A Tale of Unlicensed Drivers and Mopeds

Jim was unfortunate enough to have accumulated too many points on his driving record, and he found himself suspended under Indiana’s Habitual Traffic Violator (HTV) statute for ten years. Donna also had a suspended license, as she failed to carry car insurance and was in an automobile accident. Both Jim and Donna were told they could purchase a moped to get back and forth to work while their license was suspended. Jim purchased a moped from his friend, who told Jim that he could ride the moped without a license. The moped looked like most of the other ones Jim had seen on the road. Donna went to a dealer who was knowledgeable of Indiana’s license laws and purchased a moped that she was told did not require a driver license.

One day, Jim was in a rush to work because he was running late. As a result, Jim was traveling over the speed limit and was stopped by a city police officer. The officer, after running Jim’s license and looking over the moped, arrests Jim for driving as a habitual traffic violator and impounds the moped. Jim is now facing a felony charge.

Donna was also pulled over while rushing to work on her moped. However, the officer only writes her a citation for speeding. She continues to work and will pay the citation later.

So what is the difference that resulted in Jim going to jail but not Donna? It is not that Jim is HTV and Donna is not. Both Jim and Donna, in effect, have a suspended driver license. The difference is that Donna’s moped was in compliance with Indiana’s traffic laws, while Jim’s moped was not.

Probably one of the most misunderstood laws in Indiana is that which covers the ability to operate a motorcycled bicycle, scooter or moped without a driver license. What is commonly mistaken is that one cannot operate a moped merely because it looks like, or is called, a motorized bicycle, scooter or moped. In fact, to operate a motorized bicycle, scooter or moped without a valid driver license in Indiana, it must meet certain requirements and the person must have a state-issued identification card, permit and be at least fifteen years of age. Most people are only vaguely aware of these requirements and do not know that all four of the following must be met to qualify as not requiring a valid driver license for a gas-powered unit:2

  • The engine size must not be greater than 50cc.
  • The maximum design speed must not be greater than 25 mph on a flat surface.
  • It must not have a rating of more than 2 horsepower.
  • It must have an automatic transmission

Ind. Code § 9-13-2-109.

Many criminal defense attorneys have run across the sad situation where a client purchased a moped “just to be legal,” only to find out later (after getting arrested) that the moped did not qualify. For example, there are many folks out there who purchase a particular moped because they thought it had to be “under 50 cc.” That assumption is correct; however, where those people are mistaken is that if the moped has a horsepower rating higher than 2 or maximum design speed greater than 25 mph, the moped still requires a valid driver license. It would probably be disheartening to find out the number of people who thought the 50cc requirement was the only one.

What is even more troubling for these clients–and the attorneys trying to defend them– is that many law enforcement officers are not consistent in their understanding or application of the law. For example, Jim may have gotten pulled over before on the same moped and never had a problem with law enforcement. In fact, Jim may have used that moped for years without any problem. However, the last officer was thorough enough to look into all the specs of the moped to determine that it required a driver license to operate it. So over all that period of time, Jim was technically not in compliance with the law, but he thought he was. His thoughts were further confirmed by the fact that prior law enforcement never questioned it.

The inconsistency with law enforcement’s application of the law is not an excuse for someone not knowing the requirements of the law. However, it does add to the confusion, because most people do not look up the actual statute but instead rely on what a friend told them, their own experience, or a quick internet search. This type of honest mistake can be costly and lead to felony charges.

Whether there is a valid defense to operating a moped under Jim’s set of facts is unclear given the current state of the law. Defense attorneys would argue that there was a mistake of fact or lack of intent warranting a conviction. Prosecutors would argue that ignorance of the law is no defense.

Unless and until the Indiana General Assembly clarifies a defense of “honest mistake” in this situation, the matter will continue to be battled throughout the courts. In the meantime, anyone who has a suspended driver license, or who is HTV, considering to purchase a moped needs to ensure that it meets the requirements of the law. Moreover, the vigilant person should be sure to keep tabs on the latest changes in the laws.

To avoid being in Jim’s position, verify that the moped is in compliance with the law, or talk with an attorney if the situation is unclear.

Jeffrey T. Jones, Jr., October 2013

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1Ind. Code § 9-21-11-12.

2An electric moped cannot have a design speed greater than 25 mph on a flat surface. Either gas or electric must have two or three wheels.

3For example, qualifying mopeds do not require registration or “license plates” but there are efforts to require registration in the future.

Proposed Indiana Medicaid Rule Changes

 

The Indiana Family and Social Services Administration has proposed major changes in the Indiana Medicaid Program.  The Indiana Medicaid rule changes proposed for June 1, 2014, include:

  1.          Indiana will now defer to disability determinations made by the Social Security Administration.
  2.          Folks on SSI will automatically be enrolled in Medicaid.
  3.          The “spend down” provisions will be eliminated for most folks receiving Medicaid benefits in the community.
  4.          The asset limit will increase from $1,500 to $2,000 for a single person and from $2,250 to $3,000 for a married couple.
  5.          The “spend down” system will be replaced by four programs, depending on your income.
    •          Hoosiers who are aged, blind and disabled at 100% of the Federal Poverty Level (“FPL”) (which is $11,670 annually for a single person, $15,730 for a     married couple, and an extra $4,432 for a qualifying child) will be enrolled in Medicaid without cost and without a “spend down”.
    •          The Medicare Savings Program will be expanded for dual eligibles – folks who qualify for Medicaid and Medicare.
    •          Folks earning more than 100% of FPL will be eligible to purchase a health insurance plan on the federal marketplace.
    •          Hoosiers with severe mental illness whose income exceeds 100% of FPL, who are not eligible for full Medicaid, may join the new Behavioral and Primary Healthcare Coordination Program.
  6.          As of December 2013, 65,642 Hoosiers had a “spend down”.
    •          On June 1, 2014, 23,869 Hoosiers will have full Medicaid because they are at or below 100% of the FPL.  They will be automatically enrolled in this program.
    •          On June 1, 2014, 26,879 Hoosiers between 100% and 150% of the FPL on Medicare will automatically join the Medicare Savings Program.  Indiana will pay for the Part B premium, the annual Part A & B deductibles, and Medicare copayments/coinsurance.
    •          Dual eligibles between 150% and 185% of FPL will have their Part B premium paid by the State but will lose their right to “spend down”.
    •          There are 6,906 Hoosiers in this category.
    •          7,997 dual eligible Hoosiers with income in excess of 185% of FPL will lose the “spend down” program and will not be eligible for the Medicare Savings Program.
  7.          Hoosiers receiving nursing home care or waiver services with monthly income above $2,163 will need to have a qualified income trust in place by June 1, 2014.

            You can view these changes at http://www.in.gov/fssa/4859.htm.

Marcia A. McNagny, February 2014

Special Acknowledgment to Keith P. Huffman, Indiana National Academy of Elder Law Attorneys

 

A Look at “Family Law”: Why So Many People Dislike the U.S. Court System

Before I was an attorney, my only perception of what attorneys really did, and how the legal system actually worked, was quite limited. In fact, I probably gained most of my perception from network television and movies. Modern shows such as Boston Legal, Law & Order, and the like tend to leave an image of swift justice, unscrupulous players and a dramatic courtroom. While real-life legal drama is not usually as exciting (or unscrupulous), unfortunately many of us in the United States only have any limited exposure to actual attorneys and the legal system through the family law courts. Continue reading

Sex Offenders and Expungement

In May 2013, Governor Mike Pence approved new expungement laws allowing persons with a criminal history greater tools and opportunities to seal or expunge prior convictions. One of the purposes of the revised law was to help eliminate barriers that prevent individuals from being employable after successfully completing their sentence. In today’s slow job market and economic recession, it appears that the Indiana General Assembly believed that these persons who have paid their debt to society and maintained good behavior should be given a better opportunity to get back to work. Continue reading

Injured in Indiana? Go with the Local Attorney

One cannot go for long in today’s commercially-driven environment without being bombarded by advertisements on television, billboards, buses, phone books and other mediums for personal injury attorneys. Big Indiana law firms spend huge sums of money to make sure that they are the first thing you think of in the event of an accident. Unfortunately, with the number of attorneys out there, the average person doesn’t know where to turn. Flashy commercials and laminated mailings become an incentive to call the first attorney who appears to be able to get the biggest settlement and provides the most impressive information. Continue reading

I Got a Speeding Ticket in Whitley County — Should I Fight It?

Most of the time, those of us who have had the unfortunate situation of getting tagged with a ticket did in fact violate the law. Whether intentional or not, traffic infractions (commonly known as “tickets”) are those crimes which do not require mens rea–or criminal intent–to perform the act. So whether we weren’t paying attention, unintentionally drove a little too fast, or didn’t notice that red light, we still violated the law and have to pay the fine.

Traffic infractions are what are known in the law as malum prohibitum acts, meaning that the Indiana General Assembly has prohibited certain behaviors or activities. These activities aren’t necessarily immoral or destructive, but they are wrong merely because we say they are. Continue reading

Does Indiana Have a “Stand Your Ground” Law?

The latest media craze on the George Zimmerman trial has not only brought attention to race relations in this country, but is has also sparked debate on gun ownership and self-defense laws. Specifically, more and more people are hearing about Florida’s “Stand Your Ground Law”, which has become a topic of much discussion surrounding the Zimmerman trial. Continue reading

Criminal Expungement Rights Expanded

For years, Indiana has allowed certain arrest and juvenile records to be expunged.  Expungement is the act of causing certain information to be removed or limited from a government record.  Recently, the General Assembly enacted legislation extending the potential to expunge certain criminal convictions, rather than just arrests.  One of the effects of this new law is to allow more employment opportunities to those with prior convictions. Continue reading

Law firm renovating historic Columbia City building

Local law firm Myers, Tison, Hockemeyer & McNagny, LLP announced today that the firm will be renovating and moving into the historic and former Post & Mail newspaper building, 116 Chauncey Street.

“Maintaining our presence in downtown Columbia City was an important factor in our search for a new location,” said managing partner Greg Hockemeyer, “I am proud of our firm’s commitment to supporting the redevelopment of this important property.”

Continue reading