IC 33-39
    ARTICLE 39. PROSECUTING ATTORNEYS

IC 33-39-1
    Chapter 1. Bond; Eligibility Requirements for ProsecutingAttorneys; Duty to Prosecute; Special Prosecutors; Pretrial Diversion

IC 33-39-1-1
"Senior prosecuting attorney" defined; affidavit
    Sec. 1. (a) As used in this chapter, "senior prosecuting attorney"means a person who:
        (1) was employed for at least eight (8) years as a prosecutingattorney or chief deputy prosecuting attorney; and
        (2) files an affidavit requesting designation as a seniorprosecuting attorney in the circuit court and each superior courtin a county in which the person is willing to serve as a seniorprosecuting attorney.
    (b) An affidavit filed under subsection (a) must contain thefollowing:
        (1) The name of the person filing the affidavit.
        (2) The person's attorney number issued by the supreme court.
        (3) The length of time the person served as a chief deputyprosecuting attorney or prosecuting attorney.
        (4) The name of any county in which the person served as achief deputy prosecuting attorney or prosecuting attorney.
    (c) The circuit or superior court shall promptly forward eachaffidavit received under this section to the prosecuting attorneyscouncil of Indiana.
As added by P.L.98-2004, SEC.18. Amended by P.L.119-2007,SEC.2.

IC 33-39-1-2
Prosecuting attorney; eligibility
    Sec. 2. (a) This section does not apply to a deputy prosecutingattorney appointed by a prosecuting attorney or to a specialprosecutor.
    (b) To be eligible to hold office as a prosecuting attorney, aperson must be a resident of the judicial circuit that the personserves.
As added by P.L.98-2004, SEC.18. Amended by P.L.222-2005,SEC.37.

IC 33-39-1-3
Bond of prosecuting attorney
    Sec. 3. A person elected to the office of prosecuting attorney,before entering upon the duties of the office, shall execute a bond inthe manner prescribed by IC 5-4-1.
As added by P.L.98-2004, SEC.18.

IC 33-39-1-4 Duties on receiving information of felony or misdemeanor
    Sec. 4. (a) When a prosecuting attorney receives information ofthe commission of a felony or misdemeanor, the prosecuting attorneyshall cause process to issue from a court (except the circuit court)having jurisdiction to issue the process to the proper officer,directing the officer to subpoena the persons named in the processwho are likely to have information concerning the commission of thefelony or misdemeanor. The prosecuting attorney shall examine aperson subpoenaed before the court that issued the processconcerning the offense.
    (b) If the facts elicited under subsection (a) are sufficient toestablish a reasonable presumption of guilt against the party charged,the court shall:
        (1) cause the testimony that amounts to a charge of a felony ormisdemeanor to be reduced to writing and subscribed andsworn to by the witness; and
        (2) issue process for the apprehension of the accused, as inother cases.
As added by P.L.98-2004, SEC.18.

IC 33-39-1-5
Felony, misdemeanor, or infraction prosecutions; other dutiesrequired by law
    Sec. 5. Except as provided in IC 12-15-23-6(d), the prosecutingattorneys, within their respective jurisdictions, shall:
        (1) conduct all prosecutions for felonies, misdemeanors, orinfractions and all suits on forfeited recognizances;
        (2) superintend, on behalf of counties or any of the trust funds,all suits in which the the counties or trust funds may beinterested or involved; and
        (3) perform all other duties required by law.
As added by P.L.98-2004, SEC.18.

IC 33-39-1-6
Appointment of special prosecutors; grounds; consent toappointment; powers and duties; term and compensation
    Sec. 6. (a) Special prosecutors may be appointed under thissection or in accordance with IC 4-2-7-7.
    (b) A circuit or superior court judge:
        (1) shall appoint a special prosecutor if:
            (A) any person other than the prosecuting attorney or theprosecuting attorney's deputy files a verified petitionrequesting the appointment of a special prosecutor; and
            (B) the prosecuting attorney agrees that a special prosecutoris needed;
        (2) may appoint a special prosecutor if:
            (A) a person files a verified petition requesting theappointment of a special prosecutor; and
            (B) the court, after:
                (i) notice is given to the prosecuting attorney; and                (ii) an evidentiary hearing is conducted at which theprosecuting attorney is given an opportunity to be heard;
            finds by clear and convincing evidence that the appointmentis necessary to avoid an actual conflict of interest or there isprobable cause to believe that the prosecutor has committeda crime;
        (3) may appoint a special prosecutor if:
            (A) the prosecuting attorney files a petition requesting thecourt to appoint a special prosecutor; and
            (B) the court finds that the appointment is necessary to avoidthe appearance of impropriety;
        (4) may appoint a special prosecutor if:
            (A) an elected public official, who is a defendant in acriminal proceeding, files a verified petition requesting aspecial prosecutor within ten (10) days after the date of theinitial hearing; and
            (B) the court finds that the appointment of a specialprosecutor is in the best interests of justice; and
        (5) shall appoint a special prosecutor if:
            (A) a previously appointed special prosecutor:
                (i) files a motion to withdraw as special prosecutor; or
                (ii) has become incapable of continuing to represent theinterests of the state; and
            (B) the court finds that the facts that established the basis forthe initial appointment of a special prosecutor still exist.
        The elected prosecuting attorney of the appointing jurisdictionshall receive notice of all pleadings filed and orders issuedunder this subdivision.
    (c) Each person appointed to serve as a special prosecutor:
        (1) must consent to the appointment; and
        (2) must be:
            (A) the prosecuting attorney or a deputy prosecuting attorneyin a county other than the county in which the person is toserve as special prosecutor; or
            (B) except as provided in subsection (d), a seniorprosecuting attorney.
    (d) A senior prosecuting attorney may be appointed in the countyin which the senior prosecuting attorney previously served if thecourt finds that an appointment under this subsection would notcreate the appearance of impropriety.
    (e) A person appointed to serve as a special prosecutor has thesame powers as the prosecuting attorney of the county. However, theappointing judge shall limit scope of the special prosecutor's dutiesto include only the investigation or prosecution of a particular caseor particular grand jury investigation.
    (f) The court shall establish the length of the special prosecutor'sterm. If the target of an investigation by the special prosecutor is apublic servant (as defined in IC 35-41-1-24), the court shall order thespecial prosecutor to file a report of the investigation with the courtat the conclusion of the investigation. The report is a public record.    (g) If the special prosecutor is not regularly employed as afull-time prosecuting attorney or full-time deputy prosecutingattorney, the compensation for the special prosecutor's services:
        (1) shall be paid to the special prosecutor from theunappropriated funds of the appointing county; and
        (2) may not exceed:
            (A) an hourly rate based upon the regular salary of afull-time prosecuting attorney of the appointing circuit;
            (B) travel expenses and reasonable accommodation expensesactually incurred; and
            (C) other reasonable expenses actually incurred, includingthe costs of investigation, discovery, and secretarial work, if:
                (i) before incurring the other reasonable expensesdescribed in this clause, the special prosecutor submits anapplication to the court to receive the other reasonableexpenses; and
                (ii) the court approves the expenses.
The amount of compensation a special prosecutor receives forservices performed during a calendar day under subdivision (2)(A)may not exceed the amount of compensation a full-time prosecutingattorney would receive in salary for the calendar day.
    (h) If the special prosecutor is regularly employed as a full-timeprosecuting attorney or deputy prosecuting attorney, thecompensation for the special prosecutor's services:
        (1) shall be paid out of the appointing county's unappropriatedfunds to the treasurer of the county in which the specialprosecutor regularly serves; and
        (2) must include a per diem equal to the regular salary of afull-time prosecuting attorney of the appointing circuit, travelexpenses, and reasonable accommodation expenses actuallyincurred.
    (i) The combination of:
        (1) the compensation paid to a senior prosecuting attorneyunder this chapter; and
        (2) retirement benefits that the person appointed as a seniorprosecuting attorney is receiving or entitled to receive;
may not exceed the minimum compensation to which a full-timeprosecuting attorney is entitled under IC 33-39-6-5.
    (j) A senior prosecuting attorney appointed under this chapter maynot be compensated as senior prosecuting attorney for more than onehundred (100) calendar days in total during a calendar year if thesenior prosecuting attorney receives retirement benefits during thecalendar year. However, if the senior prosecuting attorney does notreceive retirement benefits during a calendar year, the seniorprosecuting attorney may be compensated as a senior prosecutingattorney for not more than two hundred (200) calendar days in totalduring the calendar year.
As added by P.L.98-2004, SEC.18. Amended by P.L.222-2005,SEC.38; P.L.119-2007, SEC.3.
IC 33-39-1-7
Senior prosecuting attorney appointment; minimum period ofservice; disciplinary sanctions
    Sec. 7. A person may not be appointed a senior prosecutingattorney under section 6 of this chapter if the person:
        (1) is not available for the minimum period of commitment forservice as a special prosecutor; or
        (2) has had a disciplinary sanction imposed by the Indianasupreme court disciplinary commission or a similar body inanother state that restricts the person's ability to practice law.
As added by P.L.98-2004, SEC.18.

IC 33-39-1-8
Withholding of prosecution; applicability grounds; conditions;notification
    Sec. 8. (a) After June 30, 2005, this section does not apply to aperson who:
        (1) holds a commercial driver's license; and
        (2) has been charged with an offense involving the operation ofa motor vehicle in accordance with the federal Motor CarrierSafety Improvement Act of 1999 (MCSIA) (Public Law106-159.113 Stat. 1748).
    (b) This section does not apply to a person arrested for or chargedwith:
        (1) an offense under IC 9-30-5-1 through IC 9-30-5-5; or
        (2) if a person was arrested or charged with an offense underIC 9-30-5-1 through IC 9-30-5-5, an offense involving:
            (A) intoxication; or
            (B) the operation of a motor vehicle;
if the offense involving intoxication or the operation of a motorvehicle was part of the same episode of criminal conduct as theoffense under IC 9-30-5-1 through IC 9-30-5-5.
    (c) This section does not apply to a person:
        (1) who is arrested for or charged with an offense under:
            (A) IC 7.1-5-7-7(a), if the alleged offense occurred while theperson was operating a motor vehicle;
            (B) IC 9-30-4-8(a), if the alleged offense occurred while theperson was operating a motor vehicle;
            (C) IC 35-42-2-2(c)(1);
            (D) IC 35-42-2-4(b)(1); or
            (E) IC 35-43-1-2(a), if the alleged offense occurred while theperson was operating a motor vehicle; and
        (2) who held a probationary license (as defined inIC 9-24-11-3(b) or IC 9-24-11-3.3(b)) and was less thaneighteen (18) years of age at the time of the alleged offense.
    (d) A prosecuting attorney may withhold prosecution against anaccused person if:
        (1) the person is charged with a misdemeanor;
        (2) the person agrees to conditions of a pretrial diversionprogram offered by the prosecuting attorney;        (3) the terms of the agreement are recorded in an instrumentsigned by the person and the prosecuting attorney and filed inthe court in which the charge is pending; and
        (4) the prosecuting attorney electronically transmits informationrequired by the prosecuting attorneys council concerning thewithheld prosecution to the prosecuting attorneys council, in amanner and format designated by the prosecuting attorneyscouncil.
    (e) An agreement under subsection (d) may include conditionsthat the person:
        (1) pay to the clerk of the court an initial user's fee and monthlyuser's fees in the amounts specified in IC 33-37-4-1;
        (2) work faithfully at a suitable employment or faithfully pursuea course of study or career and technical education that willequip the person for suitable employment;
        (3) undergo available medical treatment or counseling andremain in a specified facility required for that purpose;
        (4) support the person's dependents and meet other familyresponsibilities;
        (5) make restitution or reparation to the victim of the crime forthe damage or injury that was sustained;
        (6) refrain from harassing, intimidating, threatening, or havingany direct or indirect contact with the victim or a witness;
        (7) report to the prosecuting attorney at reasonable times;
        (8) answer all reasonable inquiries by the prosecuting attorneyand promptly notify the prosecuting attorney of any change inaddress or employment; and
        (9) participate in dispute resolution either under IC 34-57-3 ora program established by the prosecuting attorney.
    (f) An agreement under subsection (d)(2) may include otherprovisions reasonably related to the defendant's rehabilitation, ifapproved by the court.
    (g) The prosecuting attorney shall notify the victim whenprosecution is withheld under this section.
    (h) All money collected by the clerk as user's fees under thissection shall be deposited in the appropriate user fee fund underIC 33-37-8.
    (i) If a court withholds prosecution under this section and theterms of the agreement contain conditions described in subsection(e)(6):
        (1) the clerk of the court shall comply with IC 5-2-9; and
        (2) the prosecuting attorney shall file a confidential formprescribed or approved by the division of state courtadministration with the clerk.
As added by P.L.98-2004, SEC.18. Amended by P.L.176-2005,SEC.21; P.L.234-2007, SEC.168; P.L.101-2009, SEC.16.

IC 33-39-1-9
Criminal charges against persons working with children;notification of employers    Sec. 9. A prosecuting attorney who charges a person withcommitting any of the following shall inform the person's employerof the charge, unless the prosecuting attorney determines that theperson charged does not work with children:
        (1) Rape (IC 35-42-4-1), if the victim is less than eighteen (18)years of age.
        (2) Criminal deviate conduct (IC 35-42-4-2), if the victim is lessthan eighteen (18) years of age.
        (3) Child molesting (IC 35-42-4-3).
        (4) Child exploitation (IC 35-42-4-4(b)).
        (5) Vicarious sexual gratification (IC 35-42-4-5).
        (6) Child solicitation (IC 35-42-4-6).
        (7) Child seduction (IC 35-42-4-7).
        (8) Incest (IC 35-46-1-3), if the victim is less than eighteen (18)years of age.
As added by P.L.98-2004, SEC.18.