Presentation on theme: "Chris Daniels Traffic Safety Resource Prosecutor February 26th, 2015"— Presentation transcript:
1 Chris Daniels Traffic Safety Resource Prosecutor February 26th, 2015 2015 Title 9 ChangesChris DanielsTraffic Safety Resource ProsecutorFebruary 26th, 2015
2 License Suspensions and IC 9-30-16 The most dramatic change to Title 9 is the handling of driving suspensions. With a few exceptions, all license suspensions are now discretionary; the court may suspend instead of shall. The length of a suspension is 0 up to the maximum period of incarceration; for example a Level 6 Felony is years This does lower a C misdemeanor to a maximum 60 day suspension. Suspension for drugs being “used” removed.
3 License Suspensions and IC 9-30-16 Administrative suspensions remain untouched and work the way they always havePC Affidavit suspensionsFailure to appearPoints on a licenseHTVFailure to pay Child SupportHB 1305 will re-insert a mandatory 1 year suspension for an OWI if there is a prior OWI at any time
4 License Suspensions and IC 9-30-16 PROBLEM: IC is supposed to govern all suspensions. However the language reads: “in which operation of a motor vehicle is an element of the offense” Operating While Intoxicated only requires the operation of a vehicle, not a motor vehicle.
5 License Suspensions and IC 9-30-16 As of January 1st, OWI cases are still covered by the suspension language inOWI is 0-2 years suspensionOWI Causing SBI or Death is 0-5 years suspensionOWI with controlled substance is mandatory 6 monthsis being removed by HB 1305, and OWI will be included in with the provision “or any crime under ”
6 License Suspensions and IC 9-30-16 The language creates a few new scenariosDriving While Suspended Infractions, and all other infractions, no longer carry a suspension (unless it causes them to accumulate a certain amount of points)Many crimes that did not have suspensions now do; Resisting, Reckless, etc.
7 Specialized Driving Privileges Probationary and Hardship licenses are removed entirely from Indiana law, and instead we now have Specialized Driving Privileges Granted under , these SDPs are designed to give the court, prosecutor, and defense broader discretion in dealing with suspended drivers
8 Specialized Driving Privileges SDPs have no set terms, they are left completely up to the parties or the courtThe hope is that this will allow:People to succeed on probationFacilitate pleasWaste less resources
9 Specialized Driving Privileges Every suspension is eligible for a Specialized Driving Privilege EXCEPT:Suspensions that were the result of a case causing deathPersons who do not have a SSNFailure to Appear SuspensionsSuspensions caused by a failure to take a chemical breath testA person who has been convicted of Driving in violation of an SDP within the past 5 years
10 Specialized Driving Privileges This means the following ARE eligible for Specialized Driving Privileges:HTV LifeOWI Causing SBIChild SupportOWI PC Affidavit Suspension (as long as its not a refusal)
11 Specialized Driving Privileges Terms of a Specialized Driving PrivilegeMust have insuranceMust have an ID or Operators License (Note: HB1305 also removes the requirement that the DL be taken at a stop)Must have a copy of the Specialized Driving Privileges order granted by the courtCannot operate a vehicle that requires a CDLDriving in violation of the above terms or the order is a Class B Misdemeanor under IC
12 Specialized Driving Privileges For Law Enforcement, license designations will remain the same;A person with a suspended license will still show as “suspended”A person with an SDP will show as “conditional”A conditional license is not a reason to stop a vehicle, but if independent PC exists, the person must:Show the officer a copy of their orderBe driving according to the orderThe BMV will NOT have records of what the terms of the order are, only that an order exists
13 Specialized Driving Privileges A person must have an SDP granted for each suspensionIf a person has 4 suspensions, and SDPs are granted for 3 of the 4, they will still show as suspended, and are still validly suspended by the BMVSome concern over a person who has just had an order granted. Talk to your department about policy on arresting DWS drivers
14 Specialized Driving Privileges Filing SDPsRight now the statutes give little guidance on where to file, outside of the home county having jurisdictionHB 1305 clarifies:Suspensions that are a result of a court order must be filed in that court’s county, under the cause # for the caseSuspensions that are a result of administrative action by the BMV come from the person’s county of residence, as an MI caseFiling fees are determined by the court
15 Specialized Driving Privileges PROBLEM: The penalty for driving in violation of an SDP points to the wrong section of the code; there is no penalty at the moment for driving in violation of your SDPThis is being addressed in HB 1305For now, considering making following SDP conditions a term of probationPROBLEM: Out of state suspensions are set at the minimum…which is now zero. No incoming fix for this
16 Suspensions and SDPs Savings Clause All penalties that existed prior to January 1st apply to someone sentenced after January 1stBUT, all of those sentenced may apply for an SDP after January 1st as long as they are eligibleExample: Chris Daniels gets an OWI in December 1st, 2014, and is sentenced on January 26th, The 90 day suspension is still imposed as the law was on December 1st, but is eligible to get an SDP after January 1st.Those who already having pending hardship or probationary license cases are encouraged to amend their motion to the SDP statute
17 Suspensions and SDPs Plea considerations: No more necessity for a Reckless to avoid license suspensionsInterlock, alcohol counseling, etc., may all be terms of an SDPRefusals are ineligible for an SDP
18 Habitual Traffic Violators HTV Qualifiers have changed;2 Offenses Causing Death3 Majors10 minors including one MajorHOWEVER, for purposes of the 3 Majors, DWS w/prior and Operator Never Licensed are no longer considered a Major. They still do count as a major for purposes of the 10.This means our drivers that are HTV because of 3 majors are dangerous drivers, not just drivers that keep driving to work!
19 Habitual Traffic Violator Level 6 HTV conviction no longer carries a lifetime suspensionPROBLEM: This is still in the statute as of January 1st, it is supposed to be removed, but is being removed in HB 1305Lifetime suspensions now only come from cases causing deathRescission statute still exists for lifetime suspensions prior to July 1st of 2015
20 Habitual Traffic Violator New Offense: Under , operating a vehicle while HTV and causing accident that results in SBI or death is a Level 5 FelonyDefendant’s can now also request that a court find, by a preponderance, that they are HTV and instruct the BMV to start the suspension on the date of sentencing.Avoids the BMV taking years to start suspensionDeals with notice issue for prosecutors!
21 Habitual Traffic Violator Motor Driven Cycles are no longer exempted from any statutes in the 9-13 definition of a vehicle It is now an affirmative defense that the person was operating a MDC Class B, AND operating it following rules of an MDC Class B A person not following the rules is driving a motor vehicle for all HTV purposes
22 Habitual Vehicular Substance Offender HB 1006 eliminated the Habitual Substance Offender statute as drug crimes were rolled into the general Habitual Offender statute. However, the new Habitual statute does not apply to misdemeanors that have been aggravated to felonies. Thus a person with 8 prior OWIs would still be facing only a year sentence!
23 Habitual Vehicular Substance Offender The HVSO was written to deal with repeat OWI offenders, Drug offenses no longer count, only OWI cases, but it does include C misdemeanor OWIs which were previously excluded The aggravator is 1-8 additional years, but it is suspendable 3 priors will always qualify regardless of time frame. 2 priors are acceptable if one of them is within 10 years of the current offense
24 Habitual Vehicular Substance Offender PROBLEM: Statute is currently a messRefers to time of occurrence, not time of convictionRequires that the 2 priors be within 10 years of each other with no relation to the current offenseCounts guilty verdict on underlying offense as a prior before judgment has been enteredRight now, the only defendants who will be eligible for the enhancement with no problems are those with 3 or 4 priorsLanguage fixed in HB 1305; requires dates to be by conviction, and one prior to be within 10 years of the current offense
25 Leaving the Scene of an Accident Reorganization of the statuteCombines all penalty and duty statutes into one statuteMost importantly, slightly shifts to burden to a duty to stop for ANY accident, and then penalty level depends on resultNo more having to show the person knew they hit a person, only have to show they knew they were in an accident of any sort
26 Leaving the Scene of an Accident Some minor changesAllows a person to call 911 instead of appropriate municipality personFixes penalty for occupant duties if the driver is incapacitatedIncreases penalty for LTS after committing OWI causing SBI or Death to a Level 3Persons are now allowed to call law enforcement to report a property damage crash if they cannot locate the owner. There is no consideration to any jurisdictional issues this may cause.
27 Reckless DrivingHB 1279 included an error that makes Reckless Driving a B misdemeanor, but Reckless Driving Causing Bodily Injury a C misdemeanor HB 1305 will introduce new language to clean up Reckless, which will now start a C, and go to an A for injury
28 Highway Work ZoneNew definition of Highway Work Zone Removes requirement that work zone be in compliance with INDOT manuals (2) notice is posted in accordance with the: (A) Indiana Manual on Uniform Traffic Control Devices; or (B) Indiana Work Site Traffic Control Manual; indicating that the highway work zone is a specific area designated with signage on the highway.
29 Window TintIC Same protection as seat-belts “a vehicle may be stopped to determine compliance with this section. However the vehicle, contents of the vehicle, the driver of a vehicle, or a passenger in a vehicle may not be inspected, searched, or detained solely because of a violation of this section”
30 Window Tint Pretty significant change Be wary of stops based only on window tintCase law upheld stop based on the good faith exception and the statutory language that an officer needs to be able to see inSubjective language has been removed, deflating the reasoning in the caseDon’t lose an important case because of the stop
31 Fake I.D./ApplicationIC IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2015]:Sec (a) A person who knowingly sells, offers to sell, buys, produces, forges, counterfeits, or offers a false identification card that could reasonably be mistaken for a valid identification card required by this chapter to be issued by the bureau but that has not been issued by the bureau commits a Class B misdemeanor.(b) A person who:(1) knowingly or intentionally uses false information in an application:(A) for an identification card issued under this chapter; or(B) for a renewal, amendment, or replacement of an identification card issued under this chapter; or(2) knowingly or intentionally makes a false statement or otherwise commits fraud in an application for an identification card issued under this chapter;commits application fraud, a Level 6 felony.Combines fake ID statutes found in Title 7, 9, and 35
32 Motor Vehicle FraudEliminates close to 100 motor vehicle statutes involving:TitleOdometerTransfer and saleCreates Motor Vehicle Fraud statute in Title 35 designed to catch the lie/cheat/steal aspectMany other crimes moved to infractions to target dealerships with heavy fines.