The presumption found in Indiana Code Section 9-30-10-16, which governs driving while privileges are suspended, isn't unconstitutional because it doesn't shift the burden of proof from the state, the Indiana Court of Appeals ruled today.

Even though Jacob Donaldson waived his appeal of the constitutionality of the statute in Jacob A. Donaldson v. State of Indiana, No. 71A03-0811-CR-564, the appellate court still addressed the issue in Donaldson's appeal of his conviction of operating a motor vehicle while privileges are suspended as a Class A misdemeanor.

Over the course of nearly six months, Donaldson received driving suspension notices for various reasons with various suspension dates. He also received a notice of reinstatement during that time, but the notice didn't specify any of Donaldson's suspensions. He was pulled over for speeding and charged with operating a motor vehicle while suspended as a habitual offender, a Class D felony.

During a bench trial, a habitual traffic violator packet was admitted over Donaldson's objection. The trial court also rejected his argument he was confused by all the notices and concluded a reasonable person could have contacted the Bureau of Motor Vehicles to figure out the status of his driving privileges. At his sentencing hearing, his conviction was reduced to the Class A misdemeanor.

On appeal, Donaldson argued I.C. Section 9-30-10-16(b) is unconstitutional because it mandates a presumption of knowledge of suspension if the state can show the BMV mailed notice of the suspension to the defendant's last known address. Despite the waiver, the appellate court addressed his argument and found the statute isn't unconstitutional. The Court of Appeals cited Thompson v. State, 646 N.E.2d 687 (Ind. Ct. App. 1995), and Chilcutt v. State, 544 N.E.2d 856 (Ind. Ct. App. 1989), to support its finding that the presumption in the statute at issue is permissive and not mandatory.

"In light of our decisions in Chilcutt and Thompson, the statute must be read to declare that, upon proof of one fact, service of the suspension by first class mail at the defendant's last shown address, the defendant's knowledge of the suspension may be presumed or inferred, but this presumption can be rebutted," wrote Judge Patricia Riley.

The Court of Appeals also affirmed the admittance of the HTV packet because it wasn't purported to be a complete copy of Donaldson's driving record but was just a copy of the record requested by the state. The state only requested the HTV packet and that was admitted, wrote Judge Riley.

There is also sufficient evidence to support Donaldson's convictions because the state proved beyond a reasonable doubt he knew his driving privileges were suspended.