Enrolled Act, Senate Bill 0399

Second Regular Session 116th General Assembly (2010)

PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in ~~this~~ ~~style~~ ~~type.~~
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or ~~this~~ ~~style~~ ~~type~~ reconciles conflicts between statutes enacted by the 2009 Regular and Special Sessions of the General Assembly.

SENATE ENROLLED ACT No. 399

AN ACT to amend the Indiana Code concerning motor vehicles.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 9-24-15-5; (10)SE0399.1.2. --> SECTION 2. IC 9-24-15-5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 5. (a) The issues before the court in a proceeding under this chapter must be considered closed by denial of all matters at issue without the necessity of filing any further pleadings.
(b) Changes of venue from the judge or from the county must be granted a party under the law governing changes of venue in civil

causes.
    (c) A suspension or revocation under this title remains in full force and effect during the pendency of a cause under this chapter and until the issuance of the restricted driving permit by the bureau in accordance with the recommendation of the court.
    (d) Records accumulated in the regular course of business and routinely on file in the offices of the prosecuting attorney of the county, sheriff of the county, and bureau may be admitted at the hearing on the petition. The records constitute prima facie evidence of the matters contained on the face of the petition in relation to the petitioner.
    (e) Court costs (including fees) for the action on the petition must be charged against the petitioner. The prosecuting attorney of the county is not liable or taxable for any costs (including fees) in any action under this chapter.

SOURCE: IC 9-30-10-7; (10)SE0399.1.3. -->     SECTION 3. IC 9-30-10-7 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 7. (a) A petition for judicial review under this chapter must:
        (1) be verified by the petitioner;
        (2) state the petitioner's age, date of birth, place of residence, and driver's license identification number;
        (3) state the grounds for relief and the relief sought;
        (4) be filed in the county in which the petitioner resides; and
        (5) be filed in a circuit, superior, county, or municipal court.
    (b) A summons in an action under this chapter shall be issued and served in the manner provided for civil actions. The prosecuting attorney of the county in which the petition is filed and the bureau shall be served with the summons and a copy of the petition.
    (c) In an action under this chapter, the petitioner must bear the burden of proof by a preponderance of the evidence to prevail.
    (d) IC 9-30-3-15 and the rules of trial procedure apply in a proceeding under this chapter. However, a responsive pleading is not required when a petition for review has been filed, and a person is not entitled to a change of venue from the county.
    (e) The prosecuting attorney of the county in which the petition is filed shall represent the state in relation with the bureau.
    (f) Court costs (including fees) shall be assessed and paid by the petitioner at the time of filing in an amount equal to the costs (including fees) assessed in the enforcement of infractions. However, a petitioner who has the petitioner's driving privileges reinstated under section 8 of this chapter is entitled to a refund of all costs paid.

SOURCE: IC 9-30-3-12; (10)SE0399.1.4. --> SECTION 4. IC 9-30-3-12, AS AMENDED BY P.L.101-2009, SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE

JULY 1, 2010]: Sec. 12. (a) If during any twelve (12) month period a person has committed moving traffic violations for which the person has:
        (1) been convicted of at least two (2) traffic misdemeanors;
        (2) had at least two (2) traffic judgments entered against the person; or
        (3) been convicted of at least one (1) traffic misdemeanor and has had at least one (1) traffic judgment entered against the person;
the bureau may require the person to attend and satisfactorily complete a defensive driving school program. The person shall pay all applicable fees required by the bureau.
    (b) This subsection applies to an individual who holds a probationary license under IC 9-24-11-3 or IC 9-24-11-3.3 or is less than eighteen (18) years of age. An individual is required to attend and satisfactorily complete a defensive driving school program if either of the following occurs at least twice or if both of the following have occurred when the individual was less than eighteen (18) years of age:
        (1) The individual has been convicted of a moving traffic offense (as defined in section 14(a) of this chapter), other than an offense that solely involves motor vehicle equipment.
        (2) The individual has been the operator of a motor vehicle involved in an accident for which a report is required to be filed under IC 9-26-2.
The individual shall pay all applicable fees required by the bureau.
    (c) The bureau may suspend the driving license of any person who:
        (1) fails to attend a defensive driving school program; or
        (2) fails to satisfactorily complete a defensive driving school program;
as required by this section.
    (d) Notwithstanding IC 33-37-4-2, any court may suspend one-half (1/2) of each applicable court cost (including fees) for which a person is liable due to a traffic violation if the person enrolls in and completes a defensive driving school or a similar school conducted by an agency of the state or local government.

SOURCE: IC 34-28-5-4; (10)SE0399.1.7. -->     SECTION 7. IC 34-28-5-4, AS AMENDED BY HEA 1154-2010, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: 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)~~ ~~This~~ ~~subsection~~ ~~applies~~ ~~only~~ to ~~infraction~~ ~~judgments~~ ~~imposed~~ in ~~Marion~~ ~~County~~ ~~for~~ ~~traffic~~ ~~violations.~~ In ~~addition~~ to ~~any~~ ~~judgment~~ ~~otherwise~~ ~~entered~~ ~~under~~ ~~this~~ ~~section~~ in ~~Marion~~ ~~County~~ ~~for~~ a ~~traffic~~ ~~violation~~ ~~constituting~~ an ~~infraction,~~ an ~~additional~~ ~~judgment~~ ~~amount~~ of ~~not~~ ~~more~~ ~~than~~ ~~thirty-five~~ ~~dollars~~ ~~($35)~~ ~~may~~ be ~~entered~~ ~~for~~ ~~the~~ ~~traffic~~ ~~violation.~~ A ~~judgment~~ ~~amount~~ ~~imposed~~ ~~under~~ ~~this~~ ~~subsection~~ ~~shall~~ ~~not~~ be ~~included~~ in ~~applying~~ ~~the~~ ~~maximum~~ ~~judgment~~ ~~amount~~ ~~under~~ ~~subsections~~ ~~(a)~~ ~~through~~ ~~(d).~~
     (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.

SOURCE: IC 34-28-5-5; (10)SE0399.1.8. --> SECTION 8. IC 34-28-5-5, AS AMENDED BY HEA 1154-2010, SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2011]: 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 ~~under~~ for an infraction judgment described in section ~~4(f)~~ 4(h) of this chapter ~~for~~ ~~infraction~~ ~~judgments~~ ~~imposed~~ in ~~Marion~~ ~~County~~ ~~for~~ ~~traffic~~ ~~violations~~ 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.

SOURCE: IC 35-33.5-5-4; (10)SE0399.1.9. --> SECTION 9. IC 35-33.5-5-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 4. (a) A person whose communications are intercepted, disclosed, or used in violation of this article:
(1) has a civil cause of action against a person who intercepts, discloses, uses, or procures another person to intercept, disclose,

or use a communication in violation of this article; and
        (2) is entitled to recover from that person the following:
            (A) The greater of:
                (i) actual damages;
                (ii) liquidated damages computed at a rate of one hundred dollars ($100) each day for each day of violation; or
                (iii) one thousand dollars ($1,000).
            (B) Court costs (including fees).
            (C) Punitive damages, when determined to be appropriate by the court.
            (D) Reasonable attorney's fees.
    (b) A good faith reliance on a warrant or an extension issued under this article constitutes a complete defense to a civil action brought under this section.
    (c) A person described in IC 34-46-4-1 has an affirmative defense under this section if the person was unaware that the communication was intercepted in violation of this article and:
        (1) has not intercepted the communication;
        (2) has not procured another person to intercept or disclose the communication; and
        (3) has used a communication for the purpose of assisting the person to independently confirm information contained in a communication.
    (d) An action under this section must be brought within two (2) years after the date that the interception, disclosure, or use of a communication in violation of this article initially occurs whichever is later.

SOURCE: IC 35-38-2-3; (10)SE0399.1.11. --> SECTION 11. IC 35-38-2-3, AS AMENDED BY P.L.48-2008, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 3. (a) The court may revoke a person's probation if:

        (1) the person has violated a condition of probation during the probationary period; and
        (2) the petition to revoke probation is filed during the probationary period or before the earlier of the following:
            (A) One (1) year after the termination of probation.
            (B) Forty-five (45) days after the state receives notice of the violation.
    (b) When a petition is filed charging a violation of a condition of probation, the court may:
        (1) order a summons to be issued to the person to appear; or
        (2) order a warrant for the person's arrest if there is a risk of the person's fleeing the jurisdiction or causing harm to others.
    (c) The issuance of a summons or warrant tolls the period of probation until the final determination of the charge.
    (d) The court shall conduct a hearing concerning the alleged violation. The court may admit the person to bail pending the hearing.
    (e) The state must prove the violation by a preponderance of the evidence. The evidence shall be presented in open court. The person is entitled to confrontation, cross-examination, and representation by counsel.
    (f) Probation may not be revoked for failure to comply with conditions of a sentence that imposes financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.
    (g) If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:
        (1) Continue the person on probation, with or without modifying or enlarging the conditions.
        (2) Extend the person's probationary period for not more than one (1) year beyond the original probationary period.
        (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
    (h) If the court finds that the person has violated a condition of home detention at any time before termination of the period, and the petition to revoke probation is filed within the probationary period, the court shall:
        (1) order one (1) or more sanctions as set forth in subsection (g); and
        (2) provide credit for time served as set forth under IC 35-38-2.5-5.

    (i) If the court finds that the person has violated a condition during any time before the termination of the period, and the petition is filed under subsection (a) after the probationary period has expired, the court may:
        (1) reinstate the person's probationary period, with or without enlarging the conditions, if the sum of the length of the original probationary period and the reinstated probationary period does not exceed the length of the maximum sentence allowable for the offense that is the basis of the probation; or
        (2) order execution of all or part of the sentence that was suspended at the time of the initial sentencing.
    (j) If the court finds that the person has violated a condition of home detention during any time before termination of the period, and the petition is filed under subsection (a) after the probation period has expired, the court shall:
        (1) order a sanction as set forth in subsection (i); and
        (2) provide credit for time served as set forth under IC 35-38-2.5-5.
    (k) A judgment revoking probation is a final appealable order.
    (l) Failure to pay fines or costs (including fees) required as a condition of probation may not be the sole basis for commitment to the department of correction.
    (m) Failure to pay fees or costs assessed against a person under IC 33-40-3-6, IC 33-37-2-3(e), or IC 35-33-7-6 is not grounds for revocation of probation.

SOURCE: IC 35-38-3-2; (10)SE0399.1.12. -->     SECTION 12. IC 35-38-3-2, AS AMENDED BY P.L.119-2008, SECTION 17, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 2. (a) When a convicted person is sentenced to imprisonment, the court shall, without delay, certify, under the seal of the court or through any electronic means approved by the department of correction, copies of the judgment of conviction and sentence to the receiving authority.
    (b) The judgment must include:
        (1) the crime for which the convicted person is adjudged guilty and the classification of the criminal offense;
        (2) the period, if any, for which the person is rendered incapable of holding any office of trust or profit;
        (3) the amount of the fines or costs (including fees) assessed, if any, whether or not the convicted person is indigent, and the method by which the fines or costs (including fees) are to be satisfied;
        (4) the amount of credit, including credit time earned, for time

spent in confinement before sentencing; and
        (5) the amount to be credited toward payment of the fines or costs (including fees) for time spent in confinement before sentencing.
    (c) The judgment may specify the degree of security recommended by the court.
    (d) A term of imprisonment begins on the date sentence is imposed, unless execution of the sentence is stayed according to law.

SOURCE: IC 35-50-5-4; (10)SE0399.1.17. -->     SECTION 17. IC 35-50-5-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 4. (a) This section applies only:
        (1) if the county in which a criminal proceeding was filed adopts an ordinance under IC 36-2-13-15; and
        (2) to a person who is sentenced under this article for a felony or a misdemeanor.
    (b) At the time the court imposes a sentence, the court may order the person to execute a reimbursement plan as directed by the court and make repayments under the plan to the county for the costs described in IC 36-2-13-15.
    (c) The court shall fix an amount under this section that:
        (1) may not exceed an amount the person can or will be able to pay;
        (2) does not harm the person's ability to reasonably be self-supporting or to reasonably support any dependent of the person; and
        (3) takes into consideration and gives priority to any other restitution, reparation, repayment, costs (including fees), fine, or child support obligations the person is required to pay.
    (d) When an order is issued under this section, the issuing court shall send a certified copy of the order to the clerk of the circuit court in the county where the felony or misdemeanor charge was filed. Upon receiving the order, the clerk shall enter and index the order in the circuit court judgment docket in the manner prescribed by IC 33-32-3-2.

    (e) An order under this section is not discharged:
        (1) by the completion of a sentence imposed for a felony or misdemeanor; or
        (2) by the liquidation of a person's estate by a receiver under IC 32-30-5 (or IC 34-48-1, IC 34-48-4, IC 34-48-5, and IC 34-48-6 before their repeal).