Holcomb signs bill eliminating expungement wait time issue

Editor’s note: This article has been revised to replace references to the expungement plaintiff’s name with his initials after the Indiana Supreme Court ruled in his favor.

Gov. Eric Holcomb on Wednesday signed into law a measure eliminating confusion in the courts and establishing that the waiting period to obtain an expungement begins on the date a felony conviction is entered and does not start anew if that conviction is later reduced to a misdemeanor.

Holcomb’s approval of Senate Enrolled Act 47 comes as the Indiana Supreme Court is considering a case in which a man was denied an expungement after his felony conviction was reduced to a misdemeanor.

The Indiana Supreme Court heard oral arguments last month in the case, N.G. v. State of Indiana, 19S-XP-673. N.G. was convicted of Class D felony theft and successfully petitioned to have the conviction reduced to a misdemeanor in 2016.

N.G. faced a setback, however, when the Elkhart Superior Court denied his expungement petition in 2018, ruling the five-year waiting period had not yet been completed because it began anew in 2016 when the conviction was reduced.

A divided Indiana Court of Appeals panel affirmed the trial court in September, but the justices took N.G.’s appeal after dissenting Judge John Baker called the majority’s holding “unjust and ill advised.”

Senate Enrolled Act 47, which easily passed both legislative chambers, gives statutory effect to Baker’s dissent. It provides that the five-year waiting period for an expungement in cases such as N.G.’s begins on the date of the felony conviction, not the date it was reduced to a misdemeanor conviction.

The new law also amends the expungement statutes in several other ways. Among them:

  • Companies that provide background checks will be required to periodically review their records and remove those relating to expunged protection orders in the same manner as expunged convictions are removed.
  • A person may now expunge protection order records in connection with the denial of an ex parte petition for a protection order.
  • Law enforcement, probation and community corrections agencies may inquire about an applicant’s expunged records and are permitted to refuse to employ a person whose records have been expunged.
  • Specifies the procedure to expunge records of a collateral action entered in a different county than the county that issued the expungement order.

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