CHAPTER 8. BAIL AND BAIL PROCEDURE
IC 35-33-8
Chapter 8. Bail and Bail Procedure
IC 35-33-8-1
"Bail bond" defined
Sec. 1. As used in this chapter, "bail bond" means a bondexecuted by a person who has been arrested for the commission of anoffense, for the purpose of ensuring:
(1) the person's appearance at the appropriate legal proceeding;
(2) another person's physical safety; or
(3) the safety of the community.
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.221-1996,SEC.1.
IC 35-33-8-1.5
"Publicly paid costs of representation" defined
Sec. 1.5. As used in this chapter, "publicly paid costs ofrepresentation" means the portion of all attorney's fees, expenses, orwages incurred by the county that are:
(1) directly attributable to the defendant's defense; and
(2) not overhead expenditures made in connection with themaintenance or operation of a governmental agency.
As added by P.L.167-1987, SEC.8.
IC 35-33-8-2
Murder; other offenses
Sec. 2. (a) Murder is not bailable when the proof is evident or thepresumption strong. In all other cases, offenses are bailable.
(b) A person charged with murder has the burden of proof that heshould be admitted to bail.
As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-8-3
Repealed
(Repealed by P.L.1-1990, SEC.341.)
IC 35-33-8-3.1
Repealed
(Repealed by P.L.107-1998, SEC.6.)
IC 35-33-8-3.2
Conditions to assure appearance; remittance of deposit; collectionof fees
Sec. 3.2. (a) A court may admit a defendant to bail and imposeany of the following conditions to assure the defendant's appearanceat any stage of the legal proceedings, or, upon a showing of clear andconvincing evidence that the defendant poses a risk of physicaldanger to another person or the community, to assure the public'sphysical safety:
(1) Require the defendant to: (A) execute a bail bond with sufficient solvent sureties;
(B) deposit cash or securities in an amount equal to the bail;
(C) execute a bond secured by real estate in the county,where thirty-three hundredths (0.33) of the true tax valueless encumbrances is at least equal to the amount of the bail;
(D) post a real estate bond; or
(E) perform any combination of the requirements describedin clauses (A) through (D).
If the court requires the defendant to deposit cash or cash andanother form of security as bail, the court may require thedefendant and each person who makes the deposit on behalf ofthe defendant to execute an agreement that allows the court toretain all or a part of the cash to pay publicly paid costs ofrepresentation and fines, costs, fees, and restitution that thecourt may order the defendant to pay if the defendant isconvicted. The defendant must also pay the fee required bysubsection (d).
(2) Require the defendant to execute:
(A) a bail bond by depositing cash or securities with theclerk of the court in an amount not less than ten percent(10%) of the bail; and
(B) an agreement that allows the court to retain all or a partof the cash or securities to pay fines, costs, fees, andrestitution that the court may order the defendant to pay ifthe defendant is convicted.
A portion of the deposit, not to exceed ten percent (10%) of themonetary value of the deposit or fifty dollars ($50), whicheveris the lesser amount, may be retained as an administrative fee.The clerk shall also retain from the deposit under thissubdivision fines, costs, fees, and restitution as ordered by thecourt, publicly paid costs of representation that shall bedisposed of in accordance with subsection (b), and the feerequired by subsection (d). In the event of the posting of a realestate bond, the bond shall be used only to insure the presenceof the defendant at any stage of the legal proceedings, but shallnot be foreclosed for the payment of fines, costs, fees, orrestitution. The individual posting bail for the defendant or thedefendant admitted to bail under this subdivision must benotified by the sheriff, court, or clerk that the defendant'sdeposit may be forfeited under section 7 of this chapter orretained under subsection (b).
(3) Impose reasonable restrictions on the activities, movements,associations, and residence of the defendant during the periodof release.
(4) Except as provided in section 3.6 of this chapter, require thedefendant to refrain from any direct or indirect contact with anindividual and, if the defendant has been charged with anoffense under IC 35-46-3, any animal belonging to theindividual, including if the defendant has not been releasedfrom lawful detention. (5) Place the defendant under the reasonable supervision of aprobation officer, pretrial services agency, or other appropriatepublic official. If the court places the defendant under thesupervision of a probation officer or pretrial services agency,the court shall determine whether the defendant must pay thepretrial services fee under section 3.3 of this chapter.
(6) Release the defendant into the care of a qualified person ororganization responsible for supervising the defendant andassisting the defendant in appearing in court. The supervisorshall maintain reasonable contact with the defendant in order toassist the defendant in making arrangements to appear in courtand, where appropriate, shall accompany the defendant to court.The supervisor need not be financially responsible for thedefendant.
(7) Release the defendant on personal recognizance unless:
(A) the state presents evidence relevant to a risk by thedefendant:
(i) of nonappearance; or
(ii) to the physical safety of the public; and
(B) the court finds by a preponderance of the evidence thatthe risk exists.
(8) Require a defendant charged with an offense underIC 35-46-3 to refrain from owning, harboring, or training ananimal.
(9) Impose any other reasonable restrictions designed to assurethe defendant's presence in court or the physical safety ofanother person or the community.
(b) Within thirty (30) days after disposition of the charges againstthe defendant, the court that admitted the defendant to bail shallorder the clerk to remit the amount of the deposit remaining undersubsection (a)(2) to the defendant. The portion of the deposit that isnot remitted to the defendant shall be deposited by the clerk in thesupplemental public defender services fund established underIC 33-40-3.
(c) For purposes of subsection (b), "disposition" occurs when theindictment or information is dismissed or the defendant is acquittedor convicted of the charges.
(d) Except as provided in subsection (e), the clerk of the courtshall:
(1) collect a fee of five dollars ($5) from each bond or depositrequired under subsection (a)(1); and
(2) retain a fee of five dollars ($5) from each deposit undersubsection (a)(2).
The clerk of the court shall semiannually remit the fees collectedunder this subsection to the board of trustees of the publicemployees' retirement fund for deposit in the special death benefitfund. The fee required by subdivision (2) is in addition to theadministrative fee retained under subsection (a)(2).
(e) With the approval of the clerk of the court, the county sheriffmay collect the bail posted under this section. The county sheriff
shall remit the bail to the clerk of the court by the following businessday and remit monthly the five dollar ($5) special death benefit feeto the county auditor.
(f) When a court imposes a condition of bail described insubsection (a)(4):
(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.107-1998, SEC.2. Amended by P.L.1-2001, SEC.36;P.L.1-2003, SEC.91; P.L.98-2004, SEC.140; P.L.10-2005, SEC.4;P.L.1-2006, SEC.528; P.L.97-2006, SEC.1; P.L.173-2006, SEC.42;P.L.1-2007, SEC.226; P.L.104-2008, SEC.6; P.L.111-2009, SEC.7;P.L.94-2010, SEC.9.
IC 35-33-8-3.3
Pretrial services fee
Sec. 3.3. (a) This section does not apply to a defendant charged ina city or town court.
(b) If a defendant who has a prior unrelated conviction for anyoffense is charged with a new offense and placed under thesupervision of a probation officer or pretrial services agency, thecourt may order the defendant to pay the pretrial services feeprescribed under subsection (e) if:
(1) the defendant has the financial ability to pay the fee; and
(2) the court finds by clear and convincing evidence thatsupervision by a probation officer or pretrial services agency isnecessary to ensure the:
(A) defendant's appearance in court; or
(B) physical safety of the community or of another person.
(c) If a clerk of a court collects a pretrial services fee, the clerkmay retain not more than three percent (3%) of the fee to defray theadministrative costs of collecting the fee. The clerk shall depositamounts retained under this subsection in the clerk's recordperpetuation fund established under IC 33-37-5-2.
(d) If a clerk of a court collects a pretrial services fee from adefendant, upon request of the county auditor, the clerk shall transfernot more than three percent (3%) of the fee to the county auditor fordeposit in the county general fund.
(e) The court may order a defendant who is supervised by aprobation officer or pretrial services agency and charged with anoffense to pay:
(1) an initial pretrial services fee of at least twenty-five dollars($25) and not more than one hundred dollars ($100);
(2) a monthly pretrial services fee of at least fifteen dollars($15) and not more than thirty dollars ($30) for each month thedefendant remains on bail and under the supervision of aprobation officer or pretrial services agency; and
(3) an administrative fee of one hundred dollars ($100);
to the probation department, pretrial services agency, or clerk of the
court if the defendant meets the conditions set forth in subsection (b).
(f) The probation department, pretrial services agency, or clerk ofthe court shall collect the administrative fee under subsection (e)(3)before collecting any other fee under subsection (e). Except for themoney described in subsections (c) and (d), all money collected bythe probation department, pretrial services agency, or clerk of thecourt under this section shall be transferred to the county treasurer,who shall deposit fifty percent (50%) of the money into the countysupplemental adult probation services fund and fifty percent (50%)of the money into the county supplemental public defender servicesfund (IC 33-40-3-1). The fiscal body of the county shall appropriatemoney from the county supplemental adult probation services fund:
(1) to the county, superior, or circuit court of the county thatprovides probation services or pretrial services to adults tosupplement adult probation services or pretrial services; and
(2) to supplement the salary of:
(A) an employee of a pretrial services agency; or
(B) a probation officer in accordance with the scheduleadopted by the county fiscal body under IC 36-2-16.5.
(g) The county supplemental adult probation services fund may beused only to supplement adult probation services or pretrial servicesand to supplement salaries for probation officers or employees of apretrial services agency. A supplemental probation services fund maynot be used to replace other probation services or pretrial servicesfunding. Any money remaining in the fund at the end of a fiscal yeardoes not revert to any other fund but continues in the countysupplemental adult probation services fund.
(h) A defendant who is charged with more than one (1) offenseand who is supervised by the probation department or pretrialservices agency as a condition of bail may not be required to paymore than:
(1) one (1) initial pretrial services fee; and
(2) one (1) monthly pretrial services fee per month.
(i) A probation department or pretrial services agency maypetition a court to:
(1) impose a pretrial services fee on a defendant; or
(2) increase a defendant's pretrial services fee;
if the financial ability of the defendant to pay a pretrial services feechanges while the defendant is on bail and supervised by a probationofficer or pretrial services agency.
(j) An order to pay a pretrial services fee under this section:
(1) is a judgment lien that, upon the defendant's conviction:
(A) attaches to the property of the defendant;
(B) may be perfected;
(C) may be enforced to satisfy any payment that isdelinquent under this section; and
(D) expires;
in the same manner as a judgment lien created in a civilproceeding;
(2) is not discharged by the disposition of charges against the
defendant or by the completion of a sentence, if any, imposedon the defendant;
(3) is not discharged by the liquidation of a defendant's estateby a receiver under IC 32-30-5; and
(4) is immediately terminated if a defendant is acquitted or ifcharges against the defendant are dropped.
(k) If a court orders a defendant to pay a pretrial services fee, thecourt may, upon the defendant's conviction, enforce the order bygarnishing the wages, salary, and other income earned by thedefendant.
(l) If a defendant is delinquent in paying the defendant's pretrialservices fee and has never been issued a driver's license or permit,upon the defendant's conviction, the court may order the bureau ofmotor vehicles to not issue a driver's license or permit to thedefendant until the defendant has paid the defendant's delinquentpretrial services fee. If a defendant is delinquent in paying thedefendant's pretrial services fee and the defendant's driver's licenseor permit has been suspended or revoked, the court may order thebureau of motor vehicles to not reinstate the defendant's driver'slicense or permit until the defendant has paid the defendant'sdelinquent pretrial services fee.
(m) In addition to other methods of payment allowed by law, aprobation department or pretrial services agency may accept paymentof a pretrial services fee by credit card (as defined inIC 14-11-1-7(a)). The liability for payment is not discharged until theprobation department or pretrial services agency receives payment orcredit from the institution responsible for making the payment orcredit.
(n) The probation department or pretrial services agency maycontract with a bank or credit card vendor for acceptance of a bankor credit card. However, if there is a vendor transaction charge ordiscount fee, whether billed to the probation department or pretrialservices agency, or charged directly to the account of the probationdepartment or pretrial services agency, the probation department orpretrial services agency may collect a credit card service fee from theperson using the bank or credit card. The fee collected under thissubsection is a permitted additional charge to the fee or fees thedefendant may be required to pay under subsection (e).
(o) The probation department or pretrial services agency shallforward a credit card service fee collected under subsection (n) to thecounty treasurer in accordance with subsection (f). These funds maybe used without appropriation to pay the transaction charge ordiscount fee charged by the bank or credit card vendor.
As added by P.L.173-2006, SEC.43.
IC 35-33-8-3.5
Bail procedures for a sexually violent predator defendant
Sec. 3.5. (a) This section applies only to a sexually violentpredator defendant.
(b) As used in this section, "sexually violent predator defendant"
means a person who:
(1) is a sexually violent predator under IC 35-38-1-7.5; and
(2) is arrested for or charged with the commission of an offensethat would classify the person as a sex or violent offender (asdefined in IC 11-8-8-5).
(c) A court may not admit a:
(1) sexually violent predator defendant;
(2) person charged with child molesting (IC 35-42-4-3); or
(3) person charged with child solicitation (IC 35-42-4-6);
to bail until the court has conducted a bail hearing in open court.Except as provided in section 6 of this chapter, the court shallconduct a bail hearing not later than forty-eight (48) hours after theperson has been arrested, unless exigent circumstances preventholding the hearing within forty-eight (48) hours.
(d) At the conclusion of the hearing described in subsection (c),the court shall consider whether the factors described in IC 35-33-8-4warrant the imposition of a bail amount that exceeds court or countyguidelines, if applicable.
As added by P.L.74-2008, SEC.1.
IC 35-33-8-3.6
Automatic no contact order for certain defendants placed on bail;time limits; modification
Sec. 3.6. (a) This section applies only to a defendant who ischarged with committing a violent crime (as defined in IC 5-2-6.1-8)that results in bodily injury to a person.
(b) If a court releases a defendant described in subsection (a) tobail without holding a bail hearing in open court, the court shallinclude as a condition of bail the requirement that the defendantrefrain from any direct or indirect contact with the victim:
(1) for ten (10) days after release; or
(2) until the initial hearing;
whichever occurs first.
(c) At the initial hearing, the court may reinstate or modify thecondition that the defendant refrain from direct or indirect contactwith the victim.
As added by P.L.94-2010, SEC.10.
IC 35-33-8-4
Amount of bail; order; indorsement; facts taken into account
Sec. 4. (a) The court shall order the amount in which a personcharged by an indictment or information is to be held to bail, and theclerk shall enter the order on the order book and indorse the amounton each warrant when issued. If no order fixing the amount of bailhas been made, the sheriff shall present the warrant to the judge ofan appropriate court of criminal jurisdiction, and the judge shallindorse on the warrant the amount of bail.
(b) Bail may not be set higher than that amount reasonablyrequired to assure the defendant's appearance in court or to assure thephysical safety of another person or the community if the court finds
by clear and convincing evidence that the defendant poses a risk tothe physical safety of another person or the community. In settingand accepting an amount of bail, the judicial officer shall take intoaccount all facts relevant to the risk of nonappearance, including:
(1) the length and character of the defendant's residence in thecommunity;
(2) the defendant's employment status and history and hisability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mentalcondition;
(5) the defendant's criminal or juvenile record, insofar as itdemonstrates instability and a disdain for the court's authorityto bring him to trial;
(6) the defendant's previous record in not responding to courtappearances when required or with respect to flight to avoidcriminal prosecution;
(7) the nature and gravity of the offense and the potentialpenalty faced, insofar as these factors are relevant to the risk ofnonappearance;
(8) the source of funds or property to be used to post bail or topay a premium, insofar as it affects the risk of nonappearance;and
(9) any other factors, including any evidence of instability anda disdain for authority, which might indicate that the defendantmight not recognize and adhere to the authority of the court tobring him to trial.
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.221-1996,SEC.3.
IC 35-33-8-5
Alteration or revocation of bail
Sec. 5. (a) Upon a showing of good cause, the state or thedefendant may be granted an alteration or revocation of bail byapplication to the court before which the proceeding is pending. Inreviewing a motion for alteration or revocation of bail, crediblehearsay evidence is admissible to establish good cause.
(b) When the state presents additional:
(1) evidence relevant to a high risk of nonappearance, based onthe factors set forth in section 4(b) of this chapter; or
(2) clear and convincing evidence:
(A) of the factors described in IC 35-40-6-6(1)(A) andIC 35-40-6-6(1)(B); or
(B) that the defendant otherwise poses a risk to the physicalsafety of another person or the community;
the court may increase bail.
(c) When the defendant presents additional evidence of substantialmitigating factors, based on the factors set forth in section 4(b) ofthis chapter, which reasonably suggests that the defendant recognizesthe court's authority to bring the defendant to trial, the court may
reduce bail. However, the court may not reduce bail if the court findsby clear and convincing evidence that the factors described inIC 35-40-6-6(1)(A) and IC 35-40-6-6(1)(B) exist or that thedefendant otherwise poses a risk to the physical safety of anotherperson or the community.
(d) The court may revoke bail or an order for release on personalrecognizance upon clear and convincing proof by the state that:
(1) while admitted to bail the defendant:
(A) or the defendant's agent threatened or intimidated avictim, prospective witnesses, or jurors concerning thepending criminal proceeding or any other matter;
(B) or the defendant's agent attempted to conceal or destroyevidence relating to the pending criminal proceeding;
(C) violated any condition of the defendant's current releaseorder;
(D) failed to appear before the court as ordered at anycritical stage of the proceedings; or
(E) committed a felony or a Class A misdemeanor thatdemonstrates instability and a disdain for the court'sauthority to bring the defendant to trial;
(2) the factors described in IC 35-40-6-6(1)(A) andIC 35-40-6-6(1)(B) exist or that the defendant otherwise posesa risk to the physical safety of another person or thecommunity; or
(3) a combination of the factors described in subdivisions (1)and (2) exists.
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.36-1990,SEC.6; P.L.107-1998, SEC.3; P.L.98-2004, SEC.141.
IC 35-33-8-6
Probationers and parolees; detention; notice to appropriateauthority; revocation proceedings
Sec. 6. The court may detain, for a maximum period of fifteen(15) calendar days, a person charged with any offense who comesbefore it for a bail determination, if the person is on probation orparole. During the fifteen (15) day period, the prosecuting attorneyshall notify the appropriate parole or probation authority. If thatauthority fails to initiate probation or parole revocation proceedingsduring the fifteen (15) day period, the person shall be treated inaccordance with the other sections of this chapter.
As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-8-6.5
Eight hour holding period before person arrested for domesticviolence may be released on bail
Sec. 6.5. The court may not release a person arrested for a crimeof domestic violence (as described in IC 35-41-1-6.3) on bail until atleast eight (8) hours from the time of the person's arrest.
As added by P.L.44-2008, SEC.2.
IC 35-33-8-7
Failure to appear; pending civil action or unsatisfied judgment;same transaction or occurrence; forfeiture; order for payment;judgment; transfer of funds
Sec. 7. (a) If a defendant:
(1) was admitted to bail under section 3.2(a)(2) of this chapter;and
(2) has failed to appear before the court as ordered;
the court shall, except as provided in subsection (b) or section 8(b)of this chapter, declare the bond forfeited not earlier than onehundred twenty (120) days after the defendant's failure to appear andissue a warrant for the defendant's arrest.
(b) In a criminal case, if the court having jurisdiction over thecriminal case receives written notice of a pending civil action orunsatisfied judgment against the criminal defendant arising out of thesame transaction or occurrence forming the basis of the criminalcase, funds deposited with the clerk of the court under section3.2(a)(2) of this chapter may not be declared forfeited by the court,and the court shall order the deposited funds to be held by the clerk.If there is an entry of final judgment in favor of the plaintiff in thecivil action, and if the deposit and the bond are subject to forfeiture,the criminal court shall order payment of all or any part of thedeposit to the plaintiff in the action, as is necessary to satisfy thejudgment. The court shall then order the remainder of the deposit, ifany, and the bond forfeited.
(c) Any proceedings concerning the bond, or its forfeiture,judgment, or execution of judgment, shall be held in the court thatadmitted the defendant to bail.
(d) After a bond has been forfeited under subsection (a) or (b), theclerk shall mail notice of forfeiture to the defendant. In addition,unless the court finds that there was justification for the defendant'sfailure to appear, the court shall immediately enter judgment, withoutpleadings and without change of judge or change of venue, againstthe defendant for the amount of the bail bond, and the clerk shallrecord the judgment.
(e) If a bond is forfeited and the court has entered a judgmentunder subsection (d), the clerk shall transfer to the state commonschool fund:
(1) any amount remaining on deposit with the court (less thefees retained by the clerk); and
(2) any amount collected in satisfaction of the judgment.
(f) The clerk shall return a deposit, less the administrative fee,made under section 3.2(a)(2) of this chapter to the defendant, if thedefendant appeared at trial and the other critical stages of the legalproceedings.
As added by Acts 1982, P.L.204, SEC.17. Amended by P.L.167-1987,SEC.10; P.L.44-1988, SEC.3; P.L.1-1990, SEC.343; P.L.36-1990,SEC.7; P.L.107-1998, SEC.4; P.L.105-2010, SEC.9.
IC 35-33-8-8 Failure to appear; pending civil action or unsatisfied judgment;same transaction or occurrence; forfeiture; order for payment
Sec. 8. (a) If a defendant was admitted to bail under section 3.2(a)of this chapter and the defendant has knowingly and intentionallyfailed to appear before the court as ordered, the court:
(1) shall issue a warrant for the defendant's arrest;
(2) may not release the defendant on personal recognizance; and
(3) may not set bail for the rearrest of the defendant on thewarrant at an amount that is less than the greater of:
(A) the amount of the original bail; or
(B) two thousand five hundred dollars ($2,500);
in the form of a bond issued by an entity defined inIC 27-10-1-7 or the full amount of the bond in cash.
(b) In a criminal case, if the court having jurisdiction over thecriminal case receives written notice of a pending civil action orunsatisfied judgment against the criminal defendant arising out of thesame transaction or occurrence forming the basis of the criminalcase, funds deposited with the clerk of the court under section3.2(a)(2) of this chapter may not be declared forfeited by the court,and the court shall order the deposited funds to be held by the clerk.If there is an entry of final judgment in favor of the plaintiff in thecivil action, and if the deposit is subject to forfeiture, the criminalcourt shall order payment of all or any part of the deposit to theplaintiff in the action, as is necessary to satisfy the judgment. Thecourt shall then order the remainder of the deposit, if any, forfeited.
As added by P.L.36-1990, SEC.8. Amended by P.L.224-1993,SEC.31; P.L.107-1998, SEC.5.
IC 35-33-8-9
Repealed
(Repealed by P.L.65-2004, SEC.23.)
IC 35-33-8-10
Credit card service fee
Sec. 10. In addition to any other condition of bail imposed underthis chapter, a defendant who posts bail by means of a credit cardshall pay the credit card service fee under IC 33-37-6.
As added by P.L.65-2004, SEC.11.
IC 35-33-8-11
Authority to require that persons charged with a crime of domesticviolence to wear a GPS device; liability for costs
Sec. 11. (a) A court may require a person who has been chargedwith a crime of domestic violence (as described in IC 35-41-1-6.3)to wear a GPS tracking device as a condition of bail.
(b) A court may order a person who is required to wear a GPStracking device under subsection (a) to pay any costs associated withthe GPS tracking device.
As added by P.L.94-2010, SEC.11.