An instant of bad judgment, a poor decision, a stupid mistake, a youthful indiscretion—all it takes is one unfortunate moment and the resulting criminal record could be a burden for the rest of a person’s life. Not only can a criminal record have a significant negative effect on employment prospects, but it can also impact eligibility for benefits like federal education and housing assistance. A few years ago, the Indiana Legislature officially acknowledged the lasting difficulties that a criminal record can present that go far beyond an offender’s “debt to society” and enacted an expungement statute. While it does not vacate a person’s convictions, Indiana’s expungement statute seals off the paper trail establishing that there ever was an arrest or conviction. The expungement order prohibits disclosure of a person’s records or information absent in a court order (unless it is to law enforcement—law enforcement agencies will still have access to those records in the course of their official duties). The statute specifically makes it unlawful to discriminate, in any way, against a person because of an expunged arrest/conviction record. A person’s right to vote, right to hold public office, and right to serve as a juror are all restored. A person who is able to get their record expunged must be treated as if they were never arrested or convicted.
WHO IS ELIGIBLE?
Not every offender will be eligible, and there is a specific waiting period before a petition can be filed that varies depending on the seriousness of the conviction. Generally speaking, the more serious the offense, the longer you must wait—and remain trouble-free. Additionally, all fines, court costs, fees, and any restitution must all be paid before you can file a petition. Those who have taken a life or committed a sex offense that results in having to register as a sex or violent offender are not eligible to have their records expunged.
WHAT IF I WAS ARRESTED BUT NEVER CHARGED, OR IF I WAS CHARGED BUT NEVER CONVICTED?
For arrests that do not result in charges being filed, or cases that do not end in a conviction (including cases where the person successfully completed a diversion program and had charges dismissed), the waiting period is just one year from the date of the arrest or the date the charge was filed, whichever is later. This is the only category where there is no filing fee required. Provided that the Petition, and the Petitioner, meet all the requirements of the statute, the court has no discretion and must grant the request to expunge.
WHAT IF IT WAS JUST A MISDEMEANOR OR MY FELONY WAS REDUCED TO A MISDEMEANOR?
For misdemeanor convictions, including those that started out as felonies but were later reduced to misdemeanors, the waiting period is five years from the date of the last conviction. The Prosecutor has the discretion to agree to shorten that waiting period—but you better have a compelling reason. Those who have two or more unrelated felony convictions involving the use of a deadly weapon are ineligible, as are sex or violent offenders. Provided all the statutory requirements have been met in the Petition, the court has no discretion and must grant the petition.
WHAT IF MY CONVICTIONS ARE CLASS D OR LEVEL 6 FELONIES?
The waiting period for Class D/Level 6 Felonies is eight years from the date of the last conviction (unless the Prosecutor agrees to shorten). The list of those ineligible is longer as well. Persons in the following categories are not eligible for expungement:
Two or more unrelated felony convictions involving a deadly weapon
Convictions while serving as an elected official or while a candidate for public office
Most sex/violent offenders
Offense resulted in bodily injury to another person
Conviction was perjury or official misconduct
Homicide-related, sex trafficking, or other sex-related crimes
If all the requirements of the statute are met in the Petition, and by the Petitioner, the court must grant the request.
MY CONVICTION WAS MORE SERIOUS. WHAT NOW?
For all other felonies, other than those already resulting in ineligibility (see the list for Class D/Level 6 Felonies), or those resulting in serious bodily injury, the waiting period is eight years from the date of conviction, or three years from the completion of the sentence, whichever is later. In this category, the court does not have to grant the request and does have discretion to reject a petition. Additionally, the records are marked expunged, but they remain accessible to the public. For elected officials and those offenses resulting in serious bodily injury, the wait time is ten years from date of conviction or five years from commission of sentence.
MISCELLANEOUS
If a person is required to register as a sex or violent offender, expungement will not affect their responsibilities regarding the registry, and any expungement requires the Prosecutor’s consent.
Expungement of a domestic violence conviction will not restore a person’s right to possess a firearm. In order to restore your right to possess a firearm, you must comply with I.C. 35-47-4-7.
If you have convictions in more than one county, you must file a Petition in each county and they all must be filed within one year of each other.
WHAT INFORMATION DOES MY ATTORNEY NEED TO START A PETITION?
You can speed up the process by bringing some specific information to the first meeting with your attorney. A Petition must include your legal name and any and all aliases you have used, every address at which you have lived from the date of the offense(s) to present, and a list of all cases filed, including case numbers.
Mark R. McKinney is a partner at McKinney & Malapit Law who focuses his practice in the areas of criminal defense, municipal/utility law, family law, personal injury, and civil litigation. He graduated from Arizona State University with a BA in Political Science and from the Indiana University School of Law—Bloomington.
McKinney & Malapit Law is a general practice firm serving all of Indiana out of its Fishers and Muncie offices.
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