331.44  ENGINE BRAKING RESTRICTIONS.
   (a)   No person shall use or operate an unmuffled engine brake on a street or highway;
   (b)   No person shall use or operate any engine brake system so as to cause unreasonably disturbing, excessive, or unusually loud noise on a street or highway;
   (c)   Any law enforcement personnel who hears a sound believed to be a violation of this section shall be entitled to measure the sound according to the following standards:
      (1)   The primary means of detection shall be by means of the officer's ordinary auditory senses, provided that the officer's is not enhanced by any mechanical device, including, but not limited to, a microphone or hearing aid.
      (2)   The officer must have a direct line of sight and hearing to the motor vehicle producing the sound so the officer can readily identify the offending motor vehicle and the distance involved.
   (d)   It shall be an affirmative defense to an alleged violation of this subsection (a) or subsection (b) that using the engine brake was necessary:
      (1)   Due to extreme weather conditions, or
      (2)   Due to emergency circumstances, including, but not limited to, avoiding a collision or averting other immediate danger.
   (e)   Whoever violates this subsection (a) or subsection (b) is guilty of a minor misdemeanor on a first offense; on a second offense within one year after the first offense, the person is guilty of a misdemeanor of the fourth degree; on each subsequent offense within one year after the first offense, the person is guilty of a misdemeanor of the third degree.
(Ord. 2008-24.  Passed 11-17-08.)