Bailey, J.
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. [Footnote omitted.]
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 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.” . . . .
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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 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.
KIRSCH, J., and MAY, J., concur.