Indiana Expungement Changes 2015

Indiana Expungement Changes 2015

Indiana expungement is a hot topic in Indiana law that SFT Lawyers have written extensively about.  (Read more here.)  Indiana expungement is a process by which those who have been arrested and/or convicted can hide arrests or convictions from public view. The Indiana expungement law was changed, effective July 1, 2015. A summary of the changes to the law can be found here.

Indiana Expungement

Indiana expungement allows individuals who have made a mistake in their past a second chance to start fresh.  The Indiana expungement law is specifically tailored to give people a shot at new or better employment opportunities.

The Indiana expungement law known as the Second Chance Act was first passed in 2011.  Admittedly, the Indiana expungement process had many flaws and quirks that needed to be worked out, and slowly, over time, the Indiana General Assembly is attempting to do just that.  Indiana expungement in 2015 looks similar to its previous versions, but there are a few notable changes.

1. New Indiana Expungement Filing Fee.

The idea of a filing fee in certain Indiana expungement cases has not changed, but how it is processed is different.  As will be discussed in #2, a new case type of “XP” will be assigned to each Indiana expungement case. However, only certain cases will have to pay the current filing fee of $161.00.

Where the person has a conviction and attempting to get an Indiana expungement to remove it from his/her record, a filing fee is required.  However, where the person is only filing an Indiana expungement seeking to expunge an arrest or charges filed that did not lead to a conviction, no filing fee is required.

2. New Indiana Expungement Case Type

Prior to the enactment of the new Indiana expungement changes, much confusion arose as to how to file Indiana expungement. Courts all over the state adopted differing rules and procedures for how Indiana expungement was to be filed and processed.  Some involved filing under the original cause numbers of the underlying criminal cases, some involved filing them under Miscellaneous (“MI”) civil designations, and courts were inconsistently applying when to require a filing fee.  Under the newest Indiana expungement law, all Indiana expungement ‘s are to be filed under the new “XP” designation, which simplifies the process.  As discussed above in #1, not all petitions require the payment of a filing fee.

3. Indiana Expungement – What Happens to the Records?

This is another area that was inconsistently applied prior to the Indiana expungement changes of 2015. Each local court and local law enforcement agency adopted its own standard procedures on what to do when an Indiana expungement was granted.  The first version of Indiana expungement only allowed for the “sealing” of conviction records.  The 2013 version changed this and required the destruction of criminal records and all supporting investigative reports. The newest version of the Indiana expungement law is more like the original version, in that no records are actually destroyed, they are simply permanently hidden from public view.

If an Indiana expungement petition is filed and granted concerning an arrest or criminal charges which did not result in a conviction, all information of the arrest, criminal charges, juvenile deliquency allegation(s), vacated conviction, or vacated juvenile deliquency allegation(s) is removed from the “Alphabetically Arranged Criminal History Information System” maintained by the Indiana State Police and/or local law enforcement agenc(ies) is deleted.  What this means is that arrest information and/or charging information will not appear on Indiana state background checks. All trial court records of the arrest and/or charging information will be redacted and sealed from public view.  This means that all physical paper records as well as online records will be available to court personnel only, absent a court order otherwise.

If an Indiana expungement petition is filed and granted concerning a D Felony or Misdemeanor conviction, all records in the possession of the Indiana Department of Corrections, the Indiana Bureau of Motor Vehicles, any and all involved law enforcement agencies, and all agencies which provided services or treatment are prohibited from releasing expunged information to any person other than a law enforcement officer acting in the course of his or her official duty. All expunged conviction records in the possession of the Indiana State Police Central Records Depository must be sealed.  They may only be disclosed to a prosecutor or defense attorney pursuant to a court order, and/or in the course of their professional duties, a probation department or officer pursuant to a court order or for the preparation of a pre-sentence report, the Federal Bureau of Investigation, the Department of Homeland Security, the Indiana Supreme Court, and the Indiana State Board of Law Examiners for determining if bar applicants have good moral character.  Certain information regarding Commercial Drivers’ Licenses is also required to be disclosed pursuant to state and federal law.

All expunged trial court records must be permanently sealed.  This means that no one outside of court personnel gets access to such records without first obtaining a court order.  A prosecutor, in lieu of getting a court order, may file an application with the trial court for access to expunged records.  The trial court’s physical paper file must be clearly marked “EXPUNGED PER IC 35-38-9-6, PERMANENTLY SEALED” so the court personnel will know that the file may not be given to anyone without a court order. All trial court records cannot appear on any online public access website.

For higher felonies (Class 1 through 5) and Class 6 Felonies involving bodily injury, the end result is a bit different. As before, the only means by which a person can get an Indiana expungement is by consent of the prosecutor.  If an Indiana expungement petition is agreed to, filed, and granted by the court, such records remain public, but all records must be marked “EXPUNGED”. Likewise, any records in the possession of the Indiana State Police, Indiana Bureau of Motor Vehicles, or any other involved law enforcement agency must also mark such records “EXPUNGED”.

Under the new 2015 version of the Indiana expungement statute, the Indiana expungement order does not affect an existing or pending driver’s license suspension, and does not prevent the Indiana Bureau of Motor Vehicles from reporting conviction(s) to the Commercial Drivers’ License Information System.

The above practices are what is to be done with the underlying criminal cause(s). For the actual Indiana expungement case itself filed under the designation “XP”, the ultimate result depends on whether the Indiana expungement petition is granted or denied.  If and when a petition is granted, the entire XP file will be sealed from public view. If the Indiana expungement petition is denied for some reason, it will remain a public record and available to the general public.

4. Indiana Expungement – Do I Need to Hire an Attorney?

The short answer is yes, we certainly recommend you hire a licensed Indiana expungement attorney who has experience with Indiana expungement. First, if you couldn’t tell from the above description, the new Indiana expungement law is highly complex and requires the skills and experience of an Indiana expungement attorney.  Second, you only get a single bite at the apple.  If your Indiana expungement petition is partially granted or denied in full, you could be barred for life from pursuing any other remedies under the Indiana expungement law. This is not a mistake you want to make. It could prove to be quite costly.

The Indiana expungement attorneys of SFT Lawyers have been abreast of this new area in the law since the first statute was passed in 2011.  The lawyers of SFT Lawyers have taught continuing legal education to other lawyers and judges as to how the new Indiana expungement law functions, and we stay up to date on all changes as they happen. Our experienced Indiana expungement attorneys understand how to get relief from your past mistakes and how to help you put your criminal record behind you.  CALL (219) 841-5683 TODAY for a FREE CONSULTATION.

  • larry

    I have a expungement. and was granted a gun permit
    and then three monyhs later it was revoked. what do I need to do

    • digital82711

      Action for mandate, or what they used to call a writ of mandamus. Email me at my digital82711@gmail.com and I can show you what I did.

  • Anthony

    Larry, my past attorney didn’t file my expungement correctly. He didn’t get it reduce to a misdemeanor first then get the record expunged. The Fed’s don’t recognize Indiana expungements because it’s not actually a true expungement. So my attorney screwed me. Due to lack of knowledge of the Indiana expungement.

  • Anthony

    Under the new expungement law, indiana 2015 new version I think you be will fine. I wonder if you can file again if you already filed under the old indiana 2013 version. Since it’s said you can file one time.

  • Jeff Harden

    I got convicted on a class d felony criminal confinemen, and after a yr was able to have it dropped to a class a misdemeanor, does it have to be in the plea deal that it can be expunged or not. Or can I go file for it to be expunged, does it have to be in the county where you were convicted

    • Michael Campbell

      Jeff,

      The plea agreement does not have to provide for your right to petition the court for an expungement; that right is secured to you by state statute. Assuming you meet the statutory requirements you will be eligible for expungement.

      Please feel free to contact my office ((219)841-5683) to discuss your situation in more detail.

      Best regards,

      Michael A. Campbell, Esq.

  • Shylo57

    My son was 17 when arrested for a felony. He was actually a victim himself. We later found out that An organized crime ring was getting nieve middle class kids, scaring them into committing crimes. One was passing fake $100 bills, the other was selling their drugs. My son refused to sell the drugs, leaving the vials under his seat. He was too scared to not obey these criminals and tried to pass the fake bill. After his arrest, he helped the police to get these guys. His help led them to the top of the organized crime ring. The prosecutor at his hearing stood up for him, pleading with the judge to NO JAIL TIME! My son had never been in trouble before nor has he ever since, not even a traffic violation. He put himself through college, got his case pled down to a misdemeanor, then expunged under the original version! He then finished college after narrowly escaping a bout with stage 4 terminal cancer! He taught middle school science for the past 3 years in Kentucky with no problems. he is 36 now! His sister got a job teaching In phoenix, AZ! So he got a job in Phoenix teaching as well. PROBLEM! He was just denied his teaching certificate in Arizona! Why? They said he lied about his criminal background! He was told during his expungement hearing by both the Attorney and judge that it was legal for him to say no on any application that he in fact was never arrested for a felony, because his conviction had been expunged! He is already in Phoenix thinking he has a job! HELP! What steps do we take? Obviously, his records were not seal and destroyed as thought!

    • Michael Campbell

      Shylo57:

      Thanks for reaching out to me and I’m sorry to hear about the problems your son is now encountering. There are several reasons why his arrest and/or conviction is still showing up on a background check.

      One possible reason could be that the database being used by the school corporation in Phoenix, AZ is maintained by a third party and is outdated (i.e. the database contains old information and has not been updated to reflect the expungement)

      A second possible reason is that the Order granting his expungement was not distributed to all of the administrative agencies who have a record of the arrest and conviction (i.e. Uniform Crime Reports (FBI), Indiana State Police, county sheriff’s department, and/or city/town police department involved in arrest).

      A third possible reason, albeit less likely, is that the expungement petition and order were not properly drafted. If the petition and order did not take into account all charges, including those that had been dismissed under your son’s Cause Number, then it’s possible that while the conviction was removed from his record the fact that he was still arrested is still on his criminal background.

      Despite the foregoing, it may still be possible to correct the issue your son is facing.

      If you’re interested, please feel free to give me a call at my office (219-841-5683) to discuss possible corrective measures in more detail.

      Best regards,

      Michael A. Campbell, Esq.