Citations Affected: IC 35-38; IC 35-50.
January 22, 2013, read first time and referred to Committee on Courts and Criminal Code.
January 31, 2013, amended, reported _ Do Pass.
February 4, 2013, read second time, amended, ordered engrossed.
February 5, 2013, engrossed. Read third time, passed. Yeas 82, nays 17.
Specifies that misdemeanor and minor Class D felony records ordered
expunged by the court are removed or
sealed
, and that more serious
felony records ordered expunged are marked as expunged but remain
public records. Permits a law enforcement officer to have access to
certain expunged records without a court order. Establishes a
procedure to expunge records, and requires payment of the civil filing
fee to petition to expunge a conviction. Provides that a person may file
a petition to expunge more than one conviction, and provides that a
person may only petition for expungement once in the person's lifetime.
Provides that a petition to expunge a conviction may be filed not earlier
than: (1) five years from the date of conviction, in the case of a
misdemeanor; (2) eight years from the date of conviction in the case of
minor Class D felonies; (3) eight years from the date the sentence is
completed in the case of more serious felonies; and (4) ten years from
the date the sentence is completed in the case of the most serious
felonies. Requires consent of the prosecutor to petition for
expungement of the most serious felonies, and prohibits granting
expungement in the case of sex and violent offenders and persons
convicted of specified serious crimes. Provides that the civil rights of
a person whose records are expunged are restored, and requires a
person questioned about a previous conviction for employment or other
certain other purposes be asked about the previous conviction in a form
such as "Have you ever been arrested for or convicted of a crime that
has not been expunged by a court?" Specifies that an expunged
conviction is not admissible in an action for negligent hiring,
admission, or licensure. Repeals superseded provisions concerning
expungement and restricted disclosure of records.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
entered as a Class D felony to a Class A misdemeanor if, after a
hearing, the court finds:
(1) the person has violated a condition set by the court under
subsection (a); or
(2) the period that the conditions set by the court under subsection
(a) are in effect expires before the person successfully completes
each condition.
However, the court may not convert a judgment of conviction entered
as a Class D felony to a Class A misdemeanor if the person commits a
new offense before the conditions set by the court under subsection (a)
expire.
(d) The court shall enter judgment of conviction as a Class A
misdemeanor if the person fulfills the conditions set by the court under
subsection (a).
(e) The entry of a judgment of conviction under this section does not
affect the application of any statute requiring the suspension of a
person's driving privileges.
(f) This section may not be construed to diminish or alter the rights
of a victim (as defined in IC 35-40-4-8) in a sentencing proceeding
under this chapter.
opinion or memorandum decision; or
(B) the opinion or memorandum decision vacating the person's
conviction is certified; or
(3) if the person is not prosecuted, thirty (30) days after charges
are dismissed, if the charges are not refiled.
(d) A petition under subsection (a) must set forth:
(1) the date of the arrest;
(2) the charge;
(3) the date charges were dismissed, if applicable;
(4) the date of conviction or acquittal, if applicable;
(5) the date the conviction was vacated, if applicable;
(6) the basis on which the conviction was vacated, if applicable;
(7) the law enforcement agency employing the arresting officer;
(8) any other known identifying information, such as the name of
the arresting officer, case number, or court cause number;
(9) the date of the petitioner's birth; and
(10) the petitioner's Social Security number.
(e) A copy of a petition under subsection (a) shall be served on the
prosecuting attorney and the state central repository for records.
(f) If the prosecuting attorney wishes to oppose a petition under
subsection (a), the prosecuting attorney shall, not later than thirty (30)
days after the petition is filed, file a notice of opposition with the court
setting forth reasons for opposing the petition. The prosecuting attorney
shall attach to the notice of opposition a certified copy of any
documentary evidence showing that the petitioner is not entitled to
relief. A copy of the notice of opposition and copies of any
documentary evidence shall be served on the petitioner in accordance
with the Indiana Rules of Trial Procedure. The court may:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on documentary evidence submitted by the
prosecuting attorney, the petitioner is not entitled to have
access to the petitioner's arrest records restricted.
(g) If a notice of opposition is filed under subsection (f) and the
court does not summarily grant or summarily deny the petition, the
court shall set the matter for a hearing.
(h) After a hearing is held under subsection (g), the court shall grant
the petition filed under subsection (a), unless the petitioner is being
reprosecuted on charges related to the original conviction.
(i) If the court grants a petition filed under subsection (a), the court
shall order the state police department not to disclose or permit
disclosure of the petitioner's limited criminal history information to a
noncriminal justice organization or an individual under IC 10-13-3-27.
misdemeanor, including a Class D felony reduced to a
misdemeanor.
(b) Not earlier than five (5) years after the date of conviction
(unless the prosecuting attorney consents in writing to an earlier
period), the person convicted of the misdemeanor may petition the
sentencing court to expunge conviction records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or
services to the petitioning person under a court order;
that relate to the person's misdemeanor conviction.
(c) A person who files a petition to expunge conviction records
shall pay the filing fees required for filing a civil action, and the
clerk shall distribute the fees as in the case of a civil action. A
person who files a petition to expunge conviction records may not
receive a waiver or reduction of fees upon a showing of indigency.
(d) If the court finds by clear and convincing evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person does not have an existing or pending driver's
license suspension;
(4) the person has successfully completed the person's
sentence, including any term of supervised release, and
satisfied all other obligations placed on the person as part of
the sentence; and
(5) the person has not been convicted of a crime within the
previous five (5) years;
the court shall order the conviction records described in subsection
(b) expunged in accordance with section 6 of this chapter.
Sec. 3. (a) Except as provided in subsection (b), this section
applies only to a person convicted of a Class D felony. This section
does not apply to a person if the person's Class D felony was
reduced to a Class A misdemeanor.
(b) This section does not apply to the following:
(1) An elected official convicted of an offense while serving the
official's term or as a candidate for public office.
(2) A sex or violent offender (as defined in IC 11-8-8-5).
(3) A person convicted of a felony that resulted in bodily
injury to another person.
(4) A person convicted of perjury (IC 35-44.1-2-1) or official
misconduct (IC 35-44.1-1-1).
bodily injury to another person.
(b) This section does not apply to the following:
(1) A sex or violent offender (as defined in IC 11-8-8-5).
(2) A person convicted of an offense described in:
(A) IC 35-42-1;
(B) IC 35-42-3.5; or
(C) IC 35-42-4.
(c) Not earlier than ten (10) years after the completion of the
person's sentence (including the completion of any term of
supervised release and the satisfaction of all other obligations
placed on the person as part of the sentence, unless the prosecuting
attorney consents in writing to an earlier period), the person
convicted of the felony may petition the sentencing court to
expunge conviction records contained in:
(1) a court's files;
(2) the files of the department of correction;
(3) the files of the bureau of motor vehicles; and
(4) the files of any other person who provided treatment or
services to the petitioning person under a court order;
that relate to the person's felony conviction.
(d) A person who files a petition to expunge conviction records
shall pay the filing fees required for filing a civil action, and the
clerk shall distribute the fees as in the case of a civil action. A
person who files a petition to expunge conviction records may not
receive a waiver or reduction of fees upon a showing of indigency.
(e) If the court finds by clear and convincing evidence that:
(1) the period required by this section has elapsed;
(2) no charges are pending against the person;
(3) the person does not have an existing or pending driver's
license suspension;
(4) the person has successfully completed the person's
sentence, including any term of supervised release, and
satisfied all other obligations placed on the person as part of
the sentence;
(5) the person has not been convicted of a crime within the
previous ten (10) years; and
(6) the prosecuting attorney has consented in writing to the
expungement of the person's criminal records;
the court may order the conviction records described in subsection
(c) marked as expunged in accordance with section 7 of this
chapter. A person whose records have been ordered marked as
expunged under this section is considered to have had the person's
records expunged for all purposes other than the disposition of the
records.
Sec. 6. (a) If the court orders conviction records expunged under
sections 2 through 3 of this chapter, the court shall do the following
with respect to the specific records expunged by the court:
(1) Order:
(A) the department of correction;
(B) the bureau of motor vehicles; and
(C) each:
(i) law enforcement agency; and
(ii) other person;
who incarcerated, provided treatment for, or provided
other services for the person under an order of the court;
to prohibit the release of the person's records or information
in the person's records to anyone without a court order, other
than a law enforcement officer acting in the course of the
officer's official duty.
(2) Order the central repository for criminal history
information maintained by the state police department to seal
the person's expunged conviction records. Records sealed
under this subdivision may be disclosed only to:
(A) a prosecuting attorney if:
(i) authorized by a court order; and
(ii) needed to carry out the official duties of the
prosecuting attorney; and
(B) the Federal Bureau of Investigation and the
Department of Homeland Security, if disclosure is required
to comply with an agreement relating to the sharing of
criminal history information.
(3) Notify the clerk of the supreme court to seal any records
in the clerk's possession that relate to the conviction.
(b) Except as provided in subsection (c), if a petition to expunge
conviction records is granted under sections 2 through 3 of this
chapter, the records of:
(1) the sentencing court;
(2) a juvenile court;
(3) a court of appeals; and
(4) the supreme court;
concerning the person shall be permanently sealed.
(c) If a petition to expunge conviction records is granted under
sections 2 through 3 of this chapter with respect to the records of
a person who is named in an opinion or memorandum decision by
the supreme court or the court of appeals, the court shall:
(1) redact the opinion or memorandum decision as it appears
on the computer gateway administered by the office of
technology so that it does not include the petitioner's name (in
the same manner that opinions involving juveniles are
redacted); and
(2) provide a redacted copy of the opinion to any publisher or
organization to whom the opinion or memorandum decision
is provided after the date of the order of expungement.
The supreme court and court of appeals are not required to
destroy or otherwise dispose of any existing copy of an opinion or
memorandum decision that includes the petitioner's name.
(d) Notwithstanding subsection (b), a prosecuting attorney may
submit a written application to a court that granted an
expungement petition under this chapter to gain access to any
records that were permanently sealed under subsection (b), if the
records are relevant in a new prosecution of the person. If a
prosecuting attorney who submits a written application under this
subsection shows that the records are relevant for a new
prosecution of the person, the court that granted the expungement
petition shall:
(1) order the records to be unsealed; and
(2) allow the prosecuting attorney who submitted the written
application to have access to the records.
If a court orders records to be unsealed under this subsection, the
court shall order the records to be permanently resealed at the
earliest possible time after the reasons for unsealing the records
cease to exist. However, if the records are admitted as evidence
against the person in a new prosecution that results in the person's
conviction, or are used to enhance a sentence imposed on the
person in a new prosecution, the court is not required to reseal the
records.
(e) If a person whose conviction records are expunged under
section 5 of this chapter is required to register as a sex offender
based on the commission of a felony which has been expunged:
(1) the expungement does not affect the operation of the sex
offender registry web site, any person's ability to access the
person's records, records required to be maintained
concerning sex or violent offenders, or any registration
requirement imposed on the person; and
(2) the expunged conviction must be clearly marked as
expunged on the sex offender registry web site.
has successfully completed all terms of the sentence previously
imposed, including:
(A) payment of restitution, fines, and court costs; and
(B) completion of any terms of probation, parole, or
community corrections.
(c) The petitioner may include any other information that the
petitioner believes may assist the court.
(d) The petitioner shall serve a copy of the petition upon the
prosecuting attorney in accordance with the Indiana Rules of Trial
Procedure.
(e) The prosecuting attorney shall promptly forward a copy of
the petition to the last known address of the victim and inform the
victim of the victim's right to be present and address the court.
(f) The prosecuting attorney shall reply to the petition not later
than thirty (30) days after receipt.
Sec. 9. (a) If the prosecuting attorney does not object, the court
may grant the petition for expungement without a hearing.
(b) The court may summarily deny a petition, if the petition
does not meet the requirements of section 8 of this chapter, or if the
statements contained in the petition demonstrate that the petitioner
is not entitled to relief.
(c) If the prosecuting attorney objects to the petition, the court
shall set the matter for hearing not sooner than sixty (60) days
after service of the petition on the prosecuting attorney.
(d) A victim of the offense for which expungement is sought may
submit an oral or written statement in support of or in opposition
to the petition at the time of the hearing. The court shall consider
the victim's statement before making its determination.
(e) The petitioner must prove by clear and convincing evidence
that the facts alleged in the verified petition are true.
(f) The denial of a petition is an appealable final order.
(g) If the court grants the petition for expungement, the court
shall issue an order of expungement as described in section 6 of this
chapter.
(h) This subsection applies only to a petition to expunge
conviction records filed under sections 2 through 5 of this chapter.
This subsection does not apply to a petition to seal arrest records
under section 1 of this chapter. A petitioner may seek to expunge
more than one (1) conviction at the same time. The petitioner shall
consolidate all convictions that the petitioner wishes to expunge
from the same county in one (1) petition. A petitioner who wishes
to expunge convictions from separate counties must file a petition
in each county in which a conviction was entered.
(i) This subsection applies only to a petition to expunge
conviction records filed under sections 2 through 5 of this chapter.
This subsection does not apply to a petition to seal arrest records
under section 1 of this chapter. Except as provided in subsection
(j), a petitioner may file only one (1) petition for expungement
during the petitioner's lifetime. For purposes of this subsection, all
petitions for expungement filed in separate counties for offenses
committed in those counties count as one (1) petition if they are
filed in one (1) three hundred sixty-five (365) day period.
(j) A petitioner whose petition for expungement has been denied
on the merits, in whole or in part, may file a subsequent petition
for expungement with respect to one (1) or more convictions
included in the initial expungement petition that were not
expunged. A subsequent petition for expungement may be filed not
earlier than three (3) years following the denial of a previous
expungement petition. A subsequent petition for expungement may
not include any conviction that was not included in the initial
expungement petition.
Sec. 10. (a) It is unlawful discrimination for any person to:
(1) suspend;
(2) expel;
(3) refuse to employ;
(4) refuse to admit;
(5) refuse to grant or renew a license, permit, or certificate
necessary to engage in any activity, occupation, or profession;
or
(6) otherwise discriminate against;
any person because of a conviction or arrest record expunged or
sealed under this chapter.
(b) The civil rights of a person whose conviction has been
expunged shall be restored, including the right to vote, to hold
public office, to serve as a juror, and, to the extent not prohibited
by federal law, to own or possess a firearm.
(c) In any application for employment, a license, or other right
or privilege, a person may be questioned about a previous criminal
record only in terms that exclude expunged convictions or arrests,
such as: "Have you ever been arrested for or convicted of a crime
that has not been expunged by a court?".
(d) A person whose record is expunged shall be treated as if the
person had never been convicted of the offense. However, upon a
subsequent arrest or conviction for an unrelated offense, the prior
expunged conviction:
(1) may be considered by the court in determining the
sentence imposed for the new offense;
(2) is a prior unrelated conviction for purposes of:
(A) a habitual offender enhancement; and
(B) enhancing the new offense based on a prior conviction;
and
(3) may be admitted as evidence in the proceeding for a new
offense as if the conviction had not been expunged.
(e) Any person that discriminates against a person as described
in subsection (a) commits a Class C infraction and may be held in
contempt by the court issuing the order of expungement or by any
other court of general jurisdiction. Any person may file a written
motion of contempt to bring an alleged violation of this section to
the attention of a court. In addition, the person is entitled to
injunctive relief.
(f) In any judicial or administrative proceeding alleging
negligence or other fault, an order of expungement may be
introduced as evidence of the person's exercise of due care in
hiring, retaining, licensing, certifying, admitting to a school or
program, or otherwise transacting business or engaging in activity
with the person to whom the order of expungement was issued.
(g) A conviction that has been expunged under this chapter is
not admissible as evidence in an action for negligent hiring,
admission, or licensure against a person or entity who relied on the
order.
before the second felony was committed;
(2) the offense is domestic battery as a Class D felony under
IC 35-42-2-1.3; or
(3) the offense is possession of child pornography
(IC 35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its action
whenever it exercises the power to enter judgment of conviction of a
Class A misdemeanor granted in this subsection.
(c) Notwithstanding subsection (a), the sentencing court may
convert a Class D felony conviction to a Class A misdemeanor
conviction if, after receiving a verified petition as described in
subsection (d) and after conducting a hearing of which the prosecuting
attorney has been notified, the court makes the following findings:
(1) The person is not a sex or violent offender (as defined in
IC 11-8-8-5).
(2) The person was not convicted of a Class D felony that resulted
in bodily injury to another person.
(3) The person has not been convicted of perjury under
IC 35-44.1-2-1 (or IC 35-44-2-1 before its repeal) or official
misconduct under IC 35-44.1-1-1 (or IC 35-44-1-2 before its
repeal).
(4) At least three (3) years have passed since the person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(5) The person has not been convicted of a felony since the
person:
(A) completed the person's sentence; and
(B) satisfied any other obligation imposed on the person as
part of the sentence;
for the Class D felony.
(6) No criminal charges are pending against the person.
(d) A petition filed under subsection (c) or (e) must be verified and
set forth:
(1) the crime the person has been convicted of;
(2) the date of the conviction;
(3) the date the person completed the person's sentence;
(4) any obligations imposed on the person as part of the sentence;
(5) the date the obligations were satisfied; and
(6) a verified statement that there are no criminal charges pending
against the person.