in-20250813-IR-010250382AOA: OFFICE OF THE ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL Official Opinion No. 2025-1 June 11, 2025 OFFICIAL OPINION 2025-1 Jeff Chalfant, Prosecutor, Jackson County Jackson County Prosecutor’s Office 109 S. Sugar Street, Ste. 220 Brownstown, Indiana 47220 RE: Arrest and detention of individuals driving without a license Dear Prosecutor Chalfant: You requested an opinion from the Office of the Indiana Attorney General (OAG) regarding the detention of individuals arrested for driving without a license. QUESTION PRESENTED Can law enforcement officers arrest an individual for driving without a license and process the person at a county jail? BRIEF ANSWER Yes, a law enforcement officer (LEO) may arrest an individual who commits the misdemeanor offense of driving without a license and detain the individual for long enough to process the individual at a county jail. IC 9-24-18-1. Although ordinarily a person who is arrested for a misdemeanor regulating the use and operation of motor vehicles must be released from custody pursuant to IC 9-30-2-5 if the person signs a written promise to appear in court and provides certain documentation and identifying information to the arresting officer, that release provision does not apply to the offense of driving without a license.1  Indiana law requires that the written promise to appear in court include the number of the person’s license to operate a motor vehicle.  See IC 9-30-2-5(c). A person who is arrested for driving without a valid license cannot, by definition, satisfy the requirements of the release provision, and therefore is not entitled to be released.  Further, the Fourth Amendment in no way prohibits law enforcement from detaining an individual arrested for the misdemeanor of driving without a license for long enough to transport the individual to and book him at a county jail.2 ANALYSIS

I. Driving Without a License Is A Criminal Misdemeanor Offense For Which Law Enforcement May Effect an Arrest.

A person who “knowingly or intentionally operates a motor vehicle” without having ever received a “valid driver’s license” commits driving without a license (“DWOL”), a Class C misdemeanor, which becomes a Class A misdemeanor if the person has a prior unrelated conviction for the same kind of offense.  IC 9-24-18-1(a). Under Indiana law, an LEO is authorized to arrest an individual who the LEO has probable cause to believe is committing or attempting to commit a misdemeanor in the LEO’s presence.  IC 35-33-1-1(a)(4).  In contrast, a person who drives on a suspended or revoked license with no previous offenses commits a Class A infraction.3 IC 9-24-19-1. LEOs have no legal authority to arrest an individual for an infraction. Taylor v. State, 842 N.E.2d 327, 333 (Ind. 2006). The distinction between the misdemeanor and the infraction is whether the driver has ever been licensed. If the driver has never possessed a valid license, the misdemeanor statute applies.  Otherwise, the driver can be cited only for an infraction, unless he has committed previous violations of the statute.4 Although each case will depend on its facts, simple questions by an LEO will typically elicit the evidence needed to establish probable cause to arrest a person for committing the criminal misdemeanor offense of driving without a license. For example, if the driver provides no license or admits they do not have a license or have never been licensed, that evidence would likely be sufficient to support a probable cause determination that the driver is committing DWOL. See Brummett, 230 N.E. 2d at 975. Under these circumstances, LEOs have full authority to arrest an individual for DWOL. Further, the Fourth Amendment in no way prohibits law enforcement from detaining an individual arrested for the misdemeanor of driving without a license for long enough to transport the individual to and book him at a county jail.  See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”); Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (“[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement” of the Fourth Amendment and may detain an individual for that period of time).

II. The Release Provision of IC 9-30-2-5 Does Not Apply to DWOL Offenders.

LEOs in general have discretion whether to arrest someone for a misdemeanor offense.  See IC 35-33-1-1(a)(4); Frasier v. State, 312 N.E.2d 77, 80 (Ind. 1974) (describing officers’ discretionary authority to make arrests for traffic-related misdemeanors). For many misdemeanors involving the operation of a motor vehicle, Indiana law provides for the immediate release of the offender if he signs “a written promise to appear in the proper court.”  IC 9-30-2-5(a).  Under the statute, the written promise must contain, among other things, the “name and address of the person accused of committing the violation;” the “number of the person’s license to operate a motor vehicle;” and the “registration number of the person’s vehicle, if any.”  IC 9-30-2-5(c).  If a written promise that satisfies the statute is not provided, the offender must “be immediately taken before a court within the county in which the offense charged is alleged to have been committed and that has jurisdiction of the offense.”  IC 9-30-2-4.5 By its terms, the statute’s release provision does not apply to a person arrested for the misdemeanor of driving without a license. A person who has never been licensed cannot, by definition, provide a driver’s license number to operate a motor vehicle because they have never been licensed at all.  Because a person arrested for DWOL cannot satisfy the requirements of the release provision, he is not entitled to be released. When interpreting a statute, “[o]ur first task . . . is to give words their plain meaning and consider the structure of the statute as a whole.” ESPN, Inc. v. University of Notre Dame Police Dept., 62 N.E.3d 1192, 1195 (2016) (citation omitted). “We ‘avoid interpretations that depend on selective reading of individual words that lead to irrational and disharmonizing results.’” Id. (citation omitted). “As we interpret the statute, we are mindful of both what it ‘does say’ and what it ‘does not say.’” Id. (citations omitted). “To the extent there is an ambiguity, we determine and give effect to the intent of the legislature as best it can be ascertained.” Id. at 1196 (citation omitted). The release provision of IC 9-30-2-5 uses categorical, prescriptive language to describe the contents of a promise to appear.  The promise “must contain,” among other things, “the number of the person’s license to operate a motor vehicle.”  IC 9-30-2-5(c) (emphasis added). “‘Must’ is mandatory language; it leaves no room for good-faith omissions.”  Matter of Bi.B., 69 N.E.3d 464, 468 (Ind. 2017).  Thus, if a person refuses or is unable to provide a driver’s license number to be included in a promise to appear, he may not avail himself of the release provision, and the arresting officer should “immediately take[] [the offender] before a court.”  IC 9-30-2-4(b).6 Other provisions of the statute confirm this interpretation. For example, where the statute makes allowance for situations in which the information that otherwise must be contained in a promise to appear is unavailable, it does so explicitly.  Specifically, the statute provides that a promise to appear must contain the “registration number of the person’s vehicle, if any.”  IC 9-30-2-5(c)(4) (emphasis added).  The phrase “if any” indicates that a valid promise to appear may still be executed in circumstances where no registration number is available.  But no similar qualifier is included in the clause that requires a promise to appear to contain a driver’s license number. That omission is significant. Where a legislature “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislature] acts intentionally and purposely in the disparate inclusion or exclusion.”  Russello v. United States, 464 U.S. 16, 23 (1983). Thus, the natural implication of the General Assembly’s decision to include the phrase “if any” in one clause of the release provision but not in the clause concerning driver’s license numbers is that the statute does not permit a promise to appear to be executed where no driver’s license number is available. This interpretation is also logical as a policy matter. To release a person who has committed a misdemeanor based on the person’s promise to appear in court, it is reasonable for the state to expect the person to provide information sufficient to assure that the promise will be kept and that, if it is not, the state will be able to locate the person. A driver’s license number is an important piece of identifying information that can provide that assurance. A promise to appear will tend be more reliable if it contains a license number. It was therefore logical for the General Assembly to conclude that a promise to appear cannot be validly executed without a license number. CONCLUSION Driving without ever having received a valid license is a Class C misdemeanor. IC 9-24-18-1. An LEO may arrest an individual for committing or attempting to commit this misdemeanor in his presence. IC 35-33-1-1(a)(4). Further, the release provision of IC 9-30-2-5 does not apply to an individual arrested for DWOL because the individual cannot execute a valid promise to appear. Thus, if the LEO arrests an individual for DWOL, the LEO may detain the individual for long enough to book him at a county jail and is required to take the person to court promptly. Sincerely, Todd Rokita Joby D. Jerrells, Chief Counsel, Advisory Christopher M. Anderson, Assistant Chief Counsel Hilari A. Sautbine, Supervising Deputy Attorney General _________________________ 1 For non-residents, a security deposit is also required for release under IC 9-30-2-5. The security deposit is generally equal to the amount of the fines and costs for the offense and must be accompanied by the same information as the promise to appear. 2 Driving without a license should not be confused with the infraction of driving without a valid license under IC 9-24-1-1. The distinction between the infraction and the misdemeanor is whether the driver has ever had a valid license. 3 Driving with a suspended or revoked license with a previous offense within the past ten (10) years, is a Class A misdemeanor. IC 9-24-19-2. If an injury or death occurs while the individual is driving with a suspended or revoked license, the offense is a Level 5 or Level 6 felony, respectively.  IC 9-24-19-3. 4 The Court of Appeals discussed the distinction between the misdemeanor offense and the infraction in Brummett v. State, 230 N.E.3d 968, 975 (Ind. Ct. App.), trans. denied, 238 N.E.3d 644 (Ind. 2024). The officer in Brummett asked whether a driver the officer had pulled over had a valid driver’s license. Id. In response, the driver handed the officer an ID card and said that he did not have a license. Id. The Brummett court reasoned this gave the officer probable cause to arrest the driver for DWOL, a class C misdemeanor. 5 Regardless of whether a written promise to appear is provided, the statute also requires the offender to be taken to court under certain other circumstances, including where the person demands to be taken to court; the person is charged with an offense causing an accident that contributed to a person’s death or injury; the person fails to stop for an accident causing death, injury, or property damage; or when the person is charged with driving while his license is suspended or revoked. See IC 9-30-2-4.  The statute’s release provision also does not apply to the offense of operating a vehicle while intoxicated.  See IC 9-30-2-5. 6 Caselaw provides substantial guidance on what it means to bring a person to court “immediately.” See, e.g., McClanahan v. State, 112 N.E.2d 575, 577 (Ind. 1953) (reasoning that bringing a person “immediately” before court is limited to usual hours for conducting court business); Hill v. Otte, 281 N.E.2d 811, 814 (Ind. 1972) (citing McClanahan); 1969 Op. Atty. Gen. No. 41 (opining on promise to appear under prior statute).