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Old expungement law turns good luck to bad

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A man’s good luck at never being charged with a crime despite four arrests turned bad when he tried to get his record expunged.

The Indiana Court of Appeals upheld the denial of H.M.’s four petitions to restrict the disclosure of his arrest records, finding he was not eligible for expungement under the former expungement law.

H.M. was arrested multiple times between December 1993 and January 2002 for a variety of incidents including battery, public intoxication, criminal trespass, theft and receiving stolen property. Each time, the state did not file charges.

In February 2013, he filed petitions to restrict the disclosure of his four arrest records. His request was considered under the state’s old expungement statute contained in Indiana Code 35-38-5-5.5.

The Court of Appeals noted the former law applies in this case because H.M. filed his petitions and the trial court summarily denied the petitions before Indiana’s new expungement law was enacted on July 1, 2013.

Agreeing with H.M. that “charge” and “to charge” are not defined in the state’s criminal statutes, the Court of Appeals found guidance in I.C. 35-33-1-1 and Epperson v. State 530, N.E.2d 743, 746 (Ind. Ct. App. 1988) which hold that criminal prosecution can start only with the filing of an information or indictment.

Since prosecuting attorneys never filed charges after H.M. was arrested, H.M. was not “charged,” the COA concluded in H.M. v. State of Indiana, 49A04-1304-CR-157. Therefore, he is not eligible to restrict the disclosure of his arrest records.

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  • restricted access v. expungement
    Technically speaking, H.M. should have filed under 35-38-5-1 which is the actual expungement provision under the 'old law'. And also technically speaking, this part of the old law was not repealed when 35-38-9 went into effect. I don't know whether s/he was represented at the superior court level, but if s/he was self-represented this might have been a 'simple' issue of using the incorrect form. The article is not careful with the jargon surrounding this type of case. Expungement, sealing, and restricted access all had different meanings, just as ‘sealing’ and ‘expungement’ have different meanings now that the law has changed #superconfusing. If H.M. had asked for expungement it should have been granted, but H.M. apparently asked for 'restricted access' which is NOT the same thing. At the end of the day, the point of these laws is to make it possible for someone to get a job! Call it what you will, folks who have 'paid their debt' (sentence, parole, probation, fees, etc.) should not continue to be punished for years, even decades, after. Most folks have no idea that ANY arrest results in an entry on their criminal history and it DOES NOT magically go away. I’ve seen IMPD reports, mostly of arrests not resulting in convictions, that go back to 1968!!! How do we expect them to move at any kind of ‘upward trajectory’ if they can never get away from things done (or *not* done, in the case of dismissed/not filed charges) in the past?

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  1. 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.

  2. 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.

  3. 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)

  4. 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)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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