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
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.