Judicial hearing; petition; issues; findings; county prosecutor to represent state; burden of proof; appeal

Sec. 10. (a) A person against whom an ignition interlock device order has been issued under section 8.5 of this chapter or whose driving privileges have been suspended under section 9 of this chapter is entitled to a prompt judicial hearing. The person may file a petition that requests a hearing: (1) in the court where the charges with respect to the person's operation of a vehicle are pending; or (2) if charges with respect to the person's operation of a vehicle have not been filed, in any court of the county where the alleged offense or refusal occurred that has jurisdiction over crimes committed in violation of IC 9-30-5. (b) The petition for review must: (1) be in writing; (2) be verified by the person seeking review; and (3) allege specific facts that contradict the facts alleged in the probable cause affidavit. (c) The hearing under this section shall be limited to the following issues: (1) Whether the arresting law enforcement officer had probable cause to believe that the person was operating a vehicle in violation of IC 9-30-5. (2) Whether the person refused to submit to a chemical test offered by a law enforcement officer. (d) If the court finds: (1) that there was no probable cause; or (2) that the person's driving privileges were suspended under section 9(b) of this chapter and that the person did not refuse to submit to a chemical test; the court shall order the bureau to rescind the ignition interlock device requirement or reinstate the person's driving privileges. (e) The prosecuting attorney of the county in which a petition has been filed under this chapter shall represent the state on relation of the bureau with respect to the petition. (f) The petitioner has the burden of proof by a preponderance of the evidence. (g) The court's order is a final judgment appealable in the manner of civil actions by either party. The attorney general shall represent the state on relation of the bureau with respect to the appeal. [Pre-1991 Recodification Citation: 9-11-4-10.] As added by P.L.2-1991, SEC.18. Amended by P.L.76-2004, SEC.13; P.L.2-2005, SEC.38.