Our office will close to the public on October 7 and 8 for internal records management. We will also close on Monday, October 11, 2021.
R. J. Butler
On March 18, 2020, Indiana Governor Eric Holcomb signed into law legislation that dramatically strengthens Indiana’s Distracted Driver law. That legislation can be viewed here. The new law goes into effect on Wednesday, July 1, 2020.
The relevant text of the new law is as follows:
“[A] person may not hold or use a telecommunications device while operating a moving motor vehicle.”
The law makes exceptions for calling 911 to report an actual emergency, OR (and this is important) when the telecommunications device is used in conjunction with hands-free or voice-operated technology.
Five quick takeaways:
- The new law covers any use of your phone or smart device—not just sending texts and emails.
- If you are in the driver’s seat and are on a public road, do NOT have your phone or device out at all, unless it is in a hands-free phone cradle.
If not in a hands-free phone cradle, your phone or device should not be visible. Keep it in your pockets, a bag or briefcase, or an enclosed console area, including the glove box. If your phone or device is resting in an open console, even if you’re not using it, it may give a law enforcement officer the opening to assert that you were using your phone or device illegally, but dropped it into the open console when he/she approached. Wait until you are parked to have the phone or device out.
- What does “operating a moving motor vehicle” mean?
Does the law apply when I am stopped at a traffic light or stop sign or at a full-stop in congested traffic? While the law hasn’t gone into effect as of this writing, and there is no case law to draw from, we think that the answer is likely, “Yes.”, and here’s why:
The statutes help define some of these terms. “Operate” means “to navigate or otherwise be in actual physical control of a vehicle.” (IC 9-13-2-117.5) “Motor vehicle” includes any vehicle that is self-propelled, but not including farm tractors, or electric bicycles, scooters, and electric mobility devices. (IC 9-13-2-105)
Moving isn’t explicitly defined by the statute, though “moving traffic offense” distinguishes vehicles that are “in motion.” “In motion” isn’t expressly specified in the law either, but the American Heritage Dictionary lists amongst its definitions of “motion” as “in active operation.” This is the definition that an Indiana Court is likely to apply.
Our Courts in Indiana have regularly interpreted the idea of “operating a motor vehicle” broadly, and without limitation to whether or not the vehicle in question was physically in motion. (See Gutenstein v. State, 59 NE 3d 984 Ind. Ct. App. 2016) The Distracted Driver law is designed to reduce collisions and injuries from drivers being distracted away from the operation of their vehicles by their phones and smart devices. For this reason, an Indiana court is likely to apply the logic that drivers are no less in operation of their vehicles while paused at a traffic signal or in heavy traffic.
- If you are detained by a law enforcement officer in a traffic stop, do NOT consent to hand them your phone or device.
What hasn’t changed in the law is that a law enforcement officer may not confiscate your phone to determine whether or not you are complying with the Distracted Driver law, UNLESS YOU CONSENT TO IT. If an officer asks to see your phone or firmly asks you to hand him/her your phone, your polite response should always be, “I do not consent to a search of my phone.”
- Learn to use the Bluetooth and hands-free features of your vehicle.
Most vehicles come equipped with these features as standard, and many late-model vehicles integrate your smart device via Apple Carplay and Android Auto. Whatever features your vehicle has for hands-free use of your phone, now is an excellent time to learn to use them so that you may operate your vehicle more safely and within the law.
Please remember that the law is always changing and that this briefing is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney-client relationship. If you have any questions or need to consult with an attorney concerning traffic or other matters, please contact Myers, Hockemeyer & McNagny, LLP to schedule an appointment.
On March 31, 2020, the Indiana Supreme Court entered a standing order concerning child custody, parenting time and support, given the ongoing health emergency in the State of Indiana. A link to that order is at the bottom of this page.
- Parents are encouraged to be flexible and cooperate during this time.
- Transporting minor children for parenting time is “essential travel” per Executive Order 20-08. The Indiana Directive for Hoosiers to Stay at Home should not be used as an excuse to not follow scheduled parenting time.
- Existing custody and parenting time orders are to remain in place during the emergency.
- The existing school calendar for the minor child(ren) will still be used to determine or interpret custody and parenting time, even though the school may be closed.
- Parents may agree to a temporary modification of custody and parenting time orders, but it must be in writing. The written agreement does not need to be filed with the Court.
- If parents find that they cannot follow existing or temporary custody and parenting time orders or agreements, they may file an emergency petition to modify.
- Child support payments are to be made as scheduled, even if the child support office is not accepting payments in person. Payments may still be made online, by mail, or by phone, or by third-party locations that accept Indiana Child Support payments. Parents who cannot make their support payments may file an emergency petition with the Court.
- Parents who are presently represented by an attorney in their family law case must have their attorney make filings on their behalf.
Indiana Supreme Court March 31, 2020 Order: https://www.in.gov/judiciary/files/order-other-2020-20S-ms-238.pdf
Indiana Judicial Branch COVID-19 resource site: https://www.in.gov/judiciary/5575.htm
Indiana Directive for Hoosiers to Stay at Home: https://www.in.gov/gov/files/Executive_Order_20-08_Stay_at_Home.pdf
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.
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:
- Indiana will now defer to disability determinations made by the Social Security Administration.
- Folks on SSI will automatically be enrolled in Medicaid.
- The “spend down” provisions will be eliminated for most folks receiving Medicaid benefits in the community.
- 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.
- 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.
- 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.
- 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
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