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 bond
executed by a person who has been arrested for the commission of an
offense, 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 of
representation" means the portion of all attorney's fees, expenses, or
wages incurred by the county that are:
(1) directly attributable to the defendant's defense; and
(2) not overhead expenditures made in connection with the
maintenance 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 the
presumption strong. In all other cases, offenses are bailable.
(b) A person charged with murder has the burden of proof that he
should 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Repealed
(Repealed by P.L.1-1990, SEC.341.)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Repealed
(Repealed by P.L.107-1998, SEC.6.)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; collection
of fees
Sec. 3.2. (a) A court may admit a defendant to bail and impose
any of the following conditions to assure the defendant's appearance
at any stage of the legal proceedings, or, upon a showing of clear and
convincing evidence that the defendant poses a risk of physical
danger to another person or the community, to assure the public's
physical 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 value
less 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 described
in clauses (A) through (D).
If the court requires the defendant to deposit cash or cash and
another form of security as bail, the court may require the
defendant and each person who makes the deposit on behalf of
the defendant to execute an agreement that allows the court to
retain all or a part of the cash to pay publicly paid costs of
representation and fines, costs, fees, and restitution that the
court may order the defendant to pay if the defendant is
convicted. The defendant must also pay the fee required by
subsection (d).
(2) Require the defendant to execute:
(A) a bail bond by depositing cash or securities with the
clerk 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 part
of the cash or securities to pay fines, costs, fees, and
restitution that the court may order the defendant to pay if
the defendant is convicted.
A portion of the deposit, not to exceed ten percent (10%) of the
monetary value of the deposit or fifty dollars ($50), whichever
is the lesser amount, may be retained as an administrative fee.
The clerk shall also retain from the deposit under this
subdivision fines, costs, fees, and restitution as ordered by the
court, publicly paid costs of representation that shall be
disposed of in accordance with subsection (b), and the fee
required by subsection (d). In the event of the posting of a real
estate bond, the bond shall be used only to insure the presence
of the defendant at any stage of the legal proceedings, but shall
not be foreclosed for the payment of fines, costs, fees, or
restitution. The individual posting bail for the defendant or the
defendant admitted to bail under this subdivision must be
notified by the sheriff, court, or clerk that the defendant's
deposit may be forfeited under section 7 of this chapter or
retained under subsection (b).
(3) Impose reasonable restrictions on the activities, movements,
associations, and residence of the defendant during the period
of release.
(4) Except as provided in section 3.6 of this chapter, require the
defendant to refrain from any direct or indirect contact with an
individual and, if the defendant has been charged with an
offense under IC 35-46-3, any animal belonging to the
individual, including if the defendant has not been released
from lawful detention.
(5) Place the defendant under the reasonable supervision of a
probation officer, pretrial services agency, or other appropriate
public official. If the court places the defendant under the
supervision of a probation officer or pretrial services agency,
the court shall determine whether the defendant must pay the
pretrial services fee under section 3.3 of this chapter.
(6) Release the defendant into the care of a qualified person or
organization responsible for supervising the defendant and
assisting the defendant in appearing in court. The supervisor
shall maintain reasonable contact with the defendant in order to
assist the defendant in making arrangements to appear in court
and, where appropriate, shall accompany the defendant to court.
The supervisor need not be financially responsible for the
defendant.
(7) Release the defendant on personal recognizance unless:
(A) the state presents evidence relevant to a risk by the
defendant:
(i) of nonappearance; or
(ii) to the physical safety of the public; and
(B) the court finds by a preponderance of the evidence that
the risk exists.
(8) Require a defendant charged with an offense under
IC 35-46-3 to refrain from owning, harboring, or training an
animal.
(9) Impose any other reasonable restrictions designed to assure
the defendant's presence in court or the physical safety of
another person or the community.
(b) Within thirty (30) days after disposition of the charges against
the defendant, the court that admitted the defendant to bail shall
order the clerk to remit the amount of the deposit remaining under
subsection (a)(2) to the defendant. The portion of the deposit that is
not remitted to the defendant shall be deposited by the clerk in the
supplemental public defender services fund established under
IC 33-40-3.
(c) For purposes of subsection (b), "disposition" occurs when the
indictment or information is dismissed or the defendant is acquitted
or convicted of the charges.
(d) Except as provided in subsection (e), the clerk of the court
shall:
(1) collect a fee of five dollars ($5) from each bond or deposit
required under subsection (a)(1); and
(2) retain a fee of five dollars ($5) from each deposit under
subsection (a)(2).
The clerk of the court shall semiannually remit the fees collected
under this subsection to the board of trustees of the public
employees' retirement fund for deposit in the special death benefit
fund. The fee required by subdivision (2) is in addition to the
administrative fee retained under subsection (a)(2).
(e) With the approval of the clerk of the court, the county sheriff
may collect the bail posted under this section. The county sheriff
shall remit the bail to the clerk of the court by the following business
day and remit monthly the five dollar ($5) special death benefit fee
to the county auditor.
(f) When a court imposes a condition of bail described in
subsection (a)(4):
(1) the clerk of the court shall comply with IC 5-2-9; and
(2) the prosecuting attorney shall file a confidential form
prescribed or approved by the division of state court
administration 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 in
a city or town court.
(b) If a defendant who has a prior unrelated conviction for any
offense is charged with a new offense and placed under the
supervision of a probation officer or pretrial services agency, the
court may order the defendant to pay the pretrial services fee
prescribed 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 that
supervision by a probation officer or pretrial services agency is
necessary 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 clerk
may retain not more than three percent (3%) of the fee to defray the
administrative costs of collecting the fee. The clerk shall deposit
amounts retained under this subsection in the clerk's record
perpetuation fund established under IC 33-37-5-2.
(d) If a clerk of a court collects a pretrial services fee from a
defendant, upon request of the county auditor, the clerk shall transfer
not more than three percent (3%) of the fee to the county auditor for
deposit in the county general fund.
(e) The court may order a defendant who is supervised by a
probation officer or pretrial services agency and charged with an
offense 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 the
defendant remains on bail and under the supervision of a
probation 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 of
the court shall collect the administrative fee under subsection (e)(3)
before collecting any other fee under subsection (e). Except for the
money described in subsections (c) and (d), all money collected by
the probation department, pretrial services agency, or clerk of the
court under this section shall be transferred to the county treasurer,
who shall deposit fifty percent (50%) of the money into the county
supplemental adult probation services fund and fifty percent (50%)
of the money into the county supplemental public defender services
fund (IC 33-40-3-1). The fiscal body of the county shall appropriate
money from the county supplemental adult probation services fund:
(1) to the county, superior, or circuit court of the county that
provides probation services or pretrial services to adults to
supplement 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 schedule
adopted by the county fiscal body under IC 36-2-16.5.
(g) The county supplemental adult probation services fund may be
used only to supplement adult probation services or pretrial services
and to supplement salaries for probation officers or employees of a
pretrial services agency. A supplemental probation services fund may
not be used to replace other probation services or pretrial services
funding. Any money remaining in the fund at the end of a fiscal year
does not revert to any other fund but continues in the county
supplemental adult probation services fund.
(h) A defendant who is charged with more than one (1) offense
and who is supervised by the probation department or pretrial
services agency as a condition of bail may not be required to pay
more 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 may
petition 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 fee
changes while the defendant is on bail and supervised by a probation
officer 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 is
delinquent under this section; and
(D) expires;
in the same manner as a judgment lien created in a civil
proceeding;
(2) is not discharged by the disposition of charges against the
defendant or by the completion of a sentence, if any, imposed
on the defendant;
(3) is not discharged by the liquidation of a defendant's estate
by a receiver under IC 32-30-5; and
(4) is immediately terminated if a defendant is acquitted or if
charges against the defendant are dropped.
(k) If a court orders a defendant to pay a pretrial services fee, the
court may, upon the defendant's conviction, enforce the order by
garnishing the wages, salary, and other income earned by the
defendant.
(l) If a defendant is delinquent in paying the defendant's pretrial
services fee and has never been issued a driver's license or permit,
upon the defendant's conviction, the court may order the bureau of
motor vehicles to not issue a driver's license or permit to the
defendant until the defendant has paid the defendant's delinquent
pretrial services fee. If a defendant is delinquent in paying the
defendant's pretrial services fee and the defendant's driver's license
or permit has been suspended or revoked, the court may order the
bureau of motor vehicles to not reinstate the defendant's driver's
license or permit until the defendant has paid the defendant's
delinquent pretrial services fee.
(m) In addition to other methods of payment allowed by law, a
probation department or pretrial services agency may accept payment
of a pretrial services fee by credit card (as defined in
IC 14-11-1-7(a)). The liability for payment is not discharged until the
probation department or pretrial services agency receives payment or
credit from the institution responsible for making the payment or
credit.
(n) The probation department or pretrial services agency may
contract with a bank or credit card vendor for acceptance of a bank
or credit card. However, if there is a vendor transaction charge or
discount fee, whether billed to the probation department or pretrial
services agency, or charged directly to the account of the probation
department or pretrial services agency, the probation department or
pretrial services agency may collect a credit card service fee from the
person using the bank or credit card. The fee collected under this
subsection is a permitted additional charge to the fee or fees the
defendant may be required to pay under subsection (e).
(o) The probation department or pretrial services agency shall
forward a credit card service fee collected under subsection (n) to the
county treasurer in accordance with subsection (f). These funds may
be used without appropriation to pay the transaction charge or
discount 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 violent
predator 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 offense
that would classify the person as a sex or violent offender (as
defined 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 shall
conduct a bail hearing not later than forty-eight (48) hours after the
person has been arrested, unless exigent circumstances prevent
holding 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 35-33-8-4
warrant the imposition of a bail amount that exceeds court or county
guidelines, 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 is
charged 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) to
bail without holding a bail hearing in open court, the court shall
include as a condition of bail the requirement that the defendant
refrain 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 the
condition that the defendant refrain from direct or indirect contact
with 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 person
charged by an indictment or information is to be held to bail, and the
clerk shall enter the order on the order book and indorse the amount
on each warrant when issued. If no order fixing the amount of bail
has been made, the sheriff shall present the warrant to the judge of
an appropriate court of criminal jurisdiction, and the judge shall
indorse on the warrant the amount of bail.
(b) Bail may not be set higher than that amount reasonably
required to assure the defendant's appearance in court or to assure the
physical safety of another person or the community if the court finds
by clear and convincing evidence that the defendant poses a risk to
the physical safety of another person or the community. In setting
and accepting an amount of bail, the judicial officer shall take into
account all facts relevant to the risk of nonappearance, including:
(1) the length and character of the defendant's residence in the
community;
(2) the defendant's employment status and history and his
ability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mental
condition;
(5) the defendant's criminal or juvenile record, insofar as it
demonstrates instability and a disdain for the court's authority
to bring him to trial;
(6) the defendant's previous record in not responding to court
appearances when required or with respect to flight to avoid
criminal prosecution;
(7) the nature and gravity of the offense and the potential
penalty faced, insofar as these factors are relevant to the risk of
nonappearance;
(8) the source of funds or property to be used to post bail or to
pay a premium, insofar as it affects the risk of nonappearance;
and
(9) any other factors, including any evidence of instability and
a disdain for authority, which might indicate that the defendant
might not recognize and adhere to the authority of the court to
bring 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 the
defendant may be granted an alteration or revocation of bail by
application to the court before which the proceeding is pending. In
reviewing a motion for alteration or revocation of bail, credible
hearsay evidence is admissible to establish good cause.
(b) When the state presents additional:
(1) evidence relevant to a high risk of nonappearance, based on
the 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) and
IC 35-40-6-6(1)(B); or
(B) that the defendant otherwise poses a risk to the physical
safety of another person or the community;
the court may increase bail.
(c) When the defendant presents additional evidence of substantial
mitigating factors, based on the factors set forth in section 4(b) of
this chapter, which reasonably suggests that the defendant recognizes
the court's authority to bring the defendant to trial, the court may
reduce bail. However, the court may not reduce bail if the court finds
by clear and convincing evidence that the factors described in
IC 35-40-6-6(1)(A) and IC 35-40-6-6(1)(B) exist or that the
defendant otherwise poses a risk to the physical safety of another
person or the community.
(d) The court may revoke bail or an order for release on personal
recognizance 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 a
victim, prospective witnesses, or jurors concerning the
pending criminal proceeding or any other matter;
(B) or the defendant's agent attempted to conceal or destroy
evidence relating to the pending criminal proceeding;
(C) violated any condition of the defendant's current release
order;
(D) failed to appear before the court as ordered at any
critical stage of the proceedings; or
(E) committed a felony or a Class A misdemeanor that
demonstrates instability and a disdain for the court's
authority to bring the defendant to trial;
(2) the factors described in IC 35-40-6-6(1)(A) and
IC 35-40-6-6(1)(B) exist or that the defendant otherwise poses
a risk to the physical safety of another person or the
community; 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 appropriate
authority; revocation proceedings
Sec. 6. The court may detain, for a maximum period of fifteen
(15) calendar days, a person charged with any offense who comes
before it for a bail determination, if the person is on probation or
parole. During the fifteen (15) day period, the prosecuting attorney
shall notify the appropriate parole or probation authority. If that
authority fails to initiate probation or parole revocation proceedings
during the fifteen (15) day period, the person shall be treated in
accordance 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 domestic
violence may be released on bail
Sec. 6.5. The court may not release a person arrested for a crime
of domestic violence (as described in IC 35-41-1-6.3) on bail until at
least 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 one
hundred twenty (120) days after the defendant's failure to appear and
issue a warrant for the defendant's arrest.
(b) In a criminal case, if the court having jurisdiction over the
criminal case receives written notice of a pending civil action or
unsatisfied judgment against the criminal defendant arising out of the
same transaction or occurrence forming the basis of the criminal
case, funds deposited with the clerk of the court under section
3.2(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 the
civil action, and if the deposit and the bond are subject to forfeiture,
the criminal court shall order payment of all or any part of the
deposit to the plaintiff in the action, as is necessary to satisfy the
judgment. The court shall then order the remainder of the deposit, if
any, and the bond forfeited.
(c) Any proceedings concerning the bond, or its forfeiture,
judgment, or execution of judgment, shall be held in the court that
admitted the defendant to bail.
(d) After a bond has been forfeited under subsection (a) or (b), the
clerk shall mail notice of forfeiture to the defendant. In addition,
unless the court finds that there was justification for the defendant's
failure to appear, the court shall immediately enter judgment, without
pleadings and without change of judge or change of venue, against
the defendant for the amount of the bail bond, and the clerk shall
record the judgment.
(e) If a bond is forfeited and the court has entered a judgment
under subsection (d), the clerk shall transfer to the state common
school fund:
(1) any amount remaining on deposit with the court (less the
fees 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 the
defendant appeared at trial and the other critical stages of the legal
proceedings.
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 intentionally
failed 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 the
warrant 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 in
IC 27-10-1-7 or the full amount of the bond in cash.
(b) In a criminal case, if the court having jurisdiction over the
criminal case receives written notice of a pending civil action or
unsatisfied judgment against the criminal defendant arising out of the
same transaction or occurrence forming the basis of the criminal
case, funds deposited with the clerk of the court under section
3.2(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 the
civil action, and if the deposit is subject to forfeiture, the criminal
court shall order payment of all or any part of the deposit to the
plaintiff in the action, as is necessary to satisfy the judgment. The
court 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 under
this chapter, a defendant who posts bail by means of a credit card
shall 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 domestic
violence to wear a GPS device; liability for costs
Sec. 11. (a) A court may require a person who has been charged
with 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 GPS
tracking device under subsection (a) to pay any costs associated with
the GPS tracking device.
As added by P.L.94-2010, SEC.11.