2014 Indiana Code TITLE 34. CIVIL LAW AND PROCEDURE ARTICLE 28. SPECIAL PROCEEDINGS: MISCELLANEOUS CIVIL PROCEEDINGS AND REMEDIES CHAPTER 5. INFRACTION AND ORDINANCE VIOLATION ENFORCEMENT PROCEEDINGS
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IC 34-28-5
Chapter 5. Infraction and Ordinance Violation Enforcement
Proceedings
IC 34-28-5-0.2
Application of certain amendments to prior law
Sec. 0.2. The amendments made to IC 34-4-32-1 (before its repeal,
now codified at section 1 of this chapter) by P.L.309-1985 do not
apply to violations occurring before April 9, 1985.
As added by P.L.220-2011, SEC.562.
IC 34-28-5-1
Prosecution in name of state or municipality; rules; limitations;
burden of proof; deferral programs; agreement for community
restitution or service
Sec. 1. (a) As used in this section, "probationary license" refers to
a license described in IC 9-24-11-3.3(b).
(b) An action to enforce a statute defining an infraction shall be
brought in the name of the state of Indiana by the prosecuting
attorney for the judicial circuit in which the infraction allegedly took
place. However, if the infraction allegedly took place on a public
highway (as defined in IC 9-25-2-4) that runs on and along a
common boundary shared by two (2) or more judicial circuits, a
prosecuting attorney for any judicial circuit sharing the common
boundary may bring the action.
(c) An action to enforce an ordinance shall be brought in the name
of the municipal corporation. The municipal corporation need not
prove that it or the ordinance is valid unless validity is controverted
by affidavit.
(d) Actions under this chapter (or IC 34-4-32 before its repeal):
(1) shall be conducted in accordance with the Indiana Rules of
Trial Procedure; and
(2) must be brought within two (2) years after the alleged
conduct or violation occurred.
(e) The plaintiff in an action under this chapter must prove the
commission of an infraction or ordinance violation by a
preponderance of the evidence.
(f) The complaint and summons described in IC 9-30-3-6 may be
used for any infraction or ordinance violation.
(g) Subsection (h) does not apply to an individual holding a
probationary license who is alleged to have committed an infraction
under any of the following when the individual was less than
eighteen (18) years of age at the time of the alleged offense:
IC 9-19
IC 9-21
IC 9-24
IC 9-25
IC 9-26
IC 9-30-5
IC 9-30-10
IC 9-30-15.
(h) This subsection does not apply to an offense or violation under
IC 9-24-6 involving the operation of a commercial motor vehicle.
The prosecuting attorney or the attorney for a municipal corporation
may establish a deferral program for deferring actions brought under
this section. Actions may be deferred under this section if:
(1) the defendant in the action agrees to conditions of a deferral
program offered by the prosecuting attorney or the attorney for
a municipal corporation;
(2) the defendant in the action agrees to pay to the clerk of the
court an initial user's fee and monthly user's fee set by the
prosecuting attorney or the attorney for the municipal
corporation in accordance with IC 33-37-4-2(e);
(3) the terms of the agreement are recorded in an instrument
signed by the defendant and the prosecuting attorney or the
attorney for the municipal corporation;
(4) the defendant in the action agrees to pay a fee of seventy
dollars ($70) to the clerk of court if the action involves a
moving traffic offense (as defined in IC 9-13-2-110);
(5) the agreement is filed in the court in which the action is
brought; and
(6) if the deferral program is offered by the prosecuting
attorney, the prosecuting attorney electronically transmits
information required by the prosecuting attorneys council
concerning the withheld prosecution to the prosecuting
attorneys council, in a manner and format designated by the
prosecuting attorneys council.
When a defendant complies with the terms of an agreement filed
under this subsection (or IC 34-4-32-1(f) before its repeal), the
prosecuting attorney or the attorney for the municipal corporation
shall request the court to dismiss the action. Upon receipt of a request
to dismiss an action under this subsection, the court shall dismiss the
action. An action dismissed under this subsection (or IC 34-4-32-1(f)
before its repeal) may not be refiled.
(i) If a judgment is entered against a defendant in an action to
enforce an ordinance, the defendant may perform community
restitution or service (as defined in IC 35-31.5-2-50) instead of
paying a monetary judgment for the ordinance violation as described
in section 4(e) of this chapter if:
(1) the:
(A) defendant; and
(B) attorney for the municipal corporation;
agree to the defendant's performance of community restitution
or service instead of the payment of a monetary judgment;
(2) the terms of the agreement described in subdivision (1):
(A) include the amount of the judgment the municipal
corporation requests that the defendant pay under section
4(e) of this chapter for the ordinance violation if the
defendant fails to perform the community restitution or
service provided for in the agreement as approved by the
court; and
(B) are recorded in a written instrument signed by the
defendant and the attorney for the municipal corporation;
(3) the agreement is filed in the court where the judgment was
entered; and
(4) the court approves the agreement.
If a defendant fails to comply with an agreement approved by a court
under this subsection, the court shall require the defendant to pay up
to the amount of the judgment requested in the action under section
4(e) of this chapter as if the defendant had not entered into an
agreement under this subsection.
As added by P.L.1-1998, SEC.24. Amended by P.L.98-2000, SEC.12;
P.L.98-2004, SEC.123; P.L.176-2005, SEC.24; P.L.200-2005,
SEC.1; P.L.101-2009, SEC.17; P.L.114-2012, SEC.65;
P.L.125-2012, SEC.412.
IC 34-28-5-2
Moving traffic violation; pleadings
Sec. 2. In an action for a moving traffic violation, the pleadings
are as follows:
(1) A summons and complaint.
(2) Entry by a defendant of:
(A) an admission to the violation;
(B) a denial of the violation; or
(C) a declaration of nolo contendere in which the defendant
consents to entry of judgment for the state without admitting
to the violation.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-3
Detention; communications device information
Sec. 3. (a) Whenever a law enforcement officer believes in good
faith that a person has committed an infraction or ordinance violation,
the law enforcement officer may detain that person for a time
sufficient to:
(1) inform the person of the allegation;
(2) obtain the person's:
(A) name, address, and date of birth; or
(B) driver's license, if in the person's possession; and
(3) allow the person to execute a notice to appear.
(b) If a law enforcement officer detains a person because the law
enforcement officer believes the person has committed an infraction
or ordinance violation, the law enforcement officer may not, without
the consent of the person, extract or otherwise download information
from a cellular telephone or another wireless or cellular
communications device possessed by the person at the time the
person is detained unless:
(1) the law enforcement officer has probable cause to believe
that the:
(A) cellular telephone; or
(B) other wireless or cellular communications device;
has been used in the commission of a crime;
(2) the information is extracted or otherwise downloaded under
a valid search warrant; or
(3) otherwise authorized by law.
As added by P.L.1-1998, SEC.24. Amended by P.L.191-2014, SEC.2.
IC 34-28-5-3.5
Refusal to identify self
Sec. 3.5. A person who knowingly or intentionally refuses to
provide either the person's:
(1) name, address, and date of birth; or
(2) driver's license, if in the person's possession;
to a law enforcement officer who has stopped the person for an
infraction or ordinance violation commits a Class C misdemeanor.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-4
Costs; deposit of funds; findings required for judgment; special
provisions for moving violations
Revisor's Note: P.L.106-2010, SEC.18, required this section to be
printed as follows.
Sec. 4. (a) A judgment of up to ten thousand dollars ($10,000)
may be entered for a violation constituting a Class A infraction.
(b) A judgment of up to one thousand dollars ($1,000) may be
entered for a violation constituting a Class B infraction.
(c) Except as provided in subsection (f), a judgment of up to five
hundred dollars ($500) may be entered for a violation constituting a
Class C infraction.
(d) A judgment of up to twenty-five dollars ($25) may be entered
for a violation constituting a Class D infraction.
(e) Subject to section 1(i) of this chapter, a judgment:
(1) up to the amount requested in the complaint; and
(2) not exceeding any limitation under IC 36-1-3-8;
may be entered for an ordinance violation.
(f) Except as provided in subsections (g) and (h), a person who has
admitted to a moving violation constituting a Class C infraction,
pleaded nolo contendere to a moving violation constituting a Class C
infraction, or has been found by a court to have committed a moving
violation constituting a Class C infraction may not be required to pay
more than the following amounts for the violation:
(1) If, before the appearance date specified in the summons and
complaint, the person mails or delivers an admission of the
moving violation or a plea of nolo contendere to the moving
violation, the person may not be required to pay any amount,
except court costs and a judgment that does not exceed
thirty-five dollars and fifty cents ($35.50).
(2) If the person admits the moving violation or enters a plea of
nolo contendere to the moving violation on the appearance date
specified in the summons and complaint, the person may not be
required to pay any amount, except court costs and a judgment
that does not exceed thirty-five dollars and fifty cents ($35.50).
(3) If the person contests the moving violation in court and is
found to have committed the moving violation, the person may
not be required to pay any amount, except:
(A) court costs and a judgment that does not exceed
thirty-five dollars and fifty cents ($35.50) if, in the five (5)
years before the appearance date specified in the summons
and complaint, the person was not found by a court in the
county to have committed a moving violation;
(B) court costs and a judgment that does not exceed two
hundred fifty dollars and fifty cents ($250.50) if, in the five
(5) years before the appearance date specified in the
summons and complaint, the person was found by a court in
the county to have committed one (1) moving violation; and
(C) court costs and a judgment that does not exceed five
hundred dollars ($500) if, in the five (5) years before the
appearance date specified in the summons and complaint, the
person was found by a court in the county to have committed
two (2) or more moving violations.
In a proceeding under subdivision (3), the court may require the
person to submit an affidavit or sworn testimony concerning whether,
in the five (5) years before the appearance date specified in the
summons and complaint, the person has been found by a court to
have committed one (1) or more moving violations.
(g) The amounts described in subsection (f) are in addition to any
amount that a person may be required to pay for attending a defensive
driving school program.
(h) This subsection applies only to infraction judgments imposed
in Marion County for traffic violations after December 31, 2010.
Subsection (f) applies to an infraction judgment described in this
subsection. However, a court shall impose a judgment of not less than
thirty-five dollars ($35) for an infraction judgment that is entered in
Marion County. These funds shall be transferred to a dedicated fund
in accordance with section 5 of this chapter.
As added by P.L.1-1998, SEC.24. Amended by P.L.200-2005, SEC.2;
P.L.101-2009, SEC.18; P.L.71-2010, SEC.3; P.L.106-2010, SEC.7.
IC 34-28-5-5
Costs; deposit of funds; findings required for judgment
Sec. 5. (a) A defendant against whom a judgment is entered is
liable for costs. Costs are part of the judgment and may not be
suspended except under IC 9-30-3-12. Whenever a judgment is
entered against a person for the commission of two (2) or more civil
violations (infractions or ordinance violations), the court may waive
the person's liability for costs for all but one (1) of the violations.
This subsection does not apply to judgments entered for violations
constituting:
(1) Class D infractions; or
(2) Class C infractions for unlawfully parking in a space
reserved for a person with a physical disability under
IC 5-16-9-5 or IC 5-16-9-8.
(b) If a judgment is entered:
(1) for a violation constituting:
(A) a Class D infraction; or
(B) a Class C infraction for unlawfully parking in a space
reserved for a person with a physical disability under
IC 5-16-9-5 or IC 5-16-9-8; or
(2) in favor of the defendant in any case;
the defendant is not liable for costs.
(c) Except for costs, and except as provided in subsection (e) and
IC 9-21-5-11(e), the funds collected as judgments for violations of
statutes defining infractions shall be deposited in the state general
fund.
(d) A judgment may be entered against a defendant under this
section or section 4 of this chapter upon a finding by the court that
the defendant:
(1) violated:
(A) a statute defining an infraction; or
(B) an ordinance; or
(2) consents to entry of judgment for the plaintiff upon a
pleading of nolo contendere for a moving traffic violation.
(e) The funds collected for an infraction judgment described in
section 4(h) of this chapter shall be transferred to a dedicated county
fund. The money in the dedicated county fund does not revert to the
county general fund or state general fund and may be used, after
appropriation by the county fiscal body, only for the following
purposes:
(1) To pay compensation of commissioners appointed under
IC 33-33-49.
(2) To pay costs of the county's guardian ad litem program.
As added by P.L.1-1998, SEC.24. Amended by P.L.40-2007, SEC.7;
P.L.71-2010, SEC.4; P.L.106-2010, SEC.8.
IC 34-28-5-6
Suspension of driver's license
Sec. 6. If a defendant fails to satisfy a judgment entered against
the defendant for the violation of a traffic ordinance or for a traffic
infraction by a date fixed by the court, the court may suspend the
defendant's drivers license. When a court suspends a person's drivers
license under this section, the court shall forward notice of the
suspension to the bureau of motor vehicles.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-7
Traffic violations bureau; clerk
Sec. 7. Any court may establish a traffic violations bureau and
appoint a violations clerk who shall serve under the direction and
control of the court.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-8
Duties of clerk
Sec. 8. The violations clerk or deputy violations clerk shall:
(1) accept:
(A) written appearances;
(B) waivers of trial;
(C) admissions of violation;
(D) declarations of nolo contendere for moving traffic
violations;
(E) payments of judgments (including costs) in traffic
violation cases;
(F) deferral agreements made under section 1(f) of this
chapter (or IC 34-4-32-1(f) before its repeal) and deferral
program fees prescribed under IC 33-37-4-2(e); and
(G) community restitution or service agreements made under
section 1(g) of this chapter;
(2) issue receipts and account for any judgments (including
costs) collected; and
(3) pay the judgments (including costs) collected to the
appropriate unit of government as provided by law.
As added by P.L.1-1998, SEC.24. Amended by P.L.98-2004,
SEC.124; P.L.200-2005, SEC.3.
IC 34-28-5-9
Duties of court
Sec. 9. The court shall:
(1) designate the traffic violations within the authority of the
violations clerk, but these violations may not include
misdemeanors or felonies;
(2) establish schedules, within limits prescribed by law, of the
judgments to be imposed for first violations, designating each
violation specifically;
(3) order that the schedule of judgments be prominently posted
in the place where the fines are paid;
(4) establish a procedure under which any violations clerk or
deputy violations clerk shall accept, receipt, and account for all
money tendered for designated traffic violations; and
(5) dismiss deferred actions if a dismissal request is made under
section 1(f) of this chapter (or IC 34-4-32-1(f) before its repeal).
As added by P.L.1-1998, SEC.24.
IC 34-28-5-10
Repealed
(Repealed by P.L.201-2011, SEC.115.)
IC 34-28-5-11
Admission of violation; nolo contendere plea; payment of judgment
Sec. 11. Any person charged with a traffic violation that is within
the authority of the violations clerk may mail or deliver:
(1) the amount of the judgment (including costs) indicated on
the ticket; and
(2) a signed:
(A) admission of the violation; or
(B) pleading of nolo contendere, if the action is for a moving
traffic violation.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-12
Notice requirements for acceptance of admission or nolo
contendere plea
Sec. 12. Before accepting a pleading admitting to a violation or
entering a declaration of nolo contendere to a violation, the violations
clerk or the officer writing the ticket shall inform the person that:
(1) the person's signature to:
(A) an admission of the violation; or
(B) a pleading of nolo contendere;
will have the same effect as a judgment of a court; and
(2) the record of judgment will be sent to the commissioner of
motor vehicles of Indiana or the state where the person received
a license to drive.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-13
Payment by credit card
Sec. 13. A court may permit a person to use a credit card issued by
a financial institution for the purpose of paying a court cost and
judgment with respect to a traffic violation that is enforced under this
chapter. The state board of accounts shall allow a county to pay any
applicable credit card service charge on behalf of a court that permits
the use of a credit card under this section. The county fiscal body
must appropriate funds to cover the costs of applicable credit card
service charges before a court may permit the use of a credit card
under this section.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-14
Written appearance instead of personal appearance before court
Sec. 14. If a person named as a defendant in a summons and
complaint issued under IC 5-16-9-10, before the appearance date
specified in the summons and complaint, mails or delivers the
following to the court having jurisdiction over the action:
(1) an admission of the violation or a plea of nolo contendere to
the violation; and
(2) a fifty dollar ($50) civil judgment;
the court shall enter a judgment against the defendant for the
violation. An admission or plea of nolo contendere received by the
court under this section (or IC 34-4-32-6 before its repeal) constitutes
a written appearance and the defendant is not required to personally
appear before the court.
As added by P.L.1-1998, SEC.24.
IC 34-28-5-15
Disclosure of information related to an infraction; restrictions;
petition to restrict disclosure
Sec. 15. (a) This subsection does not apply to a person whose
prosecution for an infraction is deferred under section 1 of this
chapter. If a person alleged to have violated a statute defining an
infraction:
(1) is not prosecuted or if the action against the person is
dismissed;
(2) is adjudged not to have committed the infraction; or
(3) is adjudged to have committed the infraction and the
adjudication is subsequently vacated;
the court in which the action was filed shall order the clerk and the
operator of any state, regional, or local case management system not
to disclose or permit disclosure of information related to the
infraction to a noncriminal justice organization or an individual.
(b) Not earlier than five (5) years after a person:
(1) whose prosecution for an infraction has been deferred; or
(2) who was found to have violated a statute defining an
infraction;
has satisfied the conditions of the deferral program or the judgment
imposed for the violation, the person may petition the court to
prohibit disclosure of information related to the infraction to a
noncriminal justice organization or an individual. The court shall
order the clerk and the operator of any state, regional, or local case
management system not to disclose or permit disclosure of
information related to the infraction to a noncriminal justice
organization or an individual if the court finds that:
(1) the person satisfied the judgment or conditions of the
deferral program; and
(2) at least five (5) years have passed since the date the person
satisfied the judgment or conditions of the program.
(c) If a court fails to order the clerk and the operator of any state,
regional, or local case management system to restrict disclosure of
information related to the infraction under subsection (a), the person
may petition the court to restrict disclosure of the records related to
the infraction to a noncriminal justice organization or an individual.
(d) A petition under subsection (b) or (c) must be verified and
filed in:
(1) the court in which the action was filed, for a person
described in subsection (a)(1);
(2) the court in which the trial was held, for a person described
in subsection (a)(2) or (a)(3); or
(3) the court finding or having jurisdiction over the violation,
for a person described in subsection (b).
(e) A petition under subsection (b) or (c) must be filed not earlier
than:
(1) if the person is adjudged not to have committed the
infraction, thirty (30) days after the date of judgment;
(2) if the person's adjudication is vacated, three hundred
sixty-five (365) days after:
(A) the order vacating the adjudication is final, if there is no
appeal or the appeal is terminated before entry of an opinion
or memorandum decision; or
(B) the opinion or memorandum decision vacating the
adjudication is certified;
(3) if the person is not prosecuted or the action is dismissed,
thirty (30) days after the action is dismissed, if a new action is
not filed; or
(4) if the person participated in a deferral program or is found
to have violated the statute defining the infraction, not earlier
than five (5) years after the date the judgment for the violation
is satisfied or the conditions of the deferral program are met.
(f) A petition under subsection (b) or (c) must set forth:
(1) the date of the alleged violation;
(2) the violation or alleged violation;
(3) the date the action was dismissed, if applicable;
(4) the date of judgment, if applicable;
(5) the date the adjudication was vacated, if applicable;
(6) the basis on which the adjudication was vacated, if
applicable;
(7) the date the judgment is satisfied or the conditions of the
deferral program were met, if applicable;
(8) the law enforcement agency employing the officer who
issued the complaint, if applicable;
(9) any other known identifying information, such as the name
of the officer, case number, or court cause number;
(10) the date of the petitioner's birth; and
(11) at the option of the petitioner, the:
(A) petitioner's driver's license or state identification card
number; or
(B) last four (4) digits of the petitioner's Social Security
number.
(g) A copy of a petition filed under subsection (b) or (c) shall be
served on the prosecuting attorney.
(h) If the prosecuting attorney wishes to oppose a petition filed
under subsection (b) or (c), the prosecuting attorney shall, not later
than thirty (30) days after the petition is filed, file a notice of
opposition with the court setting forth reasons for opposing the
petition. The prosecuting attorney shall attach to the notice of
opposition a certified copy of any documentary evidence showing
that the petitioner is not entitled to relief. A copy of the notice of
opposition and copies of any documentary evidence shall be served
on the petitioner in accordance with the Indiana Rules of Trial
Procedure.
(i) The court may, with respect to a petition filed under subsection
(b) or (c):
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on documentary evidence submitted to the court,
the petitioner is not entitled to have access to the petitioner's
records restricted.
(j) If a notice of opposition is filed under subsection (h) and the
court does not summarily grant or summarily deny the petition, the
court shall set the matter for a hearing.
(k) After a hearing is held under subsection (j), the court shall
grant the petition filed under:
(1) subsection (b) if the person is entitled to relief under that
subsection; or
(2) subsection (c) if the person is entitled to relief under
subsection (a).
(l) If the court grants a petition filed under subsection (b) or (c),
the court shall order the clerk and the operator of any state, regional,
or local case management system not to disclose or permit disclosure
of information related to the infraction to a noncriminal justice
organization or an individual.
As added by P.L.69-2012, SEC.2. Amended by P.L.13-2013, SEC.83;
P.L.112-2013, SEC.7.
IC 34-28-5-16
Repealed
(Repealed by P.L.112-2013, SEC.8; P.L.205-2013, SEC.356.)
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