Like the sun rising each morning, each legislative session in Indiana brings a plethora of proposed bills to the floor for our legislators to consider. While the vast majority of bills are not enacted, each year at least a handful impact the criminal justice system. It is important for both citizens and criminal defense lawyers to stay knowledgeable of changes which may impact them, so this week’s blog from Banks & Brower highlights some of the changes impacting criminal law.
Indiana’s “lifeline law” has been expanded to cover more persons. This law previously only protected a person from prosecution if, among other circumstances, he or she requested medical assistance for another person who needed such assistance because of the use of alcohol. So if an underage drinking party led to someone becoming excessively intoxicated, the person(s) who summoned assistance were protected from prosecution for their own consumption. Now, the person who was in need of medical assistance due to alcohol consumption can benefit from the same protection as the person who summons medical assistance.
2025 also saw Indiana attempt to establish some consistency and reliability for identification procedures utilized in criminal investigations. Eyewitness testimony and identifications have long been a subject of research and debate, and if you have interest in that rabbit hole you may want to check out some of Elizabeth Loftus’s work on the subjects. One of Banks & Brower’s own attorneys, Eric Massey, completed his undergraduate honors research thesis on eyewitness memory and was inspired to do so in part because of Elizabeth Loftus’s work.
I.C. 35-33-4.5-7 through -11 establish procedures which must be followed by law enforcement unless “impossible or impracticable,” in which case alternative procedures approved by the law enforcement training board may be utilized. If the established procedures are not followed, then the identification evidence may not be admissible at trial. This new statutory scheme is sure to be a source of litigation in criminal cases over the coming years.
With respect to sex crimes, 2025’s legislative session saw the expansion of the statute of limitation for rape as a level 3 felony. Under I.C. 35-41-4-2, a rape charge could still be brought if done so no later than 5 years after the State first discovered evidence sufficient to charge through DNA, the State first became aware of a recording which provided evidence sufficient to charge, or a person confessed to the offense, whichever occurred earlier. Now, that 5 year period has been extended to 10 years.
Bail decision-making for “violent arrestees” and “repeat violent arrestees” was also addressed during this year’s legislative session. I.C. 35-33-8-3.4 will now require that such arrestees may only be released on bail after it is set individually by a judicial officer at a hearing in open court. In addition, I.C. 35-33-8-11 will now require a judicial officer to consider requiring a person to wear a monitoring device as a condition of bail if the person is charged with a crime of domestic violence, has a prior unrelated conviction for a crime of violence, and has a prior conviction for invasion of privacy.
Fentanyl penalties have also been increased, with lower weights now leading to higher charges. I.C. 35-48-4-1 now classifies a dealing offense (actual dealing or possession with intent) for fentanyl as a Level 4 felony if the weight is less than one gram, a Level 3 felony if the weight is at least one gram but less than five grams, and a Level 2 felony if the weight is at least five grams. Lower weights with an enhancing circumstance (such as possession of a firearm) will also result in higher level charges.
Additional statutory aggravators have been codified this year, which a court may consider at sentencing. Specifically, I.C. 35-38-1-7.1 now includes as an aggravator that the person is or has been in the United States unlawfully. This means that a judge can consider a person’s unlawful status and impose a harsher sentence on that basis. In addition, another new aggravator is that, for a person involved in a dealing offense, the person distributed the controlled substance to at least 3 different people in a 180-day period.
On the other hand, the list of mitigating circumstances a court may consider increased by one. The new mitigator would apply for a person involved in a controlled substance offense, where the person sought treatment in the year preceding the offense, or on or after the date of the offense but before sentencing. Thus, a person dealing with a controlled substance offense would be well-served by getting into treatment, not just because it is now a statutory mitigator, but because it may facilitate long-term recovery more importantly.
For years Indiana law has limited the total of consecutive terms of imprisonment for felony convictions arising out of an episode of criminal conduct. In this year’s session the General Assembly enacted similar limits for misdemeanor offenses. If the most serious crime for which the person is sentenced is a Class C misdemeanor, the total of consecutive terms of imprisonment may not exceed 1 year. For a Class B misdemeanor the total cannot exceed 2 years, and for a Class A misdemeanor it cannot exceed 3 years.
New offenses related to the operation of a motor vehicle without ever receiving a valid license were also added this year. Such an offense can now be charged as a Class A Misdemeanor if the operation of the vehicle results in bodily injury, a Level 6 felony if it results in serious bodily injury, and a Level 5 felony if it results in death or catastrophic injury.
This year also saw the legislature change some penalties related to operating a vehicle while under a lifetime forfeiture of driving privileges. Now, if the forfeiture of driving privileges occurred before July 1, 2015, the offense is a Level 6 felony. If the forfeiture occurred on or after that date, the offense is a Level 5 felony.
Another new crime was added to the code in 2025, this one dealing with persons in the vicinity of a police investigation. If a law enforcement officer reasonably believes a person’s presence within 25 feet of the officer will interfere with the officer’s duties, the officer may order the person to stop approaching. Thereafter, if the person continues to approach or remains within 25 feet of the officer, the person can be charged with unlawful encroachment on a law enforcement officer, a Class C misdemeanor.
Indiana’s red flag (or Jake Laird) law allows police to seize firearms from dangerous persons and establishes procedures by which a court subsequently determines whether the person is dangerous and should not be able to possess firearms. This year, the legislature added an expungement process to the Indiana code for these cases. If the court finds that the person is not dangerous, the court must expunge certain records. Even if a court has previously found a person dangerous, the new expungement process allows a court to expunge certain records if the person is no longer dangerous.
