TITLE 9 AND HEA1279 Goals Examine the problems

TITLE 9 AND HEA1279 Goals Examine the problems

TITLE 9 AND HEA1279 Goals Examine the problems created in HB1279 - Technical problems - Substantive problems - Unanswered questions - Additional considerations Problems

- Technical problems Operation of a Class B MDC as a major HTV Life suspension from D conviction Reckless Driving

Specialized Driving Privileges Penalty Drug possession suspension Technical Problems Operation of a Class B MDC as a major offense Some misdemeanor offenses were removed from consideration as a major offense for purposes of HTV This should include Operation of a Class B MDC

Technical Problems Lifetime suspension of driving privileges as a result of conviction under 9-30-10-16 The original intent of the bill was to remove all lifetime suspensions from cases not involving death. This provision was mistakenly left in. Technical Problems Reckless Driving Reckless Driving is a Class B misdemeanor, and

Reckless Driving Causing Bodily Injury is a Class C misdemeanor Technical Problems Penalty for violation of specialized driving privileges The penalty for a violation of specialized driving privileges is in 9-30-16-5, however it references privileges granted under section 2, which is the mandatory suspensions for

serious bodily injury and death cases. Technical Problems Drug Suspension Provision Suspensions related to the use of drugs were intended to be removed, however the suspension was only removed in 35-48-4-15, and not 9-30-5-10(f). Problems

- Substantive problems Suspension for vehicles vs. motor vehicles Habitual Vehicular Substance Offender

Leaving the Scene Window Tint MAP 21 Federal Funding Requirements CDL Personal vehicle operation Substantive Problems Suspension for motor vehicles instead of vehicles HEA 1279 was intended to govern all driving suspensions, however 9-30-16 only deals

with suspensions for which the operation of a motor vehicle is an element. Operating while intoxicated cases only have the operation of a vehicle as an element Substantive Problems Habitual Vehicular Substance Offender - The current statute references the time in which the offenses committed or occurred. The language needs to reference the dates of

the conviction, not the dates of the offense. Substantive Problems HVSO cont. - The current statute is intended to require that at least one of the prior convictions be within 10 years of the current offense if the State is only alleging 2 prior vehicle substance offenses. The way the statute currently reads, the 2 priors must be within 10 years of each

other, with no relation to the immediate offense. Substantive Problems HVSO Cont. - 9-30-15.5-2(d) lists the requirement that the person have 3 or 4 unrelated priors, making the assumption that the current guilty verdict is a prior for purposes of the aggravator. Since judgment has not been entered at that

point, only 2 or 3 priors are required for sentencing. Substantive Problems HVSO Cont. The statute currently contains old language that requires the jury to do the sentencing phase, and language that could allow these aggravators in town courts.

Substantive Problems Leaving the Scene - Provision allows for a person to call the Sheriffs office in the event of a property damage crash - This will change to just say law enforcement Substantive Problems Leaving the Scene Cont.

The duties involving a driver involved in death also refer to calling the appropriate municipality. These duties will be replaced with calling 911 or emergency services. Substantive Problems Leaving the Scene Cont. - The penalty under 9-26-1-1.5 was removed from the code in a separate penalty provision, and needs to be reinserted in this

statute. Substantive Problems Window Tint Statute changed to remove subjective element Creates questions about what constitutes probable cause Window tint may be unenforceable Substantive Problems

MAP 21 Federal Funding Requirements The removal of mandatory suspensions being tied to federal funding allowed for many of the changes in HEA 1279. However, there are still funds tied to a mandatory suspension for repeat offenders. Unanswered Problems Out of State Suspensions The statute currently states that a person who

receives an OWI in another state shall receive the minimum suspension if no other suspension was given. However, the minimum is now zero. Unanswered Questions Out of State Suspensions With the removal of the HTV lifetime rescission, out of state persons can never get a license

Additional Considerations Jurisdiction The statute allows for a person to apply for specialized driving privileges in any circuit or superior court in their county of residence In addition, a judge dealing with a current suspension can override or alter SDPs Additional Considerations

Jurisdiction Cont. There are no limitations on the amount of petitions that a person can file in seeking specialized driving privileges. No filing fees accompany SDP petition. Additional Considerations Specialized Driving Privileges Clean up bill will allow any judge overseeing a case to revoke specialized driving privileges

granted by another judge Drivers will also be required to have a copy of their suspended Drivers License Additional Considerations Amelioration HEA1279 is intended to allow for specialized driving privileges for all eligible suspensions, but underlying suspensions remain the same. Defendants cannot challenge their prior HTV

determination based on new criteria. Motor Driven Cycles What are they called? No more: Mopeds Motor Driven Cycles Scooters

All the bikes we are talking about now are: Motorcycles Class A Motor Driven Cycles (MDC) Class B MDCs Motorcycles Everything regarding motorcycles remains the same: Insurance Registration

License with Motorcycle Endorsement Be aware of the dead red law a motorcycle or MDC that sits at a red light for 2 or more minutes may proceed through the light if traffic is clear Motorcycles Definition: A motor vehicle that: (1) has a seat or saddle for the use of the rider; (2) is designed to travel on no more than three wheels on the ground; and (3) satisfies the operational and equipment

specifications described in 49 CFR 571 and IC 9-19. The term does not include a farm tractor or a motor driven cycle. Proof of Ownership: Certificate of Title or Manufacturers Certificate of Origin Insurance Required: Yes Credentials: Drivers License with a Motorcycle Endorsement Motorcycles Operating Restrictions:

Helmet required if under 18 Must operate in a position astride the seat Passengers may ride with proper passenger seat Headlamps must be illuminated while operating Cannot carry package in hand

Motor Driven Cycles Two classes of MDCs were required for an effective law: Class A MDCs to cover the spectrum of bikes that are above 50cc, but dont meet the requirements to be a motorcycle Class B MDCs to identify the vehicles available to drivers that do not require a license or insurance to operate The only real difference between the bikes themselves is how they are registered, and Class Bs MUST be 50cc or

lower Motor Driven Cycles The BMV is going to plate vehicles based on how they are registered Officers will be able to identify which registration the driver has by the type of plate Upon determining the type of registration, the officer is aware of which rules apply to the driver

Motor Driven Cycles Class A License Requirements MDC Class A: An individual must possess one of the following: Valid drivers license with a motorcycle endorsement with a MDC-A restriction Valid drivers license with a motorcycle endorsement Valid drivers license and a valid motorcycle learners permit

Motor Driven Cycles Class A Definition: A motor vehicle that: (1) has a seat or saddle for the use of the rider; (2) is designed to travel on no more than three wheels on the ground; and (3) complies with applicable motor vehicle equipment requirements under IC 9-19 and 49 CFR 571; and (4) is registered as a Class A Motor Driven Cycle. The term does not include an electric personal assistive mobility device. Proof of Ownership: Certificate of Title or Manufacturers Certificate of Origin; Bill of Sale; or Ownership Affidavit Insurance Required: Yes Credentials: Drivers License with a Motorcycle Endorsement with or without a

Class A Motor Driven Cycle Motor Driven Cycles Class A Operating Restrictions:

Helmet required if under 18 Must operate in a position astride the seat Passengers may ride with proper passenger seat Headlamps must be illuminated while operating Cannot carry package in hand Operate near right-hand edge of roadway unless passing another vehicle or preparing for a left turn Motor Driven Cycles Class B License

Requirements MDC Class B: Must possess one of the following: Valid drivers license (no endorsement required) Valid drivers permit (no endorsement required) Unexpired State of Indiana issued identification card with an MDC Class B endorsement Motor Driven Cycles Class B Definition: A motor vehicle that: (1) has a seat or saddle for the use of the rider; (2) is designed to travel on no more than three wheels on the ground;

(3) complies with applicable motor vehicle equipment requirements under IC 9-19 and 49 CFR 571; (4) has a cylinder capacity not exceeding 50 cubic centimeters; and (5) is registered as a Class B Motor Driven Cycle. The term does not include an electric personal assistive mobility device. Proof of Ownership: Certificate of Title or Manufacturers Certificate of Origin; Bill of Sale; or Ownership Affidavit* Insurance Required: No Credentials: Unexpired identification card with a Class B Motor Driven Cycle Endorsement, or any valid unexpired permit or drivers license

Motor Driven Cycles Class B Operating Restrictions: Must be 15 years old or older

Helmet required if under 18 Must operate in a position astride the seat Headlamps must be illuminated while operating Cannot carry package in hand Operate near right-hand edge of roadway unless passing another vehicle or preparing for a left turn Operate at no more than 35 miles per hour Passengers are not allowed No interstate highway or sidewalk operation

Enforcement What does all of this mean? EVERY vehicle (except the electric mobility assistive device) must be plated and the driver must have an ID or a license A bike with a Class B plate cannot exceed 35 miles an hour without being a violation Enforcement Suspended Licenses

A person with a Class B MDC is allowed to operate their vehicle while their operators license is suspended, so long as they have a Class B MDC Endorsement on an ID card If a driver is violating any of the Operating Restrictions, they cannot use the defense that they are on a Class B MDC to a charge of DWS or HTV Hypotheticals Driver is a MDC with a Class A plate, going 40 mph in

a 40 mph zone Class A MDCs do not have the speed restriction of the Class B, so this is okay. Driver is a MDC with a Class A plate, going 40 in a 35 with a suspended license Speeding ticket is PC for the stop Class A MDCs require a valid license, so DWS or HTV is appropriate based on their suspension

Hypotheticals HTV Driver is on a MDC that does not have a plate No plate is infraction basis for the stop, as all vehicles on the roads are required to be plated MDCs are motor vehicles like any other vehicle, so the driver is operating a motor vehicle after being adjudged a habitual traffic violator The driver cannot, at trial, claim the vehicle was a Class B MDC because the definition of a Class B MDC contains the language that it must be registered as such

Hypotheticals Driver is on a Class B MDC going 40 in a 40, suspended license. PC for the stop is violation of 9-21-11-14, the operating restrictions for a Class B MDC Driver can be cited/arrested for the DWS as well, since he was in violation of his Class B, and cant claim that as a defense

Expungement Expungement Scenario Conviction for OWI Conviction for speeding ticket Administrative suspension PC Affidavit No insurance Defendant surrenders license to obtain ID

Court Order BMV is receiving orders from the court Come by the state Expunge all of the following Misdemeanor Infraction Administrative suspension Administrative procedures, for example, surrender of license, issuance of state ID

Problems Misdemeanor count Did the defendant have a CDL at the time? Masking pursuant to 49 CFR 384.226 Expungement guidelines under 35-38-9 Seal or vacate? Infraction count

Expungement guidelines under 34-28-5-15 Seal or vacate? Problems Administrative suspension Stem from the criminal offense? PC suspension, insurance? Any statutory authority to expunge? Expunge all conviction records that relate to the misdemeanor conviction

Seal or vacate? Conflicting law Expunging the surrender of license/issuance of ID violates statutory requirements for BMV Not expunging it violates court order Problems Is this a prosecutor issue? Procedure for the BMV

Send contrary orders to prosecutor If Prosecutor takes no action, sent to AG All of these paths put the Judge in the same box Issue an illegal order Ignore the shall in expungement statute Problems Three main situations: Orders that fail to designate appropriate statute

Different statutes have different burdens Specify whether orders are sealed or vacated Significant traffic safety concern Orders contrary to law Orders that violate statute Orders that expunge issues other than those provided for by statute Potential Masking Possessing a CDL at time of offense will remove the offense from the

CDLIS database Modification after conviction Prevents aggravator of second serious offense Solutions Review of these statutes should fall on the judge to determine if they are sufficient Orders coming into the BMV show that this is not happening If there is no objection, Judge will likely just

grant the motion Review for Content What is being expunged? Arrest No charge, vacated, diversion

Infractions Title 34, 5 years from time judgment satisfied Misdemeanors 5 years, related to conviction Other What authority? Is it pursuant to the appropriate statute? Does it violate masking provisions? Issues Objection will not solve the issue Illegal order puts Judge in the same trap, as

previously discussed May turn the burden back to the defendant to fix deficient motion Must, at some point, result in appeal, by BMV? Prosecutors? Remains to be seen Issues Obtaining Driving Records Once BMV seals records, doesnt show up on the BMV

portal Government tag includes law enforcement officers, which are allowed by statute to access records, but also other groups who are denied access Will require separate law enforcement tab Wont be available for a while Check prior criminal history If you have concerns, contact the BMV

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