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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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