Indiana Bureau of Motor Vehicles and the Marion County Prosecutor's Office, Appellants-Respondents,
Dezie McClung, Appellee-Petitioner.
from the Marion Circuit Court Trial Court Cause No.
49C01-1803-MI-10290 The Honorable Mark A. Jones, Judge, The
Honorable Sheryl L. Lynch, Judge
Attorneys for Appellants Curtis T. Hill, Jr. Attorney General
of Indiana Aaron T. Craft Section Chief, Civil Appeals Josiah
J. Swinney David E. Corey Deputy Attorneys General
Attorney for Appellee John L. Tompkins Indianapolis, Indiana
In November 2018, the Marion Circuit Court granted a petition
for specialized driving privileges to Dezie McClung
("McClung"), a Marion County resident whose driving
privileges had been suspended. Shortly thereafter, the
Indiana Attorney General, on behalf of the Indiana Bureau of
Motor Vehicles ("BMV"), filed a motion to correct
error arguing that the trial court's order was contrary
to Indiana Code section 9-30-16, which imposes a durational
limit on specialized driving privileges when such privileges
are granted. The trial court denied the BMV's motion to
correct error. This appeal by the BMV presents one issue for
our review: whether the trial court acted contrary to law
when it denied the BMV's motion to correct error and
permitted specialized driving privileges to be granted for
indefinite periods. Because we find that the trial
court's order was contrary to applicable law, we reverse
and Procedural History
McClung was subject to three active driver's license
suspensions at the time he petitioned for specialized driving
privileges. The BMV imposed one suspension, in 2012, due to
McClung being a habitual traffic violator ("HTV").
This ten-year, administrative suspension took effect on
December 21, 2012, and expires in 2022. The two other
suspensions are indefinite or "lifetime"
suspensions that resulted from McClung's 2011 and 2012
Level 6 felony convictions for driving while suspended as an
See Ind. Code § 9-30-10-16 (2015). For the
purpose of determining the availability of specialized
driving privileges under Indiana Code section 9-30-16-1,
et seq., all three of McClung's suspensions are
considered administrative suspensions, as opposed to being
In March 2018, McClung filed a petition for specialized
driving privileges in the Marion Circuit Court. McClung
sought relief from the suspensions under Indiana Code section
9-30-16-4 ("Section 4"), which governs
administrative suspensions of driving privileges.
Appellant's App. pp. 24-25. After a hearing, the trial
court stayed McClung's suspensions and granted
specialized driving privileges as requested on November 5,
2018. Appellant's App. pp. 8-12. The trial court's
order stated, in relevant part:
8. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that, any
outstanding fines and/or reinstatement fees are waived, the
Petition for Specialized Driving Privileges is GRANTED, the
above-referenced suspension(s) is/are stayed, and Petitioner
is granted SPECIALIZED DRIVING PRIVILEGES commencing on the
date of this Order do not expire until further court order.
The conditions and limitations of those Specialized Driving
Privileges are as follows:
* * *
DURATION OF THIS ORDER FOR SPECIALIZED DRIVING
The Specialized Driving Privileges granted by this Order
shall remain in effect until 11:59:59 P.M.
on the day of, 20, <OR> further Court order. A
Review Hearing is set in this Court on January 13,
2020, at 11:00 A.M., at which Petitioner is ordered to
appear and present proof that the required insurance is still
in effect and has not lapsed, and proof of attendance at
A.A./N.A./counseling meetings, if that has been required by
Id. (Emphases in original.)
On November 26, 2018, the BMV, by the Attorney General,
submitted a motion to correct error pursuant to Indiana Trial
Rule 59. Appellant's App. pp. 43-46. The
BMV's motion asserted, in relevant part:
4. Under Indiana Code section 9-30-16-3(c), this Court is
authorized to stay a petitioner's court-ordered
suspensions and grant specialized driving privileges for
"at least one hundred eighty (180) days" and
"not more than two and one-half (2.5) years." These
limitations also apply to administrative suspensions because
Indiana Code section 9-30-16-4, which governs administrative
suspensions, authorizes a petitioner to petition for
specialized driving privileges "as described in section
3(b) through 3(d) of this chapter."
5. In its Order, this Court granted Petitioner specialized
driving privileges that were to remain in effect until
further court order. This indefinite time period exceeds the
two and one-half year maximum allowed under Indiana law. I.C.
6. Therefore, this Court's Order is contrary to law and
should be vacated or amended so that Petitioner's
specialized driving privileges comply with Indiana Code
Appellant's App. pp. 43-44.
Shortly after the Attorney General's addition to the
case, McClung filed a motion to strike appearance and filing,
arguing in the alternative that the trial court's order
granting specialized driving privileges was not in error.
Appellant's App. pp. 49-50. The trial court ordered
McClung to file a brief in response to the BMV's motion
to correct error and stayed McClung's earlier motion to
strike. Appellant's App. pp. 51-52, 53.
Meanwhile, the BMV filed a response in opposition to the
motion to strike and filed a reply in support of its motion
to correct error. Appellant's App. pp. 59-62, 63-82.
Ultimately, on March 1, 2019, the trial court denied
McClung's motion to strike the Attorney General's
appearance and denied the BMV's motion to correct error.
Appellant's App. pp. 13-22. The BMV now appeals the trial
court's denial of its motion to correct error.
Motion to Correct Error
We address initially whether the BMV waived for review the
indefinite time period for which the trial court granted
specialized driving privileges to McClung. When McClung's
petition was before the trial court, a Marion County Deputy
Prosecutor appeared on the BMV's behalf, in accordance
with Indiana Code section 9-30-16-4(b). In its order denying
the BMV's motion to correct error, the trial court noted
that the "BMV, by its counsel, did not raise any
objection to the granting of the petition, leaving it to the
discretion of the Court." Appellant's App. pp. 14-15.
In the trial court's view, the absence of an objection
from the prosecutor in response to its grant of specialized
driving privileges for an indefinite duration meant that the
issue was waived for review. The trial court stated:
It is well settled that if a party does not object at trial,
any objection that was available to the party is waived. Such
is the case here. BMV cannot stand idly by while its counsel
takes one position at a trial or hearing or by written
agreement, and then try to slide in later and take a contrary
position. BMV has waived the objection that it asserts by way
of its [motion to correct error.]
Appellant's App. p. 15.
On this basis, the trial court denied BMV's motion to
correct error, though the trial court went on to address the
motion, waiver notwithstanding, based on the repetitive
nature of the BMV's claim. Id.
We cannot agree with this line of reasoning. The rule that
the trial court cites applies to the effect of objections
made, or not made, during trial. After a trial court has
entered an order with which a party disagrees-as the BMV does
here, to the trial court's order granting specialized
driving privileges that exceed two and one-half years-the
appropriate course of action was for the BMV to file a motion
to correct error, which it did. After a trial court enters an
order is not the time for an objection, and the absence of an
objection here does not mean the BMV waived the issue for
We typically review a trial court's ruling on a motion to
correct error for an abuse of discretion. Becker v.
State, 992 N.E.2d 697, 700 (Ind. 2013). But when the
resolution of a motion to correct error rests on an issue of
statutory interpretation, as it does here, we review the
trial court's ruling de novo. Id. In
interpreting a statute, we first determine whether the
legislature has spoken clearly and unambiguously on the point
in question. Rheem Mfg. Co. v. Phelps Heating & Air
Conditioning, Inc., 746 N.E.2d 941, 947 (Ind. 2001).
When a statute is clear and unambiguous, we need not apply
any rules of construction other than to require that words
and phrases be taken in their plain, ordinary and usual
sense. Poehlman v. Feferman, 717 N.E.2d 578, 581
(Ind. 1999). It is only when a statute is susceptible to more
than one interpretation that we deem it ambiguous and open to
judicial construction. Amoco Production Co. v.
Laird, 622 N.E.2d 912, 915 (Ind. 1993).
In the face of an ambiguous statute, we resort to the
well-established rules of statutory construction, the most
important of which is to determine, give effect to, and
implement the intent of the legislature. Crowel v.
Marshall County Drainage Bd.,971 N.E.2d 638, 645 (Ind.
2012). To do so, we read the sections of a statute together
so that no part is rendered meaningless if it can be
harmonized with the rest of the statute; in other words, we
read the statute as a whole. Indiana Dep't. of Public
Welfare v. Payne,622 N.E.2d 461, 466 (Ind. 1993). We do
not presume that the legislature intended for language used
in a statute ...