A mistaken statutory provision has led to a reversal of a decision by a trial court judge from Wells County.
The Indiana Court of Appeals ruled Monday in State of Indiana v. Skylor Gearlds, No. 90A02-1105-CR-433.
In September 2010, the state charged Skylor Gearlds with Class A misdemeanor operating a motor vehicle while suspended based on a previous violation within the past 10 years. Gearlds had previously been convicted in April 2009 of OWI while suspended as an infraction. Specifically, the statute at issue is Indiana Code 9-24-19-2 that was added in 2000 after a preceding statute was repealed.
Wells Superior Judge Everett Goshorn dismissed the misdemeanor because the statute contains a mistaken cross-reference to statutes that no longer exist. Basically, it allows for a driving while suspended infraction to be enhanced when the driver either has a previous OWI conviction or when that previous conviction is within 10 years of the commission of any previous criminal offense.
The judge issued an order that said the statute erroneously refers to “subdivision (1)” rather than the unnumbered first paragraph of the statute and doesn’t define a criminal offense. The statute must be strictly construed, regardless of the intention of the Legislature, and the judge found no viable criminal charge for driving while suspended as a Class A misdemeanor exists under that statute.
The Court of Appeals reversed, finding that to be an error because the statute remains enforceable as written.
“We conclude that although there is a mistake in the statute, it is clear that the legislature did not intend to elevate all driving while suspended offenses with prior convictions but rather only intended to elevate those offenses where the offender had a prior conviction within 10 years of the new offense,” Judge Nancy Vaidik wrote. “Put differently, the statute was intended to proscribe less conduct than the literal words of the statute do.”
Although the provision is a mistake, the intent remains to create an enhanced penalty for those who have a prior unrelated judgment for driving without a license within the past 10 years.
“This was merely an oversight that carried over from the old statute,” she wrote. “We presume that the legislature intended for the language to be applied logically and consistent with the underlying goals and policies of the statute. Moreover, we will not presume that the legislature intended to do a useless thing.”
The appellate court wrote that the Indiana General Assembly should amend IC 9-24-19-2 to remove the erroneous language to avoid any future litigation on this issue.