Bail and Initial Hearings in Indiana
If you’ve been charged with criminal offense, you’re probably feeling pretty stressed out right now. You may be wondering, “what’s going to happen to me?” or “how will I protect myself and my future?” You may also have other, more procedural questions, like “how will I make bail in Indiana?” or “what happens at the initial hearing in Indiana?” These are all fair questions to ask, and ones that an experienced criminal defense attorney can answer.
Anyone who has been arrested in Indiana and needs legal assistance should not hesitate to contact the criminal defense lawyers at Keffer Hirschauer LLP. We understand all the complexities of Indiana criminal law and procedure and can help you navigate subsequent legal proceedings in a manner that protects you and your rights.
If you choose to hire an attorney from our Indianapolis criminal defense law firm, they will be by your side from the initial hearing through the pre-trial conferences, and if needed, at trial. Ultimately, our firm’s goal is to secure the best possible outcome for our clients – whether that be a dismissal or reduction of charges, or a not-guilty verdict.
From Arrest to Initial Hearing in Indiana
When a person is arrested without a warrant in Indiana, Indiana Code 35-33-7-1 mandates that they promptly be taken before a judicial officer for an initial hearing in court. Now, Indiana law does not explicitly define the word, “promptly.” However, most courts find 48 hours following the arrest to be a reasonable time frame for the initial hearing in Indiana to occur. In addition, if a person makes bail prior to being brought before a judicial officer, the law states that the initial hearing must be scheduled within 20 days of the person’s arrest; or 10 days following the arrest, if the person was arrested for an OWI in Indiana.
For those not in custody and charged with a misdemeanor it’s important to note that, effective January 1, 2024, an initial hearing can be waived. However, as stated in the change to Rule 2.3 of Indiana’s Rules for Pre-trial Procedure, this may only be done upon request of the defendant’s counsel.
The Basics of Bail in Indiana
When someone has been arrested for a crime and is detained by police, they may be able to post bail and be released from detention prior to their initial hearing in Indiana. Generally, each Indiana county has their own local rules on how to establish the amount of bail required. However, as provided in Indiana Code 35-33-8-4(b), the amount of bail “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.” Furthermore, the law requires the judicial officer to consider the following factors:
- The length and character of the defendant’s residence in the community
- The defendant’s employment stats and history
- The defendant’s ability to give bail
- The defendant’s family ties and relationships
- The defendant’s character, reputation, habits, and mental condition
- The defendant’s criminal or juvenile record
- The defendant’s previous record in not responding to court appearances
- The nature and gravity of the offense and the potential penalty faced
- The source of funds or property to be used to post bail
- The defendant’s citizenship status
- Any other factors which may indicate that the defendant may not recognize and adhere to the authority of the court to bring them to trial
Ultimately, if the amount set for bail is too high and the person does not have the funds to meet it, they may petition the court to reduce the amount. As provided in Indiana Code 35-33-8-5, to successfully have the amount set for bail reduced, a person must “present additional evidence of substantial mitigating factors” (based on the factors listed above) which suggests that they recognize the courts authority to bring them to trial.
Under most circumstances, a person who posts bail may be released from detention immediately. However, this is not the case for those charged with certain sex crimes in Indiana, like child molesting or child solicitation; or murder, which is considered a not-bailable offense under Indiana Code 35-33-8-2. Furthermore, under the new domestic violence law in Indiana, courts cannot release a person arrested for a crime of domestic violence on bail until a certain amount of time has passed since the time of their arrest.
What Happens Before an Initial Hearing?
If the person was arrested without a warrant, Indiana Code 35-33-7-2 requires that the facts on which the arrest was made be submitted to the judicial officer either before or at the initial hearing in Indiana. Upon review of the facts or the indictment, the judicial officer shall then make a determination as to whether there is probable cause to believe that a crime was committed and that the arrested person committed it.
If the judicial officer determines that probable cause does exist, they shall then order that the arrested person be held to answer in the proper court of law. In contrast, if the judicial officer determines that probable cause has not been established by the facts, or if the prosecuting attorney informs them that no charge will be filed, they shall order that the arrested person be released immediately.
In situations where a person has been arrested prior to formal charges being filed, Indiana Code 35-33-7-3 mandates that information or an indictment be filed (or prepared to be filed) at or before the initial hearing. Furthermore, this section of the law allows the court recess or continue the initial hearing for up to 72 hours (excluding weekends and legal holidays) if: (a) the prosecuting attorney states that more time is required to evaluate the case; or (b) the court deems it necessary to transfer the person to another court. However, before recessing the initial hearing, the court must inform a defendant charged with a felony of their rights under Section 5 of Indiana Code 35-33-7.
What Happens at an Initial Hearing in Indiana?
Generally, the main purpose of an initial hearing in Indiana is to inform the defendant of both their statutory and constitutional rights, as well as advise them on the charges being brought against them and the potential penalties a conviction may bring. In addition, the initial hearing may be used to address any preliminary matters at hand, like the issuance of bail/bond, or in the case of drinking and driving in Indiana, the pre-trial suspension of an Indiana driver’s license.
Regarding the informing of rights, Indiana Code 35-33-7-5 requires that the judicial officer overseeing the initial hearing inform the accused, either orally or in writing, that they have the right to retain counsel and, if indigent, the right to assigned counsel at no additional expense. If the person does indeed choose to hire an Indiana defense lawyer, the court must inform them that they have either 20 days to do so, if charged with a felony; or 10 days to do so, if charged with a misdemeanor. In addition, the judicial officer must inform the accused of the following:
- The right to a speedy trial
- The amount and conditions of bail
- The person’s privilege against self-incrimination
- The nature of the charges against them
- That a preliminary plea of not guilty is being entered for them
- That the preliminary plea will become a formal plea either 20 days after the completion of the initial hearing (or 10 days after the initial hearing, if the person was charged with one or more misdemeanors)
Furthermore, if the defendant was charged with an offense involving a motor vehicle, the judicial officer must inform them of their right to request a petition for a hearing regarding specialized driving privileges in Indiana.
Finally, as stated in Indiana Code 35-36-8-1, if the defendant has been charged with a felony, the judicial official shall set what is called an “omnibus” date at the initial hearing. This date must be no earlier than 45 days and no later than 75 days after the completion of the initial hearing unless there is an agreement between the prosecution and defense regarding a different date. The purpose of an omnibus date is to firmly establish a date in which various deadlines can be established, including:
- When counsel may withdraw from the case for any reason (30 days prior to the omnibus date)
- When the prosecution can amend the indictment (30 days prior to the omnibus date)
- When the defense can offer evidence of alibi (20 days prior to the omnibus date)
- When the defense can file alleging that the defendant has an intellectual disability (20 days prior to the omnibus date)
- When the defense can file a motion claiming the use of justifiable force (20 days prior to the omnibus date)
- When the defense can file a motion to dismiss (20 days prior to the omnibus date)
What Happens after an Initial Hearing?
Following the initial hearing, defendants who make bail or are not considered a flight-risk are allowed to return home and resume their lives as they await future proceedings. At this point, it would be wise for the defendant to hire an Indiana criminal defense attorney, if they haven’t already done so. The reason for this is because a skilled defense attorney will be able to better handle the various processes that occur before a criminal trial in Indiana.
Facing Criminal Charges in Indiana?
It’s vital to understand that if you’ve been charged with a criminal offense in Indiana, the worst thing you can do is go to trial unrepresented and unprepared. To reduce your charges, minimize your sentence, or have the case dismissed, you’ll need to hire a skilled Indiana defense lawyer with deep experience in the courtroom.
The founding attorneys of Keffer Hirschauer LLP both are former deputy prosecutors, who understand how the prosecution operates and what tactic they may deploy to move a criminal case forward. On top of that, they understand Indiana criminal law inside and out, and will use that to your advantage as they aggressively pursue the best outcome in the case against you.