Jessica Reed v. The Commissioner of the Indiana Bureau of…

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Oct 28 2020, 8:29 am

court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
the defense of res judicata, collateral                                             Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Gary M. Selig                                            Curtis T. Hill, Jr.
Gerald A. Coraz                                          Attorney General
Law Office of Gary M. Selig, P.C.                        Natalie F. Weiss
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jessica Reed,                                            October 28, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A-MI-684
        v.                                               Appeal from the Marion Circuit
                                                         Court
The Commissioner of the                                  The Honorable Sheryl Lynch,
Indiana Bureau of Motor                                  Judge
Vehicles and The Marion                                  The Honorable Amber Collins-
County Prosecutor,                                       Gebrehiwet, Magistrate
Appellees-Respondents                                    Trial Court Cause No.
                                                         49C01-1803-MI-12315



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020         Page 1 of 11
                                             Case Summary
[1]   Jessica Reed appeals the trial court’s order denying her motion to correct error

      (Appealed Order) after the trial court revoked her specialized driving privileges

      (SDP). Reed contends that the trial court abused its discretion by denying her

      motion and that she was deprived of due process. Finding no abuse of

      discretion and that Reed waived her due process claim, we affirm.


                                 Facts and Procedural History
[2]   Reed’s driver’s license was suspended in 2017. In 2018, Reed filed a petition

      for SDP pursuant to Indiana Code Section 9-30-16-4, with service of process

      upon the Indiana Bureau of Motor Vehicles (BMV) and the Marion County

      Prosecutor (collectively Appellees). In May 2018, the trial court issued an order

      granting her SDP (SDP Order) with the following requirements: (1) not to

      operate a motor vehicle with an alcohol concentration equivalent (ACE) of .02

      grams or more of alcohol per 210 liters of her breath; (2) not to consume

      alcohol; (3) not to commit any moving traffic violations; (4) to give notice to the

      court of “any convictions and/or guilty findings for criminal offenses, probation

      violations, and/or traffic offenses within forty-eight (48) hours;” and (5) only to

      operate a motor vehicle with an ignition interlock device installed. Appellant’s

      App. Vol. 2 at 21-22. A compliance hearing was held in July 2019, at which

      Reed asked the trial court to remove the requirement that she only operate her

      vehicle with an ignition interlock device installed. Reed testified that she had

      been sober for over three years and was participating in alcohol counseling or



      Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 2 of 11
      AA at least twice a week. The trial court granted her request, and the other

      SDP requirements remained unchanged. Id. at 31-36.


[3]   In November 2019, the trial court received an anonymous letter alleging that

      Reed had been convicted of drunk driving four times since 2012 and had been

      arrested again in August 2019 for level 6 felony drunk driving. The writer

      opined that Reed should not be driving because she was going to “kill

      someone.” Id. at 14. In response, the trial court set a compliance hearing for

      Reed’s SDP.


[4]   At the compliance hearing, Reed appeared with counsel, and a Marion County

      prosecutor appeared on behalf of BMV. The trial court swore in Reed and

      asked her whether she had been arrested for operating a vehicle while

      intoxicated (OVWI). Reed admitted that she had. The trial court informed her

      that it was going to revoke the SDP Order and took judicial notice of her

      driving record. The trial court observed that when Reed was arrested in

      August, her breath test revealed an ACE of .074 grams of alcohol per 210 liters

      of breath in violation of the requirement that she not operate a vehicle with an

      ACE of .02 grams or more. Id. at 41-42. The trial court informed Reed that her

      SDP were going to be revoked because she had been arrested for OVWI, and

      the court also noted that Reed was required to “report any arrests or

      conviction” and did not notify the court of her arrest. Id. at 42. Following the

      hearing, the trial court issued an order revoking Reed’s SDP (Revocation

      Order), finding that Reed had been arrested for OVWI, which was a violation



      Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 3 of 11
      of the conditions of her SDP, and therefore her SDP should be revoked. Id. at

      16.


[5]   In December 2019, Reed filed a motion to correct error, asserting that the

      Revocation Order was arbitrary and not in accordance with due process of law

      because she did not violate the SDP Order’s requirement to “give notice to the

      Court of any convictions and/or guilty findings for criminal offenses,

      probation violations, and/or traffic offenses within forty-eight (48) hours.” Id.

      at 11 (brackets removed). The trial court issued an order setting a hearing on

      Reed’s motion to correct error and ordering Reed to bring a copy of the

      probable cause affidavit for her OVWI arrest to the hearing. Id. at 15.


[6]   In January 2020, the hearing on Reed’s motion to correct error was held. Reed

      appeared by counsel, and a Marion County prosecutor appeared on behalf of

      the BMV. Reed’s counsel proffered a copy of the probable cause affidavit for

      Reed’s arrest as Petitioner’s Exhibits A and B, which the trial court admitted

      without objection. Reed’s counsel argued that Reed did not violate the

      requirement that she notify the trial court of any criminal convictions or traffic

      offenses because she had not yet been convicted of OVWI. Id. at 50. The

      prosecutor agreed with Reed’s interpretation that she was not required to report

      arrests. Id. at 50-51. Reed’s counsel asked the trial court to stay its order until

      the final disposition regarding Reed’s arrest and suggested that it was possible

      that Reed’s certified chemical test was improperly administered. The trial court

      stated that Reed had submitted to a certified chemical breath test, which

      indicated that her ACE was .074 grams of alcohol per 210 liters of breath in

      Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 4 of 11
      violation of the SDP Order, which required her not to operate a vehicle with an

      ACE of .02 grams or more. Id. at 52. The trial court also noted that Reed had

      taken a portable breath test, which showed an even higher blood alcohol

      concentration. Id. The trial court declined to “overlook [Reed’s] violations on

      speculation that both breath test machines were not working.” Id. The trial

      court informed Reed’s counsel that if Reed obtained evidence that both breath

      tests were working improperly, the court would reconsider the revocation of

      Reed’s SDP.


[7]   In February 2020, the trial court issued the Appealed Order, finding that Reed

      violated the conditions of the SDP Order because she (1) operated a vehicle

      after consuming alcohol; (2) operated a vehicle with an ACE of more than .02

      grams of alcohol per 210 liters of breath; and (3) failed to report her OVWI

      arrest, and the arrest constituted a traffic infraction that she was required to

      report. Id. at 8-9. This appeal ensued.


                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion by
                   denying Reed’s motion to correct error.
[8]   Generally, we review rulings on motions to correct error for an abuse of

      discretion. Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013). A trial court abuses

      its discretion when its decision is contrary to the logic and effect of the facts and

      circumstances before it or if it misinterprets the law. Ind. Bureau of Motor

      Vehicles v. Watson, 70 N.E.3d 380, 384 (Ind. Ct. App. 2017). Where questions


      Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 5 of 11
      of law are at issue, our review is de novo. Poiry v. City of New Haven, 113

      N.E.3d 1236, 1239 (Ind. Ct. App. 2018).


[9]   Reed argues that the trial court abused its discretion in denying her motion to

      correct error because the Revocation Order was based on the trial court’s

      erroneous belief that her failure to notify the trial court about her arrest was a

      violation of the SDP Order’s notice requirement. Specifically, she asserts that

      the notice requirement applies to “convictions and/or guilty findings[,]” not

      arrests. Appellant’s App. Vol. 2 at 22. Appellees do not take issue with Reed’s

      interpretation of the SDP Order’s notice requirement. Rather, they maintain

      that the trial court did not abuse its discretion simply by correcting its analysis

      and changing the basis for revoking the SDP Order. We agree. Indeed,

      reviewing courts have affirmed a trial court’s decision on a basis different from

      that of the trial court where the ultimate conclusion of the trial court was

      proper. See Kimberlin v. DeLong, 637 N.E.2d 121, 125 (Ind. 1994) (“[A] trial

      court’s judgment may be affirmed if sustainable on grounds different from those

      reflected in the trial court’s findings.”); Hurst v. Bd. of Comm’rs of Pulaski Cty.,

      476 N.E.2d 832, 834 (Ind. 1985) (“Although some of the reasons given by the

      trial court for its decision do not coincide with the statement made in this

      [opinion], we nevertheless find that the trial court reached the correct result in

      making its decision.”); Rimert v. Mortell, 680 N.E.2d 867, 871 (Ind. Ct. App.

      1997) (concluding that trial court reached the correct conclusion, but for

      reasons different from those advanced by the trial court), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 6 of 11
[10]   Here, the trial court’s findings in the Appealed Order that Reed violated the

       conditions of the SDP Order are supported by the probable cause affidavit for

       her OVWI arrest. The probable cause affidavit shows that Reed was arrested,

       submitted to a chemical test operated by a certified chemical test operator with

       a certified instrument, and had an ACE of 0.74 grams of alcohol per 210 liters

       of breath. Appellant’s App. Vol. 2 at 54. As such, the probable cause affidavit

       supports the trial court’s findings that Reed operated a vehicle after consuming

       alcohol and operated a vehicle with an ACE of .02 grams or more of alcohol

       per 210 units of breath. Reed contends that the allegations in the probable

       cause affidavit were inadmissible hearsay. 1 However, Reed not only failed to

       object to the admission of the evidence, she proffered the probable cause

       affidavit as Petitioner’s Exhibits A and B, and therefore this issue is waived. See

       Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003) (“Failure to object at trial to the

       admission of evidence results in waiver of that issue on appeal.”).


[11]   We also note that the trial court had already taken judicial notice of Reed’s

       driving record at the compliance hearing and found that Reed’s ACE from the

       chemical test she took when she was arrested was .074 grams, a clear violation

       of the SDP Order. Even if the trial court erred in finding that Reed was

       required to report her arrest, we would have no trouble concluding that the

       remaining two violations support the revocation of her SDP. Accordingly, the



       1
        Reed also contends that the trial court impermissibly considered the probable cause affidavit because she
       was not given notice that the court intended to consider facts beyond what it found at the revocation hearing.
       We consider this claim in conjunction with Reed’s due process argument.

       Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020                    Page 7 of 11
       trial court did not abuse its discretion by denying Reed’s motion to correct

       error.


                Section 2 – Reed waived her due process argument.
[12]   Reed also contends that she was deprived of due process at both the compliance

       hearing and the hearing on her motion to correct error. Specifically, she argues

       that she was not given notice that the probable cause affidavit would be used as

       evidence, she did not have an opportunity to confront the witnesses against her,

       and the trial court overstepped its authority by assuming an adversarial role in

       the proceedings.


[13]   The Due Process Clause of the Fourteenth Amendment to the United States

       Constitution prohibits “state action which deprives a person of life, liberty, or

       property without the ‘process’ … that is due, that is, a fair proceeding.” Ind.

       High Sch. Athletic Ass’n v. Carlberg by Carlberg, 694 N.E.2d 222, 241 (Ind. 1997). 2

       To invoke the protections of the Due Process Clause, a party must first establish

       that he or she has a protectable interest. Id. If the party has a protectable

       interest, then we determine what process is due by using “a balancing test

       which takes into consideration an individual’s private interest, the State’s

       interest, and the risk of erroneous deprivation if the current procedure is




       2
         Our analysis under the “Due Course of Law Clause” in Article 1, Section 12 of the Indiana Constitution is
       the same as that under the Due Process Clause. Carlberg, 694 N.E.2d at 241. We observe that Reed cited the
       wrong provision of the Indiana Constitution.



       Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020                 Page 8 of 11
       continued to be used.” Reynolds v. State, 698 N.E.2d 390, 392 (Ind. Ct. App.

       1998), trans. denied.


[14]   Reed makes no argument that her SDP are a protectible interest, nor does she

       acknowledge the balancing test or present any analysis relevant to it. Therefore,

       Reed has waived her due process argument for failure to present a cogent

       argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring that contentions in

       appellant’s brief be supported by cogent reasoning and citations to authorities,

       statutes, and the appendix or parts of the record on appeal); Smith v. State, 822

       N.E.2d 193, 202-03 (Ind. Ct. App 2005) (“Generally, a party waives any issue

       raised on appeal where the party fails to develop a cogent argument or provide

       adequate citation to authority and portions of the record.”), trans. denied.


[15]   Waiver notwithstanding, Reed’s contention is without merit. Turning first to

       her contention that she did not receive notice that the probable cause affidavit

       would be used as evidence, we cannot imagine any other reason the trial court

       would have ordered her to bring it to the hearing. Further, as noted above, she

       proffered the probable cause affidavit and did not object to its admission, which

       arguably supports a reasonable inference that she expected it to be admitted as

       evidence.


[16]   As for the opportunity to cross-examine witnesses, Reed did not ask to cross-

       examine anyone at the hearings, so any error is waived. See Archem, Inc. v.

       Simo, 549 N.E.2d 1054, 1060 (Ind. Ct. App. 1990) (concluding that procedure




       Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 9 of 11
       utilized by trial court deprived defendant of right to cross-examine witness, but

       defendant’s failure to object to procedure waived that right), trans. denied.


[17]   Last, we consider Reed’s argument pertaining to the trial court’s role in the

       proceedings. Reed complains that the trial court improperly initiated the

       compliance hearing, but she does not cite any case law on this claim. As such,

       her claim is waived for failure to present cogent argument. See Smith, 822

       N.E.2d at 202-03. Reed also asserts that the trial court improperly took on a

       prosecutorial role by asking questions. Reed is correct that “a judge may not

       assume an adversarial role in any proceeding.” Isaac v. State, 605 N.E.2d 144,

       148 (Ind. 1992). However, a judge “may intervene in the fact-finding process

       and question witnesses in order to promote clarity or dispel obscurity.” Id. “As

       long as the questioning is conducted in an impartial manner and the defendant

       is not prejudiced, such questioning is within the discretion of the court.” Id.

       Moreover, when a jury is not present, the trial court is afforded broader

       discretion. See Moore v. State, 723 N.E.2d 442, 448 (Ind. Ct. App. 2000) (“[A]

       judge’s discretion in questioning witnesses is broader in bench trials than in

       trials before juries.”). Here, the trial court’s questions were straightforward and

       clearly intended to ascertain facts. We conclude that the trial court did not act

       improperly. See Isaac, 605 N.E.2d at 149 (“A trial judge is not transformed into

       a prosecutor by calling and asking questions of the court’s own probation officer

       to determine whether the court’s probation order has been violated.”).


[18]   Based on the foregoing, we affirm the Appealed Order.



       Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 10 of 11
[19]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-MI-684| October 28, 2020   Page 11 of 11
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