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02/01/88 STATE INDIANA v. DOUGLAS A. DYSON

Filed: February 1, 1988.

STATE OF INDIANA, APPELLANT,
v.
DOUGLAS A. DYSON, APPELLEE



APPEAL FROM THE WABASH COUNTY COURT, The Honorable Jeffrey Heffelfinger, Special Judge, Cause No. WCC86-131

Sullivan, J.; Hoffman, J. Concurs, Buchanan, J. Dissents With Separate Opinion

Author: Sullivan

SULLIVAN, J.

The State appeals the trial court's dismissal of a charge for driving while suspended,[Footnote 1] a class A misdemeanor, against defendant-appellee Douglas A. Dyson (Dyson), claiming the trial court erred as a matter of law.

We affirm.

The undisputed facts reveal that Dyson's driver's license was suspended on January 15, 1985, for failure to complete a defensive driving school as previously ordered by the trial court. The suspension of Dyson's driving privileges was for a period of one year or until he completed the defensive driving course.

On March 2, 1986, Dyson was arrested and charged with driving while suspended. Although one year had passed since Dyson's suspension had been ordered, he had not paid a ten dollar ($10) reinstatement fee required by I.C. 9-2-1-11(d) (Burns Code Ed. Supp. 1987). Dyson moved to dismiss the charge claiming that he was no longer under suspension when the one-year period ended. The trial court agreed and dismissed the information charging Dyson with the offense of driving while suspended.

At the time Dyson's license was suspended the only term of that suspension was that he complete the defense driving course. The term was amended to be for a maximum of one year, whether or not he completed the instruction course. The suspension did not include a provision that the end of the suspension depended upon payment of a reinstatement fee. When the term of the suspension expired the suspension was no longer in effect. See State v. Martin (1985) 4th Dist. Ind.App., 484 N.E.2d 1309. When arrested, he might well have been subject to some sanction for failing to pay the reinstatement fee required by I.C. 9-2-1-11(d). He might well have been subject to prosecution for driving with an invalid license. He was not, however, driving while his license was under suspension. We adopt the following Conclusion stated in Jones v. State (1985) 3d Dist. Ind.App., 482 N.E.2d 746, 747 n. 7:

"It may be that after the expiration of the suspension period, and in the absence of any of the exceptions enumerated in the statute, Jones merely failed to pay the reinstatement fee required by IC 9-2-1-11. However, in such event he would merely have been guilty of driving without a valid license, IC 9-1-4-26, a Class C infraction. IC 9-1-4-53."

On the other hand, Dyson might well have been able to establish some reasonable explanation why the reinstatement fee had not been paid, or had not been received by the Bureau of Motor Vehicles, or that the records of the Bureau were in error.

In any event, the Conclusion reached by the Third District in Jones v. State, supra, was a unanimous Conclusion of the panel which included Judge Staton, the author of Baldock v. State (1978) 3d Dist., 177 Ind. App. 355, 379 N.E.2d 539. In Baldock, the majority opinion, joined by Judge Buchanan, correctly observed that the period of defendant's suspension had expired and that although Baldock "was no longer technically within the suspension period, neither was he legally licensed." 379 N.E.2d at 541. This statement seems somewhat inconsistent with affirmance of a conviction for driving while suspended rather than driving without a valid license.

Be that as it may, Judge Garrard's position in Baldock, as stated in his separate opinion was adopted by Judges Staton and Hoffman in Jones.

HOFFMAN, J. CONCURS

BUCHANAN, J. DISSENTS WITH ...


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