§ 34-28-5-1 — Prosecution in name of state or municipality; rules; limitations; burden of proof; deferral programs; agreement for community restitution or service

Indiana § 34-28-5-1

• Jurisdiction: Indiana
• Title 34: CIVIL LAW AND PROCEDURE
• Art. 28: SPECIAL PROCEEDINGS: MISCELLANEOUS
• Ch. 5: Infraction and Ordinance Violation Enforcement

Text

(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 (before its repeal) or IC 9-24-6.1 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 35-31.5-2-50) 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.
[Pre-1998 Recodification Citation: 34-4-32-1.]

Legislative History

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; P.L.101-2009, SEC.17; P.L.114-2012, SEC.65; P.L.125-2012, SEC.412; P.L.198-2016, SEC.667; P.L.110-2020, SEC.9.