FOR PUBLICATION
                                                                       Mar 26 2014, 9:29 am




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

BART M. BETTEAU                                     GREGORY F. ZOELLER
Betteau Law Office, LLC                             Attorney General of Indiana
New Albany, Indiana
                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

BRIAN BYRD,                                  )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )   No. 10A01-1309-IF-383
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE CLARK CIRCUIT COURT
                         The Honorable Joseph P. Weber, Judge
                            Cause No. 10C03-1305-IF-6659


                                   March 26, 2014

                             OPINION - FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Brian Byrd (“Byrd”) appeals a judgment against him for the civil infraction of

Speeding1 for driving 54 miles per hour in a 30 miles per hour zone. He alleges he was

denied due process2 because of a variance between the allegations and the proof. Because we

find there was a failure of proof, we reverse.

                                   Facts and Procedural History

          On May 9, 2013, Clark County Deputy Sheriff Donovan Harrod issued a traffic ticket

to Byrd, who had been traveling on Brown Station Way. The citation alleged that Byrd had

violated Indiana Code section 9-21-5-2 by driving his vehicle at 54 miles per hour on a road

having a prima facie speed of 30 miles per hour.3

          At the trial, Deputy Harrod testified that the posted speed limits on Brown Station

Way progressed from 30 miles per hour up to 45 miles per hour and back down to 40 miles

per hour, he had “paced” Byrd’s speed for approximately half a mile and had “made a turn”

to pursue Byrd at a boat marina, located in a 45 miles per hour zone. (Tr. 15, 19.) During


1
    Ind. Code § 9-21-5-2.

2
 The State does not respond to Byrd’s due process argument, but asserts waiver. As the State observes, Byrd
did not move to dismiss the citation but defended against it by testifying that his vehicle speed was not in
excess of 45 miles per hour. The State claims that the omission of a motion for dismissal waived Byrd’s
contention on appeal. Where a defendant is charged with a criminal offense, Indiana Code section 35-34-1-4
provides that the proper procedure to challenge deficiencies in a charging information is to file a motion to
dismiss the information twenty days before the omnibus date if the defendant is charged with a felony or ten
days if the defendant is charged with a misdemeanor. Here, however, Byrd was not charged with a crime but
was alleged to have committed an infraction. The State acknowledges this but argues that, generally, a
defendant must file a motion to challenge an allegedly defective charging information. Nonetheless, the State
identifies no statutory provision requiring the recipient of a traffic citation to move for dismissal to avoid
forfeiture of appellate arguments. We are unpersuaded that Byrd forfeited a due process claim.

3
  Deputy Harrod also cited Byrd for failure to carry his vehicle registration in his vehicle, in violation of
Indiana Code section 9-18-2-21(B). This citation was subsequently dismissed.

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Deputy Harrod’s cross-examination, Byrd’s counsel produced a photograph purportedly

taken near the boat marina, depicting a 45 miles per hour speed sign. Deputy Harrod

conceded that he “may have made a mistake” as to where [the speed limit] “turns into 45.”

(Tr. 30-31). He also suggested that the photograph “could be wrong” and clarified that he

had “said approximately that area” in his preceding testimony. (Tr. 31.) On re-direct,

Deputy Harrod agreed with the prosecutor’s statement that “you may have said thirty on the

ticket, but in fact it was in a forty five zone.” (Tr. 35.) The prosecutor then described the

State’s allegation as Byrd having traveled nine miles over the speed limit by going 54 miles

per hour.

       Byrd testified that he was traveling 45 miles per hour, having set his cruise control

upon entering Brown Station Way. The trial court took the matter under advisement,

expressing his belief that “there’s every chance, by the time Mr. Byrd entered Clark County,

he was in a forty five mile an hour zone, rather than thirty mile an hour zone.” (Tr. 53.)

Ultimately, the trial court entered a judgment against Byrd with the notation: “Hearing

Journal Entry. Court finds defendant guilty of Speeding 50/45.” (App. 5.) Byrd was ordered

to pay $154.00 within 30 days. This appeal ensued.

                                 Discussion and Decision

       Infractions are civil, rather than criminal, in nature. Rosenbaum v. State, 930 N.E.2d

72, 74 (Ind. Ct. App. 2010), trans. denied. Nonetheless, our Legislature is undoubtedly

aware that repetitive violations can result in long-term civil and potentially criminal

consequences. Accordingly, the Legislature requires specificity when a speeding violation is


                                             3
charged. These elements must be proven by a preponderance of the evidence. Dawley v.

State, 580 N.E.2d 366, 367 (Ind. Ct. App. 1991). Indiana Code section 9-21-8-53(a)

provides:

       In every charge of violation of a speed regulation under this article, the
       complaint or affidavit and the summons, warrant, or notice to appear must
       specify the following:

       (1)      The speed at which the defendant is alleged to have driven.


       (2)      The prima facie or fixed speed applicable within the district or at the

             location.


       The State complied with the specificity requirements of the statute, alleging that Byrd

drove 54 miles per hour in a location having an applicable prima facie speed of 30 miles per

hour. However, it was also incumbent upon the State to prove those elements by a

preponderance of the evidence.

       Byrd produced evidence that contradicted the prima facie speed allegation.

Specifically, he produced photographs of the speed limit sign in the location where he had

been pulled over. The photographs depicted a speed limit of 45 miles per hour; the State did

not contest the fact that this was an altered speed limit district.

       The State alleged that Byrd violated Indiana Code section 9-21-5-2. This statute does

not prescribe a 45 miles per hour speed limit. Rather, this statute prescribes maximum

highway speed limits of 30, 55, 60, 65 or 70 miles per hour, depending upon the vehicle

weight, highway designation, or urbanization, and is inapplicable to alterations of the



                                               4
maximum speed by local jurisdictions. See Dawley, 580 N.E.2d at 368 (interpreting a prior

version of the maximum speed statute, recognizing that it specified speed limits other than

those municipally altered, and also finding that, where the State did not prove what

governmental entity had established the altered speed zone, the State failed to establish the

elements of its case).

       Although the specified limits of Indiana Code section 9-21-5-2 were facially

inapplicable, the trial court, with a notation “guilty of Speeding 50/45,” found that Byrd had

violated some other authority prescribing a 45 miles per hour speed limit. (App. 5.)

However, the State did not establish the lawful basis for the 45 miles per hour zone. Byrd

now asserts that he was found to have committed a violation that was not charged. He argues

that this amounted to a deprivation of his due process rights, and directs our attention to

Griffin v. State, 439 N.E.2d 160, 162 (Ind. 1982) (recognizing that “a conviction upon a

charge not made would be sheer denial of due process”).

       Unlike the defendant in Griffin, Byrd did not face a criminal charge and was not

convicted. In this civil matter, the process to which Byrd was due is that prescribed by

statute. According to Indiana Code section 9-21-8-53(a), Byrd was entitled to specific

allegations of his speed and location and the applicable prima facie or fixed speed applicable

within the district or at the location. He was entitled to have those elements established by a

preponderance of the evidence.

       The State provided the requisite specificity, but alleged only that Byrd violated

Indiana Code section 9-21-5-2 by driving 54 miles per hour in a 30 miles per hour zone. The


                                              5
evidence adduced did not establish the violation alleged. And the State’s concession to, but

without proof of, an alternative fixed speed limit results in a failure of proof. Although in

some circumstances, Byrd’s conduct may have amounted to a violation of a lawfully enacted

ordinance, here the State did not prove or otherwise seek judicial notice of a lawfully

established altered speed zone. This left the fact-finder to speculate that Byrd violated some

unspecified speeding prohibition. Our Legislature has chosen to require more than a bald

assertion of speeding. Rather, the prima facie or fixed speed must be alleged and proven by

the State. Too, due process requires the State to prove these specific allegations by a

preponderance of the evidence. We conclude in this case that the State did not meet its

burden.

       Reversed.

KIRSCH, J., and MAY, J., concur.




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