A Quick Look at Indiana’s Second Chance and Expungement Law
Over the last two years the Indiana Legislature has completed a massive overhaul of expungements. On July 1, 2015, the expungement statutes again went through another change. Indiana 35-38-9 is the statute that governs expungements and sealing of the records related filings.
First of all, what is an expungement?An expungement essentially allows an individual to clean his or her slate and start over new. Additionally, after having your criminal history expunged it is illegal for employers to ask about the expunged record on a job application. You can also expunge multiple arrests, convictions or dismissal records all at once.
So, if you had a youthful criminal conviction, including any juvenile adjudications, or a lapse in judgement such as a public intoxication or operating while intoxicated charge, then you should take advantage of the new additions to the Indiana Expungement law.
However, there are some limitations to expungements. You may only file one expungement in your lifetime on convictions. For example, if you received a misdemeanor conviction for underage drinking in college and subsequently expunged it, you will not have another opportunity to expunge your records. However, it was an arrest without a conviction, or was a dismissal, you can file those petitions as often as you need to.
Because you only have one opportunity to petition for expungement, it is advised that you speak with an experienced expungement attorney to help you navigate the sometimes complex process.
Arrest or Dismissal RecordsIf your run-in with law enforcement resulted with an arrest, but not a conviction, law enforcement likely still has a public record of the incident and it may be found during a background check. This could be anything from an arrest where charges were not filed, an enrollment in a pretrial diversion program where the charges were consequently dismissed, or the charges were dropped or beaten at trial. In order to get one of these incidents off your record and prevent it from being accessible, you will have to expunge it. To expunge an arrest or dismissal record, you have to wait one year after the date of arrest, criminal charge, or juvenile allegation. After this time frame has passed, you must petition to the court that originally charged you with the offense or the county in which the arrest took place.
Misdemeanor and Class D Felony or Level 6 Felony Reduced to a MisdemeanorIf you were unable to get the charges dropped, all hope is not lost! The expungement law still gives you the opportunity to expunge any and all misdemeanors from your record. You must wait five years after the date of conviction (unless the prosecuting attorney consents in writing to an earlier period). If the court finds by a preponderance of the evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person has paid all fines, fees, and court costs, and satisfied any restitution obligation placed on the person as part of the sentence; and
(4) the person has not been convicted of a crime within the previous five (5) years (or within a shorter period if the prosecuting attorney agrees)
the court shall order the conviction records expunged.
Expunging all other Felony ConvictionsIf you were convicted of a felony, you must wait eight years or three years from the completion of your sentence to be able to expunge your criminal records. However, convicted sex or violent offenders, those convicted of a felony that resulted in bodily injury to another person, those convicted of perjury and those convicted of two or more felony offenses that involved the unlawful use of a deadly weapon (offenses not committed as part of the same episode of criminal conduct) are not eligible to have these particular offenses expunged from their record. Elected officials convicted of a felony while in office must wait 10 years after the conviction and an expungement may only be granted by the consent of the prosecutor.
If you meet all of the qualifications (you likely will need a lawyer to help you determine if you qualify) then you can petition the Court and the Court may grant you an expungement. The key word here is may, as Felony expungements are not like misdemeanor and arrest record expungements where the Court is obligated to expunge it. It is up to the Court's discretion to allow the record to be expunged and there is no guarantee what a judge may do.
As you can see the law may very well allow you to seal or expunge a prior indiscretion that may be tainting your otherwise squeaky clean record. If you are interested in learning more about expunging or sealing your record, call Banks & Brower today and our experienced attorneys will help guide you through the process. Give us a call at 317.732.1059 or email us at [email protected] We are available 24/7/365.