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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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