Expungement

Indiana Expungement

No criminal record is too old or inconsequential. The “paper trail” arising out of a seemingly insignificant contact with the criminal justice system (e.g., an arrest and charge without a subsequent conviction) often turns a youthful indiscretion into a persistent hurdle to career advancements and other opportunities. In many such cases, these criminal records can be sealed and permanently removed from public view pursuant to Indiana’s recently enacted expungement laws.

1. Criminal Paper Trail

Criminal history searches, which are increasingly easy and inexpensive to obtain, disclose information arising out of all felony and most misdemeanor arrests and convictions. The Indiana State Police (“ISP”) serves as the central repository in Indiana for the criminal records logged in each of the 92 counties. A person, agency, or entity with a “valid” reason can obtain criminal background checks through the ISP. Valid reasons include public and private employment, educational applications, federal and state licensing, banking and financial aid, housing, and even volunteer positions with non-profits such as charities and churches. A signature from the subject of a background check is not required.

State and federal law enforcement and numerous other criminal justice agencies have access to computerized databases such as the National Crime Information Center (“NCIC”). The NCIC is maintained by the FBI and incorporates a wide variety of records for tracking crime-related information, including those from the repositories of each respective state. The ISP repository and the NCIC disclose more than just dispositions (e.g., a conviction or dismissal) of a criminal case. These records also include arrests and charges. This is how a paper trail can exist even in the absence of a conviction. 2. Use of Criminal Records

A criminal record decreases employment opportunities more than any other job-related stigma[1]. Not surprisingly, an overwhelming majority (i.e., 87%) of employers acknowledge not just using criminal background checks as part of their hiring process, but also making quick and rough judgments among their applicant pools based simply on the existence of a criminal history [2].

Employers are by no means the only group that increasingly relies upon criminal background checks:  

  • State & Federal Government. Numerous occupational licenses require criminal background checks as part of the application process.
  • Schools. More than 67% of colleges and universities collect and use criminal justice information from their undergraduate and graduate applicants[3].
  • Banks & Financial Aid. Convictions and even arrests, particularly those that are drug-related, can limit if not preclude eligibility for loans and financial aid.
  • Landlords. Public and private landlords can legally deny housing to prospective tenants based on the results of a criminal background check.  
  • Non-Profit Agencies. Many non-profit agencies, such as churches and charities, often do not allow someone with a criminal record to volunteer.

3.  Indiana’s New Expungement Laws

Indiana courts have long recognized the sigma that follows criminal convictions not only creates roadblocks to rehabilitation, but also affects the credibility of an individual and subjects him or her to being found a habitual criminal. Jordan v. State, 512 N.E.2d 407, 409 (Ind. 1987), reh’g denied; E.H. v. State, 764 N.E.2d 681, 684-85 (Ind. Ct. App. 2002), reh’g denied, trans. denied. By enacting expungement laws, Indiana’s lawmakers intended to give individuals convicted of certain crimes a second chance. Taylor v. State, 7 N.E.3d, 362, 366 (Ind. Ct. App. 2014).

Indiana’s expungement laws, I.C. § 35-38-9-1 et seq., were enacted in July 2013 and have been twice amended. The term “expungement” is defined only by the practical effect of sealing and restricting the use of criminal records. Non-conviction records and the information arising out of most misdemeanors and minor felonies are “sealed” upon expungement and are thus permanently removed from public access. Records arising out of serious felonies can also be expunged (thus restoring numerous rights to the petitioner) but remain public. While these new laws can unquestionably be life changing, they are also complex and include nuanced eligibility and pleading requirements.

A. Eligibility & Waiting Periods

To be granted an expungement, the petitioner in most cases must prove by a preponderance of the evidence that the applicable waiting period (see below) has lapsed; that no charges are pending against the petitioner; that all fines, fees, costs, and restitution obligations have been satisfied; and that the petitioner has not been convicted of a crime within the applicable waiting period [4]. Certain criminal offenses (e.g., those involving serious violence, official misconduct, human trafficking, sex crimes, or multiple felonies involving the unlawful use of a deadly weapon) cannot be expunged. Provided the petitioner meets the eligibility criteria, an expungement is mandatory for non-conviction records and cases arising out of misdemeanors and minor felonies ]5\.

The expungement laws include variable waiting periods based upon the severity of the offense. Non-conviction records (e.g., cases where a conviction was avoided by a pre-trial diversion program or where a conviction was subsequently dismissed) can be expunged one year after the arrest provided the petitioner is not participating in a diversion or deferral program. Those convicted of a misdemeanor offense or a felony later reduced to a misdemeanor can petition for an expungement five years after the conviction. Those convicted of most other felonies are not eligible until eight years after the conviction or three years after the sentence is completed, whichever is later. Of note, the prosecutor can shorten or waive the waiting period for each group of petitioners.

B. Filing Expungement Petitions

Expungement petition must be “verified” (sworn or affirmed under the penalties of perjury) and filed with a circuit or superior court in the county of the conviction or arrest. A person may expunge more than one conviction and must consolidate convictions from the same county into one petition; however, a person may only file one such petition in his or her lifetime. Petitions filed in separate counties count as one petition provided they are filed within one year of each other. Amended petitions are allowed only when the failure to comply with the pleading requirements was due to excusable neglect or circumstances beyond the petitioner’s control.

The petition must set forth a litany of specific facts regarding the criminal case and information about the petitioner (e.g., Social Security Number, driver’s license number, date of birth, aliases, current and previous addresses, etc.). Until the court issues an order, the petition and related filings are not confidential. Thus, confidential information must be redacted and separately filed. An expungement petition can be granted without a hearing if the prosecutor does not object. If a hearing is conducted, it will be open to the public.

C. Scope & Extent of Expungement

Once non-conviction records have been expunged, all court records arising out of the case must be redacted or permanently sealed and/or redacted. Official opinions and memorandum decisions, if any, from the Indiana Supreme Court and Indiana Court of Appeals must also be removed from public view. Further, no information about the case can be kept in any central repository maintained by a local, regional, or statewide law enforcement agency. This includes the ISP repository as well as the online docket available at www.mycase.in.gov. Thus, if any third party (e.g., employer, graduate school, bank, landlord, non-profit, etc.) were to subsequently perform a criminal background check on such an individual, it would appear as if the incident never occurred.

Expunged records arising out of misdemeanor and minor felony (i.e., Class D or Level 6) convictions are also automatically sealed and removed from public view. In addition to the court’s files, these records include the files, if any, of the department of correct; the files of the bureau of motor vehicles; and the files of any person who provided treatment or services under a court order regarding the conviction. With few exceptions (e.g., a law enforcement officer investigating a new criminal offense), these records may not be subsequently disclosed – even to a prosecutor – without an order from the court. As with non-conviction records, no information about these cases can be retained in the ISP repository or on the online docket.

Most other felony convictions (excluding offenses involving sex, violence, or official misconduct) can also be expunged; however, the records arising out of these cases are not subsequently sealed. Instead, these records remain public but must be clearly and visibly marked or identified as having been expunged. These individuals are nevertheless considered to have had their records expunged for all purposes (see below) other than the disposition of the records.

In addition to potentially removing the paper trail from public view, the new expungement laws provide that a person whose criminal record has been expunged must be treated as if he or she had never been convicted of the offense. This includes the following:

  • Restoration of Rights. The civil rights of a petitioner, including the right to vote, hold public office, and serve on a jury, are fully restored upon expungement.
  • Discrimination. It is unlawful discrimination for any person to suspend, expel, refuse to employ, admit or license, or otherwise discriminate against” a person because of a conviction or arrest record that has been expunged or sealed. A person that so discriminates commits a Class C infraction and may be held in contempt of court.
  • Employer Inquiries. In any application for employment, license, or other right or privilege, a person may only be questioned about a previous criminal record in terms that exclude expunged convictions or arrests, such as “[h]ave you ever been arrested for or convicted of a crime that has not otherwise been expunged by a court?”
  • Credit Reporting. Convictions that have been expunged may not be reported by any credit reporting companies.

Certain limitations exist. For instance, upon a subsequent arrest or conviction for an unrelated offense, the prior expunged conviction can be admitted as evidence in the new proceeding and considered by the court in determining the sentence imposed. Expungement orders do not affect the registration requirements of sex and violent offenders and do not automatically restore a person’s right (which is governed by state and federal law) to possess and carry a firearm.

If you have a criminal history, contact us to learn more about what information can currently be discovered about your past and whether these records can be permanently removed from public view pursuant to Indiana’s new expungement laws. For a free consultation with an attorney at Spalding | Law LLC, call us at (812) 339-4433 or contact us online.


[1] "Criminal Stigma, Race, Gender, and Employment: An Expanded Assessment of the Consequents of Imprisonment for Employment,” National Institute of Justice (2014), p. 52.

[2] “The Use of Criminal Background Checks in Hiring Decisions,” Society for Human Resource Management (2012), p. 2.

[3] “Use of Criminal History Records in College Admissions Reconsidered,” Center for Community Alternatives (2011), p. 8.

[4] The expungement requirements were initially more stringent.  For instance, a petitioner was additionally required to have successfully completed his or her sentence, including probation, and could not have an existing or pending driver’s license suspension.  The 2014 amendments removed these requirements and reduced the burden of proof from “clear and convincing evidence” to “preponderance of evidence.”

[5] The Indiana Court of Appeals recently decided that the word “shall,” as used in I.C. § 35-38-9-2, left the court with no discretion to deny the expungement of a misdemeanor offense despite objections from a victim.  Taylor v. State, 7 N.E.3d 362, 365-366 (Ind. Ct. App. 2014).  The same term “shall” appears in I.C. § 35-38-9-1 (non-conviction records) and I.C. § 35-38-9-3 (minor felonies).  Expungements are discretionary for serious felonies since the term “may” is used.  I.C. § 35-38-9-4 and I.C. § 35-38-9-5.