May, J.
Phillip Beachey appeals the trial court’s imposition of bond. He argues the trial court abused its discretion by setting an excessive bond in violation of the Indiana Constitution and by denying his motion to reduce that bond. Because the trial court abused that discretion by failing to utilize the Indiana pretrial risk assessment system, as required by Indiana Code section 35-33-8-3.8 and Indiana Criminal Rule 26, we need not reach Beachey’s constitutional question. Instead, we vacate and remand.
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Beachey argues the trial court abused its discretion by not complying with Indiana Code section 35-33-8-3.8, which requires all Indiana trial courts to consider and incorporate the results of the Indiana pretrial risk assessment system prior to setting or modifying bail for an arrestee. Specifically, the statute directs courts to consider the results of a pretrial risk assessment system in analyzing whether an arrestee poses a substantial flight risk, and if not, requires the arrestee’s release without bond. The pretrial risk assessment system is designed to assess the risk of non-appearance during the pretrial period. See fn. 6.
Beachey also argues the court failed to meet the requirements of Indiana Criminal Rule 26.
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The State bases its analysis primarily on Indiana Code section 35-33-8-3.8, whereas Beachey emphasizes Indiana Criminal Rule 26. Specifically, the aforementioned code section states that “[a] court shall consider the results of the Indiana pretrial risk assessment system (if available) before setting or modifying bail for an arrestee.” Ind. Code § 35-33-8-3.8 (2017) (emphasis added). Criminal Rule 26 does not include the words “if available.”
The State argues the trial court was not in fact required to administer a pre-trial risk assessment due to lack of availability, yet fails to acknowledge that the reason “the results from a pretrial risk assessment were not available to the trial court” (Br. of Appellee at 14) was because the trial court failed to order an assessment in the first place. Instead, the State asserts that the trial court is permitted to consider “other relevant factors” to determine bail amount as provided in Indiana Code section 35-33-8-3.8. However, both the statute and the Rule include the word “and” rather than “or,” with respect to the evidence-based risk assessment. See Ind. Crim. R. 26 (“the court should utilize the results of an evidence-based risk assessment approved by the Indiana Office of Court Services, and such other information as the court finds relevant.”) (emphasis added). The State may not choose one over the other and completely ignore an integral and significant directive. See In re BJ, 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (the words “and” and “or” as used in statutes are not interchangeable, being strictly of a conjunctive and disjunctive nature respectively), trans. denied.
Furthermore, to the extent the statute and criminal rule are different, “it is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence.” Key v. State, 48 N.E.3d 333, 339 (Ind. Ct. App. 2015). See also Ind. Code § 34-8- 1-3 (Indicating our Indiana Supreme Court has the authority to “adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana . . . and thereafter all laws in conflict with the supreme court’s rules have no further force or effect.”)
The bond report ordered by the trial court included only a basic inventory of Beachey’s background information. It did not provide an analysis or an assessment of Beachey’s risk of flight or any indication whether he posed a danger to the community. Our Indiana Supreme Court explicitly established that, beginning on January 1, 2020, “the court should utilize the results of an evidence-based risk assessment approved by the Indiana Office of Court Services, and such other information as the court finds relevant.” Crim. R. 26(B). Thus, we reject the State’s assertion that the trial court can avoid the requirement of Criminal Rule 26 by simply not ordering preparation of an evidence-based risk assessment.
As a second argument, the State emphasizes the very last sentence of the Rule, which provides that “the court is not required to administer an assessment prior to releasing an arrestee if administering the assessment will delay the arrestee’s release.” Crim. R. 26. Based on that language, the State concludes “Defendant’s modification hearing would have had to be potentially postponed to await the report.” (Br. of Appellee at 14.) The State’s argument altogether misconstrues the final provision of Criminal Rule 26. Criminal Rule 26 presumes to function as a statutory safeguard against needlessly restraining an arrestee, and thus allows a trial court to forgo a risk assessment in favor of release. Indeed, the Rule explicitly states that an arrestee must be released without money bail or surety if no risk of non-appearance is evidenced. In no logical sense does Criminal Rule 26 explicitly or implicitly provide a loophole allowing a trial court, or the State, to ignore the requirements imposed by the Indiana Supreme Court.
Because both of the State’s arguments fail, we hold the trial court abused its discretion when it did not order and utilize the results of a pre-trial risk assessment evaluation as required by Criminal Rule 26.
The trial court abused its discretion in denying Beachey’s motion to reduce bail because it failed to order and consider the results of a pre-trial risk assessment report as mandated by Indiana Criminal Rule 26. In light of the trial court’s failure to adhere to the pre-risk assessment requirement, we need not address Beachey’s constitutional argument. We therefore vacate the trial court’s order denying modification of Beachey’s bond and remand for proceedings consistent with this opinion.
Vacated and remanded.
Bailey, J., and Robb, J., concur.