Version b
Prosecution in name of state or municipality; rules; limitations;
burden of proof; deferral programs; agreement for community
restitution or service
Note: This version of section effective 7-1-2005. See also
preceding version of this section, effective until 7-1-2005.
Sec. 1. (a) An action to enforce a statute defining an infraction
shall be brought in the name of the state of Indiana by the
prosecuting attorney for the judicial circuit in which the infraction
allegedly took place. However, if the infraction allegedly took place
on a public highway (as defined in IC 9-25-2-4) that runs on and
along a common boundary shared by two (2) or more judicial
circuits, a prosecuting attorney for any judicial circuit sharing the
common boundary may bring the action.
(b) An action to enforce an ordinance shall be brought in the name
of the municipal corporation. The municipal corporation need not
prove that it or the ordinance is valid unless validity is controverted
by affidavit.
(c) Actions under this chapter (or IC 34-4-32 before its repeal):
(1) shall be conducted in accordance with the Indiana Rules of
Trial Procedure; and
(2) must be brought within two (2) years after the alleged
conduct or violation occurred.
(d) The plaintiff in an action under this chapter must prove the
commission of an infraction or ordinance violation by a
preponderance of the evidence.
(e) The complaint and summons described in IC 9-30-3-6 may be
used for any infraction or ordinance violation.
(f) This subsection does not apply to an offense or violation under
IC 9-24-6 involving the operation of a commercial motor vehicle.
The prosecuting attorney or the attorney for a municipal corporation
may establish a deferral program for deferring actions brought under
this section. Actions may be deferred under this section if:
(1) the defendant in the action agrees to conditions of a deferral
program offered by the prosecuting attorney or the attorney for
a municipal corporation;
(2) the defendant in the action agrees to pay to the clerk of the
court an initial user's fee and monthly user's fee set by the
prosecuting attorney or the attorney for the municipal
corporation in accordance with IC 33-37-4-2(e);
(3) the terms of the agreement are recorded in an instrument
signed by the defendant and the prosecuting attorney or the
attorney for the municipal corporation;
(4) the defendant in the action agrees to pay a fee of seventy
dollars ($70) to the clerk of court if the action involves a
moving traffic offense (as defined in IC 9-13-2-110);
(5) the agreement is filed in the court in which the action is
brought; and
(6) if the deferral program is offered by the prosecuting
attorney, the prosecuting attorney electronically transmits
information required by the prosecuting attorneys council
concerning the withheld prosecution to the prosecuting
attorneys council, in a manner and format designated by the
prosecuting attorneys council.
When a defendant complies with the terms of an agreement filed
under this subsection (or IC 34-4-32-1(f) before its repeal), the
prosecuting attorney or the attorney for the municipal corporation
shall request the court to dismiss the action. Upon receipt of a
request to dismiss an action under this subsection, the court shall
dismiss the action. An action dismissed under this subsection (or
IC 34-4-32-1(f) before its repeal) may not be refiled.
(g) If a judgment is entered against a defendant in an action to
enforce an ordinance, the defendant may perform community
restitution or service (as defined in IC 35-41-1-4.6) instead of paying
a monetary judgment for the ordinance violation as described in
section 4(e) of this chapter if:
(1) the:
(A) defendant; and
(B) attorney for the municipal corporation;
agree to the defendant's performance of community restitution
or service instead of the payment of a monetary judgment;
(2) the terms of the agreement described in subdivision (1):
(A) include the amount of the judgment the municipal
corporation requests that the defendant pay under section
4(e) of this chapter for the ordinance violation if the
defendant fails to perform the community restitution or
service provided for in the agreement as approved by the
court; and
(B) are recorded in a written instrument signed by the
defendant and the attorney for the municipal corporation;
(3) the agreement is filed in the court where the judgment was
entered; and
(4) the court approves the agreement.
If a defendant fails to comply with an agreement approved by a court
under this subsection, the court shall require the defendant to pay up
to the amount of the judgment requested in the action under section
4(e) of this chapter as if the defendant had not entered into an
agreement under this subsection.
As added by P.L.1-1998, SEC.24. Amended by P.L.98-2000, SEC.12;
P.L.98-2004, SEC.123; P.L.176-2005, SEC.24; P.L.200-2005,
SEC.1.
Last modified: May 24, 2006