Speeding Ticket, but the State Statue May Be Incorrect on Ticket

[stam_visitor]

My question involves a speeding ticket from the State of: Indiana, Fayette County

I was pulled over for speeding. The Prima Facie was 40. The officer asked how fast I was going and I answered 45. I asked to see his radar and was denied the request. He was annoyed by my request and indicated that he was going to write the ticket for 55 instead of 45 - big sh*t, the fine is the same. I will request discovery and a continuance, but in inspecting the ticket he wrote state statue I.C. 9-21-5-3 which read the following:

IC 9-21-5-3
Alteration of maximum speed limits; authorities; procedures
Sec. 3. The maximum speed limits set forth in section 2 of this chapter may be altered as follows:
(1) By local jurisdictions under section 6 of this chapter.
(2) By the Indiana department of transportation under section 12 of this chapter.
(3) For the purposes of speed limits on a highway on the national system of interstate and defense highways, by order of the commissioner of the Indiana department of transportation to conform to any federal regulation concerning state speed limit laws.
(4) In worksites, by all jurisdictions under section 11 of this chapter.
As added by P.L.2-1991, SEC.9. Amended by P.L.235-2005, SEC.124; P.L.151-2005, SEC.3; P.L.1-2006, SEC.164.

This I.C. is about the alteration of speed limits, authorities and procedures. Does anyone believe that this may be a valid technicality for dismissal?

I would have expected the I.C. I violated to be I.C. 9-21-5-3 or I.C. 9-21-5-13.

IC 9-21-5-3
Alteration of maximum speed limits; authorities; procedures
Sec. 3. The maximum speed limits set forth in section 2 of this chapter may be altered as follows:
(1) By local jurisdictions under section 6 of this chapter.
(2) By the Indiana department of transportation under section 12 of this chapter.
(3) For the purposes of speed limits on a highway on the national system of interstate and defense highways, by order of the commissioner of the Indiana department of transportation to conform to any federal regulation concerning state speed limit laws.
(4) In worksites, by all jurisdictions under section 11 of this chapter.
As added by P.L.2-1991, SEC.9. Amended by P.L.235-2005, SEC.124; P.L.151-2005, SEC.3; P.L.1-2006, SEC.164.

IC 9-21-5-13
Violations
Sec. 13. (a) Except as provided in subsections (b) and (c), a person who violates this chapter commits a Class C infraction.
(b) A person who exceeds a speed limit that is:
(1) established under section 6 of this chapter and imposed only in the immediate vicinity of a school when children are present; or
(2) established under section 11 of this chapter and imposed only in the immediate vicinity of a worksite when workers are present;
commits a Class B infraction.
(c) A person who while operating a school bus knowingly or intentionally exceeds a speed limit set forth in section 14 of this chapter commits a Class C misdemeanor.
As added by P.L.2-1991, SEC.9. Amended by P.L.42-2000, SEC.1; P.L.116-2001, SEC.2; P.L.1-2005, SEC.23; P.L.231-2005, SEC.2.

[blewis]

Well, you've totally confused me. You say that the officer wrote you up for violating I.C. 9-21-5-3. Then you say "I would have expected the I.C. I violated to be I.C. 9-21-5-3 [which is EXACTLY what he wrote you up for ???] or I.C. 9-21-5-13 [which appears to pertain to school zones ???]".

[stam_visitor]

LOL - you are entirely correct. Let's hope I don't prepare my case as poorly as I proof-read my post. My apologies, evidently my paste buffer was not refreshed with the new content I was attempting to paste into that portion of the message. I would expect to have been charged with violating I.C. 9-21-5-2 which reads:


IC 9-21-5-2
Maximum speed limits
Sec. 2. Except when a special hazard exists that requires lower speed for compliance with section 1 of this chapter, the slower speed limit specified in this section or established as authorized by section 3 of this chapter is the maximum lawful speed. A person may not drive a vehicle on a highway at a speed in excess of the following maximum limits:
(1) Thirty (30) miles per hour in an urban district.
(2) Fifty-five (55) miles per hour, except as provided in subdivisions (1), (3), (4), (5), (6), and (7).
(3) Seventy (70) miles per hour on a highway on the national system of interstate and defense highways located outside of an urbanized area (as defined in 23 U.S.C. 101) with a population of at least fifty thousand (50,000), except as provided in subdivision (4).
(4) Sixty-five (65) miles per hour for a vehicle (other than a bus) having a declared gross weight greater than twenty-six thousand (26,000) pounds on a highway on the national system of interstate and defense highways located outside an urbanized area (as defined in 23 U.S.C. 101) with a population of at least fifty thousand (50,000).
(5) Sixty-five (65) miles per hour on:
(A) U.S. 20 from the intersection of U.S. 20 and County Road 17 in Elkhart County to the intersection of U.S. 20 and U.S. 31 in St. Joseph County;
(B) U.S. 31 from the intersection of U.S. 31 and U.S. 20 in St. Joseph County to the boundary line between Indiana and Michigan; and
(C) a highway classified by the Indiana department of transportation as an INDOT Freeway.
(6) On a highway that is the responsibility of the Indiana finance authority established by IC 4-4-11:
(A) seventy (70) miles per hour for:
(i) a motor vehicle having a declared gross weight of not more than twenty-six thousand (26,000) pounds; or
(ii) a bus; or
(B) sixty-five (65) miles per hour for a motor vehicle having a declared gross weight greater than twenty-six thousand (26,000) pounds.
(7) Sixty (60) miles per hour on a highway that:
(A) is not designated as a part of the national system of interstate and defense highways;
(B) has four (4) or more lanes;
(C) is divided into two (2) or more roadways by:
(i) an intervening space that is unimproved and not intended for vehicular travel;
(ii) a physical barrier; or
(iii) a dividing section constructed to impede vehicular traffic; and
(D) is located outside an urbanized area (as defined in 23 U.S.C. 101) with a population of at least fifty thousand (50,000).
(8) Fifteen (15) miles per hour in an alley.
As added by P.L.2-1991, SEC.9. Amended by P.L.92-1991, SEC.2; P.L.1-1993, SEC.56; P.L.151-2005, SEC.2; P.L.1-2006, SEC.163.

Based on how I read the ticket, I'm being charged with violating the alteration of a speed limit?

[blewis]

Thanks for straightening that out. I've also looked up the statutes and, for what it's worth, I agree. You might have been properly charged under IC 9-21-5-1 or -2. And I believe you're correct about -3 not being applicable. I don't know about Indiana (my daughter dances for the PaceMates, BTW), but we actually have case law on the books here in WA where the statute used in a traffic infraction "does not define a separate traffic offense for which a citation may be issued."

If you argue this point, you will, most likely, lose -- unless you get a VERY good judge. However, if you then appeal that decision, the appellate court may, indeed, reverse the lower court -- as happened in WA. But, it's probably worth a shot.

You'll also need to be prepared to object if the prosecutor moves to amend the statute. You'll need to be able to argue that by amending the citation, you are now being charged with a "different" infraction -- one you are NOT prepared to defend against, since this is a TOTAL surprise. It becomes a "due process" thing -- a defendant should NOT be responsible for figuring out what statute he/she SHOULD have been charged with.

Good luck and let us know how it works out,
Barry