a result, she received a ten

year license suspension. See Ind. Code § 9

- 3 0

- 10

- 5(b)(3). A ccording to the plain

2 As used in Indiana Code chapter 9

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- 10, “Judgment” means “(1) a judgment of conviction against the defendant in a felony or misdemeanor case; or (2) a civil judgment against the defendant in an infraction or ordinance proceeding.” Ind. Code § 9

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- 1.6

language of the restricted

- license statute , Section 9

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- 9, Bennett is ineligible for a restricted license because she has a “ judgment [] for [a] violation[] under section 4(a) .” That is, Bennett has a 1992 convicti on for “accident leaving the scene

injury/death/entrapment.” Appellant’s App. p. 8. Contrary to Bennett’s argument, he r disqualifying conviction under section 4(a) does not have to be the basis for her ten

- year HTV license suspension. In fact, sections 4(a) a nd 4(b) list different offenses. Therefore,

a disqualifying conviction under section 4(a) can be different than the convictions which led to the HTV determination in the first place

. Moreover, Bennett admitted that she was convicted of leavin g the scene of an accident resulting in injury , despite her contrary affirmation i n her petition that she had no disqualifying conviction. This conviction falls squarely within the list of offenses that disqualify Bennett from receiving a restricted drive r’s license. Although Bennett argues and the trial court found that the facts of Bennett’ s 1992 conviction were not sufficient to disqualify her f

r o m receiving a restricted driver’s license , the restricted

- license statute does not provide a mechanism to e valuate the prior convictions or give the court the discretion to set aside otherwise disqualifying prior convictions. This is essentially what the trial court did here. The trial court’s authority to grant a restricted license is limited
and arises from the statute. Beca use Bennett has a conviction under section 4(a), she is disqualified from receiving a restricted license under Section 9

- 30

- 10

- 9(e). Reversed and remanded. ROBB, C.J., and NAJAM, J., concur.