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.•


  • 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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.