IMPORTANT - These documents are provided as an informational resource regarding the laws of Monroe County, Indiana. If you are accessing these documents from a place other than Monroe County, this information should be used only as the most general of references as the laws in your area may vary greatly from Monroe County.
As always, this reference is not meant as a substitute for advice given from a licensed attorney.
Criminal Law: Table of Contents
You and the Criminal Law
Getting Legal Help
This pamphlet was prepared by Student Legal Services (SLS) to provide Indiana University students with basic information regarding criminal law and procedure in Monroe County, Indiana. It is intended only as general information, not as a substitute for advice from a licensed attorney. If you need legal advice, contact SLS or a private attorney. SLS does not represent students in criminal cases but does give advice in criminal matters and can make referrals to private attorneys. If you cannot afford an attorney, the court may appoint an attorney from the Public Defender's Office to represent you.
Types of Offenses
Offenses are generally classified as either infractions, misdemeanors, or felonies.
An INFRACTION is the least serious offense. It usually involves a minor violation of law, such as a traffic offense. Infractions are not considered crimes; they call for civil (non-criminal) sanctions. The state does not have to prove your guilt "beyond a reasonable doubt," as it does in criminal cases, and you cannot be imprisoned for an infraction violation.
Examples of infractions with which students might be charged include:
- traffic offenses: with the exception of operating a motor vehicle while intoxicated, leaving the scene of an accident, passing a school bus, driving without insurance, reckless driving, and driving with a suspended license.
- false statement of age: Anyone under age 21 who makes a false statement of his or her age or who presents false evidence of identity or age to a licensed alcoholic beverage seller for the purpose of ordering, buying, or trying to obtain an alcoholic beverage may be charged with this Class C infraction. Even mere possession of a false I.D. may be a violation of this law, if the possessor intends to use the I.D. to obtain alcohol. Also, a person under age 21 who uses a false or altered driver's license as evidence that he or she is over age 21 will have his or her driver's license revoked for up to one year.
A MISDEMEANOR is a crime that is less serious than a felony. Misdemeanors are punishable by lesser fines and shorter terms of imprisonment than felonies. See the penalty section at the end of the pamphlet for information on maximum fines and sentences. Misdemeanors with which students might be charged include:
- check deception (writing bad checks):
It is a Class A misdemeanor to knowingly or intentionally write a check for the payment of money or to get money or property when you know the check will not be honored by the bank. However, if you pay the holder of the check the amount due, plus service and other fees, within ten days of the date the holder mails you notice that the check bounced, criminal charges will not be brought against you. - operating a vehicle while intoxicated (OWI):
This offense is a Class A misdemeanor unless you have a previous conviction of OWI within the past five years or unless you cause serious bodily injury to another person; then it can be charged as a Class D felony. If you cause a death, it can be charged as a Class C felony. - operating a vehicle with a blood alcohol level of .10%:
Even if you are not impaired by alcohol, it is a Class C misdemeanor to drive when your blood alcohol level is .10% or more. As with OWI, the penalties are increased if you have a previous alcohol conviction or cause serious injury or death. - shoplifting: This is usually charged as criminal conversion, a Class A misdemeanor, defined as knowingly or intentionally exerting unauthorized control over another person's property. It can be charged as a Class D felony, theft, depending upon the value of the property involved. Using an IU parking decal that has not been issued to you or has been altered is often charged as conversion.
- failure to appear at a scheduled court date in a criminal case: A Class A misdemeanor, charged if you were released from jail on the condition that you appear in court and you fail to do so. If the original offense was a felony, failure to appear in court can also be charged as a Class D felony.
- possession of marijuana: This is defined as "knowingly or intentionally possessing, growing, or cultivating marijuana or hashish, or knowing that marijuana or hashish is growing on your premises and failing to destroy" the plant. It is a Class A misdemeanor, but can be charged as a Class D felony if the amount involved is more than 30 grams of marijuana or more than two grams of hashish, or if you have a prior conviction for an offense involving marijuana or hashish.
- disorderly conduct: A Class B misdemeanor. It includes recklessly, knowingly, or intentionally engaging in fighting or disruptive conduct; making unreasonable noise and continuing to do so after being asked to stop; disrupting a lawful assembly of people; or obstructing vehicle or pedestrian traffic.
- public intoxication: It is a Class B misdemeanor to be in a public place (or a place where the public is allowed) when intoxicated. Police officers do not have to give you a breathalyzer to arrest you for public intoxication. A conviction can be based solely upon the officer's testimony about your behavior and appearance.
- driving when you have never had a driver's license: It is a Class C misdemeanor to drive on a public highway if you have never obtained a valid driver's license. There are some exceptions for people in the armed forces driving an official vehicle; some farm and construction equipment; and non-Indiana residents with a valid license from another state. A new Indiana resident with an unexpired license from another state must apply for an Indiana license within 60 days of moving here.
- illegal possession of alcohol: This Class C misdemeanor is defined as knowingly possessing an alcoholic beverage, drinking it, or transporting it on a public highway when you are under age 21 and not accompanied by at least one of your parents or guardians.
- false identification: Charges involving possessing a false or altered I.D. are infractions, discussed above. Providing a false I.D. to a minor can result in Class C misdemeanor charges against the provider. Even allowing someone else to use your license can lead to charges.
FELONIES are the most serious crimes. They are punishable by the greatest fines and longest prison terms. If you are charged with a felony, make no statements to the police and contact an attorney immediately. SLS can explain the public defender system or refer you to a private attorney if you need help finding one.
The Criminal Process
A criminal case begins in one of the following ways:
- The prosecutor may serve you, by sheriff or by certified mail, a summons notifying you of the time and date of your initial hearing. You will not be taken to jail and you will not have to post a bond. You must show up for this hearing or the judge will issue a warrant for your arrest. This method of notifying you that you are being charged with a crime is reserved for less serious offenses, such as check deception or shoplifting. When you appear for your initial hearing, you will be given an Information, a document detailing the formal charges which are being brought against you.
- A law enforcement officer may serve or present you with an arrest warrant and take you into custody.
- A law enforcement officer may arrest you and take you into custody without a warrant if he or she believes you have committed a felony, or if the officer believes you have committed a misdemeanor in his or her presence.
- The Indiana University Police Department (IUPD) or a conservation officer may serve you with a citation (ticket) and ask you to sign a "promise to appear" for the following non-traffic offenses: disorderly conduct; illegal consumption; trespass; illegal possession of alcohol or marijuana; or conversion involving theft of an IU parking decal. If you do not appear in court on the date specified, a warrant will be issued for your arrest.
Arrest
The United States Constitution has been interpreted to give you the following rights once you are in police custody and before the police interrogate you. Pursuant to the U.S. Supreme Court's ruling in Miranda v. Arizona, the police must tell you that:
- You have the right to remain silent;
- Anything you say can be used against you;
- You have the right to the assistance of an attorney; and
- If you cannot afford an attorney, the court will appoint one for you.
Although the Supreme Court has made several exceptions to the Miranda warning requirement, normally any incriminating statements or confessions made prior to the reading of your rights will be inadmissable in court if you made these statements while in police custody and in response to police interrogation. However police are allowed to stop, question, and sometimes frisk people when they suspect specific unlawful behavior. Often these brief "stop-and-frisk" investigations do not place you in police custody, so Miranda warnings may not be required. The key factor in determining when you are in police custody for Miranda purposes is this: If, considering all the circumstances, a reasonable person in your situation would believe that he or she was not free to leave the presence of the police, then you are in custody and Miranda applies.
This is a complex area of law, and the admissability in court of statements depends on the facts of each situation. Rather than trying to decide how much you can safely say to the police, follow the practical advice below.
Tips on Arrest
- If you are unsure whether you are being arrested or just stopped for investigation due to suspicious behavior, ask the officer (politely) whether you are being arrested. If the answer is no, you should still ask permission to leave before departing.
- Exercise your right to remain silent and to have the assistance of an attorney. Don't be afraid to remain silent; silence does not imply guilt. Tell the police that you want the assistance of an attorney. Police officers may not question you after you have asked for an attorney unless you initiate the discussion. Play it safe and do not sign or say anything until you speak with an attorney. There will be plenty of time to make or accept a "deal" after talking with an attorney. Remember that the police do not have authority to offer you deals or plea bargains to be presented to the Court; only the prosecutor can do that. So, resist police encouragement or coercion to answer questions.
- Be calm, polite, and remember the details. Do not do or say anything which could be interpreted as resisting law enforcement, as that could result in an additional criminal charge, one taken very seriously by the courts. Stay as calm as possible and try to remember exactly what happened before, during, and after the arrest. Cooperate with the officers in such things as getting into and out of the car and walking, but save your questions and explanations for your attorney.
- At the jail. After being arrested, you will be taken to the jail for fingerprinting, photographing, and other booking procedures. Call someone who can help you get out of jail. If you have been arrested for an alcohol-related offense, you may not be allowed to make a phone call for several hours.
Search and Seizure
With Warrants
Before a judge will sign a search warrant, the prosecutor must demonstrate that "probable cause" (good reason) exists to believe that the search will lead to the discovery of criminal activity.
Without Warrants
The police can search without a warrant in certain situations:
- If the search is incident to (accompanies) a legal arrest;
- If the search is incident to a "stop and frisk" investigation. When stopped and questioned for suspicious activity, you can be "patted down" for weapons even if you are not arrested. However, police cannot go through your pockets unless they feel something which indicates you may be carrying a weapon or contraband; and
- If your motor vehicle is movable and the police have reasonable grounds to believe: (a) someone in the car has committed a crime or is about to commit a crime; or (b) the motor vehicle contains contraband.
Tips on Search and Seizure
- Consenting to a search: A search which might otherwise be illegal may become legal if you consent to it. A court may find such consent either in your words or actions (like opening the trunk of your car if the police ask you to do so). There may be occasions when you wish to consent to a search, but you should remember that the risks are high and that you are voluntarily giving up an important right. If you believe you are being searched illegally, look for witnesses and loudly tell police that you are not consenting to the search.
- If searched incident to an arrest, the search must come after the arrest. Before being searched, ask the police if you are under arrest. If they say you are not, check the area for witnesses who might have heard the conversation. Remember who searched you; if it was not the arresting officer, the search may not be lawful. Be sure to ask "May I leave now?" before departing from the searching officer.
- Do not act "suspicious" if stopped. Doing so could give the police reasonable grounds for a search. Remain calm and make no sudden moves which might be considered "furtive" or imply that you have something to hide.
- When police are searching, do not move around. In a private area (especially a home), police can only search the area within your immediate control. Do not move around the house at these times, as you are only giving the police a greater area to search. Sit down and stay put until they finish in order to limit the area that they may properly search.
- Remain calm and use your head. Try to remember the details of the search or frisk. A search or frisk is not the time for vehemently demanding protection of your constitutional rights. Except to assert your rights in a calm, reasonable manner, say as little as possible and give your attorney a complete account later.
Bail Bonding Procedures
Misdemeanors
If you are arrested for a misdemeanor and have a permanent address in Monroe County, you will be released on your own "recognizance" (promise to show up at your initial hearing) and will not have to post bail. Exceptions to this no-bail rule are made when you:
- are arrested for an alcohol or drug-related offense. The sheriff may hold you in his custody until he believes you may be safely released without danger to yourself or others. The sheriff follows a published release schedule which is based on your blood alcohol level as determined by a breathalyzer or blood test;
- have been arrested for a misdemeanor or felony within the last five years;
- have a previous felony conviction;
- are on parole or probation at the time of your arrest; or
- are being arrested for resisting law enforcement.
If any of these exceptions apply, you will not be released on your own recognizance, but will have to post bond in an amount from $100 to $500.
Felonies
For most felonies, bond amounts range from $2,000 to $30,000. If you are not able to post bond, the court must schedule an initial hearing within a reasonable time so that you may plead "not guilty" and ask the judge to appoint a public defender to represent you. You may also ask the judge at the initial hearing to reduce your bond, but he or she may wait until your attorney files a Motion for Bond Reduction.
Once bond has been set, there are several ways to post bond and get out of jail:
- Cash Bond: If you can come up with the entire amount in cash, the sheriff's office will accept this 100% cash bond and release you. You will get all of the cash bond back after the disposition of your case, as long as there are no outstanding fees or fines unpaid. If you are ordered to make restitution to the victim of your crime, that amount may be deducted from your cash bond. A cash bond is typically required if you are charged with check deception or forgery.
- 10% Cash Bond: The judge and the clerk's office must approve this bonding procedure before the sheriff's office will release you, so this method is available only when the court is open for business. If the judge determines that you are eligible for a 10% cash bond, you or someone on your behalf may post 10% of the bail listed for your offense. Payment must be made by cash or a money order at the clerk's office and a receipt obtained. The sheriff's office will release you when the receipt is handed over. After disposition of your case, you will recover the bond minus 10% of the amount or $50, whichever is greater, for the bonding service. Any fees or fines you have not paid will also be deducted from your bond.
- Surety Bond: A bond can be purchased for 10% of the total amount due from a bail bondsman. The bondsman is an agent for an insurance company that guarantees the sheriff and the court that you will appear for your scheduled hearings and trial. If you do not appear, the bonding agency risks forfeiture of the entire surety bond. You will not recover the 10% premium paid to the bonding agency. The premium is the fee you pay for the bondsman's service. Bail bonds posted by professional bondsmen are available 24 hours a day.
- Property Bond: You need the approval of the sheriff and the clerk before you will be released on a property bond. So, like the 10% cash bond, this bonding procedure is available only during working hours. Posting a property bond involves giving a lien on real estate owned in Indiana. The real estate must have an equity value of three times the value of the listed bail plus $750. The property may be yours or belong to someone willing to post his or her property for you.
The clerk will assess a $5 fee for every bond posted. This $5 must be paid in the clerk's office before you are released from jail and is not refundable.
Initial Hearing
If you've been arrested or have received an information and summons in the mail, the initial hearing (formerly the "arraignment") will be your first appearance in court before a judge.
Although you may find that you are processed through the initial hearing in an assembly-line fashion, the content and procedure of the hearing are critical to the preservation of your rights and the disposition of your case. The initial hearing includes the following proceedings:
- Determining probable cause for the charge, if it was not determined before the hearing;
- Filing a formal charge, if it was not filed before the hearing;
- Informing you of your constitutional rights and explaining the charges against you;
- Determining whether you are indigent (unable to pay for an attorney) and appointing an attorney for you, if appropriate;
- Setting bail, if you are still in jail;
- Entering your plea in response to the charge. A "not guilty" plea will automatically be entered unless you choose to plead "guilty;" and
- Setting an omnibus date (a date by which certain motions and pleadings must be filed), a pre-trial conference date, and a trial date. In misdemeanor cases, the omnibus date is also the trial date.
If you have been charged with a misdemeanor, the summons you received in the mail will state the time and date of your initial hearing. Prior to entering the courtroom, you will meet with the misdemeanor bailiff. He or she will give you a clipboard with a document describing your rights as a defendant and containing spaces for your signature and relevant personal information. You will be asked to fill in the information and to initial the paragraphs that advise you of your constitutional rights and give information regarding the disposition of your case. Your signature on the document is your acknowledgement that you have been informed of your constitutional rights. If you plead "guilty" to a misdemeanor, this form will operate as a written waiver of your constitutional rights.
You must complete and sign the form prior to going before the judge to enter your plea. If this is your first offense, there may also be a document attached to your clipboard stating that you are eligible for the pre-trial diversion program.
If you enter a "not guilty" plea, you will have several opportunities later to change your plea to "guilty"; for instance, as the result of a plea bargain. You are not locked into going to trial just because you plead "not guilty" at your initial hearing and you will not be "punished" for initially pleading "not guilty." However, once you have entered a "guilty" plea, you cannot withdraw it unless the judge permits you to do so.
If you plead "guilty" to a misdemeanor charge at the initial hearing, the judge will ask you if you understand the nature of the charges and are acting voluntarily. Then he or she may either sentence you on the spot or send you to the probation department for a presentence investigation. Whenever the judge asks for a presentence investigation after a "guilty" plea, a hearing for sentencing will be set for a date after the investigation has been completed by the probation department. Remember, once you have entered a guilty plea, it is almost impossible to regain your right to go to trial.
Jury Trial Request
Criminal trials are either bench trials, in which the judge decides the outcome, or jury trials. If you are charged with a misdemeanor in Indiana, you may only have a jury trial if you file a written request for one at least ten days before the date the judge sets for your trial. Your request should be made as soon as possible after you are charged.
Requesting a jury trial often gives you greater leverage in plea bargaining with the prosecutor. Because most bench trials take only one-half hour or so, while jury trials usually require one or more days of the prosecutor's time, the prosecutor may be willing to offer you a better deal or perhaps even dismiss your case to ease scheduling. And if you do go to trial, your chances of winning may be greater with a jury. You can withdraw your jury trial request at anytime before the date set for your trial if you decide you do not want a jury trial.
Although you may later decide to be represented by counsel, you do not need an attorney to file a jury trial request. You can pick up a sample jury request form at Student Legal Services along with instructions on how to file it.
Court-Appointed Attorneys
If you want an attorney to represent you and cannot afford to retain one, be sure to inform the judge at your initial hearing that you want a court-appointed attorney. Not all defendants are entitled to free legal representation. You must be indigent and the offense with which you are charged must carry the possibility of imprisonment. If you are indigent and the court declines to provide you a public defender, the judge cannot sentence you to a jail term.
If it is appropriate to appoint an attorney based on your charged offense and prior criminal record, if any, the judge must then determine whether you are indigent. You will be asked for detailed information about your property, income, and expenses. If you are an I.U. student, you may be asked how you finance your education and living expenses. The Monroe County Public Defender's Office will be appointed to represent indigent criminal defendants.
Pre-Trial Conference and Omnibus Date
The pre-trial conference provides an opportunity for the judge and the defense and prosecuting attorneys to get together for an update of the status of the case and to exchange witness and exhibit lists. If a change of plea is to occur, it can be done at the pre-trial conference. If you are not represented by an attorney, you must attend the pre-trial conference. Be prepared to give the prosecuting attorney a list of your witnesses and exhibits, and to ask for the same information from the prosecutor. These lists may only be amended in advance of the trial date.
Trial
If you are not eligible for appointment of a public defender and have decided to go to trial without an attorney's assistance, you should make sure that you have gathered all the evidence you want to present well in advance of the trial date. Similarly, any witnesses you want to testify on your behalf should be notified and/or subpoenaed at least two weeks before trial. Obtain the subpoenas at the clerk's office. You may either serve them yourself on the person(s) whose attendance at trial you desire, or have the sheriff serve them, for a small fee. Be advised that service by sheriff can be quite slow, so allow additional time for service if that is the method you prefer.
Alternative Sentencing
Defendant Accountability Program
Note: For the most up to date information, please visit the Monroe County Prosecutor's website at http://www.co.monroe.in.us/prosecutor/PDP.html .
The defendant accountability program (DAP) attempts to divert some misdemeanor offenders (generally for their first offense) from the court system. The eligibility requirements are fairly strict:
- 1. Eligibility to participate is determined by the prosecutor's office on a case by casebasis. Items that may impact a defendant's eligibility for DAP include (but are not limited to):
- a. A defendant has pending charges, arrests, or prior convictions,
b. The value of any property involved is determined by the prosecutor's office to be too high,
c. A defendant has previously participated in DAP,
d. The incident involved multiple crimes,
e. The defendant resisted arrest,
f. Or anything else at the prosecutor's discretion.
3. It always helps to be cooperative, respectful, and polite!
Before you can enter DAP, you must appear at the initial hearing. If you are eligible for DAP, the bailiff will automatically give you the DAP paperwork. You will most likely not see a judge and no plea will be entered. Participation in DAP typically requires:
- A payment of $396, if first offense, and you are required to take educational classes and/or road crew. The fee includes:
- $170 user fee for participation in DAP,
- $142 in court costs and a $9 clerk fee,
- $75 for "alcohol school." You will also be required to take "alcohol school" classes;
- For conversion or shoplifting, you must complete the shoplifter's alternative program. This will require a $60 payment directly to the program (all other fees apply except for the "alcohol school");
- Participation in road crew and/or other community service in some cases;
- Commit no new offenses within one year;
- Make timely payments. Full payment is typically required within 6 weeks from the initial hearing.
When you have completed all of the above, have attended any required courses, and can show that you have not been arrested within the year following your arrest, your case will be dismissed. Although there may be a record of an arrest if you were initially taken into custody, there will be no conviction recorded. [Check with Paula: Remember, if you were not taken into custody, you were not arrested and you can truthfully state that you have never been arrested if you are ever asked that in the future.]
Earned Dismissal Program
The earned dismissal program (EDP), like the PDP, is primarily aimed at first-time misdemeanor offenders, although some first-time felony offenders may be eligible. Eligibility for EDP is at the discretion of the judge. Under EDP, you enter a plea of "guilty" and the judge takes your plea under advisement. After you have completed the terms of your sentencing and probation, your case is dismissed. Your criminal record will show an arrest (only if you were taken into custody) and a dismissal of the case pursuant to EDP, rather than a conviction.
If you want EDP, ask the prosecutor, after entering a "not guilty" at your initial hearing if, in exchange for a "guilty" plea, he or she would agree to your inclusion in the EDP. If the prosecutor agrees, you will then go before the judge to change your plea from "not guilty" to "guilty." At that time, you must ask the judge if he or she would permit you to go through EDP. If the judge approves, you will be assigned to the probation department for supervision.
Penalties and Costs
Listed below are the maximum penalties allowed by law for each category of offense. Most judges sentence at far below the maximum levels and order the top penalties only in extreme circumstances. Consult SLS or a private attorney to find out the usual sentence for your charged offense.
Infractions
Because an infraction is not a criminal offense the penalty imposed is a civil judgment. A fine can be imposed, but no jail time. The maximum infraction penalties are:
TYPE | PENALTY |
Class A | $10,000 fine |
Class B | $1,000 fine |
Class C | $500 fine |
Class D | $25 fine |
If the offense involved a traffic violation, the court can also order you to attend defensive driving school and/or could suspend your driver's license.
A Class A, B or C infraction against whom a judgment is entered is liable for court costs. Please refer to the separate "Costs" section for a breakdown of possible additional costs.
Misdemeanors
The maximum penalties for the different misdemeanors are:
TYPE | PENALTY |
Class A | 1 year confinement and $5,000 fine |
Class B | 180 days confinement and $1,000 fine |
Class C | 60 days confinement and $500 fine |
OWI Penalties
OWI Penalties vary greatly and are dependant on your particular circumstance. As such, there is no way to generalize in this category of offense. You should make an appointment at Student Legal Services or a private attorney to discuss typical penalties but be aware penalties for this offense may include jail time
Felonies
The maximium penalties for the different classes of felonies are:
TYPE | PENALTY |
Class A | 30 years confinement and $10,000 fine |
Class B | 10 years confinement and $10,000 fine |
Class C | 4 years confinement and $10,000 fine |
Class D | 1 1/2 years confinement and $10,000 fine |
Note that felony penalties can be increased for aggravating factors. Additional penalties for murder are not here discussed. Penalties for all offenses may be increased for habitual offenders. Additional administrative penalties may include driver's license suspension for some driving offenses. Additional criminal sanctions may include house arrest, restitution to victims, road crew, and other punishments and programs for individual cases.
Additional Costs
Besides fines, a person found guilty in criminal or traffic proceedings will generally have to pay the costs of the action. Some of those costs are listed below:
TYPE | COST |
|---|---|
OWI/.10 BAC | $123.50 |
Criminal | $123.50 |
Domestic Violence | $50.00 |
Infractions | $63.50-$88.50 |
Misd. Probation | $50.00 |
Felony Monthly | $15.00 |
Urine Screen | $23.00 |
Traffic | $123.50 |
Child Abuse | $50.00 |
Firearm | $200.00 |
Felony Probation | $100.00 |
Drug & Alcohol | $150.00 |
Misdemeanor Monthly | $10.00 |
Work Release | $8.00 daily |
Home Detention | $8.00 daily |
There are many other possible fees. It should also be noted that some defendants are ordered to pay back the cost of a public defender.
Be sure to check out our Criminal Law Top Ten list and special information about Little 500 weekend.
Student Legal Services
Student Legal Services does not handle criminal cases, although in most cases we do give advice. We also make referrals to private attorneys. If you want help from SLS, come to the office (703 E. Seventh St., across from Dunn Meadow) and fill out an intake sheet. Bring with you the information or summons, any other relevant documents, and your student I.D. We cannot give legal advice over the phone.
You can complete an intake form on the web and submit it to be scheduled with an appointment.
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