Denton v. State

395 N.E.2d 812, 182 Ind. App. 464, 72 Ind. Dec. 88, 1979 Ind. App. LEXIS 1383
CourtIndiana Court of Appeals
DecidedOctober 18, 1979
DocketNo. 2-378A76
StatusPublished
Cited by5 cases

This text of 395 N.E.2d 812 (Denton v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denton v. State, 395 N.E.2d 812, 182 Ind. App. 464, 72 Ind. Dec. 88, 1979 Ind. App. LEXIS 1383 (Ind. Ct. App. 1979).

Opinions

SULLIVAN, J.

In September of 1977, defendants Denton, Musgrove, Fetterhoff, and Mathes were convicted of operating vehicles which exceeded the weight limitations set out in IC 9-8-1-12 (Burns Code Ed. 1973). Subsequently, they were sentenced pursuant to IC 9-8-1-13 (Burns Code Ed. 1973). The four cases were consolidated for the purposes of appeal and involve two issues:

1. whether the IC 9-8-1-13 provides for excessive fines contrary to article 1, section 16 of the Indiana Constitution and,
2. whether a sufficient foundation was established for the admission of evidence as to the aggregated axle weights of the vehicles.
We affirm.

I.

Defendants argue that the penalty provision of IC 9-8-1-13 is unconstitutional. The pertinent part of the statute reads:

[466]*466“[0]n conviction each such person . . . shall be fined as follows:
(6) If the total of all excesses of weight under one or more . of the limitations of IC 1971, 9-8-1-12 is 5,000 pounds or more, ten cents [100] a pound for each pound over 1,000 pounds of excess weight.
... Parties fined by the court must pay the fine within thirty days.” IC 9-8-1-13(6) (Burns Code Ed. 1973).

The defendants urge that when the penalty provision is read in conjunction with IC 35-4.1-4-1-16 (Burns Code Ed. 1975) an excessive fine results.1 The latter statute provides that if a convicted person is not indigent but refuses or fails to pay his fine, the court may incarcerate that person and credit his prison time toward the payment of the fine at a rate of five dollars per day.

The defendants do not clearly demonstrate standing to raise this issue. The record is devoid of any evidence that the defendants intend to refuse to pay their fines. Nonetheless, we feel the issue is significant and merits consideration.

Defendants contend that in order to pay off their fines, the required imprisonment would range from 51 to 509 days. Such extended incarceration, they argue, clearly demonstrates the excessive nature of the penalty. The constitutional prohibition against cruel and unusual punishment proscribes atrocious obsolete punishments and is aimed at the kind and form of punishment rather than the duration and amount. Hollars v. State (1972) 159 Ind. 229, 286 N.E.2d 166; Clifton v. State (1978) 176 Ind.App. 395, 375 N.E.2d 1126. We do not find the punishment to be so grossly excessive as to render it unconstitutional.

As additional support for their argument, defendants compare the instant offense to that of driving while intoxicated which calls for a maximum fine of $500 and imprisonment of up to six months. Defendants’ argument is cogent and appealing but does not comport with the applicable case law. The comparative offense rationale [467]*467was rejected in Rector v. State (1976) 264 Ind. 78, 339 N.E.2d 551. There the court held that the legislature is free to establish penalties that are not proportionate to one another so long as the crimes are not lesser included offenses. Certainly, lesser included offenses are not at issue here. Hence, the disparity between them is not prohibited by article 1, section 16, of the Indiana Constitution.

The problem of imprisonment to satisfy fines was addressed in Williams v. Illinois (1970) 399 U.S. 235. There the United States Supreme Court held that a pauper’s prison sentence, imposed to discharge a fine, which exceeded the maximum punishment for the crime, violated equal protection. Our state Attorney General discussed the application of the Williams case to Indiana. He explained:

“It should be pointed out quite emphatically however, what the case of Williams v. State does not hold.

This case does not affect the State’s right to do the following:

1. Imprisonment for willful refusal to pay the fine or court costs, as distinguished from pauperism, which prevents one from paying such fine or court costs.” (1970 O.A.G. 46.)

We find IC 9-8-1-13 not unconstitutional.

II.

Next, the defendants urge that evidence about the vehicles’ weights was admitted without proper foundation. The weights were obtained by the use of portable scales (also known as loadometers).

The weighing was done by Patrolman Heimann who testified that he was assigned to the motor carrier division of the Indiana State Police and was trained in the use of the scales. Furthermore, IC 9-8-1-17 (Burns Code Ed. Supp. 1975) specifically authorizes policemen to stop, measure and weigh vehicles. The first requirement was adequately satisfied.

As to the equipment itself, the record is replete with expert testimony about the inspection and certification of the portable scales used by Officer Heimann. Metrologist Jeffers stated that he checked and certified the scales for accuracy March 21, 1977. The arrests occurred April 4, 1977. The testing was corroborated by two other witnesses: Paul Seitz [468]*468and Ralph Finney. There was, then, sufficient evidence regarding the precision of the equipment.

Finally, a proper foundation must establish that the operator used approved techniques. The crux of defendants’ argument is that there was no evidence that the portable scale method is an accepted procedure or an accurate way of obtaining gross weight. Defendants point out that the portable scales showed a disparity of weight from one side of each truck to the other. This fact alone, they contend, shows the absurdity of such a weighing technique. The problem of accurate weighing of large vehicles is undeniably complex and involves many intricate principles of physics. At least one other jurisdiction has confronted and approved the use of portable scales:

“The officer described, in explicit detail, the weighing procedure which was followed in this case, and there is nothing in the record to suggest that the procedure was incorrect. While counsel urged that such an inference can be drawn because the total axle weight of one side of the vehicle was 2,000 pounds in excess of the other side, the side-to-side weight differential is readily attributable to the liquid cargo shifting because of a slight beveling of the road surface, where the weighing took place. Certainly the differential obtained does not give rise to a reasonable inference that the scales were incorrect or that the weighing procedure was improper. Loadometers are in widespread use by law enforcement agencies throughout the country, and they are a relatively simple but accurate means of determining vehicle or axle weights without seriously delaying commercial traffic. Loadometer readings have been accepted as satisfactory evidence in other jurisdictions to support convictions for vehicle weight violations (see, e.g., People v. Vinciguerra, 24 Misc.2d 63, 203 N.Y.S.2d 953 (Sup.Ct.1960))____” State v. Horn (1971) 117 N.J. Super. 72, 283 A.2d 561,

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Cite This Page — Counsel Stack

Bluebook (online)
395 N.E.2d 812, 182 Ind. App. 464, 72 Ind. Dec. 88, 1979 Ind. App. LEXIS 1383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denton-v-state-indctapp-1979.