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Old expungement law turns good luck to bad

September 10, 2013

A man’s good luck at never being charged with a crime despite four arrests turned bad when he tried to get his record expunged.

The Indiana Court of Appeals upheld the denial of H.M.’s four petitions to restrict the disclosure of his arrest records, finding he was not eligible for expungement under the former expungement law.

H.M. was arrested multiple times between December 1993 and January 2002 for a variety of incidents including battery, public intoxication, criminal trespass, theft and receiving stolen property. Each time, the state did not file charges.

In February 2013, he filed petitions to restrict the disclosure of his four arrest records. His request was considered under the state’s old expungement statute contained in Indiana Code 35-38-5-5.5.

The Court of Appeals noted the former law applies in this case because H.M. filed his petitions and the trial court summarily denied the petitions before Indiana’s new expungement law was enacted on July 1, 2013.

Agreeing with H.M. that “charge” and “to charge” are not defined in the state’s criminal statutes, the Court of Appeals found guidance in I.C. 35-33-1-1 and Epperson v. State 530, N.E.2d 743, 746 (Ind. Ct. App. 1988) which hold that criminal prosecution can start only with the filing of an information or indictment.

Since prosecuting attorneys never filed charges after H.M. was arrested, H.M. was not “charged,” the COA concluded in H.M. v. State of Indiana, 49A04-1304-CR-157. Therefore, he is not eligible to restrict the disclosure of his arrest records.

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