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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. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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