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IBA: New Law Restricts Access to Criminal Records

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Bell James Bell

By James J. Bell and Alex E. Gude, Bingham McHale LLP

There is a misconception among even the most educated of criminal clients that arrests, charges and convictions disappear off of one’s Indiana criminal record after a passage of time. This is not the case. Unlike other states’ expungement laws that allow the expungement of records after a period of good behavior, Indiana’s expungement laws can be unforgiving and generally preserve arrest and conviction records so that an arrestee’s great grandchildren can have a memento of their ancestor’s alleged and/or proven mischief.

In fact, Indiana’s expungement laws only apply to arrests and charges that do not result in convictions. They arguably do not even apply to acquittals. According to IC § 35-38-5-1, an expungement of records can only be obtained when the person is arrested but no charges are filed or under a limited amount of circumstances in which the charges are “dropped.” Theoretically, a person could be acquitted of murder by a jury in under ten minutes, the Judge and the prosecutor could apologize to the defendant for the injustice and the charge of murder would still remain on the individual’s record for an eternity. In all likelihood, in this economy, the record of such a charge would not be viewed by an employer as a “résumé builder.”

However, in the most recent session, the General Assembly took action to help some non-violent offenders shield potential employers’ access to some conviction records pursuant to IC 35-38-8. This law, which went into effect on July 1, 2011, states that

Eight (8) years after the date a person completes the person’s sentence and satisfies any other obligations imposed on the person as a part of the sentence, the person may petition a sentencing court to order the state police department to restrict access to the records concerning the person’s arrest and involvement in criminal or juvenile court proceedings.

IC § 35-38-8-3.

However, there are limitations to the applicability of this provision. First of all, it is only available to individuals who were (1) convicted of misdemeanors or Class D felonies that did not result in injury to a person; or (2) adjudicated a delinquent child for committing an offense that, if committed by an adult, would be a misdemeanor or Class D felony that did not result in injury to a person. IC § 35-38-8-2. This statute also does not apply to most sex or violent offenders. IC § 35-38-8-1. Additionally, to restrict access to the individual’s criminal history, the individual must not have been convicted of a felony after he or she completed his or her sentence, and the individual must have satisfied any other obligation imposed as part of the sentence for the crime the individual is attempting to restrict. IC § 35-38-8-4.

If all of the above requirements are met, then a petition should be granted. When a court grants a petition to restrict access, it is required to order all law enforcement agencies to prohibit the release of all records and information relating to the charges at issue to any individual without a court order. IC § 35-38-8-5. Further, once a petition is granted, an individual is legally permitted to state on an application for employment or on any other document that the individual has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records. IC § 35-38-8-7.

Finally, if a criminal case is dismissed, results in an acquittal or if the conviction is vacated, the defendant may file a similar petition to restrict access to the records. See IC § 35-38-5-5.5. While these laws are not a true “expungement” law, the General Assembly should be commended for helping those individuals who are seeking employment, are not a threat to the public’s safety and who have led a law abiding life for a significant amount of time.•

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  • Hardly an expungement
    Indiana law does not require law enforcement agencies to remove "police blotter" records, nor does it require Court Clerks to remove their records. Limiting expungements in this way renders them useless, since many private firms check local and county records for employers. The result is the crime will be discovered, and the applicant rejected. Expungement means just that, and should be required of all criminal justice agencies.

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  1. Hello currently just withdrew from laporte county drug court and now I have lost the woman I love which also was in drugcourt and was put in jail without a,lawyer presentfor her own safety according to the judge and they told her she could have a hearing in two weeks and now going on 30days and still in jail no court date and her public defender talks like he,s bout to just sell her up the river.

  2. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  3. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  4. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  5. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

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