2021 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
33-39-1-8. Withholding of Prosecution; Applicability Grounds; Conditions; Notification

Universal Citation: IN Code § 33-39-1-8 (2021)

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, if the alleged offense occurred while the person was operating a motor vehicle;

(B) IC 9-30-4-8, if the alleged offense occurred while the person was operating a motor vehicle;

(C) IC 35-44.1-2-13(b)(1); or

(D) IC 35-43-1-2(a), if the alleged offense occurred while the person was operating a motor vehicle; and

(2) who 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, a Level 6 felony, or a Level 5 felony;

(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 mental health counseling and remain in a specified facility required for that purpose, including:

(A) addiction counseling;

(B) inpatient detoxification; and

(C) medication assisted treatment, including a federal Food and Drug Administration approved long acting, nonaddictive medication for the treatment of opioid or alcohol dependence;

(4) receive evidence based mental health and addiction, intellectual disability, developmental disability, autism, and co-occurring autism and mental illness forensic treatment services to reduce the risk of recidivism;

(5) support the person's dependents and meet other family responsibilities;

(6) make restitution or reparation to the victim of the crime for the damage or injury that was sustained;

(7) refrain from harassing, intimidating, threatening, or having any direct or indirect contact with the victim or a witness;

(8) report to the prosecuting attorney at reasonable times;

(9) answer all reasonable inquiries by the prosecuting attorney and promptly notify the prosecuting attorney of any change in address or employment; and

(10) 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, including program fees and costs, 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 or program fees and costs 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)(7):

(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 office of judicial administration with the clerk.

[Pre-2004 Recodification Citation: 33-14-1-7.]

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; P.L.158-2013, SEC.342; P.L.217-2014, SEC.186; P.L.168-2014, SEC.47; P.L.187-2015, SEC.40; P.L.209-2015, SEC.22; P.L.198-2016, SEC.665; P.L.24-2018, SEC.3; P.L.161-2018, SEC.104; P.L.10-2019, SEC.127.

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