C.P.G., Appellant (Defendant Below), v. STATE OF INDIANA (1996)

MEMORANDUM DECISION

Appellant-defendant C.G. appeals his conviction for Possession of Marijuana, a class A misdemeanor. He challenges the constitutionality of Ind. Code § 35-48-4-15 which requires the trial court to suspend the driver's license of any defendant found guilty of various offenses including possession of marijuana. We affirm.

On September 24, 1993 two Bluffton, Indiana police officers were walking foot patrol in the downtown area of the city. The officers observed C.G. and an acquaintance standing in an alley passing an item between them that appeared to be a cigarette. As the officers approached the pair, C.G. pinched out the item and placed it in a cellophane wrapper. Detecting an odor commonly associated with the smell of recently smoked marijuana, one of the officers asked C.G. for the cellophane wrapper. C.G. complied and the officer's examination of the wrapper revealed three items later identified as marijuana cigarettes. C.G. was arrested for and pled guilty to possession of marijuana as a class A misdemeanor. The trial court sentenced C.G. to a one year sentence, suspending all but ten (10) days. Pursuant to the terms of Ind. Code § 35-48-4-15 the trial court also suspended C.G.'s driver's license and registration for one hundred and eighty (180) days. C.G. now appeals contending the foregoing statute is violative of his right to substantive due process and procedural due process under the Fourteenth Amendment to the United States Constitution.¹

In support of his contention C.G. cites Maher v. State, 612 N.E.2d 1063 (Ind. Ct. App. 1993). There, defendant Maher pleaded guilty to Possession of Cocaine and was sentenced accordingly. As here, the court also suspended the defendant's drivers license pursuant to the provisions of I.C. § 35-48-4-15. On appeal Maher challenged the constitutionality of the statute on substantive due process grounds, among others. A majority panel of this court rejected the State's contention that the statute was rationally related to legitimate state interests, namely: highway safety and restriction of mobility for the distribution and use of drugs. The panel held:

[t]he purposes forwarded by the State are not rationally related unless the defendant has used and is likely to continue to use driving as an integral aspect of his criminal conduct. Without clear and convincing evidence that driving is directly involved in the criminal conduct, the suspensions required by I.C. § 35-48-4-15 are not a reasonable method to ensure the purpose forwarded by the State in support of the statute.

Id. at 1066. Defendant Maher's conviction was nonetheless affirmed because the record showed that driving was directly involved in his criminal conduct. Here C.G. seizes on the quoted language in Maher and argues that I.C. § 35-48-4-15 is unconstitutional as applied to him because no nexus exist between a motor vehicle and his possession of marijuana. C.G. points out that unlike Maher he was not driving an automobile when he was arrested nor was a motor vehicle in any way involved in his criminal conduct. Hence, C.G. implores us to follow the reasoning in Maher and declare the statute unconstitutional as applied to him.

In a recent decision our Supreme Court addressed the precise issue raised by C.G. here and based on substantially similar facts. See Mitchell v. State, No. 20S03-9503-CR-341 (Dec. 15, 1995). Disapproving of Maher, the court concluded that I.C. § 35-48-4-15 did not violate defendant Mitchell's right of due process and was not incompatible with substantive due process. We are bound by our Supreme Court's decision and thus reach the same conclusion.

Judgment affirmed.

FOOTNOTES

1.   C.G. also contends that I.C. § 35-48-4-15 contravenes the disproportionate penalty provision in Article I, Section 16 of the Indiana Constitution. This claim is waived for two reasons: (1) C.G. does not support his argument with citation to authority, and (2) C.G. raises this claim for the first time on appeal.

RUCKER, Judge.

SHARPNACK, C.J. and GARRARD, J. CONCUR.