« Ind. Courts - "A troubling effort to politicize courts" | Main | Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP) »

Thursday, November 01, 2012

Ind. Decisions - Yet more on "Driving For Miles With Blinker On is Not a Crime"

Updating this ILB entry from Oct. 29th, the “attorney who works with law enforcement” has sent this note in response:

Thanks for your thoughts on my comments regarding the Killibrew decision. I would respond in the following way, obviously leaving to you the decision whether to post my response or not.

I read the two statutes, IC 9-21-7-11 and IC 9-21-8-25, in conjunction with each other. A person is allowed to activate a turn signal (a flashing light) for the purpose of indicating a left or right turn under 9-21-7-11, and must do so at the minimum distances required in 9-21-8-25 before actually making the turn. Certainly, there is some room for differing judgments in individual cases. A person who is in the right lane of a city street and signals a right turn 400 feet away, when only 200 feet are required, is not likely to violate the flashing light statute--the officer is going to have a hard time articulating his "belief in good faith" (the standard necessary to make a traffic stop, see IC 34-28-5-3) that the person wasn't attempting to indicate an intention to turn with the short distance observed.

However, I think the State would likely meet its burden in a case where a person drove his vehicle for a substantial distance (say a quarter of a mile) with a turn signal on while passing several intersections, or if a person had his left turn signal on for a substantial distance where there were no location to actually turn left, such as on an interstate highway. I think in these examples, a law enforcement officer would have a "belief in good faith" that the signal is not being used to indicate an intention to turn right or left, and therefore the statute would be violated.

I realize that this is not a black and white rule, but the traffic code is full of examples where discretion is left to the officer to decide whether a violation is occurring based on the circumstances he observes. See, for example, the "following too closely" statute, which simply says, "A person who drives a motor vehicle may not follow another vehicle more closely than is reasonable and prudent ..."

The ILB also received this response:
I think I'd prefer if I be cited as an "attorney working with law enforcement" on this topic as well.

In XXX County, we prosecute OWIs at a per capita rate as high or higher than anywhere in the State. I'm one of the point people for that effort.

From my professional chair, Killebrew beautifully illustrates bad facts making bad law.

The fact pattern is poor for a couple reasons - first, the arresting officer's testimony clearly shows a mistaken belief that signalling without turning was a traffic infraction. Second, the officer testified that based on that conduct he suspected Killebrew of impaired driving.

The deputy prosecutor in the trial court should have elicited testimony from his/her officer that "Signal inconsistent with action" is listed by the Nat'l Highway Traffic Safety Administration as a sign of impairment in their OWI SFST training manual(s) and has been listed as such for over twenty years. In this, both the trial and appellate levels have missed the boat. More to the point though - our office and I personally have always implored our local LEOs to always make traffic stops on more than just one piece of impairment.

Even if the State prevails at the suppression level on such a thin set of facts, our juries have been singularly underwhelmed by those same facts. They probably should be.

Further, because there is only one driving behavior the Appellate Court was offered -- the opportunity to make a finding that this driving behavior as a matter of law is not a sign of impairment. They failed to resist the opportunity, and got it wrong in the result.

All of that said, on a personal note I'm pleased with this result - that one sign of impairment listed by NHTSA is one of twenty-three different signs of impairment included by NHTSA in their manuals.

LEOs will continue to have absolutely no problem pulling over motorists when they feel the need.

I don't know if this will reassure you or alarm you, but I'm convinced 90% of Hoosier drivers (myself included) can't drive their vehicles more than 5 miles in our city and not merit a traffic stop based on some infraction or violation.

Thanks for all your hard work. Your law blog rocks.

The ILB thanks both writers for their responses!

Posted by Marcia Oddi on November 1, 2012 10:05 AM
Posted to Ind. App.Ct. Decisions