June 26, 2015

Second Chances and “Do-Overs”: Expungements and Specialized Driving Privileges

Part I: Expungements--Second Chances, Use Them Now!

Having a criminal record is not only embarrassing but stands in the way of so many opportunities such as being approved to go on a school field trip with your child or grandchild, being approved for a loan, being eligible for lower insurance premiums, obtaining a handgun license, gaining admission to college, or successfully finding a desirable job. Misdemeanor and/or felony convictions on your record can now be expunged.

Expungement Law: Expanded in 2014 with additional amendments effective July 1, 2015

Effective March 26, 2014 the Indiana legislature acted on an emergency basis to expand the expungement law, empowering courts to expunge most criminal records. The most recent amendments, signed into law by Governor Mike Pence on May 4, 2015 becomes effective July 1, 2015.

Expungements of arrests, expungements of criminal citations that were never charged, expungements of dismissed cases, expungement of misdemeanor convictions, and expungements of most Class D Felony convictions are mandatory.

The language of the statute is that the court “shall” grant the petition assuming the petitioner meets the statutory requirements. On the other hand the expungement of higher level felonies is discretionary, providing that the court “may” grant the petition if the petitioner meets the statutory requirements.

The state can respond to any petition for expungement of records but as to uncharged arrests or citations, dismissed cases, misdemeanor convictions and as to most felony convictions, the state can only really object to the form of the petition or to point out that one or more of the statutory requirements have not been met or established.

For more serious felonies the state can object based on the notion that someone convicted of a higher level felony (e.g. Class B Felony for Dealing in a Schedule II Controlled Substance) should not be given a second chance.

For many higher level felonies, under the most recent law, if the prosecutor objects, then the court must set the matter for a hearing not sooner than 60 days after the prosecutor was served the original Petition for Expungement. If there is a victim of the crime then the state must attempt to provide notice to the victim.

The victim can appear and be heard, or send in a letter, stating that they either agree with or oppose the request. Regardless of the state’s position, and the victim’s position (if any), the court still has the discretion to grant the expungement.

For even higher level crimes (e.g. those resulting in serious bodily injury) the prosecutor must consent or the court has no discretion to grant an expungement. Finally, some crimes are never eligible for expungement (e.g. murder, human or sex trafficking, many sex crimes, and crimes that lead to the designation of “sex or violent offender” as defined in IC 11-8-8-5, etc.

The seriousness of the crime being expunged not only impacts the eligibility to expunge but also the effect of the expungement. For discretionary expungements, those that the court “may” grant, the records are marked expunged but not removed from public access.
For the lower level crimes (misdemeanor and most D Felony convictions) the records are marked expunged and removed from public access.

Civil rights are restored after a court grants any of the expungements. These civil rights include the right to vote, the right to hold public office, the right to serve as a juror, and, if otherwise eligible, the right to obtain a firearm permit or license. To restore gun rights after a domestic violence conviction a separate legal procedure is necessary, regardless if it is expunged.

The following chart provides a general overview of the varying levels of offenses, the time periods which must elapse before eligibility to expunge, the court’s level of discretion (“shall” vs. “may”), whether the state must consent, and the relief granted:

Download Chart

Finally, here are a few key points to remember:

• Petitioners may file multiple expungement requests within a single petition (if all crimes were in same county).

• Additionally, petitioners may file expungement requests in multiple counties. If filing in multiple counties, then the petitioner has 365 days from the date of the first petition to file all remaining petitions. Failure to file all petitions within the 365 days results in ineligibility to expunge later.

• Employers may not inquire about any expunged convictions or records.

• Credit reporting agencies and companies that perform employment screening may not report expunged convictions or that petitions for expungement(s) were filed.

Finally, there are many intricacies to the expungement statute which has now changed significantly since 2013, so please contact Attorney B. Joseph Davis at the Law Offices of B. Joseph Davis, PC for your free consultation. We can handle your criminal expungement in any Indiana County.

And remember, you only have 365 days from the date of the first petition to use all of your Second Chances--So Use Them Now!

Stay tuned for Part II: Specialized Driving Privileges—it’s time for a “do-over”.

July 19, 2012

WTHR Coverage of Landmark Bath Salts Lawsuit

WTHR Reporter David MacAnally recently visited with Attorney B. Joseph Davis at our Law Offices to cover one of our newest cases. This Landmark Case is the first wrongful death lawsuit relating to Bath Salts (synthetic cathinones--similar to cocaine) in the United States. If you or a loved one has been physically injured or damaged financially by the consumption or use of bath salts or synthetic marijuana please contact our offices. We can help even if it was you that consumed the substances and were injured and/or damaged.

Text and Video of the News Piece can be viewed here:


Call: 1-800-204-0599

July 18, 2012

WISH TV Coverage of Landmark Spice Lawsuit

WISH TV's Karen Hensel recently visited with Attorney B. Joseph Davis at our Law Offices to cover one of our newest cases. This Landmark Case is the first wrongful death lawsuit relating to Spice (synthetic marijuana) in the United States. If you or a loved one has been physically injured or damaged financially by the consumption or use of synthetic marijuana or bath salts please contact our offices. We can help even if it was you that consumed the substances and were injured and/or damaged.

Text and Video of the News Piece can be viewed here:


Call: 1-800-204-0599

December 21, 2011

Conditional Deferment (Title 12) for Drunk Driving Offenses

Conditional Deferment, sometimes referred to as the Title 12 Deferral Program, is used in some Indiana counties to address Operating While Intoxicated Charges (OWI/DWI/DUI, etc.). It can also be used to address other crimes, but usually other misdemeanor charges, if deferred, are done so via a Diversions Program. The specific Indiana Code section that applies to the Title 12 Deferral of Drunk Driving cases is IC 12-23-5.

Title 12 of the Indiana Code is entitled “Human Services”. Article 23 is entitled “Addiction Services”. And Chapter 5 is entitled “Conditional Deferment of Judicial Proceedings After Commission of Misdemeanor or Infraction” This Title-Article-Chapter hierarchy explains a lot of what the program is about; treatment/education in lieu of prosecution.

Each Indiana County is different in its approach to the prosecution of Drunk Driving cases. Some counties do not offer Conditional Deferment (Title 12) on drunk driving charges at all, some counties have limitations relating to the Defendant’s blood alcohol level, some counties will not allow a Conditional Deferment (Title 12) if the Defendant refused the breath test. Also, some counties will disqualify an applicant if they have any criminal history whatsoever, while other counties will allow a Conditional Deferment in spite of prior criminal convictions.

Generally speaking a Title 12 Deferral Program (Conditional Deferment) will have the following components:

1. Required Pleadings stating that the abuse of alcohol or drugs played a role in the commission of the offense. (Yes, you admit that you did it and attribute it to an addiction to drugs and/or alcohol). Some courts treat the pleadings as an admission of guilt while others do not. This can become very important if a participant violates a term of the program and is removed therefrom.

In a scenario where the Judge treats the pleadings as an admission and the Defendant is removed/revoked from the Program all that is left to do is Sentence the Defendant (they are already found guilty). In a scenario where the Court doesn’t treat the Pleadings as an outright admission the Defendant, even if removed from the Title 12 Program, can still defend the Drunk Driving Case on other bases (e.g. unconstitutional traffic stop, uncertified chemical test results, etc.)

2. A Deferral period (usually one year). This is a time period in which the Defendant is monitored by the county’s probation department to ensure that the participant completes all requirements and does not engage in any further unlawful activity.

3. At a minimum, completion of a substance abuse program will be required. Depending on the Defendant’s level of substance abuse (or use) Outpatient Treatment or In-Patient/Out-Patient Treatment may be required. Attendance at Alcoholics Anonymous or Narcotics Anonymous may be required.

4. Driver’s License Suspension. Title 12-23-5-5 requires that the participant driver’s license be suspended just as if the Defendant were convicted. Options include Ignition Interlock, a ninety (90) outright suspension, and a thirty (30) day suspension followed by one hundred and eighty (180) on driving probation. This last option is oftentimes referred to as “30/180”.

5. Community Service. Most counties offering Conditional Deferment (Title 12) as an option to resolve Drunk Driving Offenses require this, but not all. Forty (40) hours is oftentimes required.

6. Payment of Fees. All counties must charge fees associated with the program. The fees range from county to county as each county is a little different as to whether it charges all applicable probation user fees (initial, monthly, final). The cost of the substance abuse education and/or treatment will vary. Whether the probation department requires random urinalysis will cause the fees to vary. And whether the county requires community service will cause the fees to vary. There are no fines and court costs technically because there is NOT a conviction. Remember, the proceedings are deferred! Fees typically vary from $500-$1000 all of which are normally payable over the course of the deferral period.

7. Attendance at Victim Impact Panel. This is just what it sounds like. Some counties require the participant to attend a meeting whereat tragedies relating to Drunk Driving are discussed.

Title 12 Consequences:

1. The Indiana Bureau of Motor vehicles will require SR-22 insurance (about 2X expensive as non-SR22 insurance) for three years after the driver’s license suspension terminates. There is no way around this unfortunate outcome other than to challenge the Drunk Driving case on its merits.

2. The Indiana Driver’s Record will always have reference to the Court Ordered license suspension. It is clear on the record that it was a suspension for a Drunk Driving charge.

3. The United States Military looks at a Title 12 Deferral as a CONVICTION. Their rationale is that if the Defendant did something punitive in nature in exchange for the dismissal, then it is a conviction. To make matters worse, the military will treat each charged count that is dismissed as a conviction. Many counties plead their Drunk Driving Charges in an alternative form (one relies on Breath Test, on doesn’t). In these counties if the participant does the Title 12 (Conditional Deferment) on both/all charges, then all are viewed as convictions by the military. This is obviously very important to anyone with a career or considering a career in the military!

4. Also, the case stays pending for the deferral period (usually one year). The pending nature of the charges can sometimes cause problems with internships (elementary education majors) or Clinicals (nursing majors). The pending charges can cause employment problems as well.

Question: “Will this be on my Record?”

I get this question a lot! The question itself is always well intended and a very good one to ask. All too often though, the short answer given “NO”, turns out to be incomplete/incorrect later.

First of all it is important to understand that there isn’t a “record”. The fact that a Defendant was arrested, charged, participated in a Conditional Deferment Program, etc. resides in several places (records).

1. BMV: As stated above the court-ordered suspension, which is clearly associated with a Drunk Driving Case (including specific court, case number, etc.), will be on the BMV report forever if Title 12 is chosen as method by which to handle a Drunk Driving Charge. Oftentimes the SR22 requirement and/or reference of this suspension on the BMV report can have a negative impact on employment opportunities.

2. Arrest Records: Once finger printed, a record of the arrest is placed into an FBI maintained database. If the Defendant had no FBI profile before this, they do after being printed at the jail.

3. Court Records: The courts are NEVER required to destroy their case dockets (chronological case summaries). The docket of any given Drunk Driving case resolved via Title 12 would indicate that a particular person was charged with a Drunk Driving Offense(s), that the Defendant Petitioned onto the Title 12 Deferral Program, and that, if successful, the Defendant’s case was subsequently dismissed.

4. Indiana State Police Criminal Repository: A record of the arrest, criminal charges, and subsequent dismissal will appear when an Indiana Limited Criminal History background check is performed. This is mandatory for Elementary Education majors, Nursing majors, and several other professions. Also, as employers can be much more selective due to the recession, oftentimes a positive search result can have a negative impact on employment opportunities.

NOTE: Current law allows dismissed charges to be sealed as to everyone except law enforcement agencies. The current law, which was recently enacted, does not distinguish between cases dismissed via Conditional Deferment (Title 12) versus cases otherwise dismissed by the prosecutor.
If you feel you need the above records expunged or sealed, please contact my office for a consultation. There are a lot of particular details involved as to whether a dismissed case can be expunged (best option) or sealed (next best option). My office doesn’t charge for expunging or sealing in advance of the outcome, but you should know ahead of time what your options will likely be. (Remember Indiana Law can change).

Is the Title 12 Deferral the best/only option? This depends on several factors and the only way to make a determination is via a consultation.

If you find the above information helpful and need a consultation regarding a drunk driving arrest, please contact my office at your convenience.

As a former deputy prosecutor for Delaware County Indiana I am well equipped to assist you with a drunk driving case or any other criminal matter. I try to pay particular attention to the effects on my clients’ futures. Ball State University Students make up a majority of my current case load, and as a Ball State Alum (95, 02) and current MBA student, I am quite familiar with the campus, the Ball State University Police Department, the presence of the Indiana State Excise Police on the Ball State Campus, and the administrative processes that apply if/when BSU finds out that a student has allegedly engaged in criminal activity.

It is my policy, that once I am retained, every single client has my cell phone number. I look forward to hearing from you!


Joey Davis


Phone: 765-288-4425

July 18, 2011

Texting While Driving

In an effort to increase safety on throughways, new legislation took effect on July 1, 2011, which limits a driver's ability to text while driving in Indiana.

Continue reading "Texting While Driving" »

May 15, 2008

Medical “Mistakes” Harm 1 in 15 Children

You may have heard the recent news about the complications suffered by actor Dennis Quaid’s newborn twins after they were given massive doses of the blood thinner Heparin® by accident. Well, now, a scientific study conducted by the National Initiative for Children’s Healthcare Quality confirmed that nearly 1 in every 15 children hospitalized are given either the wrong medications, someone else’s medications or are accidentally overdosed – all to suffer some bad adverse drug reaction.

Continue reading "Medical “Mistakes” Harm 1 in 15 Children" »

November 21, 2007

Boston Scientific Increases Amount of Guidant Settlement

The Massachusetts-based medical device company that bought Indianapolis-headquartered Guidant in 2006 recently announced it will pay an additional $45 million into a fund to settle more than 8,500 products liability claims.

Continue reading "Boston Scientific Increases Amount of Guidant Settlement" »

November 21, 2007

Kugel MDL Is Organized in Rhode Island

Recently, the panel of federal judges that oversee consolidation of products liability cases throughout the country consolidated cases involving the Kugel Mesh Patch in the District of Rhode Island.

Continue reading "Kugel MDL Is Organized in Rhode Island" »

November 11, 2007

Merck Agrees to Settle Vioxx Litigation for $4.85 Billion

On Friday, Merck & Co., Inc. announced that it had agreed to settle thousands of lawsuits filed against the company by patients who took Vioxx and suffered either a heart attack or stroke. While this sounds like a lot, it is far less than original estimates of liability the company faced when it withdrew its blockbuster arthritis drug on September 30, 2004.

Continue reading "Merck Agrees to Settle Vioxx Litigation for $4.85 Billion" »

November 5, 2007

Dram Shop Act

Did you know that in Indiana, any bar or restaurant who knowingly serves alcoholic beverages to someone who appears to be intoxicated can be sued if that person then is involved in an automobile accident with another person and injures or kills the other person? They can according to Indiana Code § 7.1-5-10-15.5(b)(1)-(2). In addition, bars can be found liable if the person drinking is over 21 or older and suffers injury or death due to the overintoxication. Indiana Code § 7.1-5-10-15.5(c).

Continue reading "Dram Shop Act" »

November 5, 2007

Wrongful Death Action

An acquaintance of mine recently asked me whether it was appropriate to bring a wrongful death action on behalf of someone’s estate even though criminal charges had not yet been filed against a defendant.

Continue reading "Wrongful Death Action" »

May 30, 2007

Welcome to Muncie Lawyer Blog!!!

Welcome to Muncie Lawyer Blog!

The main objective of this blog is to keep the public aware of the recent updates of laws, the way they’re interpreted, and to give you my read on any situation at hand, including local and national current events.

The practice area focus will be on Personal Injury, Criminal Defense, and Chapter 7 Bankruptcy Law. Obviously within these broad areas of law are many sub-areas such as Premises Liability within Personal Injury and Drunk Driving Defense within Criminal Defense.

And considering the newness of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which primarily took effect on October 17, 2005, there will no doubt be reporting on first impression issues within the Chapter 7 Bankruptcy focus area.

I look forward to the many blogs-to-come, but I also look forward to hearing feedback from anyone who visits the page!

Feel free to visit my personal webpage here!

Until Next Time,

B. Joseph Davis