2012 Indiana Code
TITLE 33. COURTS AND COURT OFFICERS
ARTICLE 39. PROSECUTING ATTORNEYS
CHAPTER 1. BOND; ELIGIBILITY REQUIREMENTS FOR PROSECUTING ATTORNEYS; DUTY TO PROSECUTE; SPECIAL PROSECUTORS; PRETRIAL DIVERSION

IC 33-39
ARTICLE 39. PROSECUTING ATTORNEYS

IC 33-39-1
Chapter 1. Bond; Eligibility Requirements for Prosecuting Attorneys; 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 prosecuting attorney or chief deputy prosecuting attorney; and
(2) files an affidavit requesting designation as a senior prosecuting attorney in the circuit court and each superior court in a county in which the person is willing to serve as a senior prosecuting attorney.
(b) An affidavit filed under subsection (a) must contain the following:
(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 deputy prosecuting attorney or prosecuting attorney.
(4) The name of any county in which the person served as a chief deputy prosecuting attorney or prosecuting attorney.
(c) The circuit or superior court shall promptly forward each affidavit received under this section to the prosecuting attorneys council 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 prosecuting attorney appointed by a prosecuting attorney or to a special prosecutor.
(b) To be eligible to hold office as a prosecuting attorney, a person must be a resident of the judicial circuit that the person serves.
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 in the 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 of the commission of a felony or misdemeanor, the prosecuting attorney shall 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 process who are likely to have information concerning the commission of the felony or misdemeanor. The prosecuting attorney shall examine a person subpoenaed before the court that issued the process concerning the offense.
(b) If the facts elicited under subsection (a) are sufficient to establish a reasonable presumption of guilt against the party charged, the court shall:
(1) cause the testimony that amounts to a charge of a felony or misdemeanor to be reduced to writing and subscribed and sworn to by the witness; and
(2) issue process for the apprehension of the accused, as in other cases.
As added by P.L.98-2004, SEC.18.

IC 33-39-1-5
Felony, misdemeanor, or infraction prosecutions; other duties required by law
Sec. 5. Except as provided in IC 12-15-23-6(d), the prosecuting attorneys, within their respective jurisdictions, shall:
(1) conduct all prosecutions for felonies, misdemeanors, or infractions 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 be interested 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 to appointment; powers and duties; term and compensation
Sec. 6. (a) Special prosecutors may be appointed under this section 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 the prosecuting attorney's deputy files a verified petition requesting the appointment of a special prosecutor; and
(B) the prosecuting attorney agrees that a special prosecutor is needed;
(2) may appoint a special prosecutor if:
(A) a person files a verified petition requesting the appointment 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 the prosecuting attorney is given an opportunity to be heard;
finds by clear and convincing evidence that the appointment is necessary to avoid an actual conflict of interest or there is probable cause to believe that the prosecutor has committed a crime;
(3) may appoint a special prosecutor if:
(A) the prosecuting attorney files a petition requesting the court to appoint a special prosecutor; and
(B) the court finds that the appointment is necessary to avoid the appearance of impropriety;
(4) may appoint a special prosecutor if:
(A) an elected public official, who is a defendant in a criminal proceeding, files a verified petition requesting a special prosecutor within ten (10) days after the date of the initial hearing; and
(B) the court finds that the appointment of a special prosecutor 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 the interests of the state; and
(B) the court finds that the facts that established the basis for the initial appointment of a special prosecutor still exist.
The elected prosecuting attorney of the appointing jurisdiction shall receive notice of all pleadings filed and orders issued under 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 attorney in a county other than the county in which the person is to serve as special prosecutor; or
(B) except as provided in subsection (d), a senior prosecuting attorney.
(d) A senior prosecuting attorney may be appointed in the county in which the senior prosecuting attorney previously served if the court finds that an appointment under this subsection would not create the appearance of impropriety.
(e) A person appointed to serve as a special prosecutor has the same powers as the prosecuting attorney of the county. However, the appointing judge shall limit scope of the special prosecutor's duties to include only the investigation or prosecution of a particular case or particular grand jury investigation.
(f) The court shall establish the length of the special prosecutor's term. If the target of an investigation by the special prosecutor is a public servant (as defined in IC 35-31.5-2-261), the court shall order the special prosecutor to file a report of the investigation with the

court at the conclusion of the investigation. The report is a public record.
(g) If the special prosecutor is not regularly employed as a full-time prosecuting attorney or full-time deputy prosecuting attorney, the compensation for the special prosecutor's services:
(1) shall be paid to the special prosecutor from the unappropriated funds of the appointing county; and
(2) may not exceed:
(A) an hourly rate based upon the regular salary of a full-time prosecuting attorney of the appointing circuit;
(B) travel expenses and reasonable accommodation expenses actually incurred; and
(C) other reasonable expenses actually incurred, including the costs of investigation, discovery, and secretarial work, if:
(i) before incurring the other reasonable expenses described in this clause, the special prosecutor submits an application to the court to receive the other reasonable expenses; and
(ii) the court approves the expenses.
The amount of compensation a special prosecutor receives for services performed during a calendar day under subdivision (2)(A) may not exceed the amount of compensation a full-time prosecuting attorney would receive in salary for the calendar day.
(h) If the special prosecutor is regularly employed as a full-time prosecuting attorney or deputy prosecuting attorney, the compensation for the special prosecutor's services:
(1) shall be paid out of the appointing county's unappropriated funds to the treasurer of the county in which the special prosecutor regularly serves; and
(2) must include a per diem equal to the regular salary of a full-time prosecuting attorney of the appointing circuit, travel expenses, and reasonable accommodation expenses actually incurred.
(i) The combination of:
(1) the compensation paid to a senior prosecuting attorney under this chapter; and
(2) retirement benefits that the person appointed as a senior prosecuting attorney is receiving or entitled to receive;
may not exceed the minimum compensation to which a full-time prosecuting attorney is entitled under IC 33-39-6-5.
(j) A senior prosecuting attorney appointed under this chapter may not be compensated as senior prosecuting attorney for more than one hundred (100) calendar days in total during a calendar year if the senior prosecuting attorney receives retirement benefits during the calendar year. However, if the senior prosecuting attorney does not receive retirement benefits during a calendar year, the senior prosecuting attorney may be compensated as a senior prosecuting attorney for not more than two hundred (200) calendar days in total during 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; P.L.114-2012, SEC.58.

IC 33-39-1-7
Senior prosecuting attorney appointment; minimum period of service; disciplinary sanctions
Sec. 7. A person may not be appointed a senior prosecuting attorney under section 6 of this chapter if the person:
(1) is not available for the minimum period of commitment for service as a special prosecutor; or
(2) has had a disciplinary sanction imposed by the Indiana supreme court disciplinary commission or a similar body in another 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 a person who:
(1) holds a commercial driver's license; and
(2) has been charged with an offense involving the operation of a motor vehicle in accordance with the federal Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159.113 Stat. 1748).
(b) This section does not apply to a person arrested for or charged with:
(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 under IC 9-30-5-1 through IC 9-30-5-5, an offense involving:
(A) intoxication; or
(B) the operation of a vehicle;
if the offense involving intoxication or the operation of a vehicle was part of the same episode of criminal conduct as the offense 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 the person was operating a motor vehicle;
(B) IC 9-30-4-8(a), if the alleged offense occurred while the person 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 the person was operating a motor vehicle; and
(2) who held a probationary license (as defined in IC 9-24-11-3.3(b)) and was less than eighteen (18) years of age at the time of the alleged offense.
(d) A prosecuting attorney may withhold prosecution against an accused person if:
(1) the person is charged with a misdemeanor; (2) the person agrees to conditions of a pretrial diversion program offered by the prosecuting attorney;
(3) the terms of the agreement are recorded in an instrument signed by the person and the prosecuting attorney and filed in the court in which the charge is pending; and
(4) the prosecuting attorney electronically transmits information required by the prosecuting attorneys council concerning the withheld prosecution to the prosecuting attorneys council, in a manner and format designated by the prosecuting attorneys council.
(e) An agreement under subsection (d) may include conditions that the person:
(1) pay to the clerk of the court an initial user's fee and monthly user's fees in the amounts specified in IC 33-37-4-1;
(2) work faithfully at a suitable employment or faithfully pursue a course of study or career and technical education that will equip the person for suitable employment;
(3) undergo available medical treatment or counseling and remain in a specified facility required for that purpose;
(4) support the person's dependents and meet other family responsibilities;
(5) make restitution or reparation to the victim of the crime for the damage or injury that was sustained;
(6) refrain from harassing, intimidating, threatening, or having any 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 attorney and promptly notify the prosecuting attorney of any change in address or employment; and
(9) participate in dispute resolution either under IC 34-57-3 or a program established by the prosecuting attorney.
(f) An agreement under subsection (d)(2) may include other provisions reasonably related to the defendant's rehabilitation, if approved by the court.
(g) The prosecuting attorney shall notify the victim when prosecution is withheld under this section.
(h) All money collected by the clerk as user's fees under this section shall be deposited in the appropriate user fee fund under IC 33-37-8.
(i) If a court withholds prosecution under this section and the terms 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 form prescribed or approved by the division of state court administration 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; P.L.125-2012, SEC.410.
IC 33-39-1-9
Criminal charges against persons working with children; notification of employers
Sec. 9. A prosecuting attorney who charges a person with committing any of the following shall inform the person's employer of the charge, unless the prosecuting attorney determines that the person 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 less than 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.