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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 And also technically speaking, this part of the old law was not repealed when 35-38-9 went into effect.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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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