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01/25/88 STEPHEN GOLDSMITH v. MICHAEL A. PELLEY

Filed: January 25, 1988.

STEPHEN GOLDSMITH, 19TH JUDICIAL CIRCUIT, MICHAEL M. PACKARD, AS COMMISSIONER OF THE INDIANA BUREAU OF MOTOR VEHICLES AND JOSEPH MCATEE, AS SHERIFF OF MARION COUNTY, INDIANA, RESPONDENTS-APPELLANTS,
v.
MICHAEL A. PELLEY, PLAINTIFF-APPELLEE



APPEAL FROM THE MARION MUNICIPAL COURT, CIVIL DIVISION ROOM NO. 1, The Honorable Joseph N. Myers, Judge, Cause No. M186-1216.

Ratliff, C.j., Robertson, J. and Sullivan, J., concur.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

Stephen Goldsmith, prosecuting attorney of the 19th Judicial Circuit; Michael M. Packard as Commissioner of the Indiana Bureau of Motor Vehicles; and Joseph McAtee as Sheriff of Marion County, (Appellants) appeal the trial court's granting of a probationary driver's license to Michael A. Pelley. We reverse.

FACTS

On July 7, 1986, Pelley was determined to be an habitual traffic offender by the Bureau of Motor Vehicles, and his driving privileges were suspended from July 7, 1986, to July 7, 1996, pursuant to Indiana Code section 9-12-1-4(c).[Footnote 1] On July 9, 1986, Pelley petitioned for judicial review, and after a hearing on the petition, the trial court, on March 6, 1987, found Pelley to be an habitual traffic offender under Ind. Code § 9-12-1-4(c), and ordered his driving privileges reinstated on a probationary basis. Appellants contend Pelley was ineligible for a probationary license until after he had served five (5) years of the suspension of driving privileges.

ISSUE

The sole issue presented for our determination is whether a person whose driving privileges have been suspended for ten (10) years upon being adJudged to be an habitual traffic offender may be placed on probation granted restricted driving privileges prior to his having served at least five (5) consecutive years of driving privilege suspension. We hold he may not.

Discussion AND DECISION

The applicable statutory provisions are found in Indiana Code section 9-12-2-5(b) and read as follows:

"(b) If a court finds that a person:

(1) is an habitual violator under IC 9-12-1-4(c);

(2) has not been previously placed on probation under this ...


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