ILNews

Old expungement law turns good luck to bad

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

  • 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 And also technically speaking, this part of the old law was not repealed when 35-38-9 went into effect.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?

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT